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 16. ECONOMIC REGULATION PART III. Texas Alcoholic Beverage Commission CHAPTER 45. Marketing Practices SUBCHAPTER D. Advertising and Promotion-All Beverages 16 TAC sec.45.109 The Texas Alcoholic Beverage Commission adopts an amendment to sec.45.109, concerning permissible hours for restocking malt beverages and wine, without changes in the proposed text as published in the February 18, 1997, issue of the Texas Register (22 TexReg 1783). This amendment extends the hours during which malt beverages and wine can be stocked on store shelves. Prior to this amendment, this activity could not be conducted until after noon on Sundays. This amendment allows members of the alcoholic beverage industry to perform their duties during the morning hours on Sundays, leaving the afternoon hours for recreational or other professional pursuits. Paragraph (a) of the rule was amended to correct a previously incorrect statutory reference. The Wholesale Beer Distributors of Texas made comment urging adoption of the amendment as proposed. This amendment is adopted under the authority of the Alcoholic Beverage Code, sec.5.31 and sec.102.20. Cross reference to statute: Alcoholic Beverage Code, sec.102.20. 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 March 26, 1997. TRD-9704142 Doyne Bailey Administrator Texas Alcoholic Beverage Commission Effective date: April 15, 1997 Proposal publication date: February 18, 1997 For further information, please call: (512) 206-3204 PART IV. Texas Department of Licensing and Regulation CHAPTER 60. Texas Commission of Licensing and Regulation SUBCHAPTER C. Fees 16 TAC sec.sec.60.80-60.82 The Texas Department of Licensing and Regulation adopts amendments to sec.60.80 and sec.60.81 and new sec.60.82 concerning fees established by the Texas Commission of Licensing and Regulation. The amendments and new section are adopted without changes to the proposed text as published in the February 11, 1997, issue of the Texas Register (22 TexReg 1558) and will not be republished. The amendments to sec.60.80 and sec.60.81 updates the Chapter where individual program fees are published to correspond with legislative changes and establishes new charges for providing copies of public information. The new sec.60.82 establishes the collection of a processing fee for dishonored checks. The justification for the amendments to sec.60.80 and sec.60.81 are to update the listing of program fees to delete references to programs that are no longer regulated by the department and to amend charges for providing copies of public information to comply with charges adopted by the General Services Commission. The justification for the new sec.60.82 is to establish a charge for dishonored checks to the department to cover administrative costs. No comments were received regarding adoption of the new and amended sections. The new and amended sections are adopted under Texas Civil Statutes, Article 9100, which authorizes the Texas Department of Licensing and Regulation to promulgate and enforce a code of rules and take all action necessary to assure compliance with the intent and purposes of the Act. The following are the Articles that are affected by this rule: Rule 60.80- Articles 9100; 8861; 5221f-1; Health and Safety Code Chapter 754; and Title 2, Labor Code, Subtitle E Rule 60.81-Articles 9100 and Chapter 552 Government Code Rule 60.82-Articles 9100 and Chapter 552 Government Code 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 March 25, 1997. TRD-9704095 Tommy V. Smith Executive Director Texas Department of Licensing and Regulation Effective date: April 14, 1997 Proposal publication date: February 11, 1997 For further information, please call: (512) 463-7348 TITLE 25. HEALTH SERVICES PART I. Texas Department of Health CHAPTER 1.Texas Board of Health 25 TAC sec.sec.1.51-1.55 The Texas Department of Health (department) adopts amendments to sec.sec.1.51- 1.55, concerning fair hearing procedures. Sections 1.51-1.54 are adopted with changes to the proposed text as published in the September 27, 1996, issue of the type-name="italic">Texas Register. Section 1.55 is adopted without changes and will not be republished. The reasoned justification and factual basis for these sections are as follows: The sections set forth the hearing procedures and practices for hearings not required to be conducted under the Administrative Procedure Act, Government Code, Chapter 2001 (APA). The fair hearing rules are revisions to the department's existing rules which apply to all department programs which require due process or fair hearings. The requirements of these rules are dictated by the United States Supreme Court's requirements for due process. The sections clearly describe the scope and purpose of the rules, establish the requirements for notice letters, requests for hearing, prehearing matters, set standard procedures for all non-APA hearings, and describe the decision making process and notification of the decision. The rules allow for an affected person to more easily understand the fair hearing process and to more actively participate in agency hearings. A summary of comments and the department's responses to the comments are as follows: COMMENT: Concerning sec.1.51, a commenter asked how an person was to know which set of rules apply when a specific program area may have procedural rules which conflict with these rules. RESPONSE: The department agrees that this can be confusing and has added language to sec.1.51(a) to clarify that if a program area has more specific rules, those rules shall apply. COMMENT: Concerning sec.1.52(a), a commenter requested that the department add the requirement that the notice be in a language which the department knows the recipient of the notice can read. RESPONSE: The department disagrees. The department does not know whether the person can read English. The department does have translators for some languages who can assist a non-English reading person who receives a notice under this section. For most of the department programs which are involved in fair hearings, the language of the notice has not caused difficulty. COMMENT: Concerning sec.1.52(b), two commenters stated that a 20 day time limit to request a fair hearing is too short a period of time. Both commenters cited federal rules which govern Medicare and allow for a reasonable period of time not to exceed 90 days. Both commenters were concerned about the Medicaid program and the period of time that a Medicaid recipient has to request a hearing. The commenters recommended 60 days as a reasonable period. RESPONSE: The department disagrees. Medicaid recipients are covered by a different set of substantive rules which will conform to federal requirements to have a hearing within 90 days. For all other programs as listed, twenty days is an adequate time within which to request a hearing. COMMENT: Concerning sec.1.52(b), a commenter suggested that since many notices are not sent by certified mail, a definite time period should be given for when the time limit starts running. RESPONSE: The department agrees and has made a change as a result of the comment. COMMENT: Concerning sec.1.53(b), a commenter stated that the wording of this section could lead one to conclude that oral testimony is disfavored. The commenter suggested that the words "on the taking of oral testimony, or" be inserted between the words "conduct based" and "on written". RESPONSE: The department agrees and has made a change as a result of the comment. COMMENT: Concerning sec.1.53(c), a commenter stated that because the department did not allow for other forms of discovery, such as interrogatories, a Medicaid recipient may have one form of hearing at the department and another form of hearing at the Texas Department of Human Services (TDHS). The commenter suggested that the department allow the same types of discovery as TDHS. RESPONSE: The department disagrees. Since the requirements of these rules are dictated by the United States Supreme Court's requirements for due process, they do not have the formalities of more formal hearing rules. Discovery is basic in these rules; the right to examine documents pertinent to the subject of the hearing is necessary for a person to be heard. Other, formal discovery is not necessary. COMMENT: Concerning sec.1.53(d), a commenter stated the client should have the ability to request that the hearing be held in the locality where the program has an office, or where the client resides or works. RESPONSE: The department disagrees. When practical, the department may hold hearings in the location where the person resides or is located, or at a regional department office. COMMENT: Concerning sec.1.53(d), a commenter stated that telecommunications hearings be authorized only if the client has access to the telecommunications equipment necessary for the conduct of the hearing. The commenter stated that this requirement should be added to the rule. RESPONSE: The department disagrees. It is clear from the Supreme Court requirements that the purpose of a due process or fair hearing is to allow a person the opportunity to be heard. If the person does not have access to necessary telecommunications equipment to participate in the hearing, then the person has been denied the opportunity to be heard. When a person does not have telecommunications equipment, then the department arranges for the person to have access to such equipment, either by setting up the equipment in a department regional office, or by some other means. COMMENT: Concerning sec.1.53(e), a commenter stated that all other information privileged by federal or state substantive law should be added. RESPONSE: The department agrees and has made a change as a result of the comment COMMENT: Concerning sec.1.53(f), a commenter stated that the hearing officer is to apply all law applicable to the hearing; federal law and regulations, as well as state law and regulations, and that this requirement be added to this section. RESPONSE: The department disagrees. The hearing examiner applies the applicable law, whether it is state or federal law. COMMENT: Concerning sec.1.54(a), a commenter stated that the word "oral" should be used rather than the word "verbal" as a juxtaposition to the word "written", since both oral and written testimony are forms of verbal testimony. RESPONSE: The department agrees and has made a change as a result of the comment. COMMENT: Concerning sec.1.54(b), a commenter stated that the burden of proof should be "clear and convincing" unless the allegation is fraud or misrepresentation, in which case the burden of proof should be "beyond a reasonable doubt". RESPONSE: The department disagrees. The burden of proof in due process or fair hearings is "preponderance of the evidence", or "more likely than not." The burden of proof in agency hearings should not reach the level of the burden of proof in a criminal case. COMMENT: Concerning sec.1.54(c), a commenter suggested that the department allow persons and witnesses to record the hearing and/or their own testimony. RESPONSE: The department agrees and has made a change as a result of the comment. The following groups and associations provided the comments on the proposed rules: Advocacy, Inc., Texas Legal Services Center and several individuals. The commenters were generally in favor of the rules, however, they offered suggestions for clarity as discussed in the summary of the comments. The sections are statutorily adopted under the Health and Safety Code, sec.12.001, which provides the Texas Board of Health with the authority to adopt rules for the performance of every duty imposed by law on the Texas Board of Health, the Texas Department of Health and the commissioner of Health, and requires the department to establish rules for procedures regarding the duties imposed by law on the department. sec.1.51.Purpose and Scope. (a) Purpose. Various federal and state statutes or regulations require the Texas Department of Health (department) to establish procedures for conducting fair hearings in connection with various programs administered by the department. These hearings are not required to be conducted under the provisions of the Administrative Procedure Act, Government Code, Chapter 2001 (APA). Rather, the department shall conduct fair hearings in accordance with rules adopted by the Texas Board of Health. Where there is a conflict between these sections and the sections of a particular program, the more particular program sections will control. (b) Scope. (1) These sections establish fair hearing procedures which the department will follow when the department is required to conduct a fair hearing by federal or state statutes, rules or regulations, or when a statute or regulation does not specify that a contested case be heard under the APA. Specifically, the sections cover the opportunity for a hearing, the hearing notice, the hearing procedure and the decision-making process. (2) These procedures apply to fair hearings for: (A) the County Indigent Health Care Program; (B) the Chronically Ill and Disabled Children's Services Program; (C) the Waiver Program for Medically Dependent Children; (D) the Kidney Health Care; (E) the Lead-Based Paint Certification Program; (F) participation in the Women, Infant, and Children (WIC) Program; (G) client appeals in the medical assistance program administered by the department; and (H) any other program hearing not required to be a contested case hearing under the provisions of the APA. sec.1.52.Notice. (a) Department notice. Prior to making a final decision adverse to an affected person, the appropriate department program shall give the affected person written notice of an opportunity for a hearing on the proposed action. The notice shall contain: (1) a statement of the action the department intends to take; (2) an explanation of the reasons for the action the department intends to take; (3) a reference to the statutory and regulatory authority supporting the intended action; (4) an explanation of the affected person's right to request a hearing; and (5) the procedure by which an affected person may request a hearing. (b) Request for hearing. In the absence of a specific department program rule or federal regulation to the contrary, the affected person has 20 days after receiving the notice to request a hearing on the proposed action. It is rebuttable presumption that a notice is received five days after the date of the notice. A request for a hearing shall be made in writing and mailed or hand- delivered to the appropriate department program, unless the notice letter specifies an alternative method. If a person who is offered the opportunity for a hearing does not request a hearing within the prescribed time for making such a request, the person is deemed to have waived the hearing and the action may be taken. (c) Representation. An affected person may represent himself or herself or may be represented by legal counsel, a relative, a friend, or another spokesperson. sec.1.53.Preliminary Matters. (a) Assignment of hearing examiner. When a department program receives a timely request for a hearing, the program shall within ten days after receipt, forward such request, along with other pertinent documentation relating to such request, to the Office of General Counsel for the purpose of docketing, assignment of a representative of the program, and assignment of a hearing examiner to conduct the hearing. Neither the hearing examiner nor the program representative need be an attorney. (b) Notification of hearing. The hearing examiner shall, not less than ten days prior to the date of the hearing, send a written notification of the hearing to the affected person who has requested the hearing. The notification shall contain the basis of the proposed action; the time, date, and place of the hearing; and a statement that the affected person may request the fair hearing be conducted based on the taking of oral testimony or written information contained in the program file and any additional written information the person may wish to submit, without the necessity of taking oral testimony. (c) Discovery. The affected person shall be given the opportunity to examine the case file, claim file and any other documents or records the program intends to use at the fair hearing at a reasonable time before and during the hearing. There shall be no other discovery. (d) Location of hearing. Hearings will be held in Austin, unless the hearing examiner determines that circumstances exist which justify that the hearing be held in another location. A fair hearing may be conducted through telecommunications on order of the hearing examiner. (e) Privileges, evidence, and procedure. Only the rules contained in this undesignated head apply to fair hearings. Any party to a fair hearing is not required to disclose communications between a lawyer and client, a husband and wife, a clergy-person and a person seeking spiritual advice, or the name of an informant or other information protected by federal or state substantive law from being divulged. No decision may be based on undisclosed information. (f) Hearing based on written information. The hearing may be conducted based on the written information contained in the program files and additional written information submitted to the hearing examiner and the other party not less than three days prior to the hearing without the necessity of taking oral testimony. (g) Dismissal of hearing. The hearing examiner shall deny or dismiss a request for a fair hearing and the proposed action may be taken if the affected person withdraws the request in writing or fails to appear at the scheduled hearing without good cause. sec.1.54.Conduct of the Hearing. (a) Testimony. The affected person shall have the opportunity to refute the basis of the proposed action, to offer oral and written testimony in the person's behalf, and to question any witnesses or appropriate department program representatives about the proposed action. The affected person may bring witnesses. (b) Burden of proof. The department program bears the burden of proof in a fair hearing, unless otherwise specified in a department rule. (c) Recording. The hearing examiner will make a record of the proceeding, either through a tape recording or a court reporter. The cost of a court reporter will be borne by the person who requests that a court reporter be present. The affected person shall have the right to make an audio recording of the fair hearing. Any witness shall have the right to make an audio recording of his or her testimony. 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 March 25, 1997. TRD-9704102 Susan K. Steeg General Counsel Texas Department of Health Effective date: April 14, 1997 Proposal publication date: September 27, 1996 For further information, please call: (512) 458-7236 CHAPTER 289.Radiation Control The Texas Department of Health (department) adopts the repeal of existing sec.289.120, and adopts new sec.289.253, concerning the control of radiation. New sec.289.253 is adopted with changes to the proposed text as published in the November 12, 1996, issue of the Texas Register (21 TexReg 11059). The repeal of sec.289.120 is adopted without changes and therefore will not be republished. The repealed section adopted by reference Part 36, titled "Radiation Safety Requirements for Well Logging Service Operations and Tracer Studies" of the Texas Regulations for Control of Radiation (TRCR). The new section incorporates language from Part 36 that has been rewritten in Texas Register format and includes revision of several subsections of the section. The repeal and new section are part of the renumbering phase in the process of rewriting the department's radiation rules in the Texas Register format. The new section reflects the renumbering. The revised requirements delete the requirement for 16 additional hours of training for individuals performing tracer studies. The deletion is made as a result of a petition for rulemaking submitted by Keith Moon. The word "downhole" is deleted in some subsections of the rule and replaced with the words "well logging" because some calibration sources that are not used for logging the well are used downhole inside a logging tool. A requirement for notifying the department whenever there is reason to believe a sealed source or device containing radioactive material has been ruptured is added. This requirement is an item of compatibility with the United States Nuclear Regulatory Commission (NRC) and as an Agreement State, Texas must adopt it. References to other sections of this chapter are clarified to reflect the Texas Register format. Other subsections of the adopted section are changed to clarify and more adequately specify the requirements for well logging and/or tracer studies. The section maintains the established radiation safety requirements for well logging service operations and tracer studies as a means of protecting the public, workers, and the environment from unnecessary exposure to radiation. Following is a summary of changes that were made to the section as a result of comments received. Changes: In subsection (m)(3), the words "on the source holder" on the second part of the sentence were deleted because they were redundant. References to other parts of the chapter were clarified. Other minor grammatical changes were made to the section. The following are the public comments made concerning the proposed section and the department's responses to those comments. COMMENT: Concerning the section in general, one commenter stated that some of the references made to other parts of the chapter were incorrectly cited. RESPONSE: The department agrees and made corrections to the references in question. COMMENT: Concerning subsection (h), one commenter suggested additional language be added to this subsection requiring only a licensed manufacturer, operators specifically trained by the device manufacturer or person specifically licensed by the department, an agreement or licensing state, or the NRC be authorized to perform such services. RESPONSE: The department directed the commenter to sec.289.201 (25 TAC) which specifically addresses who is authorized to perform this analyses. No change was made as a result of the comment. COMMENT: Concerning subsection (m), the commenter suggested that the removal of decayed sealed source for disposal and/or replacement only be performed by personnel specifically licensed by the department, another agreement or licensing state, or the NRC. RESPONSE: The department directed the commenter to 25 TAC sec.289.252(p)(2)(D) relating to requirements for the return of decayed sealed sources for disposal and/or replacement. No change was made as a result of the comment. Commenters included a representative from Frank Malek and Associates of Montgomery and another one from Ludlum Measurements, Inc. of Sweetwater. The commenters were generally in favor of the proposal; however, they presented comments and suggestions for changes to the proposal as previously discussed. Texas Regulations for Radiation Control 25 TAC sec.289.120 The repeal is adopted under the Health and Safety Code, Chapter 401, which provides the Texas Board of Health with authority to adopt rules and guidelines relating to the control of radiation; and sec.12.001, which authorizes the board rules for the performance of every duty imposed by law on the board, the department, and the commissioner of health. This agency hereby certifies that the 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 March 25, 1997. TRD-9704131 Susan K. Steeg General Counsel Texas Department of Health Effective date: April 15, 1997 Proposal publication date: November 12, 1996 For further information, please call: (512) 458-7236 License Regulations 25 TAC sec.289.253 The new section is adopted under the Health and Safety Code, Chapter 401, which provides the Texas Board of Health with authority to adopt rules and guidelines relating to the control of radiation; and sec.12.001, which authorizes the board rules for the performance of every duty imposed by law on the board, the department, and the commissioner of health. sec.289.253.Radiation Safety Requirements for Well Logging Service Operations and Tracer Studies. (a) Purpose and scope. This section establishes radiation safety requirements for persons using sources of radiation for well logging service operations, including radioactive markers, mineral exploration and tracer studies. The requirements of this section are in addition to, and not in substitution for, the requirements of sec.289.112 of this title (relating to Hearing and Enforcement Procedures), sec.289.114 of this title (relating to Notices, Instructions, and Reports to Workers; Inspections), sec.289.119 of this title (relating to Radiation Safety Requirements for Particle Accelerators), sec.289.122 of this title (relating to Registration of Radiation Machine Use and Services), sec.289.126 of this title (relating to Fees for Certificates of Registration, Radioactive Material(s) Licenses, Emergency Planning and Implementation, and other Regulatory Services), sec.289.201 of this title (relating to General Provisions), sec.289.202 of this title (relating to Standards for Protection Against Radiation), and sec.289.252 of this title (relating to Licensing of Radioactive Material). This section applies to all licensees or registrants who use sources of radiation for well logging service operations, radioactive markers, mineral exploration and tracer studies. (b) Definitions. The following words and terms when used in this section shall have the following meaning unless the context clearly indicates otherwise. (1) Field station-A facility where sources of radiation may be stored or used and from which equipment is dispatched to temporary job sites. (2) Injection tool-A device used for controlled injection of radioactive tracer material. (3) Licensing state-Any state with rules equivalent to the Suggested State Regulations for Control of Radiation relating to, and an effective program for, the regulatory control of naturally occurring or accelerator-produced radioactive material (NARM) and has been designated as such by the Conference of Radiation Control Program Directors, Inc. (4) Logging assistant (equipment operator)-Any individual who, under the personal supervision of a logging supervisor, handles sealed sources or tracers that are not in logging tools or shipping containers or who performs surveys required by subsection (x) of this section. (5) Logging supervisor (field engineer)-The individual who provides personal supervision of the utilization of sources of radiation at temporary job sites. (6) Logging tool-A device used subsurface to perform well logging. (7) Mineral logging-Any logging performed for the purpose of mineral exploration other than oil or gas. (8) Personal supervision-Guidance and instruction by the supervisor, who is physically present at the job site and in such proximity that visual contact can be maintained and immediate assistance given as required. (9) Radiation safety officer-An individual named by the licensee or registrant who has a knowledge of, responsibility for, and authority to enforce appropriate radiation protection rules, standards, and practices on behalf of the licensee and/or registrant; and who meets the requirements of subsection (q) of this section. (10) Radioactive marker-Radioactive material placed subsurface or upon a structure intended for subsurface use for the purpose of depth determination or direction orientation. (11) Residential location-Any area where structures in which people lodge or live are located, and the grounds on which these structures are located including, but not limited to, houses, apartments, condominiums, and garages. (12) Service company-Any contracted or subcontracted company that is present at the temporary job site, specifically, that company to which the licensees' equipment is connected and that is exposed to radioactive material. (13) Source holder-A housing or assembly into which a radioactive source is placed for the purpose of facilitating the handling and use of the source. (14) Storage container-A container designed to provide radiation safety and security when sources of radiation are being stored. (15) Temporary job site-A location where well logging or tracer studies are performed other than the specific location(s) listed on a license or certificate of registration. (16) Tracer study-The release of a substance tagged with radioactive material for the purpose of tracing the movement or position of the tagged substance in the wellbore, at the wellhead, or adjacent formation. (17) Transport container-A container that meets the regulations of the United States Department of Transportation (DOT) and is designed to provide radiation safety and security when sources of radiation are being transported. (18) Uranium sinker bar-A weight containing depleted uranium used to aid in the descent of a logging tool down toward the bottom of a wellbore. (19) Wellbore-A drilled hole in which wireline service operations are performed. (20) Well logging-All operations involving the lowering and raising of measuring devices or logging tools (that may or may not contain sources of radiation) into wellbores or cavities for the purpose of obtaining information about the well and/or adjacent formations. (21) Wireline-An armored steel cable containing one or more electrical conductors used to lower and raise logging tools in the wellbore. (22) Wireline service operation-Any mechanical service that is performed in the wellbore using devices that are lowered into the well on a wireline for purposes of evaluation. (c) Prohibition. (1) No licensee shall perform well logging service operations with a sealed source(s) in any well or wellbore unless, prior to commencement of the operation, the licensee has a written agreement with the well operator, well owner, drilling contractor, or land owner that specifies who will be responsible for ensuring the following requirements are met: (A) a reasonable effort at recovery will be made in the event a sealed source is lost or lodged downhole; (B) a person shall not attempt to recover a sealed source in a manner that, in the licensee's opinion, could result in a source rupture; (C) in the event the environment, any equipment, or personnel are contaminated with radioactive material, decontamination to levels specified in sec.289.202(o) and (eee) of this title must be performed; and (D) the requirements of subsection (aa)(4) of this section shall be met in the event a decision is made to abandon the sealed source downhole. (2) No licensee shall perform tracer study operations with a substance tagged with radioactive material in any well or wellbore unless, prior to commencement of the operation, the licensee has a written agreement with the well operator, well owner, drilling contractor or land owner, and the service company to which the licensee's equipment is connected, as applicable, that specifies who will be responsible for ensuring the following requirements are met: (A) in the event the service company's personnel or equipment are contaminated with radioactive material, they must be decontaminated in accordance with sec.289.202(eee) of this title before release from the job site or release for unrestricted use; (B) in the event the well head or job site are contaminated with radioactive material, they must be decontaminated in accordance with sec.289.202(ddd) of this title to the concentration limits specified Table II, Column 2 in sec.289.202(ggg)(1) of this title, with the units changed from microcuries per milliliter to microcuries per gram before release for unrestricted use; and (C) in the event radioactive material is to be reversed from the well or the well screens out, the licensee must have established procedures and equipment or facilities to do the following: (i) reverse material into a preconstructed pit that is specifically established in the event of a screen out; or (ii) reverse material into suitable transport container(s) in the event of a screen out. (3) A copy of the written agreement in accordance with paragraphs (1) or (2) of this subsection shall be maintained for inspection by the agency for a period of five years following completion of the well logging service operation or tracer study. (d) Limits on levels of radiation. Sources of radiation shall be used, stored, and transported in such a manner that the requirements of sec.289.202 of this title, and sec.289.252(t) of this title as applicable, are met. (e) Storage precautions. (1) Each source of radiation, except accelerators, shall be provided with a storage and/or transport container. The container shall have a lock (or tamper seal for calibration sources) to prevent unauthorized removal of, or exposure to, the source of radiation. (2) Each area or room in which sources of radiation are stored shall be posted in accordance with sec.289.202(aa)(5) of this title. (3) Sources of radiation shall be stored downhole or in a bunker in order to minimize the danger from explosion and/or fire. (4) Sources of radiation may not be stored in residential locations. This section does not apply to storage of radioactive material in a vehicle in transit for use at temporary job sites, if the licensee complies with subsection (x)(2) of this section. (5) Sources of radiation in storage shall be secured to prevent tampering, or removal by unauthorized individuals. (f) Transport precautions. Transport containers shall be locked and physically secured to the transporting vehicle to prevent shifting during transport, accidental loss, tampering, or unauthorized removal. (g) Radiation survey instruments. (1) The licensee or registrant shall maintain a sufficient number of calibrated and operable radiation survey instruments at each location where radioactive material is stored or used to make physical radiation surveys as required by this section and by sec.289.202(p) of this title. Instrumentation shall be capable of measuring 0.1 milliroentgen per hour through at least 50 milliroentgens per hour. (Instrumentation capable of measuring 0.1 mR/hr through 50 mR/hr may not be sufficient to determine compliance with the regulations of the DOT.) (2) A licensee using tracer material shall have available at each field station and temporary job site additional calibrated and operable radiation survey instruments sensitive enough to detect the radioactive surface contamination limits specified in sec.289.202(eee) of this title. (3) Each radiation survey instrument shall be calibrated: (A) by a person specifically licensed or registered by the agency, another agreement state or licensing state or the United States Nuclear Regulatory Commission (NRC) to perform such service; (B) at intervals not to exceed six months and after each survey instrument repair; (C) for the types of radiation used and at energies appropriate for use; and (D) at an accuracy within 20% of the true radiation level at each calibration point. (4) Calibration records shall be maintained for a period of five years from the date of calibration for inspection by the agency. (h) Leak testing of sealed sources. Sources of radioactive material shall be tested for leakage and contamination in accordance with sec.289.201(g) of this title. Records of leak tests shall be maintained for agency inspection for five years from the date of the leak test. (i) Quarterly inventory. Each licensee or registrant shall conduct a quarterly physical inventory to account for all sources of radiation received or possessed at intervals not to exceed three months. Records of inventories shall be maintained for five years from the date of the inventory for inspection by the agency and shall include: (1) the quantities and kinds of sources of radiation; (2) the location where sources of radiation are assigned; (3) a unique identification of each source of radiation; (4) the date of the inventory; and (5) the name of the individual conducting the inventory. (j) Utilization records. Each licensee or registrant shall maintain current records, that shall be kept available for inspection by the agency for five years from the date of the recorded event, showing the following information for each source of radiation: (1) identification of each source of radiation to include: (A) the make and model number and/or serial number (or if absent, a description) of each sealed source used; or (B) the radionuclide and activity of tracer materials and radioactive markers used at a particular well site and the disposition of any unused tracer materials. (2) the identity of the logging supervisor or individual who is responsible for receiving sources of radiation, to whom assigned; and (3) the locations where used and dates of use. (k) Design and performance criteria for sealed sources used in well logging operations. (1) Each sealed source manufactured after August 1, 1992, (except those containing radioactive material in gaseous form) used in well logging operations shall be certified at the time of manufacture to meet the following minimum criteria. (A) The sealed source is of doubly encapsulated construction. (B) The sealed source contains radioactive material with a chemical/physical form as insoluble and nondispersible as practicable. (C) The sealed source's prototype has been tested and found to maintain its integrity after each of the following tests. (i) Temperature. The test source must be held at -40 degrees Centigrade for 20 minutes, 600 degrees Centigrade for one hour, and then be subjected to a thermal shock test with a temperature drop from 600 degrees Centigrade to 20 degrees Centigrade within 15 seconds. (ii) Impact. A 5 kilogram steel hammer, 2.5 centimeters in diameter, must be dropped from a height of 1 meter onto the test source. (iii) Vibration. The test source must be subjected to a vibration from 25 Hz to 500 Hz at 5 g amplitude for 30 minutes. (iv) Puncture. A 1 gram hammer and pin, 0.3 centimeter pin diameter, must be dropped from a height of 1 meter onto the test source. (v) Pressure. The test source must be subjected to an external pressure of 24,600 pounds per square inch absolute (1.695 X 107 pascals) without leakage. (2) In the absence of prototype testing required by paragraph (1)(C) of this subsection, sealed sources (except those containing radioactive material in gaseous form) used after January 1, 1993, shall be certified to meet the requirements of paragraph (1)(C) of this subsection. (3) Certification of source criteria as required by paragraphs (1) and (2) of this subsection shall be performed only by persons specifically authorized to do so by the agency, another agreement or licensing state, or the NRC. (4) Certification documents shall be maintained by the licensee for inspection by the agency for a period of five years after source disposal. (l) Labeling. (1) Each source, source holder, or logging tool containing radioactive material other than exempt quantity, shall bear a durable, legible, and clearly visible marking or label that has, as a minimum, the standard radiation caution symbol with no color requirement, and the wording DANGER (or CAUTION), RADIOACTIVE--DO NOT HANDLE, NOTIFY CIVIL AUTHORITIES (OR NAME OF COMPANY). (2) The labeling specified in paragraph (1) of this subsection shall be on the smallest component (i.e., source, source holder, or logging tool) that is transported as a separate piece of equipment. (3) Each transport container shall have permanently attached to it a durable, legible, and clearly visible label that has, as a minimum, the standard radiation caution symbol and the wording DANGER (or CAUTION), RADIOACTIVE, NOTIFY CIVIL AUTHORITIES (OR NAME OF COMPANY). (4) After August 1, 1993, each transport container shall have attached to it a durable, legible, and clearly visible label(s) that has, as a minimum, the licensee's name, address, and telephone number, the radionuclide, its activity, and the assay date. (m) Inspection and maintenance. (1) Each licensee or registrant shall conduct, at intervals not to exceed six months, a program of visual inspection and maintenance of source holders (or sealed source, if there is no source holder), logging tools, source handling tools, storage containers, transport containers, and injection tools to assure proper labeling and physical condition. The inspection program may be performed concurrently with routine leak testing of sealed sources. Records of inspection and maintenance shall be maintained for a period of five years for inspection by the agency. (2) If any inspection conducted in accordance with paragraph (1) of this subsection reveals damage to labeling or components critical to radiation safety, the device shall be removed from service until repairs have been made. (3) Any operation, such as drilling, cutting, or chiseling on a source holder containing a sealed source, shall be performed only by persons specifically licensed to do so by the agency, another agreement or licensing state, or the NRC. (4) The repair, opening, or modification of any sealed source shall be performed only by persons specifically licensed to do so by the agency, another agreement or licensing state, or the NRC. (n) Training requirements. (1) No licensee or registrant shall permit any individual to act as a logging supervisor until such individual has: (A) successfully completed in a course recognized by the agency, another agreement or licensing state, or the NRC, at least 24 hours of formal training in the subjects outlined in subsection (bb)(1) of this section; (B) received copies of and instruction in: (i) the rules contained in this section and the applicable subsections of sec.sec.289.114, 289.201 and 289.202 of this title or their equivalent; (ii) the conditions of the appropriate license or certificate of registration; and (iii) the licensee's or registrant's operating and emergency procedures; (C) demonstrated understanding of the requirements in subparagraphs (A) and (B) of this paragraph by successfully completing a written examination administered by the licensee or registrant; (D) completed two months of on-the-job training under the supervision of a logging supervisor; and (E) demonstrated through a field evaluation, competence in the use of sources of radiation, related handling tools, and the type of radiation survey instruments that will be used in the job assignment. (2) No licensee or registrant shall permit any individual to act as a logging assistant until such individual has: (A) received copies of and instruction in the applicable subsections of sec.sec.289.114, 289.201, and 289.202 of this title or their equivalent and the licensee's or registrant's operating and emergency procedures; (B) demonstrated understanding of the requirements in subparagraph (A) of this paragraph by successfully completing a written examination administered by the licensee or registrant; and (C) demonstrated competence to use, under the personal supervision of the logging supervisor, the sources of radiation, related handling tools, and radiation survey instruments that will be used in the job assignment. (3) The licensee or registrant shall provide an annual radiation safety review for logging supervisors and logging assistants. (4) Each licensee or registrant shall maintain records that document that the requirements of paragraphs (1), (2), and (3) of this subsection are met. Such records shall be maintained for inspection by the agency until the agency authorizes their disposal. (o) Operating and emergency procedures. The licensee or registrant shall maintain written operating and emergency procedures that include descriptions of and directions in at least the items listed in subsection (bb)(4) of this section. (p) Personnel monitoring. (1) In addition to the requirements of sec.289.202(p) and (q) of this title, no licensee or registrant shall permit any individual to act as a logging supervisor or logging assistant unless that individual wears either a film badge or a thermoluminescent dosimeter (TLD) at all times during well logging service operations and/or tracer studies utilizing sources of radiation. Each film badge or TLD shall be assigned to and worn by only one individual. Film badges must be replaced at least monthly and TLDs replaced at least quarterly. After replacement, each film badge or TLD must be returned to the supplier for processing within 14 calendar days or as soon as practicable. In circumstances that make it impossible to return each film badge or TLD within 14 calendar days, such circumstances must be documented and available for review by the agency. (2) When necessary in order to aid in determining the extent of an individual's exposure to concentrations of radioactive material, the agency may require a licensee to make available to the individual appropriate bioassay services and to furnish a copy of the reports of such services to the agency. (3) Personnel monitoring records shall be maintained for inspection by the agency until the agency authorizes their disposal. (q) Radiation safety officer. (1) A radiation safety officer (RSO) shall be designated for every license and certificate of registration issued by the agency. (2) The RSO's documented qualifications shall include: (A) possession of a high school diploma or a certificate of high school equivalency based on the GED test; (B) completion of the training and testing requirements of subsection (n)(1) of this section; and (C) two years of experience as a logging supervisor to include knowledge of well logging service operations and tracer studies. (3) The specific duties of the RSO include, but are not limited to, the following: (A) to establish and oversee operating, emergency, and as low as reasonably achievable (ALARA) procedures, and to review them regularly to ensure that the procedures are current and conform with this chapter; (B) to oversee and approve all phases of the training program for well logging service operations and/or tracer studies personnel so that appropriate and effective radiation protection practices are taught; (C) to ensure that required radiation surveys and leak tests are performed and documented in accordance with this chapter, including any corrective measures when levels of radiation exceed established limits; (D) to ensure that personnel monitoring is used properly by occupationally- exposed personnel, that records are kept of the monitoring results, and that timely notifications are made as required by sec.289.114 of this title; (E) to investigate and report to the agency each known or suspected case of radiation exposure to an individual or radiation level detected in excess of limits established by this chapter and each theft or loss of source(s) of radiation, to determine the cause, and to take steps to prevent its recurrence; (F) to have a thorough knowledge of management policies and administrative procedures of the licensee or registrant; (G) to assume control and have the authority to institute corrective actions including shutdown of operations when necessary in emergency situations or unsafe conditions; (H) to maintain records as required by this chapter (see subsection (bb)(5) of this section); (I) to ensure the proper storing, labeling, transport, and use of sources of radiation, storage, and/or transport containers; (J) to ensure that quarterly inventories are performed in accordance with subsection (i) of this section; and (K) to ensure that personnel are complying with this chapter, the conditions of the license or the registration, and the operating and emergency procedures of the licensee or registrant. (r) Security. During each well logging or tracer application, the logging supervisor or other designated employee is responsible for protecting against unauthorized and/or unnecessary entry into a restricted area, as defined in sec.289.201 of this title. (s) Handling tools. The licensee shall provide and require the use of tools that will assure remote handling of sealed sources other than low activity calibration sources. (t) Tracer studies. (1) Protective gloves and other appropriate protective clothing and equipment shall be used by all personnel handling radioactive tracer material. Precautions shall be taken to avoid ingestion or inhalation of radioactive material, and to avoid contamination of field stations, temporary job sites, vehicles, associated equipment, and clothing. (2) No licensee shall permit the injection of radioactive material into usable quality groundwater (3,000 parts per million (ppm) total dissolved solids or less) without prior written authorization from the agency. (u) Particle accelerators. No licensee or registrant shall permit above-ground testing of particle accelerators that results in the production of radiation except in areas or facilities controlled or shielded to meet the requirements of sec.289.202(f) or (n) of this title, as applicable. (v) Radioactive markers. The licensee may use radioactive markers in wells only if the individual markers contain quantities of radioactive material not exceeding the quantities specified in sec.289.251(q)(2) of this title. The use of markers is subject only to the provisions of this subsection and subsection (i) of this section. (w) Uranium sinker bars. The licensee may use a depleted uranium sinker bar in well logging service operations only if it is legibly impressed with the wording DANGER (or CAUTION), RADIOACTIVE-DEPLETED URANIUM, NOTIFY CIVIL AUTHORITIES (OR NAME OF COMPANY). (x) Radiation surveys. (1) Radiation surveys (and calculations, for neutron sources) shall be made and recorded for each area where radioactive materials are stored. (2) Radiation surveys (and calculations, for neutron sources) of the radiation levels in occupied positions and on the exterior of each vehicle used to transport radioactive materials shall be made and recorded. Such surveys (and calculations, for neutron sources) shall include each source of radiation and combination of sources of radiation transported in the vehicle. (3) If the sealed source assembly is removed from the logging tool before departing the job site, a survey meter shall be used to verify that the logging tool is free of contamination. (4) If the licensee has reason to believe that the encapsulation of the sealed source could be damaged by an operation, the licensee shall immediately conduct a radiation survey, including a contamination survey, during and after the operation. (5) Radiation surveys shall be made and recorded at the job site and/or well head for each tracer operation except for those utilizing hydrogen-3, carbon-14, sulfur-35, or krypton-85. These surveys shall include measurements of radiation levels before and after the operation. (6) Records required in accordance with paragraphs (1) through (5) of this subsection shall also include the dates, the identification of individual(s) making the survey, the unique identification of survey instrument(s) used, radiation measurements in milliroentgen per hour (mR/hr), calculations in millirem per hour, and an exact description of the location of the survey. Records of these surveys shall be maintained for inspection by the agency for two years after completion of the survey. (y) Records and documents required at field stations. (1) Each licensee or registrant maintaining field stations from which well logging service operations are conducted shall have the following records and documents available at each station for inspection by the agency: (A) a copy of the appropriate license or certificate of registration; (B) operating and emergency procedures; (C) applicable rules as listed in the license or certificate of registration; (D) survey records required in accordance with subsection (x) of this section; (E) quarterly inventories required in accordance with subsection (i) of this section; (F) utilization records required in accordance with subsection (j) of this section; (G) records of inspection and maintenance required in accordance with subsection (m) of this section; (H) records of the survey instrument calibration and leak test for the specific devices and sources at the field station; (I) records of personnel monitoring required in accordance with subsection (p) of this section for personnel employed at the field station; (J) training records required in accordance with subsection (n) of this section; (K) shipping papers for the transportation of radioactive material; and (L) records of receipt, transfer, and disposal of radioactive material at the field station. (2) Records required in accordance with paragraph (1)(A)-(L) of this subsection shall be maintained in accordance with subsection (bb)(5) of this section. (z) Records and documents required at temporary job sites. Each licensee or registrant conducting well logging service operations at a temporary job site shall have the following records and documents available at that site for inspection by the agency: (1) a copy of the appropriate license or certificate of registration; (2) operating and emergency procedures; (3) survey records required in accordance with subsection (x) of this section for the period of operation at that site; (4) evidence of current calibration for the radiation survey instruments in use at the site; (5) a copy of the current leak test record for the source(s) in use; and (6) shipping papers for the transportation of radioactive material. (aa) Notification of incidents and lost sources; abandonment procedures for irretrievable sources. (1) Notification of incidents and sources lost in other than downhole well logging operations shall be made in accordance with appropriate provisions of sec.289.202 of this title. (2) Whenever there is reason to believe that a sealed source or a device containing radioactive material has been ruptured, the licensee shall notify the agency immediately by telephone and submit written notification within 30 days. The written notification shall designate the following: (A) the well or other location; (B) a description of the magnitude and extent of the escape of radioactive material; (C) an assessment of the consequences of the rupture; and (D) an explanation of the efforts planned or being taken to mitigate these consequences. (3) Whenever a sealed source or device containing radioactive material is lost downhole, the licensee shall: (A) monitor with a radiation survey instrument (or logging tool adjusted to detect gamma emissions from source(s) lost downhole), at the surface for the presence of radioactive contamination during logging tool recovery (fishing) operations; and (B) notify the agency immediately by telephone and submit written notification within 30 days if radioactive contamination is detected at the surface or if the source appears to be damaged. (4) When it becomes apparent that efforts to recover the radioactive source will not be successful, the licensee shall: (A) advise the well operator of the Texas Railroad Commission rules regarding abandonment and an appropriate method of abandonment, that shall include: (i) the immobilization and sealing in place of the radioactive source with a cement plug; (ii) the setting of a whipstock or other deflection device; and (iii) the mounting of a permanent identification plaque, containing information required by paragraph (5) of this subsection, at the surface of the well; (B) notify the agency by telephone giving the circumstances of the loss; and (C) file a written report with the agency within 30 days of the abandonment, setting forth the following information: (i) date of occurrence; (ii) a description of the radioactive source involved, including radionuclide, activity, chemical and physical form, and serial number; (iii) surface location and identification of well; (iv) results of efforts to immobilize and seal the source in place; (v) depth of the radioactive source; (vi) depth of the top of the cement plug; (vii) depth of the well; and (viii) information contained on the permanent identification plaque. (5) Whenever a sealed source containing radioactive material is abandoned downhole, the licensee shall provide a permanent plaque (an example of a suggested plaque is shown in subsection (bb)(3) of this section) for posting the well or wellbore. This plaque shall: (A) be constructed of long-lasting material such as stainless steel, brass, bronze, or monel. The size of the plaque should be convenient for use on active or inactive wells; e.g., a 7 inch square. Letter size of the word "CAUTION" should be approximately twice the letter size of the rest of the information; e.g., 1/2 inch and 1/4 inch letter size, respectively; and (B) contain the following engraved information on its face: (i) the word "CAUTION;" (ii) the radiation symbol (color not required); (iii) the date of abandonment; (iv) the name of the well operator or well owner; (v) the well name and well identification number(s) or other designation; (vi) radionuclide(s) and activity(ies) of the source(s); (vii) the source depth and the plug back depth (depth to the top of the plug); and (viii) an appropriate warning, depending on the specific circumstances of each abandonment, such as the following: (I) "Do not drill below plug back depth;" (II) "Do not enlarge casing;" or (III) "Do not re-enter hole before contacting Bureau of Radiation Control, Texas Department of Health." (6) The licensee shall immediately notify the agency by telephone and confirming letter if the licensee knows or has reason to believe that radioactive material has been lost in or to an underground potable water source. Such notice shall designate well location and describe the magnitude and extent of loss of radioactive material, consequences of such loss and efforts taken or planned to mitigate these consequences. (7) In the event of an uncontrolled release of radioactive tracer material to the environment, the licensee shall notify the agency by telephone within 24 hours and submit written notification within 30 days. (bb) Appendices. (1) Subjects to be included in training courses for well logging service operations and/or tracer studies are as follows: (A) fundamentals of radiation safety that include: (i) characteristics of radiation; (ii) units of radiation dose (rem) and activity; (iii) significance of radiation dose specifying radiation protection standards and biological effects of radiation; (iv) levels of radiation from sources of radiation; (v) methods of controlling radiation dose specifying time, distance, and shielding; (vi) radiation safety practices, specifying prevention of contamination and methods of decontamination; and (vii) discussion of ingestion, inhalation pathways; (B) radiation detection instrumentation to be used that includes: (i) use of radiation survey instruments specifying operation, calibration, and limitations; (ii) survey techniques; and (iii) use of personnel monitoring equipment specifying film badges, thermoluminescent dosimeters (TLDs), and pocket dosimeters; (C) equipment to be used that specifies; (i) handling equipment and remote handling tools; (ii) sources of radiation; (iii) storage control, disposal, and transport of equipment and sources of radiation; (iv) operation and control of equipment; and (v) maintenance of equipment; (D) the requirements of pertinent federal and state regulations; (E) the licensee's or registrant's written operating and emergency procedures; (F) the licensee's or registrant's record keeping procedures; and (G) case histories and potential consequences of accidents in well logging service operations and tracer studies. (2) In addition to the subjects for training courses required in paragraph (1) of this subsection, individuals performing tracer studies must also complete training in the following subjects: (A) sources of contamination; (B) contamination detection and control; (C) decontamination techniques and limits; (D) survey techniques for tracer materials; and (E) packaging requirements for transportation of radioactive materials, especially residual materials from tracer studies. (3) The following is an example of a plaque for identifying wells containing sealed sources of radioactive material abandoned downhole: Figure 1: 25 TAC sec.289.253(bb)(3) (4) The licensee's or registrant's operating and emergency procedures shall include descriptions of and instructions in at least the following: (A) the handling and use of sources of radiation in wells without surface casing for protecting fresh water aquifers, if appropriate; (B) the handling and use of sources of radiation to be employed so that no individual is likely to be exposed to radiation doses in excess of the limits established in sec.289.202 of this title. Every reasonable effort shall be made to keep radiation exposures and releases of radioactive material in soils and effluents to unrestricted areas as low as is reasonably achievable; (C) methods and occasions for conducting radiation surveys; (D) methods and occasions for locking and securing sources of radiation; (E) personnel monitoring and the use of personnel monitoring equipment, including bioassays; (F) removal of radioactive material from storage, transportation of radioactive material to field locations and temporary job sites, including packaging of sources of radiation in the vehicles, placarding of vehicles, securing sources of radiation during transportation, and return to storage; (G) minimizing exposure of individuals during routine use and in the event of an accident; (H) procedures for notifying proper personnel in the event of an accident or well excursion; (I) maintenance of records; (J) use, inspection, and maintenance of source holders, logging tools, source handling tools, storage containers, transport containers, and injection tools; (K) procedures to be followed in the event a sealed source is lost or lodged downhole; (L) procedures to be used for picking up, receiving, handling, and opening packages containing radioactive material; (M) procedures to be used for surveys of temporary job sites and equipment, and decontamination of vehicles, associated equipment, and clothing following tracer studies; (N) storage and disposal of radioactive waste; (O) procedures for laundering contaminated clothing, if applicable; (P) licensee's or registrant's management structure; (Q) posting of radiation areas and labeling radioactive material containers; (R) procedures to be followed in the event of an uncontrolled release of radioactive tracer material to the environment; and (S) actions to be taken if a sealed source is ruptured, including actions to prevent the spread of contamination and minimize inhalation and ingestion of radioactive material, and actions to obtain suitable radiation survey instruments as required by subsection (g) of this section. (5) The following are time retention requirements for record keeping. Figure 2: 25 TAC sec.289.253(bb)(5): 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 March 25, 1997. TRD-9704130 Susan K. Steeg General Counsel Texas Department of Health Effective date: April 15, 1997 Proposal publication date: November 12, 1996 For further information, please call: (512) 458-7236 PART II. Texas Department of Mental Health and Mental Retardation CHAPTER 401. System Administration SUBCHAPTER B. Interagency Agreements 25 TAC sec.401.60 The Texas Department of Mental Health and Mental Retardation (TDMHMR) adopts new sec.401.60, governing interagency coordination of special education services to students with disabilities in residential care facilities, of Chapter 401, Subchapter B, concerning interagency agreements with changes to the text as proposed in the December 17, 1996, issue of the Texas Register (21 TexReg 12051). The new section adopts by reference a rule of the Texas Education Agency (TEA) at 19 TAC sec.89.1115 (relating to Memorandum of Understanding Concerning the Interagency Coordination of Special Education Services to Students with Disabilities in Residential Care Facilities) which were published in the February 11, 1997, issue of the Texas Register (22 TexReg 1629). The TEA rule constitutes a memorandum of understanding (MOU) with TDMHMR and seven other state agencies: Texas Department of Human Services, Texas Department of Health, Texas Department of Protective and Regulatory Services, Texas Interagency Council on Early Childhood Intervention, Texas Commission on Alcohol and Drug Abuse, Texas Juvenile Probation Commission, and Texas Youth Commission. The MOU, which became effective on June 28, 1996, was developed and entered into at the direction of the Texas Senate Committee on Health and Human Services, 73rd Texas Legislature, 1993. The MOU provides for: (a) the identification of responsibilities and programs of state agencies that place school-age residents in residential care facilities (RCF), fund RCF placements, serve RCF students, and/or regulate RCFs; (b) the development of policies and procedures for implementing improved interagency coordination with regard to special education to public school students in the RCF population, such as increased sharing of information and a required "child find" notice imposed on an RCF as a condition of licensure or regulation; and (c) procedures for resolving disputes that may arise in implementing this agreement. Two technical corrections were made in subsection (a): the singular "rule" is substituted for the plural "rules" and the abbreviation TEA was added after the agency name "Texas Education Agency." No public hearing was held, nor were written comments received from members of the public. These sections are adopted under the Texas Health and Safety Code, sec.532.015, which provides the Texas Mental Health and Mental Retardation Board with broad rulemaking authority. sec.401.60. Interagency Coordination of Special Education Services to Students with Disabilities in Residential Care Facilities. (a) Texas Department of Mental Health and Mental Retardation (TDMHMR) adopts by reference a rule of the Texas Education Agency (TEA) in 19 TAC sec.89.1115 (relating to Memorandum of Understanding Concerning Interagency Coordination of Special Education Services to Students with Disabilities in Residential Care Facilities). (b) The MOU was developed by and agreed to by TDMHMR, TEA, Texas Department of Human Services, Texas Department of Health, Texas Department of Protective and Regulatory Services, Texas Interagency Council on Early Childhood Intervention, Texas Commission on Alcohol and Drug Abuse, Texas Juvenile Probation Commission, and Texas Youth Commission at the direction of the Texas Senate Committee on Health and Human Services, 73rd Texas Legislature, 1993. (c) Copies of the MOU are filed in the Office of Policy Development, TDMHMR, 909 West 45th Street, Austin, Texas 78756, and may be reviewed during regular business hours. 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 March 24, 1997. TRD-9704067 Ann Utley Chair, Texas MHMR Board Texas Department of Mental Health and Mental Retardation Effective date: April 14, 1997 Proposal publication date: December 17, 1996 For further information, please call: (512) 206-4516 TITLE 37. PUBLIC SAFETY AND CORRECTIONS PART I. Texas Department of Public Safety CHAPTER 31. Standards for an Approved Motorcycle Operator Training Course 37 TAC sec.sec.31.1-31.10 The Texas Department of Public Safety adopts amendments to sec.sec.31.1-31.10, concerning standards for an approved motorcycle operator training course, without changes to the proposed text as published in the February 4, 1997, issue of the Texas Register (22 TexReg 1305). The justification for the amendments will be an upgrading of standards to ensure the public of quality motorcycle operator training. Amendment to sec.31.1 changes the definition for the mobile site sponsor to indicate that they are contracted by the department to perform whereas they used to fall under a letter of agreement and adds "safety" to the motorcycle operator training program as per the legal name of the program. Section 31.2 amends program sponsor wording per the Texas Transportation Code. Section 31.3 is amended reflecting the program sponsor wording and changes the Texas Education Agency to the Department of Public Safety as the agency that establishes driving record standards for school bus drivers. Amendment to sec.31.4 changes the pre- course educational requirement for minors from 32 hours to six hours and identifies those documents which are allowed as proof of the pre-course educational requirements. The title of sec.31.5 is amended and the section is changed to allow either the instructor or chief school official to sign the MSB- 8. Section 31.6 is amended by removing the requirement for the Motorcycle RiderCourse: Riding and Street Skills, Module 18, from the department-approved basic motorcycle operator training course. Section 31.7 is amended to allow the use of student-owned mopeds, motor-driven cycles, or motorcycles without the capability to shift gears in the basic course if needed for a physically challenged student in order to comply with the Americans With Disability Act. Section 31.8 is amended to reflect the proper legal references. Section 31.9 is amended to parallel the codified law. Amendment to sec.31.10 changes the section title and removes all references to program director. No comments were received regarding adoption of the amendments. The amendments are adopted pursuant to Texas Government Code, sec.411.006(4), which authorizes the director of the Department of Public Safety to adopt rules, subject to commission approval, considered necessary for the control of the department; and Texas Transportation Code, sec.662.009. 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 March 12, 1997. TRD-9704163 Dudley M. Thomas Director Texas Department of Public Safety Effective date: April 15, 1997 Proposal publication date: February 4, 1997 For further information, please call: (512) 424-2890