ADOPTED RULES An agency may take final action on a section 30 days after a proposal has been published in the Texas Register. The section becomes effective 20 days after the agency files the correct document with the Texas Register, unless a later date is specified or unless a federal statute or regulation requires implementation of the action on shorter notice. If an agency adopts the section without any changes to the proposed text, only the preamble of the notice and statement of legal authority will be published. If an agency adopts the section with changes to the proposed text, the proposal will be republished with the changes. TITLE 4. AGRICULTURE PART II. Texas Animal Health Commission CHAPTER 35.Brucellosis SUBCHAPTER A.Eradication of Brucellosis in Cattle 4 TAC sec.35.1 The Texas Animal Health Commission adopts an amendment to sec.35.1, concerning definitions relating to eradication of brucellosis in cattle without changes to the proposed text as published in the November 21, 1997, issue of the Texas Register (22 TexReg 11193). The amendment changes the definitions of exempt cattle and test-eligible cattle in other than priority herds in order to standardize vaccination ages of cattle. The amendment also adds a definition of hold order to distinguish that form of restriction from a quarantine. The amendment also eliminates the definition of test-eligible cattle; that definition was included as a typographical error. No comments were received regarding the adoption of the amendment. The amendment is adopted under the Texas Agriculture Code, Chapter 161, Subchapter C, sec.161.041 and sec.161.046 which authorize the Commission to enact rules to eradicate communicable disease, and Chapter 163, Subchapter D, sec.161.061 and sec.163.064 which authorize the Commission to adopt rules relating to vaccination of cattle. 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. Filed with the Office of the Secretary of State on January 16, 1998. TRD-9800804 Terry Beals, DVM Executive Director Texas Animal Health Commission Effective date: February 5, 1998 Proposal publication date: November 21, 1997 For further information, please call: (512) 719-0714 CHAPTER 43.Tuberculosis SUBCHAPTER A.Eradication of Tuberculosis in Cattle 4 TAC sec.43.1 The Texas Animal Health Commission adopts an amendment to sec.43.1, concerning requirements relating to eradication of tuberculosis in cattle without changes to the proposed text as published in the November 21, 1997, issue of the Texas Register (22 TexReg 11194). The amendment enhances the payment of indemnity for tuberculosis reactor cattle. This action can be taken as a result of legislative action effective September 1, 1997. Under the amendment, TAHC will pay up to $250.00 for each animal classified as a suspect or reactor and $100.00 for each exposed animal slaughtered as a result of herd depopulation. No comments were received regarding the adoption of the amendment. The amendment is adopted under the Texas Agriculture Code, Chapter 161, Subchapter C, sec.161.041 and sec.161.046 which authorize the Commission to enact rules to eradicate tuberculosis, and Chapter 162, sec.162.008 which authorizes the Commission to adopt rules relating to tuberculosis indemnity. 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. Filed with the Office of the Secretary of State on January 16, 1998. TRD-9800808 Terry Beals, DVM Executive Director Texas Animal Health Commission Effective date: February 5, 1998 Proposal publication date: November 21, 1997 For further information, please call: (512) 719-0714 CHAPTER 49.Equine 4 TAC sec.49.2 The Texas Animal Health Commission adopts an amendment to sec.49.2, concerning equine, interstate movement requirements without changes to the proposed text as published in the November 21, 1997, issue of the Texas Register (22 TexReg 11195). The amendment authorizes equine to enter the state with a completed VS Form 10- 11 (Equine Infectious Anemia Laboratory Test) attached to the Certificate of Veterinary Inspection instead of transposing the information from the VS Form 10-11 onto the Certificate of Veterinary Inspection. No comments were received regarding the adoption of the amendment. The amendment is adopted under the Texas Agriculture Code, Chapter 161, Subchapter C, sec.161.041 and sec.161.046 which authorize the Commission to enact rules to control equine infectious anemia, and Subchapter E, sec.161.081 which authorizes the Commission to regulate the movement of animals into Texas. 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. Filed with the Office of the Secretary of State on January 16, 1998. TRD-9800810 Terry Beals, DVM Executive Director Texas Animal Health Commission Effective date: February 5, 1998 Proposal publication date: November 21, 1997 For further information, please call: (512) 719-0714 CHAPTER 51.Interstate Shows and Fairs 4 TAC sec.51.1 The Texas Animal Health Commission adopts an amendment to sec.51.1, concerning definitions, interstate shows and fairs without changes to the proposed text as published in the November 28, 1997, issue of the Texas Register, (22 TexReg 11618). The amendment adds a definition of an assembly. No comments were received regarding the adoption of the amendment. The amendment is adopted under the Texas Agriculture Code, Chapter 161, Subchapter C, sec.161.041 and sec.161.046 which authorize the Commission to enact rules to eradicate communicable diseases, and Subchapter C, sec.161.054 which authorizes the Commission to regulate the movement of animals. 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. Filed with the Office of the Secretary of State on January 16, 1998. TRD-9800811 Terry Beals, DVM Executive Director Texas Animal Health Commission Effective date: February 5, 1998 Proposal publication date: November 21, 1997 For further information, please call: (512) 719-0714 4 TAC sec.51.2 The Texas Animal Health Commission proposed an amendment to sec.51.2, concerning general requirements, interstate shows and fairs without changes to the proposed text as published in the November 28, 1997, issue of the Texas Register, (22 TexReg 11618). The amendment requires all equine gathered in assemblies to have proof of a negative EIA test, and details an exemption for nursing foals. The amendment also changes the address of the TAHC. Five comments were received in favor of the adoption of the amendment. The amendment is adopted under the Texas Agriculture Code, Chapter 161, Subchapter C, sec.161.041 and sec.161.046 which authorize the Commission to enact rules to eradicate communicable diseases and Subchapter C, sec.161.043 which authorizes the Commission to regulate the movement of animals into exhibitions, shows and fairs. 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. Filed with the Office of the Secretary of State on January 16, 1998. TRD-9800812 Terry Beals, DVM Executive Director Texas Animal Health Commission Effective date: February 5, 1998 Proposal publication date: November 21, 1997 For further information, please call: (512) 719-0714 4 TAC sec.51.4 The Texas Animal Health Commission adopts an amendment to sec.51.4, concerning interstate shows and fairs, special requirements from areas with vesicular stomatitis without changes to the proposed text as published in the November 21, 1997, issue of the Texas Register (22 TexReg 11196). The amendment prohibits the entry of animals from any premise or area under quarantine for vesicular stomatitis and requires the veterinarian completing the Certificate of Veterinary Inspection to verify that the animals have not originated from such a premise or area. No comments were received regarding the adoption of the amendments. The amendment is adopted under the Texas Agriculture Code, Chapter 161, Subchapter C, sec.161.041 and sec.161.046 which authorize the Commission to enact rules to eradicate communicable diseases, and Subchapter D, sec.161.061 which requires the Commission to establish a quarantine against any area where a communicable disease exists. 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. Filed with the Office of the Secretary of State on January 16, 1998. TRD-9800813 Terry Beals, DVM Executive Director Texas Animal Health Commission Effective date: February 5, 1998 Proposal publication date: November 21, 1997 For further information, please call: (512) 719-0714 4 TAC sec.51.6 The Texas Animal Health Commission adopts a new rule sec.51.6, concerning interstate movement of sheep not known to be infected or exposed to scrapie, interstate shows and fairs with changes to the proposed text as published in the November 21, 1997, issue of the Texas Register, (22 TexReg 11196). The amendment establishes entry requirements for sheep from other states. It requires sheep from states with an active scrapie control and surveillance program to first be accompanied by a health certificate stating that an examination of the herd or premise of origin shows no evidence of exposure to scrapie, or secondly be accompanied by a health certificate stating that an examination of the herd or premise of origin shows no evidence of exposure to scrapie and lists permanent identification numbers. The amendment also provides that sheep be consigned directly to auction markets provided that it is an approved slaughter market. The amendment also requires sheep from states that do not have an active scrapie control and surveillance program to fist enter with a health certificate and permit into a scrapie control program herd; or secondly, be accompanied by a health certificate stating that an examination of the herd or premise of origin shows no evidence of exposure to scrapie. Comments were received regarding the amendment to add the provision that sheep may be consigned directly to a state approved slaughter market, and to include the genre Columbia into the requirements, which was previously overlooked. The new section is adopted under the Texas Agriculture Code, Chapter 161, Subchapter C, sec.161.041 and sec.161.046 which authorize the Commission to enact rules to control communicable diseases, and Subchapter E, sec.161.081 which authorizes the Commission to regulate the movement of animals into Texas. sec.51.6.Interstate Movement of Sheep Not Known to be Infected or Exposed to Scrapie. (a) Requirements for entry of sheep from states with an active scrapie control and surveillance program (state of origin requires that the state animal health official of that state be immediately notified of any suspected or confirmed case of scrapie in that state and requires that sheep and/or goats from infected or source flocks be quarantined). (1) Breeding sheep (A) Finewool sheep (Rambouillet, Columbia, Debroulliet, Merino, and Targhee). Sheep must be accompanied by a health certificate stating that an examination of the herd and/or premise of origin shows no evidence of exposure to scrapie. (B) Mediumwool breeds and crossbreeds. Sheep must be accompanied by a health certificate listing permanent identification numbers and stating that examination of the herd and/or premise of origin shows no evidence of exposure to scrapie. (2) Sheep entering for grazing or to slaughter or feedlot. Sheep must be accompanied by a health certificate stating an examination of premise and/or herd of origin shows no evidence of exposure to scrapie. Provided, sheep consigned directly to Federal inspected slaughter facilities, state approved slaughter markets, and wether lambs have no entry requirements. (A) TAHC state approved slaughter market is one which: (i) maintains records of origin of sheep and disposition of sheep to slaughter; (ii) maintains out of state slaughter sheep separate and apart from other classes of sheep; (iii) assures that out of state slaughter sheep are released from the market consigned only for export or to slaughter facilities with local/state, or federal inspection. (b) Movement of sheep from states with no active scrapie control and surveillance program. (1) Breeding sheep. (A) Sheep may enter Texas on a health certificate and permit only into a scrapie control program herd; and the (B) Texas herd must continue in the program for five years after entry of the sheep. (2) Sheep entering Texas for grazing, slaughter or feedlots. (A) Sheep must be accompanied by a health certificate and entry permit stating that examination of premise and/or herd of origin shows no evidence of exposure to scrapie, provided sheep consigned directly to federal inspected slaughter facilities have no entry requirements, and (B) Wether lambs have no entry requirements. 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. Filed with the Office of the Secretary of State on January 16, 1998. TRD-9800814 Terry Beals, DVM Executive Director Texas Animal Health Commission Effective date: February 5, 1998 Proposal publication date: November 21, 1997 For further information, please call: (512) 719-0714 TITLE 10. COMMUNITY DEVELOPMENT PART I. Texas Department of Housing and Community Affairs CHAPTER 9.Texas Community Development Program SUBCHAPTER A.Allocation of Program Funds 10 TAC sec.9.1, sec.9.7 The Texas Department of Housing and Community Affairs (TDHCA) adopts amendments to sec.9.1 and sec.9.7, concerning the allocation of Community Development Block Grant (CDBG) non-entitlement area funds under the Texas Community Development Program (TCDP) without changes to the proposed text as published in the December 12, 1997, issue of the Texas Register (22 TexReg 12197). The amendments establish a date of abolishment for the State Community Development Review Committee; change the name of the Texas Department of Commerce to the Texas Department of Economic Development; and establish standards and procedures for the allocation of fiscal year 1997 economic development funds. The amendments make changes to the application and selection criteria for the Texas Capital Fund. No comments were received regarding the adoption of the amendments. The amendments are adopted under Texas Government Code, Chapter 2306, sec.2306.098, which provides TDHCA with the authority to allocate Community Development Block Grant non-entitlement area funds to eligible counties and municipalities according to department rules. 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. Filed with the Office of the Secretary of State on January 14, 1998. TRD-9800549 Larry Paul Manley Executive Director Texas Department of Housing and Community Affairs Effective date: February 3, 1998 Proposal publication date: December 12, 1997 For further information, please call: (512) 475-3726 CHAPTER 51.Housing Trust Fund Rules 10 TAC sec.sec.51.1-51.18 The Texas Department of Housing and Community Affairs (the Department) is adopting, with changes, sec.sec.51.1-51.14 and new sec.sec.51.16-51.18, as published in the Texas Register, (22 TexReg 10484), on October 24, 1997, concerning the Housing Trust Fund Rules. The sections are being adopted in final form to provide procedures for the allocation by the Department of certain funds available under state laws to qualified public entities, nonprofit organizations, for profit entities, and persons and families, to provide safe, decent, and sanitary housing for low, very low, and extremely low income families and individuals and persons with special needs. On October 24, 1997, the proposed new and amended rules were published in the Texas Register, (22 TexReg 10484), thereby commencing the required 30 day public comment period. Said public comment period ended on November 24, 1997. The Department sent out 354 notices of the proposed rule changes. Staff received approximately 25 requests for copies of the proposed rules from the public. The Department sent out approximately 1,500 notices of public hearings to be held regarding the proposed rule changes. Copies of the proposed rules and notices of the public hearings were also sent to all members of the State Legislature. During the public comment period, and at the public hearings, the Department received both oral and written comments from the public. The scope of public comments concerning the rules pertain to the following issues: Proposed Income Targeting (sec.51.5(f))- The proposed amendment would have the Housing Trust Fund apply at least 15% of funds to individuals and families earning less than 30% of median family income, and a minimum of 20% of funds to individuals and families earning between 31 and 60% of median family income. A comment was made that this will cut the support targeted to lower income families in half. Department's Response - The Housing Trust Fund has made this change in an effort to comply with Rider 3 of the Department's appropriation, General Appropriations Act of the 1998-1999 biennium. The Rider states: "The housing finance division shall adopt a goal to apply a minimum of 15% of the division's total housing funds toward housing assistance for individuals and families earning less than 30% of median family income. No less than 20% of the division's total housing funds shall be spent for individuals and families earning between 31% and 60% of median family income." It is not the intent of the Program to produce fewer very low income and/or extremely low income housing units as a result of this change. The Housing Trust Fund is committed to serving these income groups to the greatest extent possible. These percentages are "minimums" and should not be interpreted as a change in program policy. The Housing Trust Fund provides scoring incentives to applicants that assist these income groups. Board Recommendation - The Department's response is accepted. CHDO Set-aside (sec.51.5 (d) original)- The proposed amendment would eliminate the 35% CHDO set-aside. It is argued that this will disadvantage community-based nonprofit organizations. Department's Response - The CHDO set aside has had very little participation in past funding cycles. Additionally, non-profit organizations are eligible to compete for all Housing Trust Fund project funds. The Housing Trust Fund awards points to those applicants who are able to demonstrate a high level of community involvement both in the development of the proposed project, as well as in their historical commitment to the community. Board Recommendation - The CHDO set-aside will remain intact. It will be calculated as part of the $2.6 million available to nonprofit organizations, units of local government, public housing authorities and community housing development organizations. In the event that there is an insufficient number of qualifying applicants for this allocation, any remaining funds will then be made available to other qualifying applicants. Non-metropolitan Area Targeting (sec.51.5 (d)) - The proposed amendment reduces non-metropolitan targeting from 70% of funds to 50% of funds. A comment was made that a high percentage of HTF funds should remain targeted to non-metropolitan areas of the state, because metropolitan areas have other funding sources available. Department's Response - Because of the limited amount of funding available to the Housing Trust Fund and a low level of participation by organizations proposing non-metropolitan projects, the Program has generally seen only 40-50% of project funds go to non-metropolitan areas. The Program hopes to see more non-metropolitan applications and will provide scoring incentives in order to encourage greater participation. Board Recommendation - The Department's response is accepted. Housing Development and Pre-development costs (sec.51.3) - The proposed amendments eliminate certain pre-development costs as eligible activities for HTF funds. A comment was made that the elimination of these costs will disadvantage organizations which do not have financial reserves, or other means of covering these costs. Department's Response - It is the Program's opinion that it should be more selective in paying for pre-development and/or development costs. The costs in question are incurred at the developmental stage of the project when there is less assurance that the project will go forward. One of the objectives of the Department is to be paid back for the public funds that are invested into a project. This provides for the recycling of funds into future Housing Trust Fund projects. As a repayable source of gap financing, the Program would like to see funding of hard costs associated with actual housing production. Board Recommendation - Predevelopment costs will remain intact, as reimbursable expenses. In addition, up to 10% of any biennium allocation of Housing Trust Fund program funds may be set aside to create a pre-development loan fund to be used for matching funds with outside funds. Extremely Low Income Category - The proposed amendments define "extremely low income" as families and persons earning less than 30% of area median family income. Several groups expressed concern regarding the difficulty of addressing the housing needs of the extremely low income. Department's Response - The extremely low income category was defined by the Legislature in the 1997 amendments to Section 2306 (House Bill 2577), as a targeted income group. The Department is charged with addressing the needs of these individuals and families. Board Recommendation - The Department's response is accepted. The Department has made corrections. The amended and new sections are proposed for final adoption pursuant to the Texas Government Code, Chapter 2306, which provides the Texas Department of Housing and Community Affairs with the authority to adopt rules governing the administration of the department and its programs. sec.51.1.Purpose. This part describes policies and procedures applicable to the Housing Trust Fund authorized under Texas Government Code, Chapter 2306, Subchapter I. sec.51.2. Program Goals and Objectives. (a) The Housing Trust Fund shall be used by the Department to provide loans, grants, or other comparable forms of assistance to local units of government, the Department, public housing authorities, community housing development organizations, nonprofit organizations, for profit entities, and income-eligible persons, families, and households to finance, acquire, rehabilitate, and develop affordable, decent, safe, and sanitary housing. (b) The Housing Trust Fund shall be used by the Department to provide assistance for persons and families of low, very low, and extremely low income in financing, acquiring, rehabilitating, and developing affordable, decent, safe, and sanitary housing. (c) The Housing Trust Fund shall be used by the Department to provide technical assistance and capacity building to nonprofit organizations, and community housing development organizations engaged in developing affordable housing for persons and families of low, very low, and extremely low income. sec.51.3. Definitions. The following words and terms, when used in this part, shall have the following meaning, unless the context clearly indicates otherwise. Act - Texas Government Code, Chapter 2306, Subchapter I. Affordable Housing - Housing for which low, very low, and extremely low income families are not required to pay more than 30% of monthly adjusted income for the mortgage payment and utilities, or rent and utilities, computed in accordance with the federal regulations for the Section 8 Existing Housing Program set forth in the Code of Federal Regulations, Title 24, Part 5, Subpart F. Board - The governing board of the Department. Capacity Building - Educational and organizational support assistance to promote the ability of community housing development organizations and nonprofit organizations to maintain, rehabilitate and construct housing for low, very low, and extremely low income persons and families. This activity may include but is not limited to: (A) organizational support to cover expenses for training, technical and other assistance to the board of directors, staff, and members of the nonprofit organizations or community housing development organization; (B) program support including technical assistance and training related to housing development, housing management, or other subjects related to the provision of housing or housing services; or (C) studies and analyses of housing needs. Community Housing Development Organizations - A nonprofit organization that satisfies the requirements of 24 CFR92.2, as amended, as certified by a HOME Program. Department - The Texas Department of Housing and Community Affairs. Eligible Applicants - Local units of government, public housing authorities, community housing development organizations, nonprofit organizations, for profit entities, persons and families of low, very low, and extremely low income, and persons with special needs. Extremely Low Income Persons and Families - Persons and families earning not more than 30% of the area median income as determined by the United States Department of Housing and Urban Development, with allowances for family size. Federal Government - The United States of America or any department, division, agency or instrumentality, corporate or otherwise, of the United States of America. Housing Development Costs - The total of all costs incurred in financing, creating, or purchasing any housing development, including, but not limited to, a single-family dwelling, which are approved by the Department as reasonable and necessary. The costs may include, but are not limited to: (A) the value of land and any buildings on the land owned by the sponsor, or the cost of land acquisition and any buildings on the land, including payments for options, deposits, or contracts to purchase properties on the proposed housing sites; (B) cost of site preparation, demolition, and development; (C) fees paid or payable in connection with the planning, execution, and financing of the housing development, such as those to the architects, engineers, attorneys, accountants; (D) cost of necessary studies, surveys, plans, permits, insurance, interest, financing, tax and assessment costs, and other operating and carrying costs during construction; (E) cost of construction, rehabilitation, reconstruction, fixtures, furnishings, equipment, machinery, and apparatus related to the real property; (F) cost of land improvements, including without limitation, landscaping and off-site improvements, whether or not the costs have been paid in cash or in a form other than cash; (G) necessary expenses in connection with initial occupancy of the housing development; (H) an allowance established by the Department for contingency reserves and reserves for any anticipated operating deficits during the first two years of occupancy; and (I) the cost of the other items, including tenant relocation, if tenant relocation costs are not otherwise being provided for, as the Department shall determine to be reasonable and necessary for the development of the housing development, less any and all net rents and other net revenues received from the operation of the real and personal property on the development site during construction. Housing Development or Housing Project - Any real or personal property, project, building, structure, facilities, work, or undertaking, whether existing, new construction, remodeling, improvement, or rehabilitation, which meets or is designed to meet minimum property standards consistent with those prescribed in the Housing Trust Fund Property Standards, found in the Program Guidelines, for the primary purpose of providing sanitary, decent, and safe dwelling accommodations for rent, lease, use, or purchase by persons and families of low, very low, and extremely low income, and persons with special needs. The term may include buildings, structures, land, equipment, facilities, or other real or personal properties which are necessary, convenient, or desirable appurtenances, such as but not limited to streets, water, sewers, utilities, parks, site preparation, landscaping, stores, offices, and other non-housing facilities, such as administrative, community and recreational facilities the Department determines to be necessary, convenient, or desirable appurtenances. Housing Finance Division - The division or divisions of the Department responsible for the administration of the Housing Trust Fund. Joint Venture - An agreement between a lead applicant and a cooperating entity formed to administer or implement a Housing Trust Fund project. Lead Applicant - An Eligible Applicant designated in a Housing Trust Fund application to assume contractual liability and legal responsibility as the Recipient executing the written agreement with the State. Local Government - A county; an incorporated municipality; a special district; any other legally constituted political subdivision of the state; a public, nonprofit housing finance corporation created under the Local Government Code, Chapter 394; or a combination of any of the entities described here. Low Income Persons and Families - Persons and families earning not more than 80% of the area median income as determined by the United States Department of Housing and Urban Development, with allowances for family size. Metropolitan and Metro - Areas designated by the Bureau of the Census as metropolitan statistical areas (MSA) in the most recent decennial census. Non-metropolitan and Non-Metro - Refers to all areas outside those areas designated as MSAs by the Bureau of the Census in the most recent decennial census. Nonprofit Organization - Any public or private, nonprofit organization that: (A) is organized under state or local laws; (B) has no part of its net earnings inuring to the benefit of any member, founder, contributor, or individual; (C) is neither controlled by, nor under the direction of, individuals or entities seeking to derive profit or gain from the organization. A nonprofit organization may be sponsored in part by a for-profit entity, but: (i) the for-profit entity may not be an entity whose primary purpose is the development or management of housing, such as a builder, developer, or real estate management firm; (ii) the for-profit entity may not have the right to appoint more than one-third of the membership of the organization's governing body. Board members appointed by the for-profit entity may not appoint the remaining two thirds of the board members; and (iii) the organization must be free to contract for goods and services from vendors of its own choosing; (D) has a tax exemption ruling from the Internal Revenue Service under the Internal Revenue code of 1986, sec.501(c), as amended; (E) does not include a public body (including the participation jurisdiction) or an instrumentality of a public body. An organization that is state or locally chartered may qualify as a nonprofit organization; however, the state or local government may not have the right to appoint more than one-third of the membership of the organization's governing body and no more than one-third of the Board members can be public officials; (F) has standards of financial accountability that conform to Attachment F of the Office of Management and Budget, Circular Number A-100 (revised) "Standards for Financial Management Systems"; and (G) has among its purposes, the provision of decent housing that is affordable to low, very low, and extremely low income persons, as evidenced by its charter, articles of incorporation, resolutions or by-laws. Person with Special Needs - A person or family of low, very low, or extremely low income who: (A) is considered disabled under a state or federal law; (B) is elderly (age 60+); (C) is designated by the Board as experiencing a unique need for affordable, decent, safe housing that is not being met adequately by private enterprise. Predevelopment Costs - Reimbursable costs related to a specific eligible housing project including: (A) Predevelopment housing project costs that the Department determines to be customary and reasonable, including but not limited to consulting fees, costs of preliminary financial applications, legal fees, architectural fees, engineering fees, engagement of a development team, site control, and title clearance; (B) Preconstruction housing project costs that the Department determines to be customary and reasonable, including but not limited to, the costs of obtaining firm construction loan commitments architectural plans and specifications, zoning approvals, engineering studies and legal fees. (C) Predevelopment costs do not include general operational or administrative cost. Public Housing Authority - A housing authority established under the Texas Local Government Code, Chapter 392. Real Property - All land, including improvements and fixtures and property of any nature appurtenant, or used in connection therewith, and every estate, interest, and right, legal or equitable therein, including leasehold interests, terms for years, and liens by way of judgment, mortgage or otherwise. Recipient - Community housing development organization, nonprofit organization, for profit entity, local unit of government, or public housing authority that is approved by the Department to receive and administer housing trust funds in accordance with these rules. Rural Project - A project located within an area which: (A) is situated outside the boundaries of a PMSA or MSA; or (B) is situated within the boundaries of a PMSA or MSA if it has a population of not more than 20,000, and does not share boundaries with an urbanized area; or (C) has received financing or has received a commitment for financing from Texas Rural Development. State - The State of Texas. Total Bond Indebtedness- All single-family mortgage revenue bonds (including collateralized mortgage obligations), multifamily mortgage revenue bonds and other debt obligations issued or assumed by the Department and outstanding as of August 31 of the year of calculation, excluding: (A) all such bonds rated Aaa by Moody's Investors Service or AAA by Standard & Poor's Corporation for which the Department has no direct or indirect financial liability from the Department's unencumbered fund balances; and (B) all other such bonds, whether rated or unrated, for which the Department has no direct or indirect financial liability from the Department's unencumbered fund balances, unless Moody's or Standard & Poor's has advised the Department in writing that all or a portion of the bonds excluded by this clause should be included in a determination of total bond indebtedness. Unencumbered Fund Balances - (A) the sum of the balances resulting at the end of each Department fiscal year from deducting the sum of bond indenture and credit rating restrictions and liabilities from the sum of amounts on deposit in indenture funds and other tangible and intangible assets of each Department housing bond program; and (B) uncommitted amounts on deposit in each independent or separate unrestricted fund established by the housing finance division or its administrative component units. Very low Income Persons and Families - Persons and families earning not more than 60% of the area median income as determined by the United States Department of Housing and Urban Development, with allowances for family size. sec.51.4. Availability of Funds and Schedule. (a) The Housing Trust Fund consists of appropriations or transfers made to the fund, unencumbered fund balances, and public or private gifts or grants. Assets in the fund may be used only to carry out the purposes of this rule. (b) An independent auditor shall annually conduct an audit to determine the amount of unencumbered fund balances of all housing finance division funds. The independent auditor shall submit the audit report to the Board before January 1 of each year. After the report has been received by the Board, copies of the auditor's determination of unencumbered fund balances shall be made available to the public at the Department's offices, without cost to the public. (c) Staff of the Department's housing finance division shall, on or before January 1 of each year, compute the total bond indebtedness of the Department and shall prepare worksheets explaining the calculation of 2.0% of total bond indebtedness. Copies of these worksheets shall be made available to the public at the Department's offices, without cost to the public. (d) Based on the audit report, the Department's Board shall verify the computations made by housing finance division staff and, by resolution shall authorize the transfer, except as provided by subsections (e)-(g) of this section, to the Housing Trust Fund on or before January 10 of each year an amount equal to one-half of the housing finance division's unencumbered fund balances in excess of 2.0% of total bond indebtedness. (e) If, at the time any annual audit required by subsection (b) of this section is concluded, the housing finance division's unencumbered fund balances exceed 4.0% of its total bond indebtedness, the amount transferred on or before the next January 10 shall consist of all amounts in excess of that 4.0%. (f) Notwithstanding subsection (e) of this section, if, at the time any annual audit required by subsection (b) of this section is concluded, a nationally recognized rating agency has recommended the housing finance division to maintain unencumbered fund balances in excess of the amount permitted by subsection (d) of this section to be maintained as unencumbered fund balances, as a condition to achieving or maintaining a rating of at least Aa/A+ on all or a portion of the bond indebtedness of the housing finance division that is issued under an open indenture or an open flow of funds, the amount transferred on or before each January 10 shall consist of all funds in excess of the amount required by the rating agency to be held as unencumbered fund balances. (g) Not withstanding subsection (e) of this section, if, at the time any annual audit required by subsection (b) of this section is concluded, a nationally recognized rating agency has recommended the housing finance division to increase the amount of its unencumbered fund balances to achieve or maintain a financially sound condition or to prevent a decrease in the long-term debt rating maintained on all or a portion of the bond indebtedness, the Department may not make further annual transfers to the Housing Trust Fund until all requirements and conditions of the rating agency have been met. (h) In addition to the money transferred into the housing trust fund under this section, the Department shall transfer into the fund the amount of any origination fee, asset oversight fee, and servicing fee the Department or the Texas State Affordable Housing Corporation receives in relation to the administration of its 501 (c) (3) bond program established pursuant to sec.2306.358 that exceeds the amount needed by the Department or the Texas State Affordable Housing Corporation to pay its operating and overhead costs and fund reserves, including an insurance reserve or credit enhancement reserve established by the Board in administering the program. (i) Interest earned by the Capital Trust Fund shall be deposited to the credit of the Housing Trust Fund. (j) The Housing Trust Fund provided for by this section is not subject to the Texas Trust Code (Property Code sec.111.001, et seq.). sec.51.5. Allocation of Housing Trust Funds. (a) Funds shall be allocated to achieve a broad geographical distribution taking into account the number and percentage of low, very low, and extremely low income persons and families in different geographical areas of the State. (b) In allocating funds under the Housing Trust Fund, special attention shall be paid to equitably serving the housing needs of low, very low, and extremely low income persons and families residing in rural and non-metropolitan areas. (c) No more than 10% of the housing trust funds allocated each fiscal year shall be distributed to community housing development organizations and nonprofit organizations for capacity building. (d) At least 35% of the housing trust funds allocated each funding cycle shall be distributed to community housing development organizations. This 35% will be based on the amount of funds remaining after funds identified in subsection (c) of this section are allocated. In the event that there is an insufficient number of qualifying applicants for this allocation, any remaining funds will then be made available to other qualifying applicants, as specified in the Program Guidelines. (e) The Department shall utilize its best efforts to apply at least 50% of the housing trust funds allocated each funding cycle to non-metropolitan areas of the state. (f) No more than 10% of the yearly balance of the housing trust fund may be used by the Department to acquire real property. (g) The Department shall utilize its best efforts to apply at least 15% of the housing trust funds allocated each fiscal year to housing assistance for individuals and families earning less than 30% of median family income, and a minimum of 20% of the allocated funds for individuals and families earning between 31 and 60% of median family income. (h) Bond indenture requirements governing expenditure of bond proceeds deposited in the housing trust fund shall govern and prevail over all other allocation requirements established in this section. However, the Department shall distribute these funds in accordance with the requirements of this section to the extent possible. (i) Not more than 10% of any biennium allocation of Housing Trust Fund program funds may be set aside to create a pre-development loan fund to be used as matching funds with outside funds. sec.51.6. Basic Eligible Activities. The Department shall make grants and loans from the Housing Trust to Eligible Applicants for purposes consistent with sec.5.2 of this title (related to Program Goals and Objectives). Eligible uses of trust funds include, but are not limited to the following: (1) To fund housing development costs for a housing project or to provide down- payment assistance, credit enhancement, direct loans and interest rate reduction assistance to low, very low, and extremely low income persons and families, and persons with special needs. (2) To provide predevelopment costs for eligible housing projects. Such assistance shall be provided in the form of a loan to be repaid to the housing trust fund from construction loan proceeds or other project income. The Board may waive repayment of the loan, in whole or in part, if there are impediments to project development that the Board determines are reasonably beyond the control of the applicant. (3) To provide for capacity building for community housing development and nonprofit organizations that show sufficient evidence of having strong community support and a strong likelihood of producing housing for low, very low, and extremely low income persons and families within two years of the date that assistance is provided. Where possible, the Recipient of funds under this subsection will build in fees, or other ongoing sources of income, into the services that they provide, so that repeated support will not be needed. (4) To support Department sponsored activities authorized under the Act, subject to the requirements of the Housing Trust Fund and implementing regulations. sec.51.7. Ineligible Activities and Restrictions. Any activity is ineligible for housing trust funds unless the activity will result in the financing, acquisition, rehabilitation, or development of affordable, decent, safe, and sanitary housing for low, very low, and extremely low income persons or families, or will provide capacity building to community housing development organizations and nonprofit organizations engaged in developing housing for low, very low, and extremely low income persons and families. (1) General Government Expenses. Housing trust funds may not be used to carry out the regular responsibilities of the unit of general local government. (2) Political Activities. Housing trust funds may not be used to finance the use of facilities or equipment for political purposes or to engage in other partisan political activities, such as candidate forums, voter transportation, or voter registration. (3) Prohibition against Involuntary Displacement. Housing trust funds shall not be utilized on a project that has the effect of permanently and involuntarily displacing low, very low, and extremely low income persons and families. (4) Restriction on Affordability of Multifamily Housing. Any multifamily housing developed or rehabilitated with housing trust funds, in whole or in part, shall remain affordable to income-qualified households for at least 20 years. sec.51.8. Maintenance of Effort. (a) Housing trust funds shall not be used by local government to supplant or replace existing housing funds for housing for low, very low, and extremely low income persons and families. (b) If other federal funds are available to a local government applicant for any proposed housing project, the local government applicant shall affirmatively show that it has undertaken reasonable efforts to secure such funding for the proposed housing project. sec.51.9. Application Procedure and Requirements. (a) The Department shall, from time to time, solicit applications for loans and grants from Eligible Applicants. (b) The applicant shall submit, in an application form and process prescribed by the Department, project information including, but not limited to: (1) A written description of the housing project including but not limited to, the number of units, unit mix, proposed rents or mortgage payments, site location, the proposed program of services to occupants and the availability of these services in the future, project amenities, names and addresses of all individuals with any financial interest in the proposed housing project, personal and organizational financial statements and audit reports, and any other information the Board may require; (2) A statement of housing project purpose indicating the housing type and tenants or homeowners to be housed, and the length of time the units will be committed available for low, very low, and extremely low income households; (3) A statement describing the need for the proposed housing development given existing housing and economic conditions in the service area; (4) A projection of housing project expenses and income; (5) Grant or loan amount requested and total housing project development costs, including a description of all committed or anticipated project funding and funding sources, and a statement describing efforts to secure other sources of funding, including federal funds and funds from private sources; (6) A narrative describing the housing project sponsor/developer/owner/ manager experience in developing and operating housing projects; (7) A description of any temporary displacement resulting from the proposed housing project, including a statement whether the housing project has the effect of permanently and involuntarily displacing persons and families of low income; (8) The geographical area of the state in which the project will occur; (9) A narrative describing how the proposed project addresses each of the evaluation factors listed in sec.51.10 of this title (relating to Criteria for Funding); (10) The affirmative marketing plan of the housing project sponsor on marketing to racial and ethnic minorities and person with special needs; (11) Project completion schedule; (12) Non-discrimination statements; (c) An individual or family who is an Eligible Applicant shall submit a request for funding in an application form and process prescribed by the Department to include the items listed in subsection (b) of this section that are relevant to individuals and persons applying for loans and grants. (d) Capacity building applicants will be required to submit a specific application form that will follow guidelines prescribed by the Department. sec.51.10.Criteria for Funding. (a) In considering applications for funding, the Department and Board shall consider the following: (1) Threshold Criteria. To be considered for funding, a housing project must first demonstrate that it meets all the threshold criteria set forth as follows: (A) The project is consistent with the requirements established in this rule. (B) The applicant provides evidence of their ability to carry out the project in the areas of financing, acquiring, rehabilitating, developing or managing affordable housing development. (C) The project addresses and identifies housing need. This assessment will be based on statistical data, surveys and other indicators of need as appropriate. (2) Evaluation Factors. The Board and Department will consider applications for housing trust funds using the following system: (A) Applications will be evaluated against the threshold criteria during each funding cycle. Applications not meeting the threshold criteria will be returned to the applicant without further review. (B) Applications not meeting the threshold criteria may be revised and subsequently resubmitted for consideration. (C) Applications will then be ranked according to the criteria hereinafter set forth: (i) leveraging of funds: the extent to which the project will leverage State funds with other resources, including federal resources, and private sector funds; (ii) community involvement: the extent to which the project involves a broad range of community representatives, including low, very low, and extremely low income individuals who may expect to reside in the proposed housing project, in the design and development of the proposed housing project; (iii) very low income targeting: the extent to which the project will provide safe, decent and affordable housing to very low income persons and families; (iv) long term affordability: the extent to which the project will ensure the longest possible use of assisted units as affordable housing for low, very low, and extremely low income persons and families; (v) housing need: the geographical area of the State to be served and the extent to which there is a need for safe, decent, and affordable housing in this area; (vi) special housing needs: the extent to which the project provides affordable housing and services for persons with special needs; (vii) financial feasibility: the extent to which the project is financially feasible, taking into consideration the contribution of housing trust funds, as determined in accordance with generally accepted underwriting standards as promulgated by federal insurers or other similar guarantors of such projects; (viii) need for funds: the extent to which other resources are not available in the locality to carry out the housing project; (ix) minority participation: the extent to which the project has minorities and/or women participating in the ownership, development or management of the project; (x) energy conservation: the extent to which the project design promotes energy and/or water conservation with the result of reducing residents' utility costs; (xi) innovation: the extent to which the project involves a new or particularly innovative approach for meeting housing needs in the area being served; (xii) services: the extent to which the project includes a program of services for occupants of the proposed housing including, but not limited to, programs that address home health care, mental health service, alcohol and drug treatment, job training, child care and case management and provides for tenant involvement in the development and administration of the services; (xiii) cost-effectiveness: the extent to which the project is cost-effective and provides the greatest number of affordable, decent, safe and sanitary low, very low , and extremely low income housing units for the least amount of housing trust funds expended or committed; (xiv) barriers to affordable housing: the extent to which local governments propose to eliminate or reduce barriers to affordable housing created by existing public policies, such as zoning regulations, building permit requirements, etc.; (xv) geographic balance: the extent to which the project will contribute to achieving a fair and equitable geographic distribution of housing trust funds. (b) The Department shall establish a system for assigning a weight to the preceding evaluation factors and giving priority to funding application according to the weight assigned. (c) The Board shall have final approval on all recommendations for funding. sec.51.11.Prohibition Against Discrimination. (a) No person shall on the ground of race, color, family composition (reasonable occupancy standards are acceptable), national origin or sex, be excluded for participation in, be denied the benefits of, or be subjected to discrimination under any program or activity funded in whole or in part with housing trust funds made available under the Act. (b) Whenever the Department determines that a Recipient of housing trust funds has failed to comply with paragraph (a) of this subsection, the Department shall attempt to secure compliance. If within a reasonable period of time the Recipient fails to comply, the Department may: (1) refer the matter to the State Attorney General with a recommendation that an appropriate civil action be instituted; or (2) take such other action as may be provided by law. sec.51.12. Other Program Requirements. (a) Employment opportunities. (1) No person shall be discriminated against on the basis of race, color, handicap, religion, sex, or national origin in all phases of employment during the performance of contracts as assisted with housing trust funds made available under the Act. (2) Contractors and subcontractors on Housing Trust Fund assisted contracts shall take affirmative action to ensure fair treatment in employment, upgrading, demotion, or transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation and selection for training or apprenticeship. (3) In connection with the planning and carrying out of any project assisted under the Act, to the greatest extent feasible, opportunities for training and employment shall be given to low, very low, and extremely low income persons residing within the area in which the project is located. (b) Conflict of Interest. (1) Conflict Prohibited. No person described in paragraph (2) of this subsection who exercises or has exercised any functions or responsibilities with respect to Housing Trust Fund activities under the Act or who is in a position to participate in a decision making process or gain inside information with regard to such activities, may obtain a personal or financial interest or benefit from a Housing Trust Fund assisted activity, or have an interest in any Housing Trust Fund contract, subcontract or agreement or the proceeds thereunder, either for themselves or those with whom they have family or business ties, during their tenure or for one year thereafter. (2) Persons Covered. The conflict of interest provisions of paragraph (1) of this subsection apply to any person who is an employee, agent, consultant, officer, elected official or appointed official of the Department or State of Texas. These provisions shall not however, restrict the Department from utilizing trust funds as authorized under sec.51.6(d) of this title (relating to Basic Eligible Activities). sec.51.13. Citizen Participation. (a) The Department shall hold at least one public hearing annually, and additional public hearings prior to consideration if any proposed significant changes to these rules, to solicit comments from the public, eligible applicants, and Recipients on the Department's rule, guidelines, and procedures for the Housing Trust Fund. (b) The Department shall consider the comments it receives at public hearings. The Board shall annually review the performance, administration, and implementation of the Housing Trust Fund in light of the comments it receives. At this time the Board shall also review funding goals and set-asides established in sec.51.5. of this title (relating to Allocation of Housing Trust Funds). (c) Applications for housing trust funds are public information and the Department shall afford the public an opportunity to comment on proposed housing projects prior to making awards. (d) Complaints will be handled in accordance with the Departments complaint procedures of 10 TAC, sec.12. sec.51.14. Records to be Maintained. (a) The Department shall maintain the following records on projects assisted with housing trust funds: (1) A copy of all applications submitted in response to a request for funding proposals; (2) A copy of a written agreement with each Recipient of housing trust funds indicating the total number of dwelling units which will be financed, rehabilitated, acquired, constructed, or assisted with housing trust funds; (3) The total cost of the project, including both housing trust funds and other funds; (4) The agreement with the Recipient on the affordability of the dwelling unit; (5) The size and income of the household for each unit occupied by a low, very low, or extremely low income person or family; (6) Data on the extent to which each racial and ethnic group and single-headed households (by gender of household head) have applied for and benefited from any project or activity funded in whole or in part with housing trust funds made available under the Act. These data shall be updated annually. (b) The Department shall also require, at least on an annual basis, a report from Recipients of housing trust funds. This report shall provide information including, but not limited to: (1) such information as may be necessary to determine whether a project funded with housing trust is benefiting low, very low, and extremely low income persons and families; (2) the monthly rent or mortgage payment for each dwelling unit in each structure assisted with housing trust funds, and (3) such information as may be necessary to determine whether Recipients have carried out their housing activities in accordance with the requirements and primary objectives of the housing trust fund and implementing regulations. sec.51.16. Department Funding. Notwithstanding the application procedures set forth under sec.51.9 of this title (relating to Application Procedure and Requirements), the Board, in its discretion may allocate funds to the Department to acquire real property to endow the housing trust fund. sec.51.17. Funding Cap. No more than 25% of the housing trust funds may be allocated to any single project for each/any calendar year. The Board in its discretion, may waive the provision of this section. sec.51.18.Waiver. The Board may, in its discretion, waive any one or more of the rules set forth in this chapter to accomplish its legislative mandates and/or bond criteria. 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. Filed with the Office of the Secretary of State on January 16, 1998. TRD-9800737 Larry Paul Manley Executive Director Texas Department of Housing and Community Affairs Effective date: February 5, 1998 Proposal publication date: October 24, 1997 For further information, please call: (512) 475-3726 TITLE 16. ECONOMIC REGULATION PART VIII. Texas Racing Commission CHAPTER 305.Licenses for Pari-Mutuel Racing SUBCHAPTER B.Individual Licenses 16 TAC sec.305.33 The Texas Racing Commission adopts an amendment to sec.305.33, concerning the license badge without changes to the proposed text as published in the December 5, 1997, issue of the Texas Register (22 TexReg 11908). The amendment is adopted so that enforcement and regulatory personnel will be able to tell at a glance when a particular license expires. This will help ensure only licensed personnel are permitted to participate in pari-mutuel racing, as required by state law. The amendment modifies the information required to be placed on the license badge to include the month and year the license expires. The Commission has implemented a system of revolving expiration dates for occupational licenses and the change in the license badge style aids in that new system. No comments were received regarding the adoption of the proposal. The amendment is adopted under the Texas Civil Statutes, Article 179e, sec.3.02, which authorize the Commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; sec.5.01 which requires the Commission to issue a license credential to every occupational licensee; and sec.7.06, which requires the Commission to issue identification cards to occupational licensees. 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. Filed with the Office of the Secretary of State on January 15, 1998. TRD-9800652 Paula C. Flowerday General Counsel Texas Racing Commission Effective date: February 10, 1998 Proposal publication date: December 5, 1997 For further information, please call: (512) 833-6699 SUBCHAPTER C.Racetrack Licenses General Provisions 16 TAC sec.305.70 The Texas Racing Commission adopts an amendment to sec.305.70, concerning officials' fees without changes to the proposed text as published in the December 5, 1997, issue of the Texas Register (22 TexReg 11909). The amendment is adopted to ensure the Commission will be in full compliance with the statutory mandate in Texas Civil Statutes, Article 179e, sec.3.07(a). The amendment changes the amount of the officials' fee that pari-mutuel racetracks are required to pay to the Commission to offset the costs of providing officials. No comments were received regarding the adoption of the proposal. The amendment is adopted under the Texas Civil Statutes, Article 179e, sec.3.02, which authorize the Commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; and sec.3.07 which authorizes the Commission to establish an officials fee by rule. 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. Filed with the Office of the Secretary of State on January 15, 1998. TRD-9800653 Paula C. Flowerday General Counsel Texas Racing Commission Effective date: February 10, 1998 Proposal publication date: December 5, 1997 For further information, please call: (512) 833-6699 CHAPTER 307.Practice and Procedure SUBCHAPTER C.Proceedings by Stewards and Racing Judges Appeals to Commission 16 TAC sec.307.261 The Texas Racing Commission adopts an amendment to sec.307.261, concerning appeals to the Commission from rulings issued by the stewards and racing judges without changes to the proposed text as published in the December 5, 1997, issue of the Texas Register (22 TexReg 11910). The amendment is adopted to ensure pari-mutuel racing will be of the utmost integrity. The amendment clarifies the eligibility status of race animals that are involved in an appeal that affects the official order of finish of a race. No comments were received regarding the adoption of the proposal. The amendment is adopted under the Texas Civil Statutes, Article 179e, sec.3.02, which authorize the Commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; and sec.6.06, which authorizes the Commission to adopt rules on all matters relating to the operation of racetracks; and Texas Government Code, sec.2001.004, which requires the Commission to adopt rules of practice and procedure. 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. Filed with the Office of the Secretary of State on January 15, 1998. TRD-9800654 Paula C. Flowerday General Counsel Texas Racing Commission Effective date: February 10, 1998 Proposal publication date: December 5, 1997 For further information, please call: (512) 833-6699 CHAPTER 311.Conduct and Duties of Individuals SUBCHAPTER B.Specific Licensees General Provisions 16 TAC sec.311.106 The Texas Racing Commission adopts an amendment to sec.311.106, concerning stable names without changes to the proposed text as published in the December 5, 1997, issue of the Texas Register (22 TexReg 11910). The amendment is adopted to ensure the Commission's rules will be consistent with applicable state law. The Texas Racing Act was revised by sunset legislation effective September 1, 1997, and in that legislation, the Commission is prohibited from adopting rules which restrict nondeceptive advertising. The amendment implements that legislation by eliminating the restrictions on the use of stable names that advertise products or services. No comments were received regarding the adoption of the proposal. The amendment is adopted under the Texas Civil Statutes, Article 179e, sec.3.02, which authorize the Commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; sec.3.021 which prohibits the Commission from restricting nondeceptive advertising; and sec.6.06, which authorizes the Commission to adopt rules on all matters relating to the operation of pari-mutuel racetracks. 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. Filed with the Office of the Secretary of State on January 15, 1998. TRD-9800655 Paula C. Flowerday General Counsel Texas Racing Commission Effective date: February 10, 1998 Proposal publication date: December 5, 1997 For further information, please call: (512) 833-6699 CHAPTER 313.Officials and Rules of Horse Racing SUBCHAPTER A.Officials Duties of Stewards 16 TAC sec.313.21 The Texas Racing Commission adopts an amendment to sec.313.21, concerning the eligibility requirements for stewards without changes to the proposed text as published in the December 5, 1997, issue of the Texas Register (22 TexReg 11911). The amendment is adopted to ensure the Commission's rules will be consistent with applicable state law. The Texas Racing Act was revised by sunset legislation effective September 1, 1997, and that legislation made all three stewards at horse racetracks employees of the Commission. The amendment implements that legislation by removing the reference in the rules to a list of approved stewards for use by racetracks when employing stewards. No comments were received regarding the adoption of the proposal. The amendment is adopted under the Texas Civil Statutes, Article 179e, sec.3.02, which authorize the Commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; and sec.3.07, which requires the Commission to employ all stewards at pari-mutuel horse racetracks. 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. Filed with the Office of the Secretary of State on January 15, 1998. TRD-9800656 Paula C. Flowerday General Counsel Texas Racing Commission Effective date: February 10, 1998 Proposal publication date: December 5, 1997 For further information, please call: (512) 833-6699 16 TAC sec.313.22 The Texas Racing Commission adopts an amendment to sec.313.22, concerning the general duties of stewards without changes to the proposed text as published in the December 5, 1997, issue of the Texas Register (22 TexReg 11911). The amendment is adopted to ensure pari-mutuel racing will be humane for the race horses. The amendment specifically authorizes the stewards at a pari-mutuel horse racetrack to order an endoscopic examination to be performed on a horse, at the expense of the horse's owner, to determine whether foreign material, such as a sponge, is obstructing the flow of air into the horse's lungs. No comments were received regarding the adoption of the proposal. The amendment is adopted under the Texas Civil Statutes, Article 179e, sec.3.02, which authorize the Commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; sec.3.07, which authorizes the Commission to adopt rules specifying the authority of the stewards; sec.3.16, which authorizes the Commission to adopt rules prohibiting the unlawful influencing of the outcome of a race; and sec.6.06, which authorizes the Commission to adopt rules on all matters relating to the operation of pari- mutuel racetracks. 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. Filed with the Office of the Secretary of State on January 15, 1998. TRD-9800657 Paula C. Flowerday General Counsel Texas Racing Commission Effective date: February 10, 1998 Proposal publication date: December 5, 1997 For further information, please call: (512) 833-6699 SUBCHAPTER B.Entries, Declarations, and Allowances Allowances and Penalties 16 TAC sec.313.166 The Texas Racing Commission adopts an amendment to sec.313.166, concerning the apprentice weight allowance without changes to the proposed text as published in the December 5, 1997, issue of the Texas Register (22 TexReg 11912). The amendment is adopted to ensure pari-mutuel racing will be of the utmost integrity. The amendment clarifies the length of time a jockey is permitted to ride with an apprentice weight allowance and the circumstances under which the commission may extend that time. The amendment makes the Commission's rules consistent with the model rule on apprentice jockeys developed by the Jockey Guild. No comments were received regarding the adoption of the proposal. The amendment is adopted under the Texas Civil Statutes, Article 179e, sec.3.02, which authorize the Commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; and sec.6.06, which authorizes the Commission to adopt rules on all matters relating to the operation of pari-mutuel racetracks. 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. Filed with the Office of the Secretary of State on January 15, 1998. TRD-9800658 Paula C. Flowerday General Counsel Texas Racing Commission Effective date: February 10, 1998 Proposal publication date: December 5, 1997 For further information, please call: (512) 833-6699 SUBCHAPTER D.Running of the Race Jockeys 16 TAC sec.313.406 The Texas Racing Commission adopts an amendment to sec.313.406, concerning colors and number without changes to the proposed text as published in the December 5, 1997, issue of the Texas Register (22 TexReg 11913). The amendment is adopted to ensure the Commission's rules will be consistent with applicable state law. The Texas Racing Act was revised by sunset legislation effective September 1, 1997, and in that legislation, the Commission is prohibited from adopting rules which restrict nondeceptive advertising. The amendment implements that legislation by eliminating the restrictions on advertising on jockey clothing. No comments were received regarding the adoption of the proposal. The amendment is adopted under the Texas Civil Statutes, Article 179e, sec.3.02, which authorize the Commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; sec.3.021 which prohibits the Commission from restricting nondeceptive advertising; and sec.6.06, which authorizes the Commission to adopt rules on all matters relating to the operation of pari-mutuel racetracks. 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. Filed with the Office of the Secretary of State on January 15, 1998. TRD-9800659 Paula C. Flowerday General Counsel Texas Racing Commission Effective date: February 10, 1998 Proposal publication date: December 5, 1997 For further information, please call: (512) 833-6699 CHAPTER 315.Officials and Rules for Greyhound Racing SUBCHAPTER A.Officials Appointment of Officials 16 TAC sec.315.2, sec.315.3 The Texas Racing Commission adopts amendments to sec.315.2 and sec.315.3, concerning the racing judges and substitute officials without changes to the proposed text as published in the December 5, 1997, issue of the Texas Register (22 TexReg 11913). The amendments are adopted to ensure the Commission's rules will be consistent with applicable state law. The Texas Racing Act was revised by sunset legislation effective September 1, 1997, and that legislation made all three racing judges at greyhound racetracks employees of the Commission. The amendment implements that legislation by removing the reference in the rules to a list of approved racing judges for use by racetracks when employing racing judges and to the references to a racetrack appointing substitute judges. No comments were received regarding the adoption of the proposal. The amendment is adopted under the Texas Civil Statutes, Article 179e, sec.3.02, which authorize the Commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; sec.3.07, which requires the Commission to employ all racing judges at pari-mutuel greyhound racetracks; and sec.6.06, which authorizes the Commission to adopt rules on all matters relating to the operation of pari-mutuel racetracks. 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. Filed with the Office of the Secretary of State on January 15, 1998. TRD-9800660 Paula C. Flowerday General Counsel Texas Racing Commission Effective date: February 10, 1998 Proposal publication date: December 5, 1997 For further information, please call: (512) 833-6699 TITLE 22. EXAMINING BOARDS PART XI. Board of Nurse Examiners CHAPTER 215.Nurse Education 22 TAC sec.sec.215.2-215.6, 215.14, 215.20 The Board of Nurse Examiners adopts amendments to sec.sec.215.2-215.6, concerning Definitions, New Programs, Accreditation, Pass Rate of Graduates on the National Council Licensure Examination for Registered Nurses and Administration and Organization and new sec.215.14 and sec.215.20 relating to Extended Campus/Extension Site and Closing of a Nursing Program or Distance Education Initiative with no changes in the proposed text as published in the December 12, 1997, issue of the Texas Register (22 TexReg 12203). The amendments and new sections are being adopted to address the delivery of nursing courses via distance learning technologies. In January 1997 the Board of Nurse Examiners (BNE) directed the Advisory Committee for Education (ACE) to review current education rules regarding extended campuses/extension sites and to make recommendations for possible rule changes. A subcommittee of the ACE was formed consisting of nursing faculty and nursing practice representatives with expertise in distance education. The subcommittee met on four occasions and developed recommended rule changes which were presented and approved by ACE who then sent their recommendations to the Board. The amendments and new rules will streamline the process for nursing programs to deliver partial and/or complete programs of study to physical locations separated by distance from their main campus. No comments were received. The amendments are adopted under the Nursing Practice Act, (Texas Civil Statutes, Article 4514), sec.1, which provides the Board of Nurse Examiners with the authority and power to make and enforce all rules and regulations necessary for the performance of its duties and conducting of proceedings before it and Article 4518, sec.1, which requires the Board to prescribe and publish the minimum requirements and standards for a course of study in programs which prepare professional nurse practitioners. All other regulations necessary to conduct accredited schools of nursing and educational programs for the preparation of professional nurses shall be as prescribed by the Board. There are no other rules, codes, or statutes that will be affected by this proposal. 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. Filed with the Office of the Secretary of State on January 14, 1998. TRD-9800585 Katherine A. Thomas, MN, RN Executive Director Board of Nurse Examiners Effective date: February 3, 1998 Proposal publication date: December 12, 1997 For further information, please call: (512) 305-6811 22 TAC sec.215.14, sec.215.20 The Board of Nurse Examiners adopts the repeal of sec.215.14 and sec.215.20, concerning Extended Campus/Extension Site and Closing of a Nursing Program with no changes in the proposed text as published in the December 12, 1997, issue of the Texas Register (22 TexReg 12205). The adopted repeal will allow for the adoption of new sections that will streamline the process for nursing programs to deliver partial and/or complete programs of study to physical locations separated by distance from their main campus. No comments were received. The adopted repeal is adopted under the Nursing Practice Act, (Texas Civil Statutes, Article 4514), sec.1, which provides the Board of Nurse Examiners with the authority and power to make and enforce all rules and regulations necessary for the performance of its duties and conducting of proceedings before it. There are no other rules, codes, or statutes that will be effected by this proposal. 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. Filed with the Office of the Secretary of State on January 14, 1998. TRD-9800584 Katherine A. Thomas, MN, RN Executive Director Board of Nurse Examiners Effective date: February 3, 1998 Proposal publication date: December 12, 1997 For further information, please call: (512) 305-6811 CHAPTER 217.Licensure and Practice 22 TAC sec.217.5 The Board of Nurse Examiners adopts an amendment to sec.217.5, concerning Temporary License and Endorsement with no changes in the proposed text as published in the December 12, 1997, issue of the Texas Register (22 TexReg 12206). The adopted amendment will harmonize the procedures and fees charged for eligibility determination for examination applicants, declaratory order petitioners and endorsees by equalizing the procedures and fees applied to all persons seeking licensure, regardless of the method of entry. No comments were received. The amendments are adopted under the Nursing Practice Act, (Texas Civil Statutes), Article 4514, sec.1, which provides the Board of Nurse Examiners with the authority and power to make and enforce all rules and regulations necessary for the performance of its duties and conducting of proceedings before it and Article 4525(a) which authorizes the Board to refuse to admit persons to the licensing examination. Article 4525(a) is affected by this section. 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. Filed with the Office of the Secretary of State on January 14, 1998. TRD-9800586 Katherine A. Thomas, MN, RN Executive Director Board of Nurse Examiners Effective date: February 3, 1998 Proposal publication date: December 12, 1997 For further information, please call: (512) 305-6811 CHAPTER 221.Advanced Practice Nurses 22 TAC sec.221.1, sec.221.12 The Board of Nurse Examiners adopts amendments to sec.221.1 and sec.221.12, concerning Definitions and Functions with no changes in the proposed text as published in the December 12, 1997, issue of the Texas Register (22 TexReg 12206). The amendments are being adopted in order that the definition of protocols/ policies/practice guidelines between physicians and APNs more accurately reflect the Board of Medical Examiners' rules made pursuant to legislation passed in 1995. The current rule became effective in June, 1995. Adoption of these amendments will increase assurance that the APN and the physician will review their protocols/ policies/practice guidelines more frequently, thus assuring better protection of the public. No comments were received. The amendments are adopted under the Nursing Practice Act, (Texas Civil Statutes, Article 4514), sec.1, which provides the Board of Nurse Examiners with the authority and power to make and enforce all rules and regulations necessary for the performance of its duties and conducting of proceedings before it and Article 4514, sec.8, which provides the Board of Nurse Examiners the authority and power to adopt rules for approval of a registered nurse to practice as an advanced practice nurse. There are no other rules, codes, or statutes that will be affected by this proposal. 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. Filed with the Office of the Secretary of State on January 14, 1998. TRD-9800587 Katherine A. Thomas, MN, RN Executive Director Board of Nurse Examiners Effective date: February 3, 1998 Proposal publication date: December 12, 1997 For further information, please call: (512) 305-6811 CHAPTER 222.Advanced Practice Nurses with Limited Prescriptive Authority 22 TAC sec.222.1 The Board of Nurse Examiners adopts an amendment to sec.222.1, concerning Definitions with no changes in the proposed text as published in the December 12, 1997, issue of the Texas Register (22 TexReg 12207). The amendment is being adopted to bring the Board's rules into compliance with statutes and expands the practice scope of advanced practice nurses. During the 75th Legislative Session, House Bill 2846 was passed relating to the provisions of health care services by advanced practice nurses including expansion of sites for limited prescriptive authority. Specifically, the law amended the definition of physician's primary practice site to include "a clinic operated by or for the benefit of a public school district for the purpose of providing care to the students of that district and the siblings of those students, if consent to treatment at that clinic is obtained." The amendment will provide the public with expanded access to health care through the addition of the definition of primary practice site to include the public school district clinics. No comments were received. The amendments are adopted under the Nursing Practice Act, (Texas Civil Statutes, Article 4514), sec.1, which provides the Board of Nurse Examiners with the authority and power to make and enforce all rules and regulations necessary for the performance of its duties and conducting of proceedings before it and Article 4514, sec.8, which provides the Board of Nurse Examiners the authority and power to adopt rules for approval of a registered nurse to practice as an advanced practice nurse. There are no other rules, codes, or statutes that will be affected by this proposal. 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. Filed with the Office of the Secretary of State on January 14, 1998. TRD-9800588 Katherine A. Thomas, MN, RN Executive Director Board of Nurse Examiners Effective date: February 3, 1998 Proposal publication date: December 12, 1997 For further information, please call: (512) 305-6811 PART XVII. Texas State Board of Plumbing Examiner CHAPTER 361.Administration Petition for Adoption of Rules 22 TAC sec.361.22 The Texas State Board of Plumbing Examiners adopts an amendment to sec.361.22, concerning Contested Cases: Hearings, without changes to the proposed text as published in the December 12, 1997, issue of the Texas Register (22 TexReg 12208). The amendment specifies that an applicant that has been denied an examination, license, or endorsement, has 20 days to request a hearing after Board notification according to the Act and the Administrative Procedure Act. No comments were received regarding the adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 6243-101, which provide the Texas State Board of Plumbing Examiners with the authority to adopt rules consistent with this Act to carry out its duties in administering this Act. 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. Filed with the Office of the Secretary of State on February 16, 1998. TRD-9800739 Robert L. Maxwell Chief of Field Services/Investigations Texas State Board of Plumbing Examiners Effective date: February 5, 1998 Proposal publication date: December 12, 1997 For further information, please call: (512) 458-2145 Ext. 233 22 TAC sec.361.28 The Texas State Board of Plumbing Examiners adopts an amendment to sec.361.28, concerning Preliminary Criminal Reviews, without changes to the proposed text as published in the December 12, 1997, issue of the Texas Register (22 Tex Reg 12208). The amendment specifies the process for the preliminary review of applicants requests for examination or licensure, when the applicants have previous criminal convictions. The amendment allows applicants that do not represent a threat to the health and safety of the public by holding a plumbing license, to be approved for examination or licensure by the Chief Examiner or Chief Field Representative. The word "drugs" was changed from the original languange to the term "controlled substance" for clarification purposes and does not change the meaning or intent of the rule. No comments were received regarding the adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 6243-101, which provide the Texas State Board of Plumbing Examiners with the authority to adopt rules consistent with this Act to carry out its duties in administering this Act. 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. Filed with the Office of the Secretary of State on February 16, 1998. TRD-9800740 Robert L. Maxwell Chief of Field Services/Investigations Texas State Board of Plumbing Examiners Effective date: February 5, 1998 Proposal publication date: December 12, 1997 For further information, please call: (512) 458-2145 Ext. 233 CHAPTER 365.Licensing Petition for Adoption of Rules 22 TAC sec.365.11 The Texas State Board of Plumbing Examiners adopts an amendment sec.365.11, concenring Exemptions, without changes to the proposed text as published in the December 12, 1997, issue of the Texas Register (22 Tex Reg 12209). The amendment specifies that another state must have substantially equivalent requirements for licensure in order for the Board to waive any licensing requirement. No comments were received regarding the adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 6243-101, which provide the Texas State Board of Plumbing Examiners with the authority to adopt rules consistent with this Act to carry out its duties in administering this Act. 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. Filed with the Office of the Secretary of State on February 16, 1998. TRD-9800741 Robert L. Maxwell Chief of Field Services/Investigations Texas State Board of Plumbing Examiners Effective date: February 5, 1998 Proposal publication date: December 12, 1997 For further information, please call: (512) 458-2145 Ext. 233 22 TAC sec.365.12 The Texas State Board of Plumbing Examiners adopts an amendment sec.365.12, concerning Licensing of Persons with Criminal Backgrounds, without changes to the proposed text as published in the December 12, 1997, issue of the Texas Register (22 TexReg 12209). The amendment specifies that the Board considers the crimes of theft and possession of a controlled substance to be directly related to the duties and responsibilities of licensed plumbers and plumbing inspectors. No comments were received regarding the adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 6243-101, which provide the Texas State Board of Plumbing Examiners with the authority to adopt rules consistent with this Act to carry out its duties in administering this Act. 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. Filed with the Office of the Secretary of State on February 16, 1998. TRD-9800742 Robert L. Maxwell Chief of Field Services/Investigations Texas State Board of Plumbing Examiners Effective date: February 5, 1998 Proposal publication date: December 12, 1997 For further information, please call: (512) 458-2145 Ext. 233 CHAPTER 367.Enforcement 22 TAC sec.367.1 The Texas State Board of Plumbing Examiners adopts an amendment to sec.367.1, concerning General Provisions, without changes to the proposed text as published in the December 12, 1997, issue of the Texas Register (22 TexReg 12210). The amendment specifies the duties of the Board in regard to all applicable laws including the Act and Board Rules. This amendment is being proposed to clarify the requirements for potable water supply piping for every plumbing fixture including water closet plumbing fixtures and other equipment that use water to be installed to prevent the back flow of non-potable substances into the potable water system according to the provisions of a state approved plumbing code. No comments were received regarding the adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 6243-101, which provide the Texas State Board of Plumbing Examiners with the authority to adopt rules consistent with this Act to carry out its duties in administering this Act. 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. Filed with the Office of the Secretary of State on February 16, 1998. TRD-9800743 Robert L. Maxwell Chief of Field Services/Investigations Texas State Board of Plumbing Examiners Effective date: February 5, 1998 Proposal publication date: December 12, 1997 For further information, please call: (512) 458-2145 Ext. 233 TITLE 25. HEALTH SERVICES PART I. Texas Department of Health CHAPTER 97. Communicable Diseases Immunization Requirements in Texas Elementary and Secondary Schools and Institutions of Higher Education 25 TAC sec.97.63 The Texas Department of Health (department), by majority vote of the Texas Board of Health (board) on January 16, 1998, enters this order finally adopting an amendment to sec.97.63, concerning immunization requirements for children in Texas elementary and secondary schools and institutions of higher education. This section is adopted without changes to the proposed text as published in the September 26, 1997, issue of the Texas Register (22 TexReg 9598), and therefore the section will not be republished. This amendment will increase the age at which the fourth dose of diphtheria- tetanus-pertussis/diphtheria-tetanus-acellular pertussis vaccine is required to 18 months, from 15 months. Current medical recommendations indicate that the fourth dose of diphtheria-tetanus-pertussis/diphtheria-tetanus-acellular pertussis vaccine should be given within the age range of 15 to 18 months. This amendment will allow pediatricians greater flexibility in scheduling immunizations, thus, increasing the efficiency of pediatric care. The following comments were received concerning the proposed rules. Following each comment is the department's response and any resulting change(s). Comment: Eleven commenters concurred with the proposed change and remarked that it would facilitate compliance with the immunization requirements. Response: The department appreciates the time spent considering the proposed change. Comment: Three commenters objected to the proposed change on the ground that it would add another clinic or provider visit to the schedule and increased the possibility that a child would be out of compliance. Response: The department disagrees that the change would have this effect. Immunization requirements define the age by which a vaccination must be received in order to attend day-care or school and do not preclude vaccination administration at a recommended earlier age, if this is the clinic or provider's preference. No change was made to the rule text. The comments on the proposed rules received by the department during the comment period were submitted by three physicians, two department staff, the Corpus Christi-Nueces County Public Health District, the Wichita Falls-Wichita County Public Health District, the City of Lubbock Health Department, the Marshall- Harrison County Health District, the City of Dallas Department of Environmental and Health Services, two representatives of the Texas Children's Hospital Immunization Project, a board member of the Texas Congress of Parents and Teachers, and a representative of the Texas Association of School Nurses. This amendment is adopted under the Health and Safety Code, sec.81.004, which authorizes the Texas Board of Health (board) to adopt rules necessary for the effective administration and implementation of this chapter; sec.81.023, which authorizes the board to develop immunization requirements for children; and sec.12.001 which requires the board to adopt rules for the performance of each duty imposed by law on the board or department. This amendment affects the Health and Safety Code, Chapter 81. 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. Filed with the Office of the Secretary of State on January 16, 1998. TRD-9800793 Susan K. Steeg General Counsel Texas Department of Health Effective date: February 5, 1998 Proposal publication date: September 26, 1997 For further information, please call: (512) 458-7236 Provision of Anti-Rabies Biologicals 25 TAC sec.sec.97.121, 97.123-97.125 The Texas Department of Health (department), by majority vote of the Texas Board of Health (board) on January 16, 1998, enters this order finally adopting a repeal of sec.97.122, amendments to sec.sec.97.121, 97.123 - 97.124, and new sec.97.125, concerning provision of anti-rabies biologicals, without changes to the proposed text as published in the October 10, 1997, issue of the Texas Register (22 TexReg 10104), and therefore the sections will not be republished. Based on its experience in distributing these biologicals, the department believes these methods and criteria for distribution and reimbursement are the most efficient means of protecting public health consistent with the relevant statutes. The list of drugs formerly in sec.97.122 is summarized as "anti-rabies biologicals" and is included in the amendments and new rule. The amendments to sec.97.123 and sec.97.124 clarify that the department will provide anti-rabies biologicals for persons at risk of exposure to rabies, regardless of the person's ability to pay, but that the department is not responsible for providing anti-rabies biologicals to a person who has not had a bona fide exposure to rabies. The amendment to sec.97.124 specifies payment options for the person obtaining the anti-rabies biologicals. New sec.97.125 outlines the policies the off-site anti-rabies biologicals depots must adhere to in order to promote consistency throughout the state. No comments were received on the proposal during the comment period. The amendments and new section are adopted under the Health and Safety Code sec.12.033 which provides for fees for the distribution and administration of certain vaccines and sera; sec.826.025 which provides for vaccine and hyperimmune serum to be dispensed to persons at risk of being exposed to rabies; sec.826.011 which requires the Texas Board of Health (board) to adopt rules necessary to effectively administer Chapter 826; and sec.12.001 requires the board to adopt rules for the performance of each 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. Filed with the Office of the Secretary of State on January 16, 1998. TRD-9800834 Susan K. Steeg General Counsel Texas Department of Health Effective date: February 5, 1998 Proposal publication date: October 10, 1997 For further information, please call: (512) 458-7236 25 TAC sec.97.122 The repeal is adopted under the Health and Safety Code sec.12.033 which provides for fees for the distribution and administration of certain vaccines and sera; sec.826.025 which provides for vaccine and hyperimmune serum to be dispensed to persons at risk of being exposed to rabies; sec.826.011 which requires the Texas Board of Health (board) to adopt rules necessary to effectively administer Chapter 826; and sec.12.001 requires the board to adopt rules for the performance of each 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. Filed with the Office of the Secretary of State on January 16, 1998. TRD-9800833 Susan K. Steeg General Counsel Texas Department of Health Effective date: February 5, 1998 Proposal publication date: October 10, 1997 For further information, please call: (512) 458-7236 CHAPTER 137. Birthing Centers The Texas Department of Health (department), by majority vote of the Texas Board of Health (board) on January 16, 1998, enters this order finally adopting the repeal of sec.sec.137.1 - 137.11, and new sec.sec.137.1 - 137.4, 137.11 - 137.13, 137.21 - 137.23, and 137.31 - 137.34, 137.36 - 137.55, concerning licensure and regulation of birthing centers. The new sections are adopted with changes to the proposed text as published in the July 22, 1997, issue of the Texas Register TexReg 6818). Proposed sec.137.35 is being withdrawn from consideration for adoption; sec.137.35 is reserved for use at a later time. The repeal of sec.sec.137.1 - 137.11 are adopted without changes and will not be republished. The sections being repealed were adopted October 1986 to implement the Texas Birthing Center Licensing Act (Act) created by the 69th Legislature, 1985. These sections have not been substantially revised since that time. Since the implementation of the current rules, many changes have taken place. The department has experienced increased costs associated with regulating birthing centers and has determined the need for stronger compliance measures. The fees have been increased to make the program self-supporting. The application procedures for obtaining a license and enforcement provisions have been updated to meet the need for stronger compliance measures. The new sections will increase the quality of care for women choosing to give birth to their babies in a birthing center. The current sections are being repealed and replaced by the new sections with the advice of the Birthing Center Ad Hoc Rules Committee (committee), which includes physicians, certified nurse midwives, documented midwives, and two registered nurses from an area hospital, one member of a local city health department and department staff from the Health Facility Licensing Division, the Health Facility Compliance Division, the Bureau of Vital Statistics, and the Bureau of Clinical and Nutrition Services. The new sections reflect reorganization of the current sections; development of new language to address the areas of concern identified by the committee and department staff; and the deletion of current language to eliminate identified contradictions or unnecessary regulation. The new sections do not address the issues of work and the practice of the clinicians in the birthing center be they certified nurse midwives, documented midwives, or physicians. The clinicians practicing in the centers are subject to their respective regulatory and licensing boards. Issues about practice and complaints would be referred to the appropriate licensing boards and would not fall within the purview of the birthing center regulations. Sections 137.1 - 137.11 are being repealed to reorganize the chapter and update current language covering definitions; unregulated centers; exemptions; issuance and renewal of licenses; surveys; conditions of license; license denial, suspension, or revocation; operational and clinical standards; complaints and reporting of incidents; and access to records. New Subchapter A, sec.sec.137.1 - 137.4, covers general provisions. The general provisions include the purpose and scope for these rules; updated and clarified definitions of words and terms used throughout the chapter; a new schedule of fees which increases the license fee from $300 to $1,000 effective March 1, 1998, and the renewal license fee from $300 to $1,000 effective March 1, 1999; and the general provisions for licensure. Obsolete definitions have been removed, new definitions have been added, and other definitions have been clarified to reflect current terminology for the industry. The fee increases have been set by the Board of Health and are necessary to cover increased administrative costs that are incurred by the department to regulate birthing centers. Publication of these rules provide the required notification of fee increase required by Texas Civil Statutes, Article IX, sec.77. The general provisions for licensure state the minimum provisions for obtaining a birthing center license. New Subchapter B, sec.sec.137.11 - 137.13, establishes new licensing procedures. The new licensing procedures provide: updated license application and renewal procedures; updated requirements regarding change of ownership or services and closure of a birthing center; and the time period for processing a license. There will no longer be a Category A and a Category B license as these rules apply to all birthing centers. The information required to accompany the application has been expanded to provide the department with necessary information to better protect the health and safety of mothers and their newborn infants. Applicants will be required to disclose specific previous criminal convictions and enforcement actions that may affect licensure. New Subchapter C, sec.sec.137.21 - 137.23, establishes new enforcement procedures. The new section update and clarify survey procedures to reflect current practices; procedures for denial, suspension or revocation of a license; and procedures for handling complaints. The updated enforcement procedures provide the department with procedures for ensuring that birthing centers comply with the Act and these rules. Surveys will be performed by the department every three years instead of every year, unless the birthing center has received written deficiencies. New Subchapter D, sec.sec.137.31 - 137.55, establishes new operational and clinical standards for the provision and coordination of treatment and services provided by a birthing center. The standards include: operational and clinical policies and procedures; organizational structure and delegation of authority; personnel policies; qualifications and duties of staff (including supervision of professional and non-professional personnel); student health care professionals; physical, environmental, and infection control standards for birthing centers; disposition of medical waste; general requirements governing the provision and coordination of treatment and services; risk assessments; emergency services; disclosure requirements; prenatal care; serologic test for syphilis and Human Immunodeficiency Virus (HIV) infection; physician delegation; physician consultant procedures; and procedures for drugs and biologicals; labor and birth procedures; procedures for the care of the infant; discharge procedures; postpartum and postnatal care of the mother and infant; quality assurance program; clinical records; reporting and filing requirements; and other state and federal compliance requirements. The additional physical and environmental requirements for birthing centers include: providing a safe and sanitary environment that is properly constructed; providing a functioning sink and toilet; providing emergency lighting and a written fire and disaster plan; and ensuring that appropriate equipment is available to disinfect and sterilize instruments, equipment and supplies before use in the center. Birthing centers will be required to develop, implement, and enforce written policies governing the provision and coordination of treatment and services. Infection control standards have been established which require a birthing center to adopt, implement and enforce written standards for the prevention and control of nosocomial infections. These policies cover universal (standard) precautions; workplace guidelines; educational course work or training; cleaning and laundry services; decontamination, disinfection, and sterilization; and storage of sterile supplies. The birthing center will be required to provide the department with its organizational structure which clearly defines its lines of authority. Minimum qualifications and duties have been added for professional and nonprofessional staff. Birthing centers will be required to ensure that its birth attendants comply with accepted standards of practice be they certified nurse midwives, documented midwives, or physicians. A birthing center is required to have a quality assurance program. This program shall cover all health and safety aspects of client care for both mother and infant; and identify and address quality issues and implement corrective action plans. A birthing center will be required to file the birth certificate or ensure that its birth attendants file the birth certificate. If the Board of Health requires data collection relating to birth defects, the birthing center shall make this data available. Other federal and state requirements have been added relating specifically to documented midwives, laboratory and pharmacy services, professional nurse and licensed vocational nurse reporting and peer review, occupational safety and health, physician assistants, prescription medical devices, and trade and consumer practices, with which birthing centers are required to comply. Since birthing centers are no longer categorized as Category A or B, references to a specific category have been deleted. The requirements for clinical records have been updated to reflect current standards and allow the clinical record to be maintained as an original, a microfilmed copy, an optical disc imaging system, or a certified copy. A birthing center shall ensure that its birth attendants have clients tested for syphilis and HIV infection during pregnancy and within 24 hours of delivery. If a birthing center allows its documented midwives and certified nurse midwives to accept delegation of tasks by a physician, physician delegation provisions have been specified. A birthing center will be required to have procedures for consulting with a physician who shall be available within a recommended 20 minutes but with a required maximum of 30 minutes for emergency care. Provisions have been added to address student midwives and student health care professionals to allow them to obtain their clinical experience in a birthing center. In addition to the specific changes mentioned, other changes have been made to clarify and strengthen the intent of these sections as a result of public comment. The department held two public hearings at the following times and places: 10:00 a.m., Monday, August 18, 1997, Texas Department of Health, 1100 West 49th Street, Room K-100 Lecture Hall, Austin, Texas; and at 10:00 a.m., Friday, August 22, 1997, Brownsville City Library, 2600 Central Blvd., Brownsville, Texas. No one attended the public hearing in Austin. The following is a summary of comments received at the public hearing in Brownsville and during the comment period which ended September 5, 1997. COMMENT: Concerning the rules in general, a commenter asked "Can the department send staff to provide some kind of courses or training where we can actually be doing some of the procedures, like administering oxygen and doing an episiotomy, so that we can be giving better services to our patients?" RESPONSE: The department responds that providing training of this type is beyond the scope of what the department can provide; however the department will share the commenter's question with the Texas Midwifery Board. COMMENT: Concerning the rules in general, several commenters suggested inserting the word "documented" before the word "midwife" throughout the rules whenever there is reference made to the Texas Midwifery Act, because certified nurse- midwives are not regulated by the Texas Midwifery Act, but instead by the Board of Nurse Examiners. Several commenters also suggested that the word "midwife" be changed to "birth attendant" where appropriate. RESPONSE: The department agrees and has included the word "documented" before the word "midwife" in areas of the rules that relate only to documented midwives. The department has also changed the term "midwife" to "birth attendant" throughout the rules in places where it is the department's intent that the rules apply to all birth attendants. The department added the phrase "comply/conform to accepted standards of practice" throughout the rules where appropriate to state that birth attendants shall only provide services within their respective scope of practice. In sec.137.40, relating to risk assessments, the following language has been inserted as new subsection (a) and subsequent subsections were relettered "A center shall adopt, implement, and enforce a written risk assessment system that complies with this section, conforms to accepted standards of practice, and has been approved by the center's clinical director." This means, for example, that if a birth attendant's practice allows him or her to accept a client whose condition is other than low risk (by medical waiver), he or she will not be allowed to accept the client while functioning in a birthing center, because a birthing center is licensed to accept only clients with a low-risk pregnancy. COMMENT: Concerning the rules in general, a commenter asked for clarification regarding what the department's role is regarding complaints about licensed health care professionals. RESPONSE: The department agrees that clarification is needed and has added the following language in paragraph (9) of sec.137.21(d) "The department shall refer issues and complaints relating to the conduct or action by licensed health care professionals to their appropriate licensing boards" and in clause (viii) of sec.137.34(a)(1)(B) "ensure that issues and complaints relating to the conduct or actions by licensed health care professional(s) are referred and reported to the appropriate licensing board, and that such review and action taken is documented." COMMENT: Concerning sec.137.2 relating to definitions, sec.137.40(b)(1) relating to risk assessments, and sec.137.46(b) relating to physician consultant procedures, a commenter asked for clarification for the definitions of "physician" and "physician consultant" when used in the language in proposed sec.137.40(b)(1) (adopted (c)(1)) and sec.137.46(b). The commenter was not clear as to whether or not the physician consultant had to be a Texas licensed physician. RESPONSE: The department agrees that the definitions and language need clarification to reflect the department's requirement that the physician consultant be a Texas licensed physician. In sec.137.46(b), the department replaced the word "should" with the word "shall" to say "...shall be a Texas licensed physician ..." to be consistent with the definition of "physician." The definition of "physician consultant" has been clarified to read "A physician who is currently licensed under the Medical Practice Act, Texas Civil Statutes, Article 4495b, to practice medicine and who consults with the center." COMMENT: Concerning sec.137.2 relating to definitions, several commenters suggested striking the definition of "midwife" because the terms "documented midwife" and "certified nurse-midwife" are already defined. RESPONSE: The department understands the commenters concern, but believes that the commenters concern has been clarified by changing the term "midwife" to "birth attendant" where applicable. However, the term "birth attendant" includes a physician, so in areas of the rules that relate only to certified nurse midwives and documented nurse midwives the term "midwife" is used, therefore the definition of "midwife" still applies. COMMENT: Concerning sec.137.3 relating to fees, a commenter stated "I feel the $1,000 fee is too high, because I perform only a few deliveries every year as do a lot of my friends who are midwives and own birthing centers. We want the department to consider a sliding fee scale for midwives based upon the number of deliveries per year and adjust the fee according." The commenter questioned if it would be possible for her to appeal the fee? In addition, two written comments were received expressing similar concerns. RESPONSE: The department understands the commenter's concern, however the department's costs associated with regulating a birthing center are the same regardless of the number of births performed by a center. The fees have not increased since 1986 when the rules were first adopted, and the department's costs associated with regulating birthing centers have increased substantially since 1986. The Texas Birthing Center Licensing Act, Health and Safety Code, Chapter 244, provides the Board of Health (board) with the authority to establish fees to make the licensing program self-supporting. There are no provisions for appealing fees adopted by the board. The department made no changes as a result of the comment. COMMENT: Concerning sec.137.11(b)(4)(N), the commenter stated that centers should not be required to have fax machines. RESPONSE: The department agrees that a fax machine should not be required and has added the words "if available" after the words "fax number." COMMENT: Concerning sec.137.21(d), a commenter stated that the language was too prescriptive and provided alternate language for the survey process. RESPONSE: The department agrees that the requirements are too prescriptive for birthing centers. The department has revised the language in subsection (d) as suggested to more accurately reflect the survey process for birthing centers. COMMENT: Concerning the sec.137.21(d), a commenter was concerned that there was no provision for revisits to facilities when deficiencies are cited during a survey. RESPONSE: The department refers the commenter to sec.137.21(a), which states that the department may conduct a survey at other times as it considers necessary to ensure compliance with the Act and the rules adopted under the Act. No change was made as a result of the comment. COMMENT: Concerning proposed sec.137.21(d)(4), a commenter was concerned that there was no provision for a surveyor to mail a statement of deficiencies to the facility instead of providing the statement onsite. RESPONSE: The department agrees that a provision for mailing the statement of deficiencies should be included in the rules and has added language in sec.137.21(d)(8)(a) to allow a statement of deficiencies to be mailed or faxed to the center within 10 days after the exit conference. COMMENT: Concerning proposed sec.137.21(d)(6), a commenter stated that there was no time limit set for a center to correct a deficiency. RESPONSE: The department responded that the time limit to correct a deficiency is at the discretion of the department. However, as stated in sec.137.21(d)(8)(D), a center must correct a deficiency within the time documented on the plan of correction form or within 60 days of the date of expiration of the license whichever comes first. COMMENT: Concerning sec.137.34(a)(1)(A), several commenters stated that the qualifications of the administrator were too strict and could prevent some birth attendants from meeting the stated standard. RESPONSE: The department agrees that the qualifications for the administrator need to be clarified to allow birth attendants to qualify as a center's administrator and has added language to clarify that a birth attendant may be an administrator of a center. The department also added language to sec.137.34(a), which allows one person to act in the capacity of the administrator, the clinical director, and the birth attendant provided that person meets all the qualifications and is capable of performing all of the duties specifically stated for each position. In addition, in sec.137.34(a)(1)(A)(i), the qualifications for the administrator have been modified to require that if the administrator does not meet the qualifications of a birth attendant, the administrator must have six months training or experience in business administration or have at least six months full-time supervisory or administrative experience in a health care or a health related facility. COMMENT: Concerning sec.134.34(a)(1)(A)(i) and (ii), a commenter considered the language unfair, if not illegal, relating to limiting the qualification for the administrator of a center to a person who has not been employed in the last year as an administrator with another center or health related facility at the time the center or facility was cited for violations of a licensing law or rule which resulted in enforcement action taken against the center or health related facility. The commenter asked "What if the violation was secondary to a certified nurse midwife or documented midwife who wasn't following the protocols set by the administrator?" RESPONSE: The department understands the commenter's concerns and agrees that clarification is needed and has added the following language in sec.137.34(a)(1)(A)(ii) to clarify the term "enforcement action": "For purposes of this clause only, the term "enforcement action" means license revocation, suspension, emergency suspension, or denial of a license or injunction action but does not include administrative or civil penalties. If the department prevails in one enforcement action (e.g. injunctive action) against the center but also proceeds with another enforcement action (e.g. revocation) based on some or all of the same violations, but the department does not prevail in the second action (e.g., the center prevails), the prohibition in this clause does not apply." COMMENT: Concerning sec.137.34, a commenter suggested that the entire section be deleted because the administrator, clinical director and other staff members are defined in the definitions. RESPONSE: The department disagrees, as sec.137.34 contains the qualifications and duties of staff which the department is legislatively mandated to do by the Act. A definition section does not and may not contain required regulatory language. COMMENT: Concerning sec.137.34(a)(1), (2) and (3), a commenter stated that if the administrator, clinical director, or the owner is a documented midwife, the rules as written could be interpreted to mean that a documented midwife would be allowed to supervise a certified nurse midwife or a physician. RESPONSE: The department agrees that the language needs clarification. Language has been added in sec.137.34(a) to address that in the event the center's birth attendants include a documented midwife, a certified nurse midwife, or a physician, the certified nurse midwife or the physician shall be the clinical director. COMMENT: Concerning sec.137.35, financial solvency, a commenter thought the section was extremely restrictive and that any birth center that is not paying employees will not be able to retain these employees and would be subject to penalty under other laws. The commenter suggested that the section be deleted in its entirety. RESPONSE: The department agrees and has withdrawn the section; however the language "A center shall have the financial ability to carry out its functions under the Act and this chapter." has been retained and moved to sec.137.4(j) relating to general provisions for licensure. COMMENT: Concerning sec.137.37, a commenter requested that the rules relating to infection control practices be expanded to clarify standards relating to universal precautions, sterilization practices, and training or education. The commenter indicated that the rules as proposed were very vague and left interpretation of infection control practices wide open. RESPONSE: The department agrees and has revised the proposed language and added new language regarding infection control standards to more appropriately describe what is expected of a birthing center. COMMENT: Concerning sec.137.39, a commenter asked if student midwives and student health care professionals would be allowed to obtain clinical experience at a birthing center. RESPONSE: The department agrees that student midwives and student health care professionals should be able to gain clinical experience in a birthing center and has added language as new subsections (g) and (h) in sec.137.39 which sets out the criteria for student midwives and student health care professionals working in a center. COMMENT: Concerning sec.137.40, a commenter asked if the risk assessment involves some assessments that the nurses will think is only in their purview. RESPONSE: The department understands the commenters concern, however the performance of risk assessment is determined by each birthing center with concurrence the minimum requirements set out in the rules. COMMENT: Concerning sec.137.41, a commenter asked if a center is required to have written policies and procedures in place to cover the provision of emergency services. RESPONSE: The department responds that a facility must adopt, implement, and enforce written policies to provide emergency services. These policies shall include the use of emergency equipment and emergency medications. The department has added clarifying language. COMMENT: Concerning sec.137.41, emergency medications and equipment, a commenter asked if documented midwives will be allowed to do more than they should be doing. RESPONSE: The department disagrees that the language is unclear and has not made any changes as a result of the comment. Documented midwives are expected to follow the rules adopted by the Texas Midwifery Board. Section 137.41 does not conflict with those rules. COMMENT: Concerning sec.137.43, relating to prenatal care, a commenter wanted the word "documented" added before the word "midwives" because the language sites the Texas Midwifery Act. RESPONSE: The department understands the commenters concern; however the intent was to require birthing centers to ensure that its birth attendants comply with accepted standards of practice with regard to prenatal care if provided. The department has clarified the language to reflect this intent. The department has also changed language all throughout the rules where the proposed language pertained specifically to documented midwives to state that birth attendants shall provide services within their respective scope of practice and within the limitations of these rules. COMMENT: Concerning sec.137.48(d), a commenter requested that the term "adult" be defined. RESPONSE: The department disagrees that the term "adult" needs to be defined as this is defined by other state law. COMMENT: Concerning sec.137.48(e), a commenter wanted the language changed to "A birth attendant shall be available within ten minutes whenever a client is in the center." RESPONSE: The department disagrees, because the suggested language is too restrictive. No changes were made as a result of the comment. COMMENT: Concerning sec.137.51, several commenters stated that in many birth centers run by physicians and nurse-midwives the mothers and babies receive well-woman and well-baby care for longer than the six-week restriction stated in the rules, and requested that the restriction be removed. RESPONSE: The department agrees and has removed the six-week restriction as this restriction applies only to the practice of documented midwives. The department has added language to clarify that follow-up care shall be in accordance with accepted standards of practice. COMMENT: Concerning sec.137.52, relating to quality assurance, a commenter requested clarification of the intent of this section. RESPONSE: The department agrees and has expanded this section to include a mechanism to address quality issues and corrective action plans as necessary. COMMENT: Concerning sec.137.54, a commenter asked if the reporting requirements included a stillborn. RESPONSE: The department responded that the rules do include reporting a stillborn and has added clarifying language. COMMENT: Concerning sec.137.55, several comments were received requesting clarification of the requirement that birthing centers comply with various practice laws. RESPONSE: The department agrees that clarification is needed and has changed the language throughout sec.137.55 to state a center utilizing the services of certain licensed professionals shall ensure that these persons comply with their respective licensing law while functioning in his or her capacity at or for the center. Other language has been clarified to state that if the center provides pharmacy services it shall comply with the Texas Pharmacy Act. COMMENT: Concerning proposed sec.137.55(h) (now sec.137.55(f)), which requires a birthing center ensure that its physicians comply with the Medical Practice Act, Texas Civil Statutes, Article 4495b, a commenter asked if there was a way to refer a patient to a physician in Mexico for a urinary infection or any kind of infection, because financially it is less expensive in Mexico, most of her patients can't afford Texas physicians. The commenter asked if the rules allow midwives