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 19. EDUCATION PART I. Texas Higher Education Coordinating Board CHAPTER 12.Proprietary Schools SUBCHAPTER B.Basic Standards 19 TAC sec.12.52 The Texas Higher Education Coordinating Board adopts an amendment to sec.12.52, concerning Texas Academic Skills Program (TASP) without changes to the proposed text as published in the February 25, 1997, issue of the Texas Register (22 TexReg 1931). No comments were received concerning the adopted amendment. The amendment is adopted under Texas Education Code, sec.132.063 which provides the Texas Higher Education Coordinating Board with the authority to adopt rules concerning Texas Academic Skills Program (TASP). 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 May 6, 1997. TRD-9706017 James McWhorter Assistant Commissioner for Administration Texas Higher Education Coordinating Board Effective date: May 27, 1997 Proposal publication date: February 25, 1997 For further information, please call: (512) 483-6160 SUBCHAPTER C.Hinon-Hazlewood College Student Loan Program for All Loan Program for All Loans which are Subject to the Provisions of the Federal Family Education Loan Program, the College Access Loan Program, the Health Education Assistance Loan Program, and the Health Education Loan Program 19 TAC sec.21.56 The Texas Higher Education Coordinating Board adopts an amendment to sec.21.56, concerning Qualifications for Loans without changes to the proposed text as published in the February 25, 1997, issue of the Texas Register (22 TexReg 1934). No comments were received concerning the adopted amendment. The amendment is adopted under Texas Education Code, sec.52.54 which provides the Texas Higher Education Coordinating Board with the authority to adopt rules concerning Qualifications for Loans. 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 May 6, 1997. TRD-9706018 James McWhorter Assistant Commissioner for Administration Texas Higher Education Coordinating Board Effective date: May 27, 1997 Proposal publication date: February 25, 1997 For further information, please call: (512) 483-6160 SUBCHAPTER GG.Fifth Year Accounting Student Scholarship Program 19 TAC sec.sec.21.1033, 21.1035, 21.1036, 21.1039, 21.1040, 21.1042 The Texas Higher Education Coordinating Board adopts amendments to sec.sec.21.1033, 21.1035, 21.1036, 21.1039, 21.1040, and 21.1042, concerning the Fifth-Year Accounting Student Scholarship Program without changes to the proposed text as published in the February 25, 1997, issue of the Texas Register (22 TexReg 1935). No comments were received concerning the adopted amendments. The amendments to the rules are proposed under Texas Education Code, sec.61.751 which provides the Texas Higher Education Coordinating Board with the authority to adopt rules concerning Fifth-Year Accounting Student Scholarship Program. 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 May 6, 1997. TRD-9706019 James McWhorter Assistant Commissioner for Administration Texas Higher Education Coordinating Board Effective date: May 27, 1997 Proposal publication date: February 25, 1997 For further information, please call: (512) 483-6160 CHAPTER 25.Optional Retirement Program SUBCHAPTER A.Optional Retirement Program 19 TAC sec.sec.25.1, 25.2, 25.3 The Texas Higher Education Coordinating Board adopts amendments to sec.sec.25.1, 25.2, and 25.3, concerning Retirement Annuity Programs with changes to the proposed text as published in the February 25, 1997, issue of the Texas Register (22 TexReg 1936). Comments were received from Texas A&M University System, Southwest Texas State University, and El Paso Community College. Texas A&M commented that the wording of the grandfathering provision in 25.2(d)(2) was confusing. The agency agrees and modified the language in the adopted rule. Texas A&M also suggested including in the definition of ORP retiree all those who meet the eligibility requirements in the insurance statute rather than just those who actually enroll in retiree health insurance. Because of the restriction on further contributions, the agency believes that the definition should only include those individuals who voluntarily establish retiree status by enrolling in retiree health insurance. Southwest Texas State University (SWT) commented that, although the current program at SWT is already consistent with the new rule, the restriction on further contributions for ORP retirees might inhibit faculty members' use of the modified retirement program. The agency agrees that this change might affect the decision of certain faculty members who choose to work full-time at another university after entering the SWT modified retirement program, but believes the new rule is justified because: (1) the current confusing and inconsistent treatment of ORP retirees who return to work warrants a uniform definition, and (2) individuals who establish retiree status to enjoy the advantages of a modified retirement program and to enroll in the valuable retiree health insurance plan should not be treated as active employees if they return to work. El Paso Community College commented that enrollment in retiree health insurance should not be used as the determining factor to establish ORP retirement because enrollment is not considered a voluntary action. This is based on the early age of initial eligibility (55 years old) and the Evidence of Insurability (EOI) requirement that is applied if an individual fails to enroll within the first 30 days of eligibility. The college believes that former employees feel compelled to enroll upon initial eligibility even if they plan to return to active employment at a later date. The agency believes that enrollment in ORP retiree insurance should be the determining factor. Individuals who are not actually retiring from Texas public higher education are not required to enroll in retiree insurance upon initial eligibility because they will be eligible for active insurance upon returning to work, and when they later terminate, a 30-day eligibility period for retiree insurance will be offered again. El Paso also commented that community colleges which are not covered by Social Security will have to use local funds to replace lost state funds because they are required by federal law to provide an alternate plan for employees who are not contributing to a retirement plan (e.g., part-time employees). The agency agrees, but believes that: (1) some ORP retirees will meet the federal definition of retiree and will be exempt; (2) most retirees who return to work do so at half-time or less and, therefore, were not receiving state contributions; and (3) contribution rates to the alternate plans are often less than the ORP rate, so the replacement cost for the affected ORP retirees should be less than the actual loss. The amendments are adopted under Texas Government Code, sec.830.101(b) which provides the Texas Higher Education Coordinating Board with the authority to adopt rules concerning Retirement Annuity Programs. sec.25.1.Purpose. It is the purpose of these rules to carry out the Coordinating Board's responsibilities pursuant to Texas Government Code, Chapter 830, to establish eligibility for the Texas Optional Retirement Program. sec.25.2.ORP Eligibility Standards. (a)-(c) (No change.) (d) An ORP retiree is defined as an individual who participated in the Optional Retirement Program while employed in a public institution of higher education in Texas and who established retiree status by enrolling in retiree health insurance provided by the Employees Retirement System, the University of Texas System, or the Texas A&M University System, regardless of whether currently enrolled. (1) ORP retirees as defined in this subsection who later return to employment in Texas public institutions of higher education are not eligible to have further ORP contributions made to their ORP account. (2) ORP retirees as defined in this subsection who enrolled in retiree health insurance on or before June 1, 1997 are exempt from paragraph (1) of this subsection. sec.25.3.ORP Standards. (a)-(j) (No change.) 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 May 6, 1997. TRD-9706020 James McWhorter Assistant Commissioner for Administration Texas Higher Education Coordinating Board Effective date: May 27, 1997 Proposal publication date: February 25, 1997 For further information, please call: (512) 483-6160 19 TAC sec.sec.25.4-25.11 The Texas Higher Education Coordinating Board adopts the repeals of sec.sec.25.4-25.11, concerning Retirement Annuity Programs without changes to the proposed text as published in the February 25, 1997, issue of the Texas Register (22 TexReg 1936). Comments were received from Texas A&M University System and Southwest Texas State University expressing concern that changing the format from rules to procedures might result in program inconsistencies. The agency anticipates that institutions, in an effort to help ensure uniformity, would not make any major deviations from the procedures. Toward that end, future adjustments to the procedures will be accomplished with input from the institutions. Additionally, several items in the deleted rules are reiterations of law in the ORP statute or Attorney General's Opinions and are not affected by this change. The amendment is based on a legal interpretation of the Board's rule-making authority and is not intended to change the way the program operates. The repeals are adopted under Texas Government Code, sec.830.101(b) which provides the Texas Higher Education Coordinating Board with the authority to adopt rules concerning Retirement Annuity Programs. 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 May 6, 1997. TRD-9706016 James McWhorter Assistant Commissioner for Administration Texas Higher Education Coordinating Board Effective date: May 27, 1997 Proposal publication date: February 25, 1997 For further information, please call: (512) 483-6160 TITLE 30. ENVIRONMENTAL QUALITY PART I. Texas Natural Resource Conservation Commission CHAPTER 297. Water Rights, Substantive SUBCHAPTER E. Issuance and Conditions of Water Rights or Certificate of Adjudication 30 TAC sec.297.57 The Texas Natural Resource Conservation Commission (commission) adopts new sec.297.57, Subchapter E, relating to Emergency Suspension of Permit Conditions, with changes to the proposed text as published in the November 8, 1996, issue of the Texas Register (21 TexReg 10959). EXPLANATION OF ADOPTED RULE The purpose of the rule is to set forth the procedures and criteria to be used by the commission in its review and action on a petition by a water right holder for the temporary suspension of conditions in the water right relating to beneficial inflows to bays and estuaries and instream uses during an "emergency" if there are no "practicable, feasible alternatives" to the suspension, pursuant to Texas Water Code, sec.11.148. New sec.297.57 includes the purpose for which a petition may be submitted and describes an emergency condition supporting the submission of a petition. It also establishes minimum requirements for the contents of the petition and provides that the petition must be filed with the Texas Parks and Wildlife Department at the same time it is filed with the commission. Also, the rule requires the commission to conduct a hearing within 15 days of the date on which the order to suspend a permit condition is issued to determine if the suspension should be affirmed, modified, or set aside. If a continuation is granted, the maximum time period would be for 120 days, with a provision for a one-time 60-day extension if the commission determines emergency conditions triggering the initial suspension continue to exist. Additionally, the new rule provides that if the water right holder has a water conservation plan and/or drought contingency plan, the suspension of permit conditions may be contingent upon the full implementation of such plans and measures corresponding to the staged reduction of releases for existing instream uses and beneficial inflows to the bays and estuaries. The rule includes provisions for the passage of existing instream flows up to that amount necessary to maintain water quality standards for the affected stream segment. Finally, the new rule provides that if a water right already contains provisions for the suspension or partial suspension of permit conditions for the maintenance of instream flows or freshwater inflows to the bays and estuaries, further or different relief requested in the petition may be denied unless the petitioner can show significantly changed circumstances or an emergency condition not contemplated when the water right condition was issued. COMMENTERS Written comments on the proposed rule were submitted by the Public Interest Counsel (PIC) of the commission and the Lone Star Chapter of the Sierra Club (Sierra Club) represented by the law office of Henry, Lowerre, Johnson, Hess & Frederick. Both sets of comments addressed specific sections of the proposed rule and neither entity spoke in opposition to the rule. The PIC suggested the rule should further clarify emergency conditions warranting relief and measures to be taken by the petitioner to address the emergency. Additionally, the PIC suggested an emergency should be limited to situations where human health and domestic animals are at peril. The commission agrees emergency conditions exist when there is imminent peril to human health, safety, and welfare and has revised this subsection accordingly. The PIC recommended changes to sec.297.57(c) which would provide additional information requirements for the initial petition. Since the commission may initially consider the petition without a hearing, the PIC commented that the petition should be clearly required to provide the commission with sufficient data and information to make its decision. Appropriate changes to the rule have been made to reflect the PIC's concerns. The PIC suggested sec.297.57(e) be modified to allow for submission of comments by the Texas Parks and Wildlife Department, PIC, and the executive director of the commission, on the initial petition, along with a provision providing for petitioner response to the comments at the commission agenda. The commission agrees with this comment and has modified this subsection accordingly. The PIC recommended a sentence clarifying "affected area" to mean that area downstream of the affected water right and corresponding petitioner notice requirements be added to sec.297.57(f). The commission agrees with this recommendation and has added the proposed changes. The PIC suggested sec.297.57(g) should be modified to make it clear the hearing required by the statute will afford affected persons the opportunity to be heard. The commission has amended the rules by adding new subsection (g) to provide that hearings shall be conducted in accordance with the Texas Government Code, Chapter 2001 and applicable rules of the commission. The PIC recommended sec.297.57(h) be amended to include guidance for the commission when considering evidence submitted in support of the request for suspension. Since the request may constitute extraordinary relief from permit conditions, according to the PIC, the petitioner must prove by "competent evidence" the suspension is indeed necessary to protect human health, safety, and welfare. The commission agrees that sufficient information and evidence must be submitted to support the petition and has incorporated these suggestions in the rules with the inclusion of the reference to contested case proceedings under Chapter 2001, Texas Government Code, in new subsection (g) and the additional petition content requirements provided in subsection (c). The PIC suggested sec.297.57(i) should be worded to prohibit any suspension which would have the effect of impairing of water quality or result in conditions that would fail to protect significant floral or faunal species. The section as proposed, which has been renumbered sec.297.57(j), provides for the protection of water quality and significant floral and faunal resources. Therefore, this subsection is adopted as originally proposed. The Sierra Club commented on the need for time limits for the suspension of instream flows and inflows. Additionally, the Sierra Club suggested a need for the adoption of special procedural rules to ensure an expedited hearing could be held in a timely manner relative to the merits of the petition for emergency suspension of permit conditions. The commission agrees with the comment concerning the need for a specific time limit for the suspension of permit conditions and has modified the rule accordingly to provide for a maximum initial period of 120 days, and a one-time renewal of not more than 60 days, if conditions warranting the emergency relief continue to exist. In response to the recommendation for special procedural rules for an expedited hearing, the rule and underlying statute provide that a hearing on the petition must be held within 15 days at the initial granting of any emergency relief. Additionally, current agency procedural rules provide the necessary flexibility to accomplish expedited hearings. Therefore, no additional change to the rule is made. The Sierra Club suggested a time limit of 21 days be imposed for the initial suspension of permit conditions should the commission find that an emergency exists and cannot practically be resolved in other ways. The commission disagrees with the comment. The statute provides that a hearing to determine whether the suspension should be continued shall be held within 15 days of the date on which the order to suspend is issued. The Sierra Club recommended that a maximum time period should be included for the initial as well as any subsequent suspension period should the commission grant the emergency suspension. The commission agrees with this comment and has included language in the rule to reflect this comment under new subsection (h). Additionally, if the emergency conditions persist beyond the termination of the emergency suspension order and any renewal of the order, a permittee may file a new petition under 30 TAC sec.297.57(c) justifying a new emergency suspension order or seek to amend the water right as provided by sec.297.57(k). A permittee may also file a petition to amend an emergency suspension order during the term of the order if a significant change in conditions warrants amending the emergency suspension order and further or different relief is necessary. The Sierra Club and the PIC recommended that no suspension be approved unless the petitioner has demonstrated that all reasonable steps have been taken to avoid the need for the suspension. The commission agrees with the comment and has further clarified the rule to provide that emergency relief may not be granted unless an emergency exist and the petitioner demonstrates that no feasible practicable alternative exists to the emergency relief. The Sierra Club suggested that language contained in sec.297.57(i) was unduly narrow and the commission should expand this subsection to consider the protection of "aquatic life." The commission disagrees with this comment. The intent of the Water Code, sec.11.148 is to primarily protect human health, safety, and welfare. Furthermore, inherent in the protection of water quality standards and threatened or endangered species, is the assumption that the aquatic community will be afforded some protection. However, during emergency conditions, the protection of human life must take priority. Therefore, no change is made in response to the comment. The Sierra Club recommended a new subsection be added stating that instream flows and inflows be suspended only to the minimum extent necessary to address the emergency. This comment has been addressed in sec.sec.297.57(i) and (j). The Sierra Club commented that sec.297.57(k) be amended to create a presumption that the petitioner must abide by the provisions contained in their water right, before granting total or partial suspension of permit conditions for circumstances not addressed under the existing right. The commission disagrees with the comment. The subsection, as written, and now renumbered as sec.297.57(l), states that only new or changed circumstances or an emergency situation not considered when the water right was issued, constitutes grounds for modifying provisions for the temporary, total, or partial suspension contained in the water right. Compliance with the existing water right is implicit; therefore, no change is made to the subsection. TAKINGS IMPACT ASSESSMENT The commission has prepared a Takings Impact Assessment for this rule pursuant to Texas Government Code Annotated, sec.2007.043. In its assessment, the commission finds that the primary purpose of this rule is to provide assistance to water right holders in understanding what will be required for the submission, review, and approval of a petition pursuant to Texas Water Code, sec.11.148. Promulgation and implementation of this rule will not affect private property which is the subject of the rule. COASTAL MANAGEMENT PROGRAM CONSISTENCY REVIEW This rulemaking is expressly exempt from the consistency requirements of the Coastal Management Program. STATUTORY AUTHORITY The rule is adopted under the Texas Water Code, sec.11.148, as well as sec.5.102, which provides the commission with general powers to carry out duties under the Texas Water Code, and sec.5.103, which provides the commission with the authority to adopt any rules necessary to carry out the powers and duties under the provision of the Texas Water Code and the laws of the state. The rule is adopted under Texas Water Code sec.sec.5.103, 5.105, and 5.120 which provide the commission with the authority to promulgate rules necessary to carry out its powers and duties under the Texas Water Code and other laws of the state. sec.297.57. Emergency Suspension of Permit Conditions. (a) The purpose of this section is to set forth the procedures and criteria to be used by the commission in its review and action on a petition by a water right holder for the temporary suspension of conditions in the water right relating to beneficial inflows to bays and estuaries and instream uses during an emergency if there are no practicable, feasible alternatives to the suspension, pursuant to Texas Water Code, sec.11.148. The procedures and emergency relief provided by this section shall only be used when the commission finds that emergency conditions exist that present an imminent threat to the public health, safety, and welfare and that override the necessity to comply with general procedures and criteria for changing the conditions in a water right and there are no feasible, practicable alternatives to the emergency authorization. (b) Upon petition filed by the affected water right holder in accordance with this section, the commission shall consider and may approve the temporary suspension of all or a part of conditions in a water right relating to beneficial inflows to affected bays and estuaries and instream uses if the commission finds that an emergency exists and there is no feasible, practicable alternative to the suspension. The burden of demonstrating that the petition should be granted in accordance with this section is on the petitioner. For purposes of this section, an emergency is a condition where water supplies available to the petitioner have been reduced or impaired to such an extent that an imminent peril to the public health, safety, or welfare exists. Such condition may include, but not be limited to: the reduction of public water supplies to critical levels as a result of a severe and sustained drought; the failure of a dam for a public water supply reservoir; the significant contamination of a public water supply; or the failure or destruction of public water supply pipelines or other distribution systems. (c) The petition shall be filed with the chief clerk of the commission and must be sworn and contain the following information: (1) the name, address, and telephone number of the petitioner and copies of the affected permits, certificates of adjudication, or certified filings; (2) a description of the emergency and its impact on public health, safety, and welfare; (3) a description of all existing and potential water supplies available to the petitioner and their corresponding uses and costs; (4) a summary of the examination made by the petitioner of whether feasible, practicable alternatives exist to the suspension of permit conditions and reasons why such alternatives do not exist; (5) the amount of water over and above available supplies that are necessary to alleviate emergency conditions; (6) copies of the water right holder's water conservation and drought contingency plans, if any, and a summary of their status and implementation, including the reasons why any remaining conservation or drought contingency measures provided by the plans have not or will not be implemented; (7) a copy of the reservoir operating procedures, if applicable; and (8) the proposed conditions and trigger levels for the suspension and reinstatement of the releases or other affected permit conditions. (d) A copy of the petition must be filed by the petitioner with the Executive Director, Public Interest Counsel, and the Texas Parks and Wildlife Department (TPWD) at the same time it is filed with the chief clerk of the commission. (e) Upon receipt of the petition, the chief clerk shall provide notice of the time and location of the commission's consideration of a petition to the TPWD, Executive Director, and Public Interest Counsel as soon as practicable after receipt of the petition, but in no event shall the petition be considered less than 72 hours after receipt of notice by the TPWD. The TPWD, Executive Director, and Public Interest Counsel shall be provided an opportunity to submit comments on the petition prior to commission action. The petitioner shall be afforded opportunity to respond to all comments at the time of the commission's consideration of the matter. If the commission initially grants an emergency suspension of permit conditions without a hearing, the order granting the emergency suspension shall fix a time and place for a hearing to be held before the commission to determine whether to affirm, modify, or set aside the initial granting of the emergency suspension of permit conditions. The hearing shall be held as soon after the emergency suspension is granted as is practicable but not later than 15 days after the initial emergency suspension is granted. The commission's order shall also set out the date any authorized suspension shall commence and end, the extent of any suspension, and any special condition upon which a suspension is granted. The commission's initial order may also indicate the referral of the matter to the State Office of Administrative Hearings for an expedited hearing under subsection (g) of this section. (f) Published notice of the initial suspension of water right conditions, if granted, shall be provided and paid for by the petitioner immediately following a favorable commission initial decision on the petition by publication in a newspaper or newspapers of general circulation in the affected area. The published notice may not be smaller than 96.8 square centimeters or 15 square inches with the shortest dimension at least 7.6 centimeters or three inches. Such published notice must contain a summary of the information contained in the petition as provided by subsection (c) of this section and the time and location of the subsequent commission hearing provided by subsection (g) of this section. Such publication shall occur not later than seven calendar days prior to such hearing. For the purposes of this rule, the affected area shall be each county, in whole or in part, downstream of the diversion point or impoundment authorized under the affected water right. The petitioner shall file with the chief clerk a publisher's affidavit as proof that such notice was published in accordance with this section. (g) Within 15 days of the initial granting of the emergency suspension of permit conditions, the commission shall hold a hearing to determine whether to affirm, modify, or set aside the initial emergency suspension. The hearing shall be conducted in accordance with Government Code, Chapter 2001 and rules of the commission, and written notice of the hearing shall be provided to the Texas Parks and Wildlife Department and affected persons not later than 10 days before the hearing. For matters referred to SOAH, the Administrative Law Judge may, consistent with the requirements of Chapter 2001 of the Government Code, reduce the time periods specified in the Commission's procedural rules governing contested case hearings. (h) An emergency authorization granted under this section may be for a period of not more than 120 days if the commission finds that emergency conditions exist that present an imminent threat to public health, safety, and welfare and that override the necessity to comply with permit conditions and there are no feasible, practicable alternatives to the emergency authorization. Such emergency authorization may be renewed once for not longer than 60 days. (i) In determining whether feasible, practicable alternatives exist to the suspension of water right conditions, the commission shall examine the amount and purposes of use for water currently being used by the petitioner, all evidence relating to the availability of alternative, supplemental water supplies to the petitioner, and the petitioner's efforts to curtail water use not essential for the protection of the public health, safety, and welfare. If the water right holder has a water conservation plan and/or drought contingency plan, the suspension of water right conditions may be contingent upon the full implementation of such plans and measures corresponding to the staged reduction of releases for existing instream uses and beneficial inflows. If the water right holder does not have a water conservation plan and drought contingency plan in accordance with Chapter 288 of this title (relating to Water Conservation Plans, Guidelines and Requirements), the commission order granting a petition under this section shall require the permittee to develop and implement such plans within a prescribed time period as provided in the order. (j) In granting a petition, all existing instream flows shall be passed up to that amount necessary to maintain water quality standards for the affected stream. Additional flows necessary to protect a species in accordance with the federal Endangered Species Act or other species that are considered to be of "high interest" (self-sustaining wild populations that are endemic to the affected stream, have significant scientific value, or commercial value) may also be required. (k) In order to assist in the preparation and planning for water management during an emergency, the commission may provide conditions in a water right necessary for relief consistent with applicable portions of this section when the water right is initially granted or subsequently amended. These conditions may include, but shall not be limited to a staged approach to the reduction in the pass-through amounts that provide for the pass-through of water for instream uses and bays and estuaries when it is available, and allow water to be captured or diverted for the protection of the public health, safety, and welfare during an emergency, subject to the protection of stream flows necessary under subsection (j) of this section for the maintenance of water quality standards. Such conditions may also include full implementation by the water right holder of water conservation and drought contingency plans as a precondition for obtaining relief. (l) If the petitioner's water right already contains provisions for the temporary, total or partial suspension of permit conditions for the maintenance of instream flows or freshwater inflows to bays and estuaries, further or different relief requested in a petition submitted under this section generally will be denied unless the petitioner can show new or changed circumstances or an emergency condition not contemplated when the water right condition was issued. 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 May 5, 1997. TRD-9705994 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: May 30, 1997 Proposal publication date: November 8, 1997 For further information, please call: (512) 239-4640 TITLE 31. NATURAL RESOURCES AND CONSERVATION PART II. Texas Parks and Wildlife Department CHAPTER 57. Fisheries Freshwater Mussels 31 TAC sec.57.156, sec.57.158 The Texas Parks and Wildlife Commission, in a regularly scheduled public hearing, April 17, 1997, adopts the repeal of sec.57.156 and sec.57.158 and new sec.sec.57.156-57.158, concerning Freshwater Mussels, without changes to the proposed text as published in the March 14, 1997, issue of the Texas Register (22 TexReg 2730). Parks and Wildlife Code sec.78.006 authorizes the Commission to regulate the taking, possession and sale of mussels and clams by proclamation. Before issuing proclamations to regulate mussels and clams, the Commission is required to investigate the need for such regulation and make findings based on: (1) utilization of the best scientific information available; (2) consideration of measures necessary to prevent depletion; (3) consideration of measures necessary to manage; (4) consideration of measures, where practicable, that will minimize cost and avoid unnecessary duplication in administration; and (5) consideration of measures that will enhance enforcement. The Department conducted research into mussels and clams and published its investigations and recommendations in "Freshwater Mussels of Texas" (Robert G. Howells, Raymond W. Neck, and Harold D. Murray Authors, 1996). The results of this published investigation are the basis of the adopted regulations. All of the resources affected by the proposed rules are publicly owned resources in public waters. No private property is directly affected by or the subject of these rules. The proposed action was reviewed in the context of the Private Real Property Rights Preservation Act, Government Code, Chapter 2007 (Act). The rules do not affect any individual or particular parcel of private real property. There is no takings impact within the purview of Chapter 2007. Furthermore, there are no governmental actions allowed by the proposed regulations which fall under the purview of the definition of a "taking" in sec.2007.002(5) of the Act. The new sections are necessary to protect stocks of mussels and clams in Texas. Department studies have concluded that stocks of mussels and clams have declined on a statewide basis. The continued commercial harvest of these species could exacerbate that decline. The new sections substantially reduce the level of commercial harvest of mussels and clams, while still allowing recreational harvest of these species. The department received no public comments concerning the proposed repeal and new mussel and clam regulations. The repeals are adopted under Parks and Wildlife Code sec.78.006. 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 May 8, 1997. TRD-9706109 Bill Harvey Regulatory Coordinator Texas Parks and Wildlife Department Effective date: May 28, 1997 Proposal publication date: March 14, 1997 For further information, please call: (512) 389-4642 Mussels and Clams 31 TAC sec.sec.57.156-57.158 The new rules are adopted under Parks and Wildlife Code sec.78.006. 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 May 8, 1997. TRD-9706110 Bill Harvey Regulatory Coordinator Texas Parks and Wildlife Department Effective date: May 28, 1997 Proposal publication date: March 14, 1997 For further information, please call: (512) 389-4642 TITLE 40. SOCIAL SERVICES AND ASSISTANCE PART I. Texas Department of Human Services CHAPTER 3.Income Assistance Services SUBCHAPTER E.Household Determination 40 TAC sec.3.501 The Texas Department of Human Services (DHS) adopts an amendment to sec.3.501, concerning household determination in its Income Assistance Services rule chapter. The purpose of the amendment is to implement federally mandated policy that adds the disqualification of individuals who are fugitives fleeing to avoid prosecution of, or confinement for, a felony criminal conviction or violating federal or state probation or parole. The amendment will function by ensuring that DHS will be in compliance with federal law. The amendment is adopted under the Human Resources Code, Title 2, Chapter 22, which provides the department with the authority to administer public assistance programs. The amendment is adopted pursuant to federal requirements. The amendment implements the Human Resources Code sec.sec.22.001-22.030. sec.3.501.Household Determination. (a) (No change.) (b) Aid to Families with Dependent Children. The following persons are not included in an AFDC certified group: (1)-(2) (No change.) (3) Disqualified persons. (A) Persons are disqualified because they: (i)-(iv) (No change.) (v) are caretakers and second parents (except for those who are members of the state welfare reform waiver control group as described in sec.3.6002 of this title (relating to Applicability of Aid to Families with Dependent Children (AFDC) Policies Resulting from Human Resources Code, sec.31.0065, Relating to Time-Limits) who have exhausted their time limits of 12, 24, or 36 months, assigned according to the guidelines in Human Resources Code, sec.31.0065 for receiving AFDC cash benefits; (vi) fail to timely report a certified child's temporary absence; or (vii) are fugitives fleeing to avoid prosecution of, or confinement for, a felony criminal conviction, or found by a court to be violating federal or state probation or parole. (B)-(C) (No change.) (4)-(7) (No change.) (c)-(d) (No change.) 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 May 7, 1997. TRD-9706066 Glenn Scott General Counsel, Legal Services Texas Department of Human Services Effective date: April 2, 1997 Proposal publication date: N/A For further information, please call: (512) 438-3765 CHAPTER 79.Legal Services The Texas Department of Human Services (DHS) adopts amendments to sec.sec.79.1102, 79.1204, 79.1207, 79.1309, and 79.1310. The amendments are adopted with changes to the proposed text as published in the March 11, 1997, issue of the Texas Register (22 TexReg 2591). The justification for the amendments is to incorporate procedures into existing rules governing the fair hearing process that would ensure uniformity in the quality of Spanish language interpreters in fair hearings. The amendments will function by ensuring that appellants will have more uniform quality of Spanish/English interpreters available in fair hearings. During the public comment period, DHS received comments from Texas Legal Services Center. A summary of the comments and DHS's responses follow: Comment: At proposed sec.79.1102, in the paragraph which precedes the subparagraphs (A) through (E), there should be inserted between the sentence "The names of qualified interpreters are maintained by DHS on a master list." and the sentence "A certified interpreter is one who is certified by at least one of the following entities:" the following sentence: "A current copy of the DHS master list of interpreters shall be provided upon written request to the appropriate regional attorney." Response: DHS is adopting sec.79.1102 to include the referenced change. Comment: At proposed sec.79.1204(a)(3), at the end of subsection (a)(3) there should be added, "The entire notice shall be in English and Spanish. It shall include mention that the interpreter will be provided at no cost to the appellant." Response: DHS is adopting sec.79.1204(a)(3) to include the referenced change. Comment: At proposed sec.79.1207(g), in the second sentence, between the noun "participants" and the preposition "in" there should be inserted the two words "including witnesses" such that the phrase would read "...either that all participants including witnesses in a fair hearing are sufficiently fluent..." Response: DHS is adopting sec.79.1207(g) to include the referenced change. Comment: At proposed sec.79.1207(g) between the second sentence (which ends with "required.") and the third sentence (which begins with "The Texas Department of Human Services...") there should be inserted " Language barriers may include persons who have the inability to understand or communicate in English, or whose ability to understand or communicate in English is limited." Additionally, the following new subsection is included (h) When an interpreter has been requested, the hearing officer may decline to use an interpreter under the following circumstances; (A) In cases where all hearing participants are able to communicate effectively in the appellant's primary language, the hearing may be conducted in the appellant's primary language if the following requirements are met: (i) all hearing participants state in the record that they can communicate effectively in the appellant's primary language; and (ii) the hearing officer informs the appellant on the record in an idiom the appellant understands that s/he will be provided an interpreter at no cost to the appellant if the appellant can show good cause to use an interpreter. The basis of the hearing officer's decision shall be stated on the record. (B) In cases in which an interpreter has been requested, but all hearing participants including witnesses are sufficiently fluent in English to be able to communicate effectively so that no language barrier is present, the hearing may be conducted in English if the following criteria are met: (i) all hearing participants including witnesses state on the record that they are sufficiently fluent in English so that no language barrier is present; and (ii) the hearing officer informs the appellant on the record that s/he will be provided an interpreter at no cost to the appellant if s/he can show good cause to use an interpreter. The basis of the hearing officer's decision shall be stated on the record. Response: DHS is adopting sec.79.1207(g) to include the referenced change. A new subsection (h) is added and the last sentence from the proposed subsection (g) is moved to create new subsection (i). Additionally, the sentence, "A qualified sign language interpreter is available for persons who are hearing impaired." which appeared as the last sentence in subsections (f), (g), and (i), is deleted from subsections (f) and (i) because it is not necessary in all of these subsections and is most appropriately placed in subsection (g). Comment: At proposed sec.79.1309(d)(4) at the end of the present wording of the final sentence there should be added the following two further sentences: "If a complaint and/or objection is made during the administrative hearing regarding the quality of the interpretation, TDHS shall investigate such complaint and respond to the complainant within a reasonable time. The hearing decision must include a ruling on any objection or complaint raised during the hearing concerning the quality of the interpretation, including a request to rehear the case." Response: DHS is adopting sec.79.1309(d)(4) to include the referenced change. Comment: At proposed sec.79.1310(a) between the third sentence (which ends with "...understand the decision.") and the fourth sentence (which begins with "The decision by ..."), there should be inserted a new sentence: "An appellant who indicates by telephone, or in person, or in writing that assistance is needed to understand the decision shall receive an explanation of the hearing decision from bilingual personnel within a reasonable period of time. The time between the date of such an indication and the date of the explanation shall not be included in the period specified at 40 TAC sec.79.1105(b)." Response: DHS is adopting sec.79.1310(a) to include only the first sentence of the requested change. Section 79.1105(b) is applicable to all appellants in fair hearings. The second sentence was not included in the court mandate upon which these rules are based. SUBCHAPTER L.Fair Hearings 40 TAC 40 sec.79.1102 The amendment is adopted under the Human Resources Code, Title 2, Chapters 22, 31, and 33, which authorizes the department to administer financial assistance programs. The amendment implements the Human Resources Code, sec.sec.22.018, 31.034, and 33.001-33.025. sec.79.1102.Definitions. The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise. Spanish/English interpreter-At the discretion of the hearing officer, the Texas Department of Human Services (DHS) will use a qualified or certified Spanish/English interpreter in fair hearings. A qualified interpreter is one who passed the Texas Oral Proficiency Test (TOPT) at the advanced or higher level and who received appropriate training. The names of qualified interpreters are maintained by DHS on a master list. A current copy of the DHS master list of interpreters shall be provided upon written request to the appropriate regional attorney. A certified interpreter is one who is certified by at least one of the following entities: (A) the American Translators Association; (B) Federally Certified Court Interpreter through the Federal Court Interpreter Certification Examination; (C) interpreter certification offered through a four-year college or university; (D) state certification programs of California, Washington, New Jersey, Oregon, New Mexico, Minnesota,or Virginia; or (E) United States Department of State's Escort seminar or conference. 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 May 7, 1997. TRD-9706028 Glenn Scott General Counsel, Legal Services Texas Department of Human Services Effective date: May 26, 1997 Proposal publication date: March 11, 1997 For further information, please call: (512) 438-3765 SUBCHAPTER M.Appeals Process 40 TAC sec.79.1204, sec.79.1207 The amendments are adopted under the Human Resources Code, Title 2, Chapters 22, 31, and 33 which authorizes the department to administer financial assistance programs. The amendments implement the Human Resources Code, sec.sec.22.018, 31.034, and 33.001-33.025. sec.79.1204.Notice Requirement-Proposed Termination or Reduction of Assistance. (a) The Texas Department of Human Services (DHS) must give clients timely and/or adequate notice if a review of the client's situation shows that the grant is to be lowered or denied or services reduced or terminated; DHS decides to make or continue a protective, vendor, or two-party payment; or DHS decides to continue a protective payment in AFDC mismanagement cases. (1)-(2) (No change.) (3) An adequate notice includes a statement of the proposed action; the reasons for the action; the specific regulations supporting the action; an explanation of the client's right to a hearing, if any; a statement of the right to request an interpreter and a reasonable opportunity to request an interpreter prior to a fair hearing; and the circumstances under which assistance or services are continued if the client requests a hearing. The entire notice shall be in English and Spanish. It shall include mention that the interpreter will be provided at no cost to the appellant. (4) (No change.) (b)-(c) (No change.) sec.79.1207.Time and Place of Hearing. (a)-(e) (No change.) (f) The fair hearing is held at a reasonable place and time. This may be the local office or the appellant's home. The hearing officer considers the physical condition of the appellant and availability of transportation in setting the place of the fair hearing. (g) The hearing officer determines on a case-by-case basis the necessity for an interpreter. If the hearing officer determines either that all participants, including witnesses, in a fair hearing are sufficiently fluent in Spanish or that all are sufficiently fluent in English so that no language barrier is present, no interpreter is required. Language barriers may include persons who have the inability to understand or communicate in English, or whose ability to understand or communicate in English is limited. The Texas Department of Human Services will make every effort to utilize the most qualified available interpreter for a person of limited English proficiency whose native language is not Spanish. A qualified sign language interpreter will be provided for persons who are hearing impaired. (h) When an interpreter has been requested, the hearing officer may decline to use an interpreter under the following circumstances; (1) In cases where all hearing participants are able to communicate effectively in the appellant's primary language, the hearing may be conducted in the appellant's primary language if the following requirements are met: (A) all hearing participants state on the record that they can communicate effectively in the appellant's primary language; and (B) the hearing officer informs the appellant on the record in an idiom the appellant understands that he will be provided an interpreter at no cost to the appellant if the appellant can show good cause to use an interpreter. The basis of the hearing officer's decision shall be stated on the record. (2) In cases in which an interpreter has been requested, but all hearing participants, including witnesses, are sufficiently fluent in English to be able to communicate effectively so that no language barrier is present, the hearing may be conducted in English if the following criteria are met: (A) all hearing participants, including witnesses, state on the record that they are sufficiently fluent in English so that no language barrier is present; and (B) the hearing officer informs the appellant on the record that he will be provided an interpreter at no cost to the appellant if he can show good cause to use an interpreter. The basis of the hearing officer's decision shall be stated on the record. (i) DHS will make every effort to utilize the most qualified available interpreter for a person of limited English proficiency whose native language is not Spanish. 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 May 7, 1997. TRD-9706027 Glenn Scott General Counsel, Legal Services Texas Department of Human Services Effective date: May 27, 1997 Proposal publication date: March 11, 1997 For further information, please call: (512) 438-3765 SUBCHAPTER N.Hearing Procedure 40 TAC sec.79.1309, sec.79.1310 The amendments are adopted under the Human Resources Code, Title 2, Chapters 22, 31, and 33, which authorizes the department to administer financial assistance programs. The amendments implement the Human Resources Code, sec.sec.22.018, 31.034, and 33.001-33.025. sec.79.1309.Action by Hearing Officer. (a)-(c) (No change.) (d) Recessed Fair Hearings. (1)-(3) (No change.) (4) The Texas Department of Human Services shall allow legal representatives during administrative hearings to make an objection and/or complaint to the hearing officer concerning the interpretation by any interpreter. The legal representative and/or appellant shall have the right to request during the hearing that the appeal be reheard. If a complaint and/or objection is made during the administrative hearing regarding the quality of the interpretation, DHS shall investigate such complaint and respond to the complainant within a reasonable time. The hearing decision must include a ruling on any objection or complaint raised during the hearing concerning the quality of the interpretation, including a request to rehear the case. sec.79.1310.Decisions by Hearing Officer. (a) Requirements. The decision by the hearing officer must be in English, in writing, and given to the appellant. The Texas Department of Human Services (DHS) shall provide a translated coversheet in Spanish for hearing decisions where an interpreter was used. The coversheet will include a short translated statement regarding the outcome of the hearing and instruct the appellant to call the hearing officer if he needs assistance to understand the decision. An appellant who indicates by telephone or in person, or in writing that assistance is needed to understand the decision shall receive an explanation of the hearing decision from bilingual personnel within a reasonable period of time. The decision by the hearing officer is made for DHS and is the final administrative action by DHS in an appeal. The decision is documented and given to the appellant. The appellant may examine any documentary material related to the case before, during, or after the hearing. (b)-(d) (No change.) 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 May 7, 1997. TRD-9706029 Glenn Scott General Counsel, Legal Services Texas Department of Human Services Effective date: May 26, 1997 Proposal publication date: March 11, 1997 For further information, please call: (512) 438-3765