ADOPTED RULES An agency may take final action on a section 30 days after a proposal has been published in the Texas Register. The section becomes effective 20 days after the agency files the correct document with the Texas Register, unless a later date is specified or unless a federal statute or regulation requires implementation of the action on shorter notice. If an agency adopts the section without any changes to the proposed text, only the preamble of the notice and statement of legal authority will be published. If an agency adopts the section with changes to the proposed text, the proposal will be republished with the changes. TITLE 4. AGRICULTURE PART I. Texas Department of Agriculture CHAPTER 1.General Procedures SUBCHAPTER G.Interagency agreements 4 TAC sec.1.320 The Texas Department of Agriculture (the department) adopts new sec.1.320, concerning a memorandum of understanding (MOU) between the department and the Texas Department of Health, without changes to the proposed text as published in the November 8, 1996, issue of the Texas Register (21 TexReg 10957). The new section is adopted to establish an understanding between the department and the Texas Department of Health to coordinate regulatory programs and to eliminate conflicting regulatory requirements and inspection standards of shell eggs at the retail level. The new section defines and clarifies words used in the MOU, identifies the general duties to be performed, the mutual agreements, the term of the MOU and the date the MOU was executed. The Texas Egg Council commented in favor of the adoption of the new section. The new section is adopted under Senate Bill 372, Article 7, sec.7.03, 74th Legislative Session (1995), now codified at the Texas Agriculture Code, Chapter 132, sec.132.008, which requires the Texas Department of Agriculture to enter into a memorandum of understanding with the Texas Department of Health regarding the regulation of shell eggs at the retail level. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 20, 1996. TRD-9618576 Dolores Alvarado Hibbs Deputy General Counsel Texas Department of Agriculture Effective date: January 10, 1997 Proposal publication date: November 8, 1996 For further information, please call: (512) 463-7583 TITLE 19. EDUCATION PART II. Texas Education Agency CHAPTER 75. Curriculum SUBCHAPTER AA. Driver Education 19 TAC sec.75.1010 The Texas Education Agency (TEA) adopts an amendment to sec.75.1010, concerning the certificate of completion of an approved driver education course, without changes to the proposed text as published in the October 1, 1996, issue of the Texas Register (21 TexReg 9331). The section establishes the fee for a driver education certificate and requirements relating to issuing, completing, and maintaining the certificate. The amendment authorizes the TEA to supply driver education certificates to the Texas Department of Public Safety (DPS) for certification of DPS-approved driver education courses based on a legal opinion received from the Attorney General. The DPS submitted a request to the Texas Attorney General for a legal opinion on the transfer of certificates and DPS-approved driver education courses. The Attorney General's legal opinion expresses authority for TEA to provide driver education certificates to DPS. The following comments have been received regarding adoption of the amendment. On November 25, 1996, the Texas Education Agency conducted a public hearing in response to a request for public hearing from the Driving School Association of Texas for the purpose of receiving public comment regarding the amendment to 19 TAC sec.75.1010, Procedures for Student Certification. Comment. A representative of the Texas Home School Coalition and an individual testified in favor of the amendment and recommended that the commissioner of education implement the amendment. The individual expressed an interest in teaching her children driver education as soon as possible. Agency Response. The agency provided no response for this comment. Comment. A representative of the Driving School Association requested that the commissioner of education review the driver education curriculum proposed by the Texas Department of Public Safety (DPS) for courses taught by parents and legal guardians. Additionally, the representative expressed a concern that the system proposed by DPS did not guarantee students receiving course benefits actually received training and that DPS did not have the resources to adequately monitor the courses. Agency Response. The agency is responsible for ensuring that DPS provides a system of accountability and security for the driver education certificates provided to them. The DPS is responsible for the approval of the course curriculum and associated rules. The commissioner of education does not have the statutory authority to review DPS curriculum and amend DPS rules. No changes to the amendment were made. Comment. Representatives from the Texas Driver and Traffic Safety Education Association and Region VI Education Service Center expressed concerns that driver education certificates provided by the agency to the DPS will be given to parents who are not adequately trained to instruct driver education. Additionally, they expressed concerns that the supervision of the parent instructors and courses would be inadequate, that there was no guarantee students receiving course benefits actually received training, and the vehicles used for behind-the-wheel training would not be properly equipped. Agency Response. The agency is responsible for ensuring that the DPS provides a system of accountability and security for the driver education certificates provided to them. The DPS is responsible for the approval of the course curriculum and associated rules. The commissioner of education does not have statutory authority to amend rules or statute for the driver education courses approved by the DPS. No changes to the amendment were made. The amendment is adopted under Senate Bill 964, sec.9A, 74th Texas Legislature, 1995, which authorizes TEA to provide by rule for the design and distribution of the driver education certificate and to charge a fee for each certificate. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 18, 1996. TRD-9618379 Criss Cloudt Associate Commissioner, Policy Planning and Research Texas Education Agency Effective date: January 8, 1997 Proposal publication date: October 1, 1996 For further information, please call: (512) 463-9701 TITLE 22. EXAMINING BOARDS PART XXI. Texas State Board of Examiners of Psychologists CHAPTER 461.General Rulings 22 TAC sec.461.11 The Texas State Board of Examiners of Psychologists adopts an amendment to sec.461.11, concerning Continuing Education, without changes to the proposed text as published in the October 4, 1996, issue of the Texas Register (21 TexReg 9597). The rule is being amended to specify the categories of programs accepted by the Board, to broaden the listing of recognized organizations providing continuing education, to specify the number of continuing education hours given for specific activities, to specify the number of hours which may be banked by a licensee/certificand, and to specify the requirement that a Continuing Education Declaration Form be submitted with each annual renewal form by all certificands/licensees. The amendment will ensure that all certificands/licensees are aware of the exact number of continuing education hours awarded in specific areas, to ensure that all certificands/licensees are aware of the exact number of continuing education hours which may be banked, to ensure that the information submitted by certificands/licensees in compliance with the continuing education requirement is uniform, making the rule easier to understand by all certificands/licensees and the general public. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, 4512c, which provide the Texas State Board of Examiners of Psychologists with the authority to promulgate rules consistent with the Statute. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 18, 1996. TRD-9618429 Sherry L. Lee Executive Director Texas State Board of Examiners of Psychologists Effective date: January 9, 1997 Proposal publication date: October 4, 1996 For further information, please call: (512) 305-7700 CHAPTER 463.Applications 22 TAC sec.463.5 The Texas State Board of Examiners of Psychologists adopts an amendment to sec.463.5, concerning Application File Requirements, without changes to the proposed text as published in the October 4, 1996, issue of the Texas Register (21 TexReg 9598). The rule is being amended to clarify the process by which an application for licensure is handled by the Board when a complaint is filed against an applicant, to clarify the application requirements for the licensed specialist in school psychology and to inform the public that any individual applying under reciprocity from another state must have been actively licensed and in good standing for the preceding five years in that state. The amendment will ensure that the general public of the State of Texas is receiving the best possible psychological services from qualified individuals and to ensure that all licensees/certificands and the general public are aware of the Board's requirements. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, 4512c, which provide the Texas State Board of Examiners of Psychologists with the authority to promulgate rules consistent with the Statute. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 18, 1996. TRD-9618430 Sherry L. Lee Executive Director Texas State Board of Examiners of Psychologists Effective date: January 9, 1997 Proposal publication date: October 4, 1996 For further information, please call: (512) 305-7700 CHAPTER 465.Rules of Practice 22 TAC sec.465.22 The Texas State Board of Examiners of Psychologists adopts an amendment to sec.465.22, concerning Psychological Records, without changes to the proposed text as published in the October 4, 1996, issue of the Texas Register (21 TexReg 9599). The rule is being amended to clarify the requirements for retention and release of test data and protocols to ensure test security and validity of the test for other consumers of psychological services. The amendment will ensure that the public's interest in ensuring the availability of effective assessment tools is safeguarded and that the Board's rule is in accordance with national standards and practices regarding same. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, 4512c, which provide the Texas State Board of Examiners of Psychologists with the authority to promulgate rules consistent with the statute. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 18, 1996. TRD-9618431 Sherry L. Lee Executive Director Texas State Board of Examiners of Psychologists Effective date: January 9, 1997 Proposal publication date: October 4, 1996 For further information, please call: (512) 305-7700 PART XXXI. Texas State Board of Examiners of Dietitians CHAPTER 711.Dietitians 22 TAC sec.711.12 The Texas State Board of Examiners of Dietitians (board) adopts an amendment to sec.711.12, concerning the regulation of licensed dietitians and provisional licensed dietitians, without changes to the proposed text as published in the October 11, 1996, issue of the Texas Register (21 TexReg 9756). The section, as amended, clarifies how long a current license will be considered active if the licensee mailed the required documentation prior to the expiration date of the license. The section sets out the requirements for renewal of a license for licensed dietitians. No comments were received regarding adoption of the amendment. The amendment is adopted under the Licensed Dietitian Act, Texas Civil Statutes, Article 4512h, sec.6, which provides the Texas State Board of Examiners of Dietitians with the authority to adopt rules concerning the regulation and licensure of dietitians. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 20, 1996. TRD-9618510 Maxine Freeman Chair Texas State Board of Examiners of Dietitians Effective date: January 10, 1997 Proposal publication date: October 11, 1996 For further information, please call: (512) 458-7236 TITLE 28. INSURANCE PART I. Texas Department of Insurance CHAPTER 5.Property and Casualty Insurance SUBCHAPTER E.Texas Catastrophe Property Insurance Association Manual 28 TAC sec.5.4501 The Commissioner of Insurance, at a public hearing held on November 26, 1996, under Docket Number 2269, at 9:00 a.m., in Room 100 of the Texas Department of Insurance Building, 333 Guadalupe Street in Austin, Texas, adopted with changes an amendment to 28 TAC sec.5.4501, concerning the adoption by reference of a revised Texas Catastrophe Property Insurance Association Manual (TCPIA Manual), containing rules governing the writing of windstorm and hail insurance by the Texas Catastrophe Property Insurance Association (TCPIA), pursuant to the Catastrophe Property Insurance Pool Act (Insurance Code, Article 21.49). The Commissioner determined that the effective date of the TCPIA Manual should be revised from December 1, 1996, as had been set forth in the proposed text published in the October 18, 1996, issue of the Texas Register (21 TexReg 10271), to February 1, 1997. The adoption by reference into 28 TAC sec.5.4501 of the TCPIA Manual is necessary to incorporate rule amendments in the TCPIA Manual reflecting adjustments to the maximum limits of liability for risks insured by the TCPIA. Rule J, relating to Limits of Liability, in Section I--General Rules of the TCPIA Manual, has been amended to reflect adjustments to the maximum limits of liability applicable to risks being insured by the TCPIA. Pursuant to Article 21.49 sec.8D(c), the Commissioner, as part of the annual residential benchmark rate hearing, adjusted the liability limits for inflation, including the statutory limits specified in subsection (a) of sec.8D, at a rate that reflects any change in the BOECKH Index or other index that may accurately reflect changes in the cost of construction or residential values in the catastrophe area. Pursuant to these adjustments, which were reflected in Commissioner's Order Number 96-0836 (July 29, 1996), the limits of liability for TCPIA coverage have been increased by 2.9 percent on an annual basis for dwellings and contents coverage, 2.2 percent on an annual basis for governmental buildings and commercial buildings, and by 2.3 percent on an annual basis for apartments, condominiums, and townhouses. These annual percentage increases were applied to the maximum limits of liability effective August 1, 1995, to derive the current maximum limits of liability, which became effective October 1, 1996. Following the application of the annual percentage factors, the resulting maximum limits of liability are rounded up to the nearest $1000 to produce the new applicable maximum limits of liability. The Commissioner has determined that the originally proposed effective date of the TCPIA Manual, of December 1, 1996, should be changed to February 1, 1997, because this Order is being adopted and published after December 1, and the February 1 date will more closely coincide with the effective date of this amendment. The amended 28 TAC sec.5.4501 adopts by reference the TCPIA Manual, which contains rule amendments reflecting adjustments to the maximum limits of liability for risks insured by the TCPIA. The rule amendments are contained in Rule J, relating to Limits of Liability, in Section I--General Rules of the TCPIA Manual. These new maximum limits of liability, as specified in the amendments to Rule J, are $288,000 (changed from $279,000) for a dwelling and its contents; $288,000 (changed from $279,000) for a townhouse unit and its contents; $823,000 (changed from $804,000) per building for an apartment, condominium or townhouse and the contents of the owner of the structure in which the apartment, condominium or townhouse is located; $111,000 (changed from $108,000) for individually owned contents in an apartment, residential condominium or townhouse unit; $2,192,000 (changed from $2,144,000) for a governmental building and its contents; and $1,108,000 (changed from $1,084,000) for a commercial building and its contents. Pursuant to Commissioner's Order Number 96-0836 the new maximum limits of liability are applicable on policies effective on and after October 1, 1996. No comments were received regarding adoption of the amendment. The amendment is adopted pursuant to the Insurance Code, Articles 21.49 and 1.03A. Pursuant to Article 21.49 sec.8D(c), the Commissioner, as part of the annual residential benchmark rate hearing, adjusts the liability limits for inflation, including the statutory limits specified in subsection (a) of sec.8D, at a rate that reflects any change in the BOECKH Index or other index that may accurately reflect changes in the cost of construction or residential values in the catastrophe area. Article 21.49, sec.5A authorizes the Commissioner, after notice and hearing, to issue any orders which the Commissioner considers necessary to carry out the purposes of Article 21.49, including, but not limited to, maximum rates, competitive rates and policy forms. Article 21.49, sec.8 authorizes the Commissioner to approve every manual of classifications, rules, rates, rating plans, and every modification of any of the foregoing for use by the TCPIA. Articles 21.49 sec.sec.5A, 8, and 8D, by their terms, delegate the foregoing authority to the State Board of Insurance; however, under Article 1.02 of the Insurance Code, a reference in the Insurance Code or another insurance law to the State Board of Insurance means the Commissioner of Insurance or the Texas Department of Insurance, as consistent with the respective powers and duties of the Commissioner and the Department under Article 1.02. Article 1.03A authorizes the Commissioner of Insurance to adopt rules and regulations, which must be for general and uniform application, for the conduct and execution of the duties and functions of the Texas Department of Insurance only as authorized by a statute. sec.5.4501.Rules and Regulations for the Texas Catastrophe Property Insurance Association (association). The Texas Department of Insurance adopts by reference a rules manual for the association as amended effective February 1, 1997. Copies of the rules manual may be obtained by contacting the Property/Casualty Division, Mail Code 104-2F, Texas Department of Insurance, 333 Guadalupe Street, P.O. Box 149104, Austin, Texas, 78714-9104. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 20, 1996. TRD-9618565 Caroline Scott General Counsel and Chief Clerk Texas Department of Insurance Effective date: February 1, 1997 Proposal publication date: October 18, 1996 For further information, please call: (512) 463-6327 CHAPTER 19.Agents Licensing SUBCHAPTER K.Agents and Adjusters Continuing Education Program 28 TAC sec.sec.19.1001-19.1013 Texas Department of Insurance adopts amendments to 28 TAC sec.sec.19.1001 - 19.1004 and 19.1010 - 19.1013, and new sec.sec.19.1005 - 19.1009, concerning guidelines and standards for a continuing education program for agents and adjusters. Sections 19.1003, 19.1005, 19.1006, and 19.1012 are adopted with changes to the proposed text as published in the August 27, 1996, issue of the Texas Register (21 TexReg 8076). Sections 19.1001, 19.1002, 19.1004, 19.1007- 19.1011 and 19.1013 are adopted without changes and will not be republished. The amendments are necessary to ensure quality programs for licensees by improving compliance with continuing education requirements for agents. The agency has clarified sec.19.1003(d) which requires all agents to take at least four hours of insurance regulation and ethics during either of the next two licensing cycles based on comments. The agency has changed sec.19.1005(a)(7) to delete the necessity of naming shareholders as part of the provider application in response to comments. In response to comments the agency has added language to sec.19.1006(g) to clarify how providers may advertise a course which has been submitted but is not yet registered with the agency. The agency has changed sec.19.1012(c) to clarify the type of information that is to be provided in electronic format. The title of the subchapter has been changed to more appropriately reflect the content of the subchapter. Section 19.1001 adds language concerning the severability of provisions in the subchapter. Section 19.1002 adds definitions for the terms "assignee", "disinterested third party", "effective date", "provider", "provider registration", and "TDI ID number" and amends the definition of the term "licensee". Section 19.1003 adds language to require all agents to take at least four hours of insurance regulation and ethics within the first licensing cycle for new licensees and within either of the next two licensing cycles for other licensees. Section 19.1004 adds language to the provisions concerning exemption from the continuing education requirement. The new language changes the calculation for credit hours for the final licensing period to one hour for each whole month between the last renewal date and the effective date of the exemption. Section 19.1004 also adds an exemption for nonresident adjusters who have valid licenses from another state which has substantially equivalent continuing education requirements for adjusters. New sec.sec.19.1005 - 19.1009 replace existing sec.sec.19.1005 - 19.1009 which have been proposed for repeal elsewhere in this issue of the Texas Register. New sec.19.1005 refers to provider and instructor criteria and establishes the procedures a provider must follow when applying for registration with the department and when certifying course instructors. New sec.19.1006 refers to course criteria and sets out the requirements for a course to be registered for continuing education. New sec.19.1007 defines the types of continuing education courses that may be offered. New sec.19.1008 sets out the methods used in determining the number of credit hours to be given for continuing education courses. New sec.19.1009 sets out the requirements to be used in determining successful completion of continuing education courses. Section 19.1010 has been amended to list provider registration forms, course registration forms and sample certificates of completion among the forms that may be obtained from the department. The language of sec.19.1011 has been clarified to state that agents licensed under Articles 21.07-1, 21.07-3 or 21.14 may take continuing education courses applicable to any of those license types. The title of sec.19.1012 has been changed from Audit of Continuing Education Records to Provider Compliance. Section 19.1012 also has been amended to require providers to notify the department when a course is discontinued or inactive and when there is a change in the provider's information of record. Section 19.1012 also was changed to provide that if a provider fails to remedy a discrepancy in its records within 30 days, the department will automatically close the course certification on the 31st day until the discrepancy is resolved. Additionally, sec.19.1012 has been amended to provide that providers' registration is conditioned upon compliance with the sections and that repeated noncompliance may be grounds for nonrenewal of a provider's registration, nonapproval of courses and restriction of a provider's ability to provide continuing education courses for up to one year. Language has been added to sec.19.1013 concerning a licensee's failure to comply with the continuing education requirements and the requirements set out in these sections. Amended sec.19.1013 sets out the types of violations which could, after notice and opportunity for hearing, subject a licensee to disciplinary action. Additionally, sec.19.1013 has been amended to provide that failure of a provider to comply with the provisions of this subchapter may, after notice and opportunity for hearing, cause the provider to be prohibited from participating in any department approved education programs for a period not to exceed one year. sec.19.1003(d) A commenter is concerned that it may not be clear if licensees must take the insurance regulation and ethics course once or twice within the next two licensing cycles. AGENCY RESPONSE: The agency agrees with the commenter that the subsection is unclear and has clarified that a licensee may take the course within either of the cycles. sec.19.1005(a)(7) A commenter maintains that naming shareholders as part of the provider application would be a burden for publicly held corporations with a large number of shareholders. AGENCY RESPONSE: The agency agrees and has changed the paragraph to delete the requirement of identifying shareholders. sec.19.1005(c) A commenter inquires if a state legislator or Texas Workers Compensation employee would qualify as an instructor in their respective areas. AGENCY RESPONSE: The agency believes and intends that the term "recognized professional" is an adequate descriptor that includes regulators and legislators. sec.19.1006(d) A commenter feels it would be very difficult to supply a detailed course outline before the course presentation date; and further, suggests that variation from the submitted outline be allowed to account for last minute court decisions and changes in statute following the legislative session. This commenter also contends that outside presenters may be unable to prepare a detailed outline as required by the rule as far in advance as necessary to be in compliance. The commenter also believes that the term "detailed" is vague. AGENCY RESPONSE: The agency believes that provision of a detailed outline is a reasonable requirement that represents the only way to ascertain content of the course for reference and audit purposes and is necessary for the provider to properly certify the content of the course. Also, a course outline must be prepared by the provider to meet certain external constraints, such as creating a descriptive advertisement, and determination of time needed to cover the material adequately. An outline topic which lists "Recent Legal Decisions" would adequately cover last minute court decisions which are not known to the provider at the time of course submission. The agency agrees with the commenter that insurance is a rapidly changing field. Department records indicate that complete registration submissions are processed in less than 15 days. The course application instructions provide an example of the format and depth needed in the outline for the course, which is a two level outline, with a third level only as needed for clarification. sec.19.1006(g) A commenter inquired when a course is considered registered and suggested that wording be included to prevent misleading advertising that infers that an unregistered course has been registered. AGENCY RESPONSE: The course is registered on the date the submission is processed with a course number assigned. Notification of the registration is mailed within one working day of the completion of the process. The agency agrees that language should be included to prevent misleading advertising and language has been included in this subsection for providers to use in advertising courses which have been submitted but not yet registered. A commenter feels that it may be advisable to allow a course to be registered after it is presented. AGENCY RESPONSE: The agency does not agree. The allowance of registration after the fact defeats the ability of the department to perform audits as described in (19.1012. The agency believes that it is appropriate to continue to follow the current registration policy which has been in place since 1988. sec.19.1006(h) A commenter argues that the two year life of the registration will increase the paperwork of providers. AGENCY RESPONSE: The agency does not agree that there will be more paperwork, since this requirement has been in force since July, 1994. The subsection continues the requirement of a review of the course every two years and clarifies that registrations are valid for two years. This has been the agency's position since 1994 when the requirement went into effect. A renewal or re- registration of a course is done with a single form. All course documents mentioned in these rules are documents that are already required to be maintained by the provider at this time. The two year life gives the agency clear evidence that a course has been kept up to date and allows the department to eliminate any inactive course listings from the lists it furnishes to the insurance licensees of Texas. sec.19.1008(6) A commenter suggests allowing instructors course credit hours in excess of the hours approved for the licensees attending the class, for preparation of the course. AGENCY RESPONSE: The agency will take the suggestion under consideration and commits to doing a survey of instructors and other state's insurance departments. This survey may provide information for a possible policy change and a change in these provisions. The agency does not believe that the change is appropriate at this time since it would result in a substantial change in the manner in which the agency administers credit for continuing education. sec.19.1012(c) A commenter inquires what "course data" must be maintained in an electronic format, and is concerned about the specific format and the time allowed to accomplish this change. AGENCY RESPONSE: By the term "course data," the agency is referring to course completion data. The language has been changed to reflect this. Such an enhancement to our current agent monitoring procedure would require at least six months notice to the providers of continuing education courses and would be compatible with a DOS based personal computer. sec.19.1012 (f) A commenter inquired if the provider would be able to charge a registration fee to a department auditor. AGENCY RESPONSE: Typically, department CE auditors arrive at a course location unannounced, and identify themselves to the provider. In that case, course materials are not used and the auditor observes only. However, this subsection allows an auditor to enroll (pay fees) and take courses without identifying themselves as auditors. Typically the provider will not know of this until after the fact. sec.19.1013(a) A commenter inquires what "administrative penalties" may be assessed against a licensee. AGENCY RESPONSE: Administrative penalties are defined in the Insurance Code, Art. 1.10E and the type of penalties are set forth in section 3 of this article. The type of administrative penalty which may be assessed against a licensee is determined by numerous factors. A commenter desires that a way be provided that the provider can notify the department on the course application that the course can be discontinued after a single presentation. AGENCY RESPONSE: The agency agrees and has revised the course application form to include this option. Texas Association of Insurance Agents and Hammerman & Gainer commented in favor of adoption of the rules. Farmers Insurance Group of Companies commented against adoption of the rules. The sections are adopted pursuant to the Insurance Code, Articles 21.07-1, 21.07-3, 21.07-4, 21.14, and 1.03A. The Insurance Code, Articles 21.07-1, sec.3A, 21.07-3, sec.6A, 21.07-4, sec.7A and 21.14, sec.sec.5b and 5d authorize the department to adopt a procedure for establishing guidelines for continuing education programs for agents and adjusters. Insurance Code, Article 1.03A provides that the Commissioner of Insurance may adopt rules and regulations to execute the duties and functions of the Texas Department of Insurance only as authorized by a statute. The Government Code, sec.sec.2001.004 et seq. authorize and require each state agency to adopt rules of practice setting forth the nature and requirements of available procedures and to prescribe the procedures for adoption of rules by a state agency. sec.19.1003.Applicability of Requirements. (a) Agents licensed under the Insurance Code, Articles 21.07-1, 21.07-3, and 21.14 shall complete 30 hours of continuing education within each reporting period, unless otherwise exempt. (b) An agent licensed under more than one article of the Insurance Code, Articles 21.07-1, 21.07-3 and 21.14 may elect to satisfy the continuing education requirements of any one of the articles and shall not be required to complete more than 30 hours within each reporting period. (c) All agents subject to these sections, other than local recording agents identified in subsection (g) of this section, shall take at least four hours of registered courses in insurance regulation and ethics within the first licensing cycle for new licenses and reinstated licenses. (d) All agents subject to these sections shall take at least four hours of registered courses in insurance regulation and ethics within either of the next two licensing cycles, beginning with the first licensing cycle after the effective date of these sections. (e) Adjusters licensed under the Insurance Code, Article 21.07-4 shall complete 30 hours of continuing education within each reporting period. Four of the 30 hours must be in registered consumer protection courses. (f) Agents and adjusters holding a license subject to continuing education which is prorated to coincide with the renewal of another license shall complete continuing education on a prorated schedule. The credit hours required shall be based upon the licensing period from the issue date of the license to the prorated renewal date of the license at the rate of one hour for each whole month between the last renewal date and the prorated renewal date. (g) An agent holding only a temporary local recording agent license under Article 21.14 shall be required to complete only four hours of registered insurance regulation and ethics instruction for the first reporting period after receiving the permanent local recording agent license. After the first renewal, the local recording agent is subject to the full continuing education requirement. sec.19.1005.Provider and Instructor Criteria. (a) A provider seeking initial registration or subsequent application for registration from the department as a continuing education provider shall submit an application on forms provided by the department. The department may require the following items in order to approve or disapprove a provider's request for registration: (1) A description of the experience and education that the applicant believes qualifies the applicant to be a provider; (2) A description of the provider's organizational structure, registration policies, fee schedules, and promotional materials; (3) A description of the provider's student record system including a description of the methods for documenting attendance; (4) The method used by the provider for evaluating instructors; (5) An original signature of the person(s) authorized to sign certificates of completion; (6) A certificate format that the provider proposes to use which is in compliance with sec.19.1006(d)(4) of this subchapter (relating to Course Criteria); (7) If provider is a corporation, partnership, limited liability company or other legal entity not otherwise regulated by the department, the names of the officers and directors if a corporation, the partners if a partnership, or the officers, managers and members if a limited liability company; (8) If provider is a corporation or limited liability company, a current Franchise Tax Certificate of Good Standing; (9) A description of provider's history, including whether provider has provided continuing education courses under any other name and whether provider has ever had continuing education approval revoked in Texas or any other state; and (10) Other information as specified by the department. (b) In order to be approved, continuing education providers shall submit all requests for course certification in the manner prescribed by the department. (c) Providers shall certify that course instructors will be experienced and qualified in the subject to be taught, and certify that the course instructors meet at least one of the following instructor criteria: (1) Instructor is and has been in the practice of teaching insurance courses for at least the last three years and has the knowledge and experience in the subject the instructor will teach; (2) Instructor is and has been properly licensed as a licensee subject to continuing education under this act for at least five years; (3) Instructor is the holder of a professional designation recognized by the department which relates directly to the subject the instructor will teach; or (4) Instructor is or has been engaged in a recognized profession that is pertinent to the subject areas to be taught, including, but not limited to: licensed or certified medical professionals, Certified Public Accountants, and members of a state bar. (d) Providers and instructors must certify that they will comply with all provider and course requirements as outlined in these sections. (e) All providers' registrations are valid for two years. Providers that are already registered upon the effective date of these sections shall provide the required registration information at the request of the department, or no later than the second anniversary of the current provider registration. sec.19.1006.Course Criteria. (a) To be registered, a course must be designed to increase the licensee's professional competence. (b) The course content shall be designed to enhance the knowledge and understanding of one or more of the following: insurance principles and coverages; applicable laws, rules and regulations; recent and prospective changes in coverages; law and the duties and responsibilities of the licensee; consumer protection; or insurance ethics. The course content may also include courses on management of the licensee's insurance business. These courses on management shall include those subjects specific to the business of insurance agency management, specific company policy provisions which cover technical aspects of the policies, or underwriting rules and standards. The course content for consumer protection shall include: (1) Article 21.21, Insurance Code; (2) The Unauthorized Insurers False Advertising Process Act, (Article 21.21-1, Insurance Code); (3) The Unfair Claim Settlement Practices Act (Article 21.21-2, Insurance Code), (4) The Deceptive Trade Practices-Consumer Protection Act (Subchapter E, Chapter 17, Business and Commerce Code); or (5) Analogous laws as specified by the department. (c) Meetings held in conjunction with the regular business of the licensee, or training relating to the marketing and business practices of a specific company, and those portions of the course content set forth in paragraphs (1) - (3) of this subsection shall not be considered applicable to continuing education requirements for insurance agents and adjusters: (1) Course content teaching general accounting, speed reading or other general business skills or computer use, or computer software application use. (2) Course content teaching motivation, goal-setting, time management, communication, sales or marketing skills. (3) Course content providing for pre-licensing training or qualifying examination preparation. (d) The items listed in paragraphs (1) - (6) of this subsection must be maintained by the provider and must be furnished with the course application, if requested by the department. Courses will not be reviewed unless a complete application and all of the requested items have been provided to the department. The application and items listed in paragraphs (1) - (6) of this subsection shall be maintained by the provider for four years; may be subject to random review by the department; and shall be provided to the department upon request. (1) A certification by the provider that the course meets the minimum requirements as defined in these sections. (2) The specific learning objectives. The learning objectives are the desired outcomes for the learning process and identify the knowledge, skills, or abilities the licensee is expected to obtain. (3) A detailed course content outline. (4) A table of contents for correspondence courses. (5) The method of evaluation by which the provider measures how effectively the course meets its objectives and provides for student input. (6) A sample of the certificate of completion which will be used when licensees successfully complete the registered course for approval by the department. The certificate of completion must be similar to the sample provided by the department and must contain, at a minimum, the following information: provider name and number, assignee name and number (if applicable), course name, course effective date, TDI course number(s), number of credit hours in each applicable category (adjuster, property and casualty, life, accident and health, consumer protection or insurance regulation and ethics), date of course completion, location of the class, TDI identification number and name of licensee completing courses, signature of person authorized to sign certificates and the date signed, and a certification by the licensee of completion of the course and the date signed. (e) Credit will not be awarded to licensees for courses taken or completed prior to the effective date assigned by the department or after the expiration date of the registration. (f) The provider shall at its option indicate whether the course is to be open to all licensees or will restrict enrollment to licensees of its choice. Restricted enrollment courses will not be included on lists of courses available to the public. (g) Providers may not advertise that their course has been registered by the department until such time that they have received written confirmation from the department of the registration of their course. Advertisements that include references to course registration by the department must also include the provider's name and TDI provider number. Advertisements may not be misleading as to the content or requirements for successful completion. Providers may advertise submitted courses as "Pending registration by the Texas Department of Insurance". (h) All course registrations are valid for two years. Each course shall be reviewed every two years by the provider and updated to remain in compliance with this section (relating to Course Criteria) prior to re-submission for registration. If more than 25% of the course is changed prior to the course expiration date, or the change will affect the course content breakdown as registered by the department, the department will consider the course revised and the provider must resubmit the course to the department. (i) A course may be registered by the department, conditional upon subsequent review, after all the following steps have been completed: (1) The provider is registered in accordance with sec.19.1005 of this subchapter (relating to Provider and Instructor Criteria). (2) The provider has submitted all items required by the department for course registration in accordance with this subchapter. (3) The content of the course meets the requirements identified in this subchapter. (j) Courses that the department does not register due to content shall not be considered for credit and cannot be used by licensees for continuing education credit. (k) If a course is not registered by the department, the provider may request re-evaluation, supplying specifics on how each portion of the course meets the minimum requirements for registration. If the course is presented during the department's re-evaluation, credit will not be authorized. sec.19.1012.Provider Compliance. (a) All continuing education records, rosters, and course materials, including final examinations, of providers shall be maintained for at least four years and are subject to review by the department at any time. (b) Providers shall notify the department when a course is discontinued or no longer active, and when there is a change to the provider's information of record. (c) At the department's request, providers shall furnish course completion information in an acceptable electronic format. (d) If continuing education records are audited or reviewed and the validity or completeness of the records are questioned, the provider shall have 30 days from the date of notice to correct discrepancies or submit new documentation. Should the provider fail to satisfactorily remedy the discrepancy within 30 days, the department shall automatically cancel the course registration effective the 31st day from the date of the notice and will suspend the provider's future registration status until such time as the discrepancy is resolved. (e) Registration of providers is conditioned upon the provider's compliance with these provisions. Repeated non-compliance with this subchapter may be considered grounds for non-renewal of a provider's registration. For providers who fail to comply with this subchapter, the department may remove the certification of courses and restrict a provider's ability to provide continuing education courses for up to one year. (f) The department may conduct audits of any certified course without prior notice to the provider. Department staff, or the department's representative or designee, may enroll and take courses without identifying themselves as employees or representatives of the department. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 20, 1996. TRD-9618570 Caroline Scott General Counsel and Chief Clerk Texas Department of Insurance Effective date: January 10, 1997 Proposal publication date: August 27, 1996 For further information, please call: (512) 463-6327 SUBCHAPTER K.Agents and Adjusters Guidelines for Minimum Standards for Continuing Education Courses 28 TAC sec.sec.19.1005-19.1009 The Texas Department of Insurance adopts the repeal of sec.sec.19.1005-19.1009, concerning minimum standards for continuing education courses for agents and adjusters. The repeal of these sections is adopted without changes to the proposed text published in the August 27, 1996, issue of the Texas Register (21 TexReg 8083). The repeals are necessary so that new sections may be added describing provider and instructor criteria and establishing procedures for providers when applying for registration with the department and certifying course instructors. Other sections have been clarified and updated and are being simultaneously adopted and appear elsewhere in this issue of the Texas Register. The repeal of these sections enables the Commissioner to adopt new sec.sec.19.1005-19.1009, concerning the continuing education program for agents and adjusters. No comments were received regarding adoption of the repeals. The repeals are adopted pursuant to the Insurance Code, Articles 21.07-1, 21.07- 3, 21.07-4, 21.14, and 1.03A. The Insurance Code, Articles 21.07-1, sec.3A, 21.07-3, sec.6A, 21.07-4, sec.7A and 21.14, sec.sec.5b and 5d authorize the department to adopt a procedure for establishing guidelines for continuing education programs for agents and adjusters. Insurance Code, Article 1.03A provides that the Commissioner of Insurance may adopt rules and regulations to execute the duties and functions of the Texas Department of Insurance only as authorized by a statute. The Government Code, sec.sec.2001.004 et seq. authorize and require each state agency to adopt rules of practice setting forth the nature and requirements of available procedures and to prescribe the procedures for adoption of rules by a state agency. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 20, 1996. TRD-9618566 Caroline Scott General Counsel and Chief Clerk Texas Department of Insurance Effective date: January 10, 1997 Proposal publication date: August 27, 1996 For further information, please call: (512) 463-6327 CHAPTER 21. Trade Practices SUBCHAPTER H. Unfair Discrimination 28 TAC sec.21.704, sec.21.705 The Commissioner of Insurance adopts amendments to sec.21.704, concerning unfair discrimination, and sec.21.705, concerning nondiscriminatory testing for the Human Immunodeficiency Virus (HIV), with changes to the proposed text as published in the October 18, 1996, issue of the Texas Register (21 TexReg 10271) in response to public comment. No one requested a public hearing on these amendments, and such a hearing was not held. The amendments to sec.21.704 and sec.21.705 are necessary to delete references that would limit allowable HIV testing for insurance purposes to blood tests, and also to make clerical changes updating the name and address of the department. The amendment to sec.21.704 also changes the effective date of the notice and consent authorization form adopted by the department and incorporated by reference into subsection (a)(8) of sec.21.704 (Notice/Consent Form) to January 1, 1997. The change in the effective date of the Notice/Consent Form is necessary because the department also is revising the Notice/Consent Form to reflect that HIV testing of insurance applicants may now be undertaken utilizing any of the three tests now approved by the United States Food and Drug Administration (FDA) for testing for the presence of HIV antibodies, and also to make clerical changes updating the name and address of the department. The amendment to sec.21.705 also states that in testing applicants for insurance for the presence of HIV antibodies, insurers shall only use tests approved by the FDA, in a manner approved by the FDA. The tests also must comply with all other applicable state and federal laws. The amendments expanding the types of allowable tests for HIV antibodies are necessary and desirable to allow insurers to utilize new procedures for testing for the presence of HIV antibodies that have been approved by the FDA. One procedure extracts oral fluid from the cheek and gum tissues of the person being tested for antibodies. This fluid, know as oral mucosal transudate, is not saliva. The FDA has approved this test both for initial screenings for the virus (ELISA tests) and the confirmatory test (Western Blot). The other procedure is a urine test, which the FDA has approved only for ELISA tests. The Commissioner has determined that the use of these alternative procedures will allow insurers to maximize the convenience and safety of HIV-related screenings for insurance purposes. The sections as adopted differ in some respects from the proposed sections, based on further study generated by the comments received. The term "oral tissue" in the Notice/Consent Form was revised to "oral fluid extracted from cheek and gum tissue," because the latter phrase describes the procedure more accurately. A provision was added to sec.21.705 to state explicitly that insurers testing applicants for coverage can only use testing procedures that have been approved by the FDA and that otherwise comply with state and federal law. References to urine testing were added to the Notice/Consent Form, because insurers lawfully may obtain ELISA test results from urine screens. The effective date for the Notice/Consent Form initially proposed, of December 1, 1996, has been changed to Wednesday, January 8, 1997, the twentieth day after these amendments are projected to be filed with the Secretary of State. The amended sec.21.704 (relating to unfair discrimination) and sec.21.705 (relating to nondiscriminatory testing for the human immunodeficiency virus) delete references that would limit HIV testing for insurance purposes to blood testing, and also make clerical changes updating the name and address of the department. Section 21.704 also incorporates by reference a Notice/Consent Form promulgated by the department for insurers to provide applicants or insureds to ensure that the applicants or insureds consent knowingly to the test. The amended Notice/Consent Form explains to applicants or insureds that they are consenting to a procedure for detecting HIV antibodies in the body either through testing blood, oral fluid extracted from cheek and gum tissue or urine. Section 21.705 now states explicitly that insurers testing applicants for coverage can only use testing procedures that have been approved by the FDA and that otherwise comply with state and federal law. General support. One commenter expressed support for the proposed amendments in general. The commenter stated that the FDA's approval of the Western Blot confirmatory HIV screening test using oral fluid extracted from cheek and gum tissue would benefit consumers. The commenter intends to implement use of the test in Texas after these amendments become effective. Agency Response: The Department agrees with the commenter. The adopted rules will allow testing for the presence of HIV antibodies through any procedures approved by the FDA and otherwise allowed by state or federal law. The oral fluid and urine tests, when used in accordance with FDA guidelines, should provide safe and useful alternatives for both insurers and consumers. Testing Procedures. Commenters requested changes relating to the way testing procedures are allowed or referenced in the proposed amendments. Two of these commenters suggested that any references to specific types of testing in the Notice/Consent Form be deleted and replaced with specimen-neutral language, such as "HIV-related testing." The commenters stated that such language would allow insurers to use any tests approved by the FDA and otherwise allowed by law. Two commenters each noted that a urine test had been approved by the FDA in August 1996 for initial ELISA screenings. One of the commenters noted that insurers should be able to use urine tests in the initial screening process, because such tests offer patient-friendly, noninvasive specimen collection, safety for lab workers from needle sticks and handling blood, and cost savings. A commenter stated that the reference to oral testing in the proposed Notice/Consent Form was not technically accurate. The commenter noted that the oral screening for HIV approved by the FDA does not involve collecting samples of oral tissue, but instead involves collection of oral fluid extracted from cheek and gum tissue. This commenter also stated that the word "blood" had not been removed at one place in the proposed Notice/Consent Form where the Form referenced HIV-related testing as a whole. Agency Response: The Department agrees that insurers should be able to utilize all HIV-related tests and testing procedures, including urine screenings, that have been approved by the FDA and that otherwise comply with applicable Texas and federal laws. Because the amendments have eliminated the limitation of allowable tests to only blood tests, the Department believes that it is necessary and appropriate to explicitly state that any tests performed must be limited to FDA-approved tests which otherwise comply with state and federal law. Accordingly, the Department has added a new paragraph (3) in sec.21.705 to accomplish this purpose. The Department also added references to urine tests in the Notice/Consent Form. The Department does not agree that all references to the types of tests that may be performed on an applicant should be deleted from the Notice/Consent Form. Currently, FDA-approved testing procedures include obtaining samples of blood (both ELISA screening and Western Blot confirmation), oral fluid extracted from cheek and gum tissue (both ELISA screening and Western Blot confirmation), or urine (ELISA screening only). The Department believes that delineating the bodily fluids that may be tested by an insurer gives consumers information that is necessary for making an informed consent to testing. If the FDA later approves HIV antibody tests on other types of specimens, the Department will amend the Notice/Consent Form accordingly. The Department agrees that the reference to oral testing in the Notice/Consent Form incorporated by reference into the proposed amendments to sec.21.704 was not technically accurate. In the Notice/Consent Form incorporated by reference into the adopted amendments to sec.21.704, the Department has replaced references to oral tissue with "oral fluid extracted from cheek and gum tissue." The latter reference is more accurate, according to the developer of the test. The Department also agrees that the word "blood" should not be used in connection with any reference to HIV-related testing as a whole, and it has deleted the reference. For: Allstate Life Insurance Company. For with changes: Biomedical Resource Group, Epitope, Inc., Woodmen of the World/Omaha Woodmen Life Insurance Society. The amendments are adopted pursuant to the Insurance Code, Articles 21.21-4 and 1.03A. Article 21.21-4 provides that an insurer can test applicants for HIV if the insurer administers the test on a nondiscriminatory basis. Article 21.21-4, subsection (g) states that an insurer may not make an adverse underwriting decision based on a positive HIV-related test, unless the insurer follows the test protocol established in rules promulgated by the Department. Article 21.21- 4, subsection (i) authorizes the Department to adopt reasonable rules and forms to implement the article. Article 1.03A provides that the Commissioner of Insurance may adopt rules and regulations to execute the duties and functions of the Texas Department of Insurance only as authorized by statute. sec.21.704. Unfair Discrimination. (a) (No change.) (b) Medical/lifestyle applications, questions, and underwriting standards. (1)-(7) (No change.) (8) Whenever a proposed insured is requested to take an HIV-related test in connection with an application for insurance, the use of such a test must be revealed to the proposed insured or to any other person legally authorized to consent to such a test, and his or her written authorization obtained. The form of such authorization must be printed on a separate piece of paper and must contain the specific language in the form, entitled Notice and Consent for HIV- Related Testing, which the Texas Department of Insurance has adopted and incorporated herein by reference, effective January 7, 1997. This form is published by the Texas Department of Insurance and copies of this form are available from and on file at the offices of the Life/Health Group, Mail Code 106-1E, of the Texas Department of Insurance at 333 Guadalupe, P.O. Box 149104, Austin, Texas 78714-9104. Other information may be included so long as it is not misleading or violative of any applicable law or rule. Testing may be required only on a nondiscriminatory basis. No adverse underwriting decision shall be made on the basis of such a positive HIV-related test unless the established test protocol as provided by sec.21.705 of this title (relating to Nondiscriminatory Testing for Human Immunodeficiency Virus) has been followed. (9) Insurers are permitted to ask a proposed insured whether the proposed insured has tested positive on an acquired immune deficiency syndrome-related test. (10) (No change.) (c) Effective date. This section becomes effective February 1, 1988, except for paragraphs (8) and (9) of subsection (b) of this section, which become effective January 7, 1997. (d) (No change.) sec.21.705. Nondiscriminatory Testing for Human Immunodeficiency Virus. A proposed insured for life or health and accident insurance, or for coverage by a company licensed under the Insurance Code, Chapter 20, or with a licensed health maintenance organization may be required to be tested for the presence of the human immunodeficiency virus (HIV). Requiring such testing is not unfair discrimination provided: (1) (No change.) (2) no proposed insured is denied coverage or rated a substandard risk on the basis of such testing unless: (A) an initial enzyme linked immunosorbent assay (ELISA) test is administered to the proposed insured, and it indicates the presence of HIV antibodies; (B) a second ELISA test is conducted and it indicates the presence of HIV antibodies and (C) a Western Blot test is conducted and it confirms the results of the two ELISA tests. (3) the tests and testing procedures used have been approved by the United States Food and Drug Administration (FDA) and otherwise comply with applicable Texas and federal laws. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 18, 1996. TRD-9618371 Caroline Scott General Counsel and Chief Clerk Texas Department of Insurance Effective date: January 8, 1997 Proposal publication date: October 18, 1996 For further information, please call: (512) 463-6327 TITLE 30. ENVIRONMENTAL QUALITY PART I. Texas Natural Resource Conservation Commission CHAPTER 295.Water Rights, Procedural The Texas Natural Resource Conservation Commission (TNRCC or commission) adopts amendments to sec.sec.295.21, 295.22 and 295.202, concerning additional requirements for storage of appropriated surface water in aquifers under Texas Water Code, sec.sec.11.153-11.155. Section 295.202 is adopted with changes to the proposed text as published in the October 4, 1996 issue of the Texas Register (21 TexReg 9600). Sections 295.21 and 295.22 are adopted without changes and will not be republished. EXPLANATION OF ADOPTED RULES. The adopted amendments to sec.sec.295.21, 295.22 and 295.202 will complete the implementation of recent legislation in House Bill 1989 (Regular Session, 74th Legislature, 1995) which directs the TNRCC to investigate the feasibility of storing appropriated surface water in various aquifers around the state by encouraging the issuance of permits for aquifer storage and retrieval (ASR) projects (as defined in the adopted amendment to sec.297.1 of this title (relating to Definitions)), which would store appropriated surface water in specific aquifers for subsequent retrieval and beneficial use. The commission previously adopted new and amended rules in Chapters 295, 297 and 331 of this title (related to Water Rights, Procedural; Water Rights, Substantive; and Underground Injection Control, respectively) (see 21 TexReg 5441, June 14, 1996). The previously adopted rules specify where a project participant can pursue a pilot demonstration (Phase I) project in the state. They further provide the authorization procedures and technical requirements a project participant must adhere to in order to complete a Phase I study to determine the feasibility of a site for ultimate storage and retrieval. The purpose of the adopted amendments to this chapter is to further define and specify those additional permitting and technical procedures and requirements a project sponsor will have to complete in order to obtain a Phase II (permanent authorization) permit for an aquifer storage and retrieval project which would store appropriated surface water in an aquifer for subsequent retrieval and beneficial use. TAKINGS IMPACT ASSESSMENT. The commission has prepared a Takings Impact Assessment for these amended rules pursuant to Texas Government Code Annotated sec.2007.043. The following is a summary of that Assessment. The specific purpose of the rule is to further define and specify those additional permitting and technical procedures and requirements to obtain a Phase II (permanent authorization) permit or permit amendment for an aquifer storage and retrieval project which would store appropriated surface water in an aquifer. The rules will substantially advance this specific purpose by providing application requirements and specific technical and administrative requirements for these types of projects in order to protect water quality and prevent waste of state water. Promulgation and enforcement of these rules will not burden private real property which is the subject of these rules because the activities subject to the rule are undertaken voluntarily and the requirements seek to protect the quality of existing water resources and prevent the waste of state water resources. PUBLIC HEARING AND COMMENTERS. A public hearing was held on October 31, 1996, at the TNRCC offices in Austin. Five individuals appeared at the hearing; however, no one offered testimony on the amended rules as proposed. One commenter, City of Austin, submitted written comments during the comment period which closed on November 4, 1996. Written comments were received from the City of Austin (COA) on sec.295.22 and sec.295.202. GENERAL COMMENTS. COA commented that the requirement for an ASR operations plan for the life of the project to locate all wells at the inception of a project would limit expansion of projects, which COA considers an important advantage to an ASR project. COA suggested incorporating a methodology in sec.295.22(b)(2) for amending operations plans to add new wells. The commission makes no change in response to the comment. The intent of the proposed rule is to identify all existing and proposed wells in order to develop a reasonable prediction of the effects of the injection in the aquifer including maximum distance of travel. This information on predicted impacts allows protection of state water from unauthorized retrieval. Commission staff note that the rules allow for amendment of the permit for additional ASR activities and that the rule as adopted does not preclude construction in a staged fashion to make use of the cost benefits of ASR technology. COA also commented on sec.295.22(b)(4) requiring a water quality monitoring plan for a project. COA questioned the intended relationship of this requirement to the monitoring requirements for public water systems, regulated by the commission under Chapter 290 of this title, especially with regard to systems using ground water under the influence of surface water. The commission responds that to the extent possible monitoring and reporting requirements under these proposed rules will be coordinated with requirements under Chapter 290 of this title relating to public water supply systems. Reporting under Chapter 290 of this title is typically at the point of distribution to the public water supply system. The proposed rules would require monitoring near the point of injection and near the point of recovery, which may be a different location if there are more than one source for the public water supply system. The intent of the rule is to require monitoring information which will allow the commission to determine water quality changes resulting from the injection and recovery activities. With regard to system monitoring under the designation "ground water under the influence of surface water," water treatment that would satisfy the treatment rule referenced is required prior to injection. In addition, recovered water used for public supply would be subject to disinfection as required under Chapter 290 of this title. COA also commented on sec.295.202(e)(2)(B) regarding the five-year operational report requirement. Specifically, COA noted the amount of data involved and questioned the agency's intent regarding use of the data. COA further suggested that the language be modified to allow the submission of summarized data in lieu of daily data which is maintained on file by the COA utility. The commission agrees with the commenter and the rule has been changed to require submission of a summary of data rather than all data. SUBCHAPTER A.Requirements of Water Use Permit Application Additional Requirements for the Storage of Appropriated Surface Water In Aquifers 30 TAC sec.295.21, sec.295.22 STATUTORY AUTHORITY. The amendments are adopted under the Texas Water Code, sec.5.103, and sec.5.105, which authorizes the TNRCC to adopt any rules necessary to carry out its powers and duties under the Texas Water Code and other laws of Texas and to establish and approve all general policy of the commission. The adopted amendments implement the Texas Water Code, sec.sec.11.153-11.155, which authorizes the TNRCC to investigate the feasibility of storing appropriated water in various aquifers around the state by encouraging the issuance of permits for aquifer storage and retrieval projects which would store appropriated water for subsequent retrieval and beneficial use. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 20, 1996. TRD-9618551 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: January 10, 1997 Proposal publication date: October 4, 1996 For further information, please call: (512) 239-4640 SUBCHAPTER F.Miscellaneous 30 TAC sec.295.202 The amendment adopted under the Texas Water Code, sec.5.103, and sec.5.105, which authorize the Texas Natural Resource Conservation Commission to adopt any rules necessary to carry out its powers and duties under the Texas Water Code and other laws of Texas and to establish and approve all general policy of the commission. sec.295.202. Reports. (a)-(d) (No change.) (e) Operations Report for Aquifer Storage and Retrieval Projects. (1) On the five-year anniversary date of the issuance of the permit or permit amendment, and every ten years thereafter or upon a more frequent schedule established by the executive director, the permittee shall provide the executive director with an operations report describing what efforts the permittee has made to: (A) protect the state water stored in the receiving aquifer from unauthorized withdrawals; and (B) maximize the retrieval and beneficial use of the stored water without experiencing unreasonable losses of state water. (2) The operations report shall identify and provide: (A) any potential or real impacts identified during the operation of the project; (B) a summary of all data, information and analyses associated with any monitoring during the operation of the project; (C) a comparison of actual movement of injected state water with the modeling predictions submitted with the application for permit under Chapter 295 of this title (relating to Water Rights, Procedural); (D) an assessment of the project in terms of the protection of ground water quality; and (E) any additional information the executive director determines is necessary for the protection of underground sources of drinking water. (3) The executive director shall review the report described in this subsection. If the executive director determines that the circumstances, under which the permit was granted, have significantly changed, the executive director may pursue an amendment to such permit in accordance with sec.305.62 of this title (relating to Amendment). This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 20, 1996. TRD-9618552 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: January 10, 1997 Proposal publication date: October 4, 1996 For further information, please call: (512) 239-4640 CHAPTER 297.Water Rights, Substantial SUBCHAPTER A.Definitions 30 TAC sec.297.1 The Texas Natural Resource Conservation Commission (TNRCC or commission) adopts an amendment to sec.297.1, concerning permits for the storage of appropriated surface water in aquifers under Texas Water Code, sec.sec.11.153-11.155, without changes to the proposed section as published in the October 4, 1996 issue of the Texas Register (21 TexReg 9604). EXPLANATION OF ADOPTED RULES. The adopted amendment to sec.297.1 will implement recent legislation in House Bill 1989 (Regular Session, 74th Legislature, 1995) which directs the TNRCC to investigate the feasibility of storing appropriated surface water in various aquifers around the state by encouraging the issuance of permits for aquifer storage and retrieval projects, as defined in the amendment to sec.297.1 of this title (relating to Definitions), which would store appropriated surface water in specific aquifers for subsequent retrieval and beneficial use. The commission previously adopted new and amended rules in Chapters 295, 297 and 331 of this title (related to Water Rights, Procedural; Water Rights, Substantive; and Underground Injection Control, respectively) (see 21 TexReg 5441, June 14, 1996). The previously adopted rules specify where a project participant can pursue a pilot demonstration (Phase I) project in the state. They further provide the authorization procedures and technical requirements a project participant must adhere to in order to complete a Phase I study to determine the feasibility of a site for ultimate storage and retrieval. The purpose of the adopted amendment to this chapter is to further define and specify those additional permitting and technical procedures and requirements a project sponsor will have to complete in order to obtain a Phase II (permanent authorization) permit for an aquifer storage and retrieval project which would store appropriated surface water in an aquifer for subsequent retrieval and beneficial use. TAKINGS IMPACT ASSESSMENT. The commission has prepared a Takings Impact Assessment for these amended rules pursuant to Texas Government Code, Annotated sec.2007.043. The following is a summary of that assessment. The specific purpose of the rule is to further define and specify those additional permitting and technical procedures and requirements to obtain a Phase II (permanent authorization) permit or permit amendment for an aquifer storage and retrieval project which would store appropriated surface water in an aquifer. The rules will substantially advance this specific purpose by providing application requirements and specific technical and administrative requirements for these types of projects in order to protect water quality and prevent waste of state water. Promulgation and enforcement of these rules will not burden private real property which is the subject of these rules because the activities subject to the rule are undertaken voluntarily and the requirements seek to protect water quality of existing resources and prevent the waste of state water resources. PUBLIC HEARING AND COMMENTERS. A public hearing was held on October 31, 1996, at the TNRCC offices in Austin. No one offered testimony at the public hearing or submitted written comments related to the proposed rules during the comment period which closed on November 4, 1996. GENERAL COMMENTS. No comments were received on the proposal. STATUTORY AUTHORITY. The amendment is adopted under the Texas Water Code, sec.5.103, and sec.5.105, which authorizes the TNRCC to adopt any rules necessary to carry out its powers and duties under the Texas Water Code and other laws of Texas and to establish and approve all general policy of the commission. The adopted amendment implements the Texas Water Code, sec.sec.11.153-11.155, which direct the TNRCC to investigate the feasibility of storing appropriated surface water in various aquifers around the state by encouraging the issuance of permits for aquifer storage and retrieval projects that would propose to store appropriated water in specific aquifers for subsequent retrieval and beneficial use. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 20, 1996. TRD-9618553 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: January 10, 1997 Proposal publication date: October 4, 1996 For further information, please call: (512) 239-4640 CHAPTER 331. Underground Injection Control The Texas Natural Resource Conservation Commission (TNRCC or commission) adopts amendments to sec.sec.331.9, 331.182 and 331.185, concerning additional standards and requirements for Class V aquifer storage wells, without changes to the proposed text as published in the October 4, 1996 issue of the Texas Register (21 TexReg 9605). EXPLANATION OF ADOPTED RULES. The adopted amendments to sec.sec.331.9, 331.182 and sec.331.185 will implement recent legislation in House Bill 1989 (Regular Session, 74th Legislature, 1995) which directs the TNRCC to investigate the feasibility of storing appropriated surface water in various aquifers around the state by encouraging the issuance of permits for aquifer storage and retrieval projects, as defined in the amendment to sec.297.1 of this title (relating to Definitions), which would store appropriated surface water in specific aquifers for subsequent retrieval and beneficial use. The commission previously adopted new and amended rules in Chapters 295, 297 and 331 of this title (related to Water Rights, Procedural; Water Rights, Substantive; and Underground Injection Control, respectively) (see 21 TexReg 5441, June 14, 1996). The previously adopted rules specify where a project participant can pursue a pilot demonstration (Phase I) project in the state. They further provide the authorization procedures and technical requirements a project participant must adhere to in order to complete a Phase I study to determine the feasibility of a site for ultimate storage and retrieval. The purpose of the adopted amendments to this chapter is to further define and specify those additional permitting and technical procedures and requirements a project sponsor will have to complete in order to obtain a Phase II (permanent authorization) permit for an aquifer storage and retrieval project which would store appropriated surface water in an aquifer for subsequent retrieval and beneficial use. TAKINGS IMPACT ASSESSMENT. The commission has prepared a Takings Impact Assessment for these amended rules pursuant to Texas Government Code Annotated sec.2007.043. The following is a summary of that assessment. The specific purpose of the rule is to further define and specify those additional permitting and technical procedures and requirements to obtain a Phase II (permanent authorization) permit or permit amendment for an aquifer storage and retrieval project which would store appropriated surface water in an aquifer. The rules will substantially advance this specific purpose by providing application requirements and specific technical and administrative requirements for these types of projects in order to protect water quality and prevent waste of state water. Promulgation and enforcement of these rules will not burden private real property which is the subject of these rules because the activities subject to the rule are undertaken voluntarily and the requirements seek to protect water quality of existing resources and prevent the waste of state water resources. PUBLIC HEARING AND COMMENTERS. A public hearing was held on October 31, 1996, at the TNRCC offices in Austin. No one offered testimony at the public hearing or submitted written comments related to the proposed rules during the comment period which closed on November 4, 1996. GENERAL COMMENTS. No comments were received on the proposed rules. SUBCHAPTER A.General Provisions 30 TAC sec.331.9 STATUTORY AUTHORITY. The amendment is adopted under the Texas Water Code, sec.sec.5.103, 5.105, and 27.019, and Texas Health and Safety Code, sec.361.017 and sec.361.024, which authorizes the TNRCC to adopt any rules necessary to carry out its powers and duties under the Texas Water Code and other laws of Texas and to establish and approve all general policy of the commission. The adopted amendment implements the Texas Water Code, sec.sec.11.153-11.155, which authorizes the TNRCC to investigate the feasibility of storing appropriated water in various aquifers around the state by encouraging the issuance of permits for aquifer storage and retrieval projects for the storage of appropriated water in certain aquifers for subsequent retrieval and beneficial use. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 20, 1996. TRD-9618554 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: January 10, 1997 Proposal publication date: October 4, 1996 For further information, please call: (512) 239-4640 SUBCHAPTER K. Additional Requirements For Class V Aquifer Storage Wells 30 TAC sec.331.182, sec.331.185 The rules are adopted under the Texas Water Code, sec.5.103, and sec.5.105, which authorizes the Texas Natural Resource Conservation Commission to adopt any rules necessary to carry out its powers and duties under the Texas Water Code and other laws of Texas and to establish and approve all general policy of the commission. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 20, 1996. TRD-9618555 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: January 10, 1997 Proposal publication date: October 4, 1996 For further information, please call: (512) 239-4640 TITLE 31. NATURAL RESOURCES AND CONSERVATION PART II. Texas Parks & Wildlife Department CHAPTER 57. Fisheries Mitigation of Fish and Wildlife Resource Losses as a Result of Pollution 31 TAC sec.sec.57.161-57.163 The Texas Parks and Wildlife Commission in a regularly scheduled public hearing on November 7, 1996, adopts the repeal of sec.sec.57.161-163, concerning Mitigation of Fish and Wildlife Resource Losses as a Result of Pollution, without changes to the proposed text as published in the August 20, 1996, issue of the Texas Register (21 TexReg 7786). The repeal of these sections was undertaken as part of the Commission Regulations Sunset process. The repeal removes redundant sections from the Texas Administrative Code. The department received no comments concerning the proposed repeal. The repeal of rules is adopted under Parks and Wildlife Code sec.11.011 and sec.12.001. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 18, 1996. TRD-9618384 Bill Harvey Regulatory Coordinator Texas Parks & Wildlife Department Effective date: January 8, 1997 Proposal publication date: August 20, 1996 For further information, please call: (512) 389-4642 Blue Crab Fishery Management Plan 31 TAC sec.57.701 The Texas Parks and Wildlife Commission in a regularly scheduled public hearing on November 7, 1996, adopted the repeal of sec.57.701, concerning Blue Crab Fishery Management Plan, without changes to the proposed text as published in the October 1, 1996, issue of the Texas Register (21 TexReg 9418). This action represents simplification and recodification of sections of the Texas Administrative Code as part of the Commission's regulations sunset process. Provisions of sec.57.701 were incorporated into new sec.57.691, concerning Fishery Management Plans. The repeal undertaken as part of the Commission Regulations Sunset process. The repeal removes a redundant section from the Texas Administrative Code. The department received no comments concerning the proposed repeal. The repeal is adopted under Parks and Wildlife Code, sec.66.018. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 18, 1996. TRD-9618386 Bill Harvey Regulatory Coordinator Texas Parks & Wildlife Department Effective date: January 8, 1997 Proposal publication date: October 1, 1996 For further information, please call: (512) 389-4642 CHAPTER 61. Design and Construction Wage Rate Determination for Public Works Construction 31 TAC sec.61.11, sec.61.12 The Texas Parks and Wildlife Commission in a regularly scheduled public hearing on November 7, 1996, adopted the repeal of sec.61.11 and sec.61.12, concerning Wage Rate Determination for Public Works Construction, without changes to the proposed text as published in the October 4, 1996, issue of the Texas Register (21 TexReg 9620). The repeal and adoption of new sections was undertaken as part of the Commission Regulations Sunset process. This action represents simplification and recodification of sections of the Texas Administrative Code as part of the Commission's regulations sunset process. The department received no comments concerning the proposed repeal. The repeal of rules is adopted under Parks and Wildlife Code sec.sec.13.001. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 18, 1996. TRD-9618385 Bill Harvey Regulatory Coordinator Texas Parks & Wildlife Department Effective date: January 8, 1997 Proposal publication date: October 4, 1996 For further information, please call: (512) 389-4642 PART 37. Texas Department of Public Safety CHAPTER 23.Vehicle Inspection Vehicle Inspection Station Licensing 37 TAC sec.23.16 The Texas Department of Public Safety adopts the repeal of sec.23.16, concerning persons with a criminal background, without changes to the proposed text as published in the November 8, 1996, issue of the Texas Register (21 TexReg 10966). The rule is being repealed to allow for the adoption of new sec.23.16 which is more consistent with the terms set out by the court of proper jurisdiction. No Comments were received regarding adoption of the repeal. The repeal is adopted pursuant to Texas Transportation Code, sec.548.002, which provides the department may adopt rules to administer and enforce this chapter. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 16, 1996. TRD-9618401 Dudley M. Thomas Director Texas Department of Public Safety Effective date: January 9, 1997 Proposal publication date: November 8, 1996 For further information, please call: (512) 424-2890 The Texas Department of Public Safety adopts new sec.23.16, concerning persons with a criminal background, without changes to the proposed text as published in the November 8, 1996, issue of the Texas Register (21 TexReg 10967). The justification for the new section will be certification of inspectors after completion of the court imposed sentence or probation. The new section allows for certification of inspectors after fulfillment of the sentence imposed by the courts. No comments were received regarding adoption of the new section. The new section is adopted pursuant to Texas Transportation Code, sec.548.002, which provides the department may adopt rules to administer and enforce this chapter. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 16, 1996. TRD-9618402 Dudley M. Thomas Director Texas Department of Public Safety Effective date: January 9, 1997 Proposal publication date: November 8, 1996 For further information, please call: (512) 424-2890 PART VII. Texas Commission on Law Enforcement Officer Standards and Education CHAPTER 229.Texas Peace Officers' Memorial Advisory Committee Division 37 TAC sec.sec.229.1, 229.5, 229.20 The Texas Commission on Law Enforcement Officer Standards and Education ("commission") adopts amendments to sec.sec.229.1, 229.5, and 229.20, concerning the Texas Peace Officers' Memorial, without changes to the proposed text as published in the November 1, 1996 issue of the Texas Register (21 TexReg 10804). The amendments to these sections incorporate section changes to Chapter 415, Subchapter F of the Texas Government Code, enacted by House Bill 1271 during the 74th Legislative Session relating to the Texas Peace Officers' Memorial Advisory Committee. The Legislature reduced the role of the Advisory Committee to only advising the Commission in the areas of funding, design, construction, updating, maintenance, and management of the memorial. The advisory committee no longer has any statutory role in the determination of which deceased peace officers' names will be eligible for inclusion on the memorial. Therefore, the Commission determined that the Executive Director of the Commission should have the responsibility of eligibility determination that had formerly been the responsibility of the advisory committee. The Commission reasoned that the selection process envisioned by the Legislature should be a simple and straightforward initial evaluation prior to submission to the Commission for final approval. A simple and logical process would be that the Executive Director would receive the documents describing the basis for consideration, review the documents, select those deceased peace officers that were eligible for inclusion on the memorial and submit the names for final approval by the Commission. Thus, where the rule had used "Committee", the Commission replaced that phrase with "Executive Director of the Commission". The Legislature also expanded the list of persons eligible for inclusion on the memorial to include persons who were "commissioned deputy game wardens" and "corrections officer(s) in a municipal, county, or state penal institution in this state." Therefore, the Commission reasoned that the rule should be amended to reflect this statutory addition, make the rule consistent with the statute, and to preclude confusion on the part of the public and the law enforcement community. No comments were received regarding adoption of the amendments. The Commission is authorized to adopt rule amendments by TEX. GOV'T sec.415.010 (Vernon 1996); by sec.415.112, which establishes the advisory committee to advise the commission on the memorial project; and by sec.415.117, which outlines the duties of the advisory committee and establishes the circumstances under which a person's name is eligible to be included on the memorial. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 19, 1996. TRD-9618438 Edward T. Laine Chief, Professional Standards and Administrative Operations Texas Commission on Law Enforcement Officer Standards and Education Effective date: March 1, 1997 Proposal publication date: November 1, 1996 For further information, please call: (512) 450-0188 TITLE 40. SOCIAL SERVICES AND ASSISTANCE PART I. Texas Department of Human Services CHAPTER 15.Medicaid Eligibility The Texas Department of Human Services (DHS) adopts amendments to sec.sec.15.100, 15.300, 15.305, 15.435, 15.441, 15.442, 15.451, 15.460, and 15.503, concerning the Medicaid Eligibility rule chapter, without changes to the proposed text published in the November 8, 1996, issue of the Texas Register (21 TexReg 10974). The justification for the amendments is to clarify and streamline policy regarding re- establishing eligibility after absence from the U.S.; term insurance; out-of-state homesteads; income from self-employment; application for all other benefits; and payments to victims of Nazi persecution. Changes in rule language is consistent with federal directives. The amendments will function by ensuring that DHS policy will track federal policy and directives. A comment was received from the Houston Welfare Rights Organization in support of the adoption of the amendments to sec.15.305(k) and sec.15.460(b)(34). SUBCHAPTER A.General Information 40 TAC sec.15.100 The amendment is adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs and under Texas Government Code, sec.531.021, which provides the Health and Human Services Commission with the Authority to administer federal assistance funds. The amendment implements the Human Resources Code sec.sec.22.001-22.030 and sec.sec.32.001-32.042. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 20, 1996. TRD-9618584 Glenn Scott General Counsel, Legal Services Texas Department of Human Services Effective date: February 1, 1997 Proposal publication date: November 8, 1996 For further information, please call: (512) 438-3765 SUBCHAPTER C.Texas Department of Human Services 40 TAC sec.15.300, sec.15.305 The amendments are adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs and under Texas Government Code, sec.531.021, which provides the Health and Human Services Commission with the Authority to administer federal assistance funds. The amendments implement the Human Resources Code sec.sec.22.001-22.030 and sec.sec.32.001-32.042. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 20, 1996. TRD-9618585 Glenn Scott General Counsel, Legal Services Texas Department of Human Services Effective date: February 1, 1997 Proposal publication date: November 8, 1996 For further information, please call: (512) 438-3765 SUBCHAPTER C.Basic Program Requirements 40 TAC sec.15.315, sec.15.316 The Texas Department of Human Services (DHS) adopts an amendment to sec.15.315 and new sec.15.316, concerning basic program requirements, in its Medicaid Eligibility chapter, without changes to the proposed text published in the November 8, 1996, issue of the Texas Register (21 TexReg 10977). The justification for the amendment is to ensure proper allocation of resources to the neediest individuals by incorporating the nursing facility risk criteria specified in the Resident Assessment Instrument- Home Care Assessment. The justification for the new section is to include risk criteria regarding nursing facility placement, functional deficits in the activities of daily living, certain neurological diagnoses, urinary incontinence, recent falls, and significant functional decline. The amendment and new section will function by targeting individuals who may be at risk for institutionalization, ensuring proper allocation of resources to the neediest individuals. No comments were received regarding the proposed sections. The amendment and new section are proposed under the Human Resources Code, Title 2, Chapters 22 and 32, which authorizes the department to administer public and medical assistance programs; and under Texas Government Code, sec.531.021, which provides the Health and Human Services Commission with the authority to administer federal medical assistance funds. The amendment and new section implement the Human Resources Code, sec.sec.22.001-22.030 and sec.sec.32.001-32.042. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 20, 1996. TRD-9618589 Glenn Scott General Counsel, Legal Services Texas Department of Human Services Effective date: February 1, 1997 Proposal publication date: November 8, 1996 For further information, please call: (512) 438-3765 SUBCHAPTER D.Resources 40 TAC sec.sec.15.435, 15.441, 15.442 The amendments are adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs and under Texas Government Code, sec.531.021, which provides the Health and Human Services Commission with the Authority to administer federal assistance funds. The amendments implement the Human Resources Code, sec.sec.22.001-22.030 and sec.sec.32.001-32.042. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 20, 1996. TRD-9618586 Glenn Scott General Counsel, Legal Services Texas Department of Human Services Effective date: February 1, 1997 Proposal publication date: November 8, 1996 For further information, please call: (512) 438-3765 SUBCHAPTER E.Income 40 TAC sec.15.451, sec.15.460 The amendments are adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs and under Texas Government Code, sec.531.021, which provides the Health and Human Services Commission with the Authority to administer federal assistance funds. The amendments implement the Human Resources Code, sec.sec.22.001-22.030 and sec.sec.32.001-32.042. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 20, 1996. TRD-9618587 Glenn Scott General Counsel, Legal Services Texas Department of Human Services Effective date: February 1, 1997 Proposal publication date: November 8, 1996 For further information, please call: (512) 438-3765 SUBCHAPTER F.Budget and Payment Plans 40 TAC sec.15.503 The amendment is adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs and under Texas Government Code, sec.531.021, which provides the Health and Human Services Commission with the Authority to administer federal assistance funds. The amendment implements the Human Resources Code, sec.sec.22.001-22.030 and sec.sec.32.001-32.042. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 20, 1996. TRD-9618588 Glenn Scott General Counsel, Legal Services Texas Department of Human Services Effective date: February 1, 1997 Proposal publication date: November 8, 1996 For further information, please call: (512) 438-3765 CHAPTER 19.Nursing Facility Requirements for Licensure and Medicaid Certification SUBCHAPTER S.Reimbursement Methodology for Nursing Facilities 40 TAC sec.19.1807 The Texas Department of Human Services (DHS) adopts an amendment to sec.19.1807, without changes to the proposed text published in the October 22, 1996, issue of the Texas Register (21 TexReg 10421). Justification for the amendment is to update rules for the reimbursement of nurse aide training expenses. The amendment will function by delineating the criteria for the submission and processing of reimbursement requests for nurse aide training above the DHS cost ceiling. The department received no comments regarding adoption of the amendment. The amendment is adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which authorizes the department to administer public and medical assistance programs; and under Texas Government Code, sec.531.021, which provides the Health and Human Services Commission with the authority to administer federal medical assistance funds. The amendment implements the Human Resources Code, sec.sec.22.001-22.030 and sec.sec.32.001-32.042. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 20, 1996. TRD-9618590 Glenn Scott General Counsel, Legal Services Texas Department of Human Services Effective date: February 1, 1997 Proposal publication date: October 22, 1996 For further information, please call: (512) 438-3765 TITLE 43. TRANSPORTATION PART I. Texas Department of Transportation CHAPTER 9.Contract Management SUBCHAPTER B.Highway Improvement Contracts 43 TAC sec.9.18 The Texas Department of Transportation adopts an amendment to sec.9.18, concerning the contract execution for building contracts without changes to the proposed text as published in the October 11, 1996, issue of the Texas Register (21 TexReg 9799). Section 9.18, presently requires the successful bidder on construction and maintenance contracts to execute and furnish to the department the contract with a performance and payment bond (if required) and a certificate of insurance within 15 days after written notification of award of the contract. However, in the case of building contracts, the section states that the successful bidder must execute and furnish to the department the contract with a performance and payment bond (if required) and a certificate of insurance within 27 days after written notification of award of the contract. The amendment will require the deadline for submission of documents to be consistent by having all highway improvement contracts returned within 15 days. A public hearing was held on October 28, 1996 and no comments were received. The amendment is adopted under Transportation Code, sec.201.101, which provides the Texas Transportation Commission with the authority to promulgate rules for the conduct of the work of the Texas Department of Transportation, and Transportation Code, sec.sec.203.004-203.005, which require the commission to prescribe rules on all bidders on bids received for contracts awarded for the improvement of the state highway system. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 23, 1996. TRD-9618615 Bob Jackson Deputy General Counsel Texas Department of Transportation Effective date: January 13, 1997 Proposal publication date: October 11, 1996 For further information, please call: (512) 463-8630 SUBCHAPTER C.Contracting for Architectural and Engineering The Texas Department of Transportations adopts amendments to sec.9.31, sec.9.38, and sec.9.40, the repeal of sec.sec.9.33-9.37 and sec.9.39, and new sec.sec.9.33-9.37, sec.9.39, and sec.sec.9.41-9.43 concerning contracts for architectural and engineering services. The amendments to sec.9.38 and new sec.sec.9.33-9.35, sec.9.37, and sec.sec.9.41-9.43 are adopted with changes to the proposed text as published in the October 11, 1996, issue of the Texas Register (21 TexReg 9800). The amendments to sec.9.31 and sec.9.40, the repeal of sec.sec.9.33-9.37 and sec.9.39, and new sec.9.36, sec.9.38, and sec.9.39 are adopted without changes and will not be republished. The amendments to sec.9.31 and sec.9.38 are necessary to gather the preliminary database information necessary to implement the precertification and selection processes provided by new sec.sec.9.33-9.37, sec.9.39, and sec.sec.9.41-9.43 which will be implemented on April 1, 1997. The new processes will provide a more streamlined, cost efficient, and expeditious selection process for architects and engineers by creating a precertification process for architects and engineers and their related subproviders, defining a selection procedure, utilizing data obtained during precertification, and establishing a contract evaluation system. The amendments to sec.9.40 provide participation goals for Disadvantaged Business Enterprises (DBES) and for Historically Underutilized Businesses (HUBS). The amendments to sec.9.31, sec.9.38, and sec.9.40 are effective 20 days after filing their final adoption with the Texas Register. The repeal of sec.sec.9.33- 9.37 and sec.9.39, and new sec.sec.9.33-9.37, sec.9.39, and sec.sec.9.41-9.43 are effective April 1, 1997. Amended sec.9.31 provides definitions for the words, terms, and acronyms used in this subchapter. New sec.9.33 establishes requirements for notice and letter of interest; adds contract or request for proposal number, work category codes, and type of selection to the notice; provides that notices filed by the department be considered as posted; and removes the requirement to publish notices in the newspapers. New sec.9.34 specifies the composition of the Consultant Selection Team, which is responsible for selection evaluation; identifies the long list evaluation criteria; defines the selection process for the short list; and provides for notification of all firms submitting a letter of interest that were not selected for the short list. New sec.9.35 specifies the purpose of the short list meeting, specifies the contents of the request for proposal, requires written proposals conforming to the format and content specified in the request for proposal, specifies the requirements for receipt of proposals, and provides the proposal evaluation criteria and evaluation scale. New sec.9.36 establishes interview requirements, requires interviews with the providers on the short list, and allows telephone interviews at the discretion of the Consultant Selection Team. This section provides for the selection of providers for interview, interview structure, and interview evaluation criteria and evaluation scale. New sec.9.37 incorporates the provisions of repealed sec.9.37, revises the evaluation criteria considered, establishes the final selection process, and provides for the managing officer to submit a recommendation for selection to the Consultant Review Committee for procedural review. If the procedural review is acceptable, the deputy executive director, will concur with the selection. This section provides for publication of the short list and selected providers on an electronic bulletin board; administrative qualification, if not performed prior to selection; and negotiations. This section requires authorization by the managing officer for negotiations to commence with the next ranked provider if negotiations are unsuccessful and clarifies the process for determination of a good faith effort to meet the DBE/HUB goal. Amended sec.9.38 creates a provider performance evaluation that can be easily distributed through a computer database and provides for a numerical scoring system for provider performance evaluations. New sec.9.39 establishes types of selections performed by the department for architectural and engineering contracts, incorporates the provisions of repealed sec.9.39, and replaces District Consultant Review Committee with the Consultant Selection Team. Amended sec.9.40 changes the department's overall architectural and engineering participation goal for DBES and for HUBS from 30% to a percentage that the department will periodically establish and publish in the Texas Register and other media in order to adjust the goals based on the underutilization of specific groups and to allow flexibility in the DBE and HUB programs based on availability. New sec.9.41 provides for the precertification of engineers and architects and their related subproviders, describes the precertification application process, provides publishing annual notice regarding precertification in the Texas Register and on an electronic bulletin board, requires the prime provider and subprovider to be precertified by the deadline for receiving the letter of interest, provides for the creation of the Consultant Certification Information System, and provides an implementation date for use of the Consultant Certification Information System data and precertification selection process. This section provides for provider precertification in multiple technical categories, review for precertification, annual renewal of precertification, and appeal of denial of precertification. New sec.9.42 provides for administrative qualification, provides for exceptions to administrative qualification, allows administrative qualification to be performed prior to selection to expedite negotiations upon selection of a provider, requires that administrative qualification be performed prior to contract execution, identifies evaluation factors used in determining administrative qualification, allows the Audit Office to provide financial information to the managing office after final selection, and prohibits consideration of financial information during the selection process. New sec.9.43 identifies work groups and categories and qualification requirements by work category. On October 24, 1996, the department held a public hearing to receive data, comments, views, and testimony concerning the proposed amendments and new sections. Oral comments were submitted on behalf of the Consulting Engineers Council of Texas (CEC). CEC indicated it was in favor of the amendments, repeal, and new sections, but suggested changes. Written comments were submitted by Fittz & Shipman and Hicks and Company indicating that they were partly in favor of the amendments, repeal, and new sections, and partly against the amendments, repeal, and new sections. Comment: CEC suggested that the time between public notice and receipt of letter of interest in sec.9.33(a) be extended from ten days to fourteen days to allow time for teaming. Response: The department concurs with this suggestion and that subsection has been revised accordingly. Comment: CEC suggested that the letter of interest identified in sec.9.33(a)(1) include a general description of the project and a general description of the work to be done by the provider, in addition to the list of required work categories. Response: The department concurs with this suggestion and has revised that paragraph. Comment: CEC recommended that the notice requesting letters of interest in sec.9.33(a)(1) should not be considered as posted if it failed to appear in the Texas Register. Response: The department files notices for publication in the Texas Register, which another state agency is responsible for publishing. Notices are also published on an electronic bulletin board. Combined with other sources, this is sufficient notice, particularly since the time between the notice publication and the deadline for the letter of interest is being extended, thus allowing the department time to file another notice to be published in the Texas Register prior to the deadline. Comment: CEC questioned whether it was the intent in sec.9.33(b) that any letter of interest including a subprovider that is not precertified would be considered nonresponsive, and if so, would any fast track process for precertification be available. Response: The prime providers and subproviders are required to be precertified in any category of work that is identified in sec.9.43, by the deadline for receipt of the letter of interest. Complete precertification questionnaires received more than 60 days after the implementation date will be reviewed and a determination of precertification status made within 30 days of receipt. Comment: CEC suggested that sec.9.35 should specify that the managing office be allowed to omit the written RFP and proceed directly to the interview stage in certain sensitive situations such as small projects. Response: The department requires a written proposal. The proposal length may be adjusted accordingly for project size and/or complexity. Comment: CEC suggested that sec.9.35(a) should include mailing the RFP packet to the short-listed providers prior to the short list meeting to allow adequate time to prepare questions. Response: The department concurs with providing the RFP prior to the meeting and has revised that subsection to reflect this. Comment: CEC commented on the scoring system identified in sec.9.35(e)-(f) and sec.9.35(c)-(d). CEC suggested a differentiated approach which might include weighting of criteria and greater differentiation in scoring, and could be tailored to the project at hand. Response: The department is committed to the objective scoring system. The differentiation in sec.9.35(f) is sufficient for the short list meeting, proposal and evaluation stage. However, the department will use weighting factors in the selection phase. Section 9.37 is revised to clarify this. Comment: In sec.9.37(e)(2), concerning the notification of the short-listed providers, CEC recommended that the final ranking order be included to assist the providers in preparation in the event that negotiations are required with alternative providers. Response: The department will include the ranking in the notification. Comment: In sec.9.37(f), regarding negotiations, CEC suggested the inclusion of a reference to the scoping meeting to be held after selection and prior to negotiation to discuss detailed requirements. Response: This type of meeting is applicable to project specific contracts, and will not be required of every contract procured under these rules. These optional meetings will be adequately addressed in the procedure manual. Comment: Fittz and Shipman commented that the wording of sec.9.37 may limit the possibility of selecting smaller local engineering firms because it does not consider current dollar volume with the department. It suggested that a dollar cap be placed on actual contracts. Response: The department does not have the authority to give preference to local firms. Under the law, the department must select consultants based on qualifications, knowledge, and ability to perform the prescribed work without regard to the size or location of the firm. Comment: CEC suggested sec.9.43 specify that only employees of a firm be submitted to precertify a firm. Response: The department requires that the firm employ personnel with specific qualifications to be precertified in a category. The following statement will be added to the section to clarify this: "A firm may only use an individual who is employed by that firm at the time of submittal for prequalification." Comment: CEC suggested that the term "environmental" be deleted from the term "environmental engineering" in sec.9.43(b)(2), since this term has been used in the past to refer to the design of sewerage and water supply systems. Response: The department supports the use of this term in reference to environmental studies, but for clarity, will replace "environmental" with "civil or environmental". Comment: CEC stated that sec.9.43(b)(2)(E) was specific to the Edwards Aquifer region, relating to compliance with TNRCC rules, and suggested that precertification category 2.5.1 be split into two parts, one for the Edwards Aquifer area and one for the remainder of the state. Response: This is adequately addressed because counties outside the Edwards Aquifer region are not subject to TNRCC rules concerning the Edwards Aquifer. Comment: CEC recommended that sec.9.43(b)(2)(L)(i) be revised by adding engineering and planning degrees to the current degrees. Response: The department concurs with this suggestion, and the subparagraph has been revised to include urban planning and related engineering fields. Comment: CEC recommended that sec.9.43(b)(2)(N) also include persons with a bachelor's degree in engineering or planning with the specified knowledge and experience. Response: The paragraph presently includes a bachelor's degree in urban planning and environmental engineering. Civil engineering has been added. Comment: CEC observed that few projects result in the requirements of an EIS, and suggested that sec.9.43(b)(2)(N)(iii) either be deleted, or a separate precertification category created for EIS preparation. Response: The department's intent was to require that a firm employ at least one individual with experience in the preparation of an EIS. The department has determined that this should be maintained as a minimum. Comment: Hicks and Company commented that sec.9.38(a)(2) limits the ability of minority firms to use subcontractors and suggested that DBE participation only be calculated on the labor costs of DBE providers. Response: The intent of this paragraph is to prohibit DBE/HUB primes or subprimes that are utilized to meet the goal, from subcontracting out to another firm. If a portion of the DBE/HUB contract is subcontracted, it cannot be used to fulfill the goal. The DBE/HUB program is not limited to labor. Participation is calculated by taking the whole contract into consideration. Comment: Hicks and Company commented on the elimination of 30% participation goals in sec.9.40 and recommended that availability be based on the statewide availability of DBE/HUB firms, so that "availability" will not be construed to mean local availability. Response: The department's Business Opportunity Programs Office (BOP) is proposing rules for establishment of DBE/HUB participation goals. It is the intent of this wording to bring participation goals into compliance with BOP's new rules. The goals will be established periodically. Comment: Hicks and Company asked for more detail concerning the ineligibility period of prime or subprime providers that do not renew applications within the specified time. Response: A firm that allows their precertification to lapse would be able to submit anytime during the year for consideration for the next precertification. Comment: Hicks and Company requested that precertification requirements be established for non-engineering firms in the area of transportation systems planning in sec.9.43. Response: These sections are limited to the selection for engineering and architectural services and their related sub-providers. Section 9.34(a)(3) relating to the composition of the Consultant Selection Team (CST), has been revised to reduce the number of department employees from two to one in order to provide an odd number of team members to prevent tie scoring. Section 9.35(b)(5) has been revised to include proposed method of payment which was inadvertently omitted from the proposed version, causing numbers (5) through (10) to be renumbered (6) through (11). Section 9.35(f), relating to proposal evaluation scale, has been revised to clarify the CST will assign a numerical value to each evaluation criteria. Section 9.37(a) has been revised to clarify that the Consultant Review Committee (CRC) will establish weighting factors for each evaluation criterion by the CST. Section 9.37(f)(1) has been revised to change the phrase "submit the information requested in the contract" to "submit the information required for the contract" to clarify the information needed. The statement that state funded architectural contracts are based on a percentage of construction cost as provided in the General Appropriations Act, has been included to clarify state funded architectural contracts do not require contract negotiations. Section 9.38(g) has been revised to clarify the district, division, or special office will evaluate the provider's performance in the categories of management cost administration, quality, timeliness, and constructability. Section 9.41(h) has been revised to clarify a prime provider or subprovider failing to submit an application for renewal will be ineligible to submit a letter of interest for new contracts until they are precertified. Section 9.42(a) has been revised to include exceptions from administrative qualification for Group 14 - geotechnical services, Group 15 - surveying and mapping, and/or Group 16 - architecture. Percent of construction has excluded from the requirement of administrative qualification. Section 9.42(b) has been revised to include the complete Texas Department of Transportation's Audit office address. Section 9.42(c)(2) has been revised to clarify the reference from "annual overhead audit" to "overhead rate audit" throughout this section to provide accurate terminology. Section 9.42(c)(2)(D) has been revised to clarify that the department's policy concerning contracting with a provider lacking an approved overhead rate audit if specified requirements are met also applies to subproviders. Section 9.42(d) has been revised to change the wording "financial information" to "administrative qualification information" for accuracy. The term "engineer" has been changed to "provider". A reference to sec.9.37 has been included. Section 9.42(e) has been revised to change the phrase "Financial information will not be made available to the CST prior to contract selection" to "Administrative qualification information obtained through sec.9.42 will not be made available to the CST by the Audit Office prior to contract selection" to clarify the origination of the information. Section 9.43(b)(1)(F)(i) and (iii) have been revised by deleting "social" and adding "urban planning" to more clearly define the qualifications. Section 9.43(b)(1)(F)(ii) has been revised to replace the word "and" by "or" for the types of degree's accepted in subparagraph (ii), and the word "and" deleted from the end of the paragraph because either physical or a natural science degree will suffice as a qualification. Section 9.43(b)(2)(C)-(D) have been revised to correct the title from United States Corps to United States Army Corps. Section 9.43(b)(2)(E)(i) has been revised to include environmental studies, civil or environmental engineering to more clearly define the qualifications. Section 9.43(b)(2)(H) has been revised to include the origination date of the national Historic Preservation Act of 1966, as amended. Section 9.43(b)(2)(I)(ii) has been revised to include a minimum of one year of full-time experience managing historic preservation projects to more clearly define the qualifications. Section 9.43(b)(2)(L)(i) has been revised to include urban planning or a related engineering field to the other degrees or educational requirements to provide a broader range of professions applicable to the environmental justice areas. Section 9.43(b)(2)(N)(i) has been revised to include civil engineering to the other degrees or educational requirements. This degree was inadvertently left out of the proposed version and will allow a broader range of professions. Section 9.43(b)(8)(B)(ii) has been corrected to clarify the demonstrated experience is in electrical engineering and the National Electric Code. 43 TAC sec.sec.9.31, 9.38, 9.40 The amendments are adopted under 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; Government Code, Chapter 2254, Subchapter A, the Professional Services Procurement Act, which sets forth requirements for selection and contracting of architectural and engineering services; Government Code, Chapter 2161, which provides for a HUB Program for contracts that are funded in whole by state funds; and Transportation Code, sec.201.702, which provides for a DBE Program. sec.9.38.Contract Management. (a) DBE/HUB participation. (1) DBE/HUB program goals may be satisfied by the prime provider. (2) If the prime provider or the subprovider is a DBE/HUB, all work in the trade of that DBE/HUB provider must be accomplished by employees of that provider in accordance with Texas Civil Statutes, Article 601i. (b) Subcontracts. (1) A prime provider shall perform at least 30% of the contracted work with its own work force. No subcontractor may perform a higher percentage of the work than the prime provider. (2) The department will review subcontracts for compliance with the requirements of this subsection. Subcontracts shall incorporate by reference all of the provisions of the prime contract. (3) Subcontracts shall: (A) refer to the prime contract and have the same purpose; (B) include nondiscrimination attachment; (C) include DBE/HUB special provision; (D) include lower tier debarment certification (negotiated contracts); and (E) provide clear payment terms. (4) Subcontracts shall not include: (A) multipliers, such as supplies plus 10%; and (B) the state as a party to the subcontract. (c) Operations. (1) Management responsibility. The managing officer requesting the provider contract will manage the contract. (2) Project manager. The prime provider's project manager may not be changed without prior consent of the department. (3) Commencement of work. The provider shall not proceed with any contract work until advised in writing by the department to proceed. (4) Suspension of work. The department may suspend the work by: (A) verbally notifying the provider; (B) providing written notification of the suspension; (C) identifying the reason for suspension; and (D) identifying approximate length of suspension and payment based on actual work completed as of the date of suspension. (5) Payment on engineering contracts. Payment for eligible costs will be made within 30 days after receiving a correct invoice. Payment may be withheld pending verification of satisfactory work performed. To receive payment for services, the provider shall submit to the department project manager: (A) a monthly progress report; (B) an itemized and certified invoice (department form 132 or other acceptable format); and (C) a DBE/HUB report (The BOP may require proof of DBE/HUB use, including submittal of canceled checks that are properly identified by department project number or contract number). (6) Interim audit. The department may require the services of the provider during the construction phase to review shop drawings, plans or procedures, or perform other services related to its design. If these services are anticipated, the department may request an interim audit upon completion and approval of the plans, specifications, and cost estimate. (d) Supplemental agreements. (1) The original executed contra