PROPOSED RULES Before an agency may permanently adopt a new or amended section or repeal an existing section, a proposal detailing the action must be published in the Texas Register at least 30 days before action is taken. The 30-day time period gives interested persons an opportunity to review and make oral or written comments on the section. Also, in the case of substantive action, a public hearing must be granted if requested by at least 25 persons, a governmental subdivision or agency, or an association having at least 25 members. Symbology in proposed amendments. New language added to an existing section is indicated by the code. [Brackets] indicate deletion of existing material within a section. TITLE 1. ADMINISTRATION PART IV. Office of the Secretary of State CHAPTER 91.Texas Register SUBCHAPTER B.Electronic Filing Procedures 1 TAC sec.91.63 The Office of the Secretary of State proposes an amendment to sec.91.63, concerning Submission Forms. The proposal amends sec.91.63 by adding a new TR-1 submission form for publishing notice of administrative rules review under the General Appropriations Act, House Bill 1, Article IX, Section 167, passed by the 75th Texas Legislature. The amendment is proposed under the Texas Government Code, sec.2002.017, which authorizes the Secretary of State to adopt rules to ensure the effective administration of the Texas Register, including the format of documents required to be filed for publication. The amendment complements proposed new sections sec.sec.91.131, 91.133, 91.135, and 91.137, concerning procedures for publishing notice of administrative rules review under Section 167. Dan Procter, director of the Texas Register, has determined that for each year of the first four years the amendment to sec.91.63 and new sec.sec.91.131, 91.133, 91.135, and 91.137 as proposed will be in effect, the fiscal implications for the state will be an increase of approximately $200,000 in printing, postage, and related publication costs. There will be additional costs to state agencies that prepare rules for review under the amendment and new sections. There will be no cost to state government for the fifth year the amendment as proposed will be in effect. There will be no fiscal implications for local government as a result of enforcing or administering the amendment. Mr. Procter also has determined that for each year the amendment as proposed will be in effect the public benefit anticipated as a result of the amendment will be the increased opportunity for public comment on state agencies' rules, and the repeal of any obsolete or invalid rules. Because Section 167 imposes requirements on state agencies rather than persons, there will be no economic cost incurred by persons, and there will be no effect on small businesses. Comments on the proposal may be submitted in writing to Dan Procter, director, Texas Register Section, Office of the Secretary of State, 1019 Brazos, Room 245, Austin, Texas 78711-3824, or by e-mail to dprocter@sos.state.tx.us. The amendment is proposed under the Texas Government Code, sec.2002.017 which authorizes the Secretary of State to adopt rules to ensure the effective administration of the Texas Register, including the format of documents required to be filed for publication. The General Appropriations Act, House Bill 1, Article IX, Section 167, passed by the 75th Texas Legislature, is implemented by the proposal. sec.91.63.Submission Forms. (a) One typed submission form certified and signed by the agency liaison and certifying official accompanies each document submitted to the Texas Register. The document types corresponding forms are listed in paragraphs (1)-(6)
    [(5)] of this subsection: (1)
      TR-1 - rule review;
        (2)
          [(1)] TR-2 - rule submissions; (3)
            [(2)] TR-3 - open meeting submissions; (4)
              [(3)] TR-4 - miscellaneous submissions; (5)
                [(4)] TR-5 - Governor, Attorney General, Secretary of State, Texas Ethics Commission, and Department of Banking submissions; and (6)
                  [(5)] TR-6 - notification pursuant to the Insurance Code, Chapter 5, Subchapter L. (b)-(f) (No change.) This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State, on May 19, 1998. TRD-9808122 Clark Kent Ervin Assistant Secretary of State Office of the Secretary of State Earliest possible date of adoption: June 21, 1998 For further information, please call: (512) 463-5562 SUBCHAPTER D.Administrative Rules Review 1 TAC sec.sec.91.131, 91.133, 91.135, 91.137 The Office of the Secretary of State proposes new sec.sec.91.131, 91.133, 91.135, and 91.137, concerning procedures for publishing notice of administrative rules review under the General Appropriations Act, House Bill 1, Article IX, Section 167, passed by the 75th Texas Legislature. Section 167 provides no new rulemaking authority to the Secretary of State to interpret or implement the law. These new sections are proposed under the Texas Government Code, sec.2002.017 and sec.2002.055, which authorizes the Secretary of State to adopt rules to ensure the effective administration of the Texas Register and the Texas Administrative Code, including the format of documents required to be filed for publication. The proposed new sections establish a Rules Review section in the Texas Register. The Rules Review section will contain notices of agencies' plans to review rules and the notices that specify which chapters of existing rules are proposed for review or readopted under Section 167. The Rules Review section will contain no rule text. A new Date of Review will be added to each chapter in the Texas Administrative Code after an agency readopts chapters under these procedures. A new TR-1 submission for agencies to use in filing notices under these procedures is proposed under sec.91.63 of this title (relating to Submission Forms). Dan Procter, director of the Texas Register, has determined that for each year of the first four years the sections as proposed will be in effect the fiscal implications for the state will be an increase of approximately $200,000 in printing, postage, and related publication costs. There will be additional costs to state agencies that prepare rules for review under these procedures. There will be no cost to state government for the fifth year these sections as proposed will be in effect. There will be no fiscal implications for local government as a result of enforcing or administering theses sections. Mr. Procter also has determined that for each year the sections as proposed will be in effect the public benefit anticipated as a result of the amendment will be the increased opportunity for public comment on state agencies' rules and the repeal of any obsolete or invalid rules. Because Section 167 imposes requirements on state agencies rather than persons, there will be no economic cost incurred by persons, and there will be no effect on small businesses. Comments on the proposal may be submitted in writing to Dan Procter, director, Texas Register Section, Office of the Secretary of State, 1019 Brazos, Room 245, Austin, Texas 78711-3824, or by e-mail to dprocter@sos.state.tx.us. The new sections are proposed under the Texas Government Code, sec.2002.017 and sec.2002.055 which authorize the Secretary of State to adopt rules to ensure the effective administration of the Texas Register and the Texas Administrative Code, including the format of documents required to be filed for publication. The General Appropriations Act, House Bill 1, Article IX, Section 167, passed by the 75th Texas Legislature, is implemented by the proposal. sec.91.131.Scope of Rules Review. (a) The General Appropriations Act, House Bill 1, Article IX, Section 167, directs state agencies to develop plans to review their rules and to determine, at a minimum, whether the reasons for adopting the rules still exist. (b) Agencies may follow the procedures contained in this subchapter to comply with the notice requirements of Section 167. sec.91.133.Plan to Review. (a) August 31, 1998 is the deadline for publishing notice of a rules review plan in the Texas Register. To assure publication of notices before the deadline, agencies must file the rules review plans with the Texas Register by 5:00 p.m. Friday August 7, 1998. Notices of rules review plans that are submitted to the Texas Register after August 7 may miss the August 31 publication deadline required by Section 167. Agencies also must file rules review plans with the Governor and the Legislative Budget Board. The Secretary of State does not forward the plans to the Governor and the Legislative Budget Board. (b) Section 167 does not address content of the plan. Examples of rules review plans submitted by state agencies are available at under the Secretary of State's web site (http//:www.sos.state.tx.us/texreg/index.html) or write or phone the Texas Register office. (c) Submit a rules review plan in electronic format as a file separate from rules or other documents. (1) Use file transfer protocol (FTP), e-mail, or 3 1/2 inch diskettes, to deliver the file to the Texas Register. Submit files in the American Standard Code for Information Interchange (ASCII) or in Hypertext Markup Language (HTML) format. In an ASCII file, insert "

                  " before each paragraph. Tables, lists, and any special symbols must be in HTML format. (2) Name the file as follows: "plan.agency code". Example: plan.004. (d) Submit a completed TR-1 form as described in sec.91.63 of this title (relating to Submission Forms). (e) The text of plans will not appear in the Texas Register. Each issue of the Texas Register will contain notice in the Rules Review section of any plans filed since the previous issue. Readers will be referred to the internet posting for the text of plans. sec.91.135.Notice of Intention to Review (proposed review). (a) This procedure is necessary for chapters which contain rules that were in effect before September 1, 1997. This procedure is optional for chapters that became effective after September 1, 1997. This procedure is unnecessary for chapters repealed by a state agency. (b) The notice of intention to review shall include: (1) the Texas Administrative Code title number, part number, and chapter numbers. Section numbers may be listed. (2) an assessment by the agency as to whether the reason for adopting or readopting the rule continues to exist. (3) a request for comments on the chapter from any interested person; and (4) any other statement that an agency determines is required by law or explains the agency's intentions. (c) Submit a notice of intention to review (proposed review) in electronic format as an ASCII file separate from rules or other documents. Insert "

                  " before each paragraph. (1) Use file transfer protocol (FTP), e-mail, or 3 1/2 inch diskettes, to deliver the file to the Texas Register. Submit files in the American Standard Code for Information Interchange (ASCII) format. (2) Name the file as follows: "review.agency code". Example: review.004. For more than one review, use numbers in the file name. Example: review1.004, review2.004, review3.004. (d) Submit a completed TR-1 form as described in sec.91.63 of this title (relating to Submission Forms). (e) Do not include the text of rules. The text is available in the Texas Administrative Code. (f) Agencies may submit notices concurrently for publication in the Rules Review section and the Proposed Rules, Adopted Rules, Emergency Rules, and Withdrawn Rules sections of the Texas Register. sec.95.137.Notice of Readoption (adopted review). (a) This procedure is necessary for chapters which contain rules that were in effect before September 1, 1997. This procedure is optional for chapters that became effective after September 1, 1997. This procedure is unnecessary for chapters repealed by a state agency. (1) Agencies may submit a notice of readoption (adopted review) 30 days after publication of the Notice of intention to review (proposed review). (2) The Reviewed Date is the date this notice is filed with the Texas Register. (b) A notice of readoption shall include: (1) the Texas Administrative Code title number, part number, and chapter numbers. Section numbers may be listed; (2) the publication date and page number for the notice of intention to review (proposed review); (3) a summary of public comments regarding the readoption or a statement that the agency received no comments; (4) any other statement that an agency determines is required by law or explains the agency's intentions. (c) Submit a notice of readoption (adopted review) in electronic format as an ASCII file separate from rules or other documents. Insert "

                  " before each paragraph. (1) Use file transfer protocol (FTP), e-mail, or 3 1/2 inch diskettes, to deliver the file to the Texas Register. Submit files in the American Standard Code for Information Interchange (ASCII) format. (2) Name the file as follows: "review.agency code". Example: review.004. For more than one review, use numbers in the file name. Example: review1.004, review2.004, review3.004. (d) Submit a completed TR-1 form as described in sec.91.63 of this title (relating to Submission Forms). (e) Do not include the text of rules. The text is available in the Texas Administrative Code. (f) Agencies may submit notices concurrently for publication in the Rules Review section and the Proposed Rules, Adopted Rules, Emergency Rules, and Withdrawn Rules sections of the Texas Register. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State, on May 19, 1998. TRD-9808123 Clark Kent Ervin Assistant Secretary of State Office of the Secretary of State Earliest possible date of adoption: June 21, 1998 For further information, please call: (512) 463-5562 PART X. Department of Information Resources CHAPTER 201. Planning and Management of Information Resources Technologies 1 TAC sec.201.13 The Department of Information Resources proposes an amendment to sec.201.13, concerning information security. The proposed amendment is a substantial revision of the current information security standards portion of the department's rules regarding information resources standards, and incorporates recommendations made by the Information Resources Asset Protection Council. The purpose and effect of the amendment is to clarify, refine and update the current information security standards and to remove obsolete provisions. The amendment is proposed in accordance with Texas Government Code sec.2054.051(b), which requires the department to develop and publish standards relating to information resource management by state agencies, and Texas Government Code sec.2054.052(a), which provides that the department may adopt rules as necessary to implement its responsibilities. Mr. Edward Serna, director of the Oversight Operations Division, has determined that for each year of the first five years the proposed amendment will be in effect, there will be no fiscal implications for state government as a result of enforcing or administering the amendment. There will be no foreseeable fiscal implications for local government as a result of enforcing or administering the amendment. Mr. Serna has determined that for each year of the first five years the proposed amendment will be in effect, there will be a benefit to the public in that the standards for information security for state agencies will be clearer and easier to follow, thus resulting in greater security for the state's information resources. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the amendment as proposed. Comments on the proposal may be submitted to C. J. Brandt, Jr., General Counsel, Department of Information Resources, P.O. Box 13564, Austin, Texas 78711, no later than 5 p.m., within 30 days after publication. Envelopes must be clearly marked "Formal Comment to Proposed Action Enclosed." The amendment is proposed under Texas Government Code sec.2054.052(a), which authorizes the department to adopt rules as necessary to carry out its responsibility under the Information Resources Management Act. Texas Government Code sec.2054.051 is affected by the proposed amendment. sec.201.13. Information Resource Standards. (a) (No change.) (b) Information Security Standards. (1)

                    Applicability. The following rule constitutes required minimum security standards for the protection of information resources for agencies of the State of Texas. All agencies are required to have an information resources security program consistent with these standards. Copies of this standard may be obtained from the Department of Information Resources, P. O. Box 13564, Austin, Texas 78711, or from the Department's Internet web page at http://www.dir.state.tx.us. (2)
                      Definitions. The following words and terms, when used with this subsection, shall have the following meanings, unless the context clearly indicates otherwise. (A)
                        Access - To approach, view, instruct, communicate with, store data in, retrieve data from, or otherwise make use of information resources. (B)
                          Confidential Information - Information that is excepted from disclosure requirements under the provisions of the Texas Public Information Act or other applicable state or federal law. (C)
                            Control - A protective action, device, policy, procedure, technique, or other measure that reduces exposure. (D)
                              Custodian of an Information Resource - A person responsible for implementing owner-defined controls and access to an information resource. (E)
                                Information Security Function - The elements, structure, objectives, and resources that establish an agency-level information resources security program. (F)
                                  Mission Critical Information - Information that is defined by the agency to be essential to the agency's function(s). (G)
                                    Owner of an Information Resource - A person responsible: (i)
                                      for a business function and (ii)
                                        for determining controls and access to information resources supporting that business function. (H)
                                          Security Risk Analysis - The process of identifying and documenting vulnerabilities and applicable threats to information resources. (I)
                                            Security Risk Assessment - The process of evaluating the results of the risk analysis by projecting losses, assigning levels of risk, and recommending appropriate measures to protect information resources. (J)
                                              Security Risk Management - Decisions to accept exposures or to reduce vulnerabilities by either mitigating risks or applying cost effective controls. (K)
                                                Security Incident or Breach - An event which results in unauthorized access, loss, disclosure, modification, or destruction of information resources whether accidental or deliberate. (L)
                                                  User of an Information Resource - An individual or automated application authorized to access an information resource in accordance with the owner-defined controls and access rules. (3)
                                                    Policy. It is the policy of the State of Texas that: (A)
                                                      Information resources residing in the various agencies of state government are strategic and vital assets belonging to the people of Texas. These assets must be available and protected commensurate with the value of the assets. Measures shall be taken to protect these assets against accidental or unauthorized access, disclosure, modification or destruction, as well as to assure the availability, integrity, utility, authenticity and confidentiality of information. Access to state information resources must be appropriately managed. (B)
                                                        The agency head is responsible for the protection of information resources. (C)
                                                          All individuals are accountable for their actions relating to information resources. Information resources shall be used only for intended purposes as defined by the agency and consistent with applicable laws. (D)
                                                            Risks to information resources must be managed. The expense of security safeguards must be commensurate with the value of the assets being protected. (E)
                                                              The integrity of data, its source, its destination, and processes applied to it must be assured. Changes to data must be made only in authorized and acceptable ways. (F)
                                                                Information resources must be available when needed. Continuity of information resources supporting critical governmental services must be ensured in the event of a disaster or business disruption. (G)
                                                                  Security requirements shall be identified, documented and addressed in all phases of development or acquisition of information resources. (H)
                                                                    Agencies must ensure adequate controls and separation of duties for tasks that are susceptible to fraudulent or other unauthorized activity. (4)
                                                                      Classification of Information. Owners, with the agency head's concurrence, are responsible for classifying program information. Agencies are responsible for defining all information classification categories except the Confidential Information category, which is defined in paragraph (2) of this subsection, and establishing the appropriate controls for each. (5)
                                                                        Management and Staff Responsibilities. The agency head or his or her designated representative(s) shall review and approve ownership and the attendant responsibilities. (A)
                                                                          Owners, custodians, and users of information resources. Owners, custodians and users of information resources shall be identified, and their responsibilities defined and documented by the agency. In cases where information resources are used by more than one major program, the owners shall reach consensus and advise the information security function as to the designated primary owner. The following distinctions among owner, custodian, and user responsibilities should guide determination of these roles: (i)
                                                                            Owner Responsibilities. Owners are responsible and authorized to: approve access and formally assign custody of an asset; judge the asset's value; specify data control requirements and convey them to users and custodians; and ensure compliance with applicable controls. Owners must specify appropriate controls, based on risk assessment, to protect the state's information resources from unauthorized modification, deletion or disclosure. Controls extend to outsourced contracts. Owners must confirm that controls are in place to ensure the accuracy and completeness of data. Owners shall assign custody of assets and provide appropriate authority to implement security controls and procedures. Owners are the authority on appropriate level of controls and the timing of their implementation. (ii)
                                                                              Custodian responsibilities. Custodians of information resources, including entities providing outsourced services to state agencies must: (I)
                                                                                implement the controls specified by the owner(s); (II)
                                                                                  provide physical and procedural safeguards for the information resources; (III)
                                                                                    assist owners in evaluating the cost-effectiveness of controls and monitoring; and (IV)
                                                                                      implement the monitoring techniques and procedures for detecting, reporting and investigating breaches in information security. (iii)
                                                                                        User responsibilities. Users of information resources shall use the resource only for its defined purposes and comply with established controls. (B)
                                                                                          The information security function. Each agency head or his or her designated representative shall institute an information security function to administer the agency information security program. (i)
                                                                                            It shall be the duty and responsibility of this function to recommend policies and establish procedures and practices, in cooperation with owners and custodians, necessary to ensure the security of information assets against unauthorized or accidental modification, destruction or disclosure. (ii)
                                                                                              The information security function shall document and maintain an up-to-date information security program. The security program shall include written descriptions of information resources security responsibilities, assigned personnel resources, policies, guidelines, data security classification schemes, standards and procedures for the protection of information resources. The information security program must be approved by the agency head. (iii)
                                                                                                The security function is responsible for monitoring the effectiveness of defined controls for critical information. (iv)
                                                                                                  The security function shall report, at least biennially, to the agency head or his or her designated representative the status and effectiveness of information resources security controls. (C)
                                                                                                    A review of the agency's information security program for compliance with these standards will be performed at least biennially by individual(s) independent of the information security function and designated by the agency head or the information resources manager. (6)
                                                                                                      Managing Risks. (A)
                                                                                                        A security risk analysis shall be performed and documented. The security risk analysis shall be updated at least biennially. Security risk assessment results shall be presented to the agency head or his or her designated representative. The agency head shall make the final security risk management decisions to accept exposures. The agency head must approve the security risk management plan. (B)
                                                                                                          Each agency shall maintain a disaster recovery plan for information resources. The disaster recovery plan will: (i)
                                                                                                            contain measures which address the impact and magnitude of loss or harm that will result from an interruption; (ii)
                                                                                                              identify recovery resources and establish a source for each; (iii)
                                                                                                                contain step-by-step instructions for implementing the plan; (iv)
                                                                                                                  be maintained to ensure currency, and (v)
                                                                                                                    be tested at least annually. (C)
                                                                                                                      Mission critical data shall be backed up on a scheduled basis and stored off site. (7)
                                                                                                                        Personnel and Contractor Practices. (A)
                                                                                                                          All agency personnel, and employees of independent contractors who may be deemed to be custodians or users, shall formally acknowledge that they will comply with the security policies and procedures of the agency. Information resource users who do not complete a formal acknowledgment shall not be granted access to information resources. The agency head or their designated representative will determine the method of acknowledgement and how often this acknowledgment must be renewed. (B)
                                                                                                                            Agencies shall use non-disclosure agreements to document the acceptance by agency and contractor employees of special agency information security requirements. (C)
                                                                                                                              Agencies shall provide an ongoing information resources security awareness education program for users whose duties bring them into contact with mission critical information resources. Scheduled training shall also be provided by the agency. (D)
                                                                                                                                State agencies shall use new employee orientation to introduce information resource security awareness and inform new employees of information security policies and procedures. If an employee leaves or changes employment, security privileges shall be appropriately modified to protect information resources. (8)
                                                                                                                                  Physical Security. (A)
                                                                                                                                    Physical access to mission critical information resource facilities shall be managed and documented. (B)
                                                                                                                                      Reviews of physical security measures for compliance with these standards shall be conducted periodically by the agency head or designated representatives. (C)
                                                                                                                                        Information resources shall be protected from environmental hazards. Designated employees shall be trained to monitor environmental control procedures and equipment and shall be trained in desired response in case of emergencies or equipment problems. (D)
                                                                                                                                          Emergency procedures shall be developed and regularly tested. (9)
                                                                                                                                            Information Safeguards. (A)
                                                                                                                                              Access. Access shall be managed to ensure authorized use of information resources. Security risk assessment shall be the basis of decisions and policies regarding managed access to information resources. (B)
                                                                                                                                                Confidentiality of data and systems. (i)
                                                                                                                                                  Confidential information shall be accessible only to authorized users. Information containing any confidential data shall be identified, documented, and protected in its entirety. (ii)
                                                                                                                                                    Information resources assigned from one agency to another shall be protected in accordance with the conditions imposed by the providing agency. (C)
                                                                                                                                                      Identification/Authentication. (i)
                                                                                                                                                        Each user of information resources shall be assigned a unique personal identifier or user identification except for situations where risk analysis demonstrates no need for individual accountability of users. User identification shall be authenticated before the system may grant that user access. (ii)
                                                                                                                                                          A user's access authorization shall be removed or appropriately modified when the user's employment or role status changes. (iii)
                                                                                                                                                            Systems shall contain authentication functions that comply with documented security risk management decisions. (iv)
                                                                                                                                                              Systems which use passwords shall be based on the existing federal standard on password usage. (v)
                                                                                                                                                                For written electronic communications sent to a state agency where the identity of a sender or the contents of a message must be authenticated, the use of digital signatures is also encouraged. Agencies should refer to Texas Government Code, sec.2054.060, section 201.14 of this title, and guidelines issued by the Department for further information. (D)
                                                                                                                                                                  Encryption. Encryption techniques for storage and transmission of information shall be used based on documented agency security risk management decisions. (E)
                                                                                                                                                                    Ability to Audit. (i)
                                                                                                                                                                      Automated systems must provide the means whereby authorized personnel have the ability to audit and establish individual accountability for any action that can potentially cause access to, generation of, modification of, or effect the release of confidential information. (ii)
                                                                                                                                                                        Appropriate audit trails shall be maintained to provide accountability for updates to mission critical information, hardware and software and for all changes to automated security or access rules. (iii)
                                                                                                                                                                          Appropriate audit trails shall be maintained for all changes to automated security or access rules. (iv)
                                                                                                                                                                            Based on risk assessment, a sufficiently complete history of transactions shall be maintained to permit an audit of the system by tracing the activities of individuals through the system. (F)
                                                                                                                                                                              Security breaches. (i)
                                                                                                                                                                                Security breaches shall be investigated promptly and documented. (ii)
                                                                                                                                                                                  If criminal action is suspected, the agency must contact the appropriate law enforcement and investigative authorities immediately. (G)
                                                                                                                                                                                    Systems development and testing. (i)
                                                                                                                                                                                      Test functions shall be kept either physically or logically separate from production functions. Copies of production data shall not be used for testing unless the data has been declassified or unless all state and contractor employees involved in testing are otherwise authorized access to the data. (ii)
                                                                                                                                                                                        Appropriate information security and audit controls shall be incorporated into new systems. Each phase of systems acquisition shall incorporate and document corresponding development or assurances of security and auditable controls. (iii)
                                                                                                                                                                                          All security-related information resource changes shall be approved by the owner through a quality assurance process before implementation. (10)
                                                                                                                                                                                            Data Communication Systems. (A)
                                                                                                                                                                                              Network resource controls shall be implemented commensurate with the security risk analysis. (B)
                                                                                                                                                                                                System identification screens shall include warning statements unless documented security risk analysis indicates otherwise. Warning statements shall address the following topics: (i)
                                                                                                                                                                                                  unauthorized use is prohibited; (ii)
                                                                                                                                                                                                    usage may be subject to security testing and monitoring; and (iii)
                                                                                                                                                                                                      misuse is subject to criminal prosecution. [(1) Applicability. The following rule constitutes required minimum security standards for the protection of automated information resources for agencies of the state of Texas. The department requests each agency to complete implementation of an information resources security program consistent with these standards on or before September 1, 1997, in accordance with the implementation schedule of paragraph (12) of this subsection. Beginning with the agency information resources strategic plan to be submitted on January 1, 1993, agencies shall include in each biennial strategic plan for information resources an overview of their current information security posture and their future plans for completing development of a security program, consistent with these standards and implementation schedule, over each current strategic planning cycle. To assist in the interpretation and implementation of these standards, the department has developed the Information Resources Security and Risk Management Policy, Standards and Guidelines manual which is available on request from the Department of Information Resources, P.O. Box 13564, Austin, Texas 78711.] [(2) Classification of information. The state's automated information files and databases are essential and vital public resources which must be protected from unauthorized modification, deletion, or disclosure. Subject to executive management review, agency program managers have responsibility for the information assets utilized in carrying out the programs under their direction and accordingly are responsible for classifying program information.] [(A) For purposes of this subsection, two classifications of information are defined which require special protective precautions:] [(i) confidential information--information maintained by state agencies that is exempt from disclosure under the provisions of the Texas Open Records Act or other state or federal law; and] [(ii) sensitive information--information maintained by state agencies that requires special precautions, as determined by agency standards and risk management decisions, to assure its accuracy and integrity by utilizing error checking, verification procedures, and/or access control to protect it from unauthorized modification or deletion.] [(B) As defined in subparagraph (A)(ii) of this paragraph, sensitive information may be either public or confidential and requires a higher than normal assurance of accuracy and completeness. Likewise, confidential information may also be considered sensitive, requiring special measures to ensure its accuracy. Thus, the controlling factor for confidential information is dissemination, while the controlling factor for sensitive information is that of integrity.] [(3) Policy. It is the policy of the state of Texas that:] [(A) Automated information and information resources residing in the various agencies of state government are strategic and vital assets belonging to the people of Texas. These assets require a degree of protection commensurate with their value. Measures shall be taken to protect these assets against accidental or unauthorized disclosure, modification, or destruction, as well as to assure the security, reliability, integrity, and availability of information.] [(B) The protection of assets is a management responsibility.] [(C) Access to state information resources must be strictly controlled. State law requires that state owned information resources be used only for official state purposes.] [(D) Information which is sensitive or confidential must be protected from unauthorized access or modification. Data which is essential to critical state functions must be protected from loss, contamination, or destruction.] [(E) Risks to information resources must be managed. The expense of security safeguards must be appropriate to the value of the assets being protected, considering value to both the state and a potential intruder.] [(F) The integrity of data, its source, its destination, and processes applied to it must be assured. Changes to data must be made only in authorized and acceptable ways.] [(G) In the event a disaster or catastrophe disables information processing and related telecommunication functions, the ability to continue critical governmental services must be assured. Information resources must be available when needed.] [(H) Security needs must be considered and addressed in all phases of development or acquisition of new information processing systems.] [(I) Security awareness and training of employees is one of the most effective means of reducing vulnerability to errors and fraud and must be continually emphasized and reinforced at all levels of management. All individuals must be accountable for their actions relating to information resources.] [(J) Agency information security programs must be responsive and adaptable to changing vulnerabilities and technologies affecting state information resources.] [(K) Agencies must ensure adequate separation of functions for tasks that are susceptible to fraudulent or other unauthorized activity.] [(4) Management and staff responsibilities.] [(A) The responsibilities of a position with respect to security and risk management shall be commensurate with its authority. Descriptions of security roles and responsibilities for agency personnel shall be included in written position descriptions and compiled in the agency security manual developed and maintained by the information security function.] [(B) Each agency head, or the information resources manager acting on delegated authority, shall institute an information security function to administer the agency information security program. It shall be the duty and responsibility of this function to establish all procedures and practices necessary to ensure the security of information assets against unauthorized or accidental modification, destruction, or disclosure. The information security function within each agency shall document and maintain an up-to-date internal information security program. The agency security program shall include written internal policies and procedures for the protection of information resources, be an instrument implementing state information security policies and standards, be applicable to all elements of the agency, and be signed by the information resources manager or the agency head.] [(C) The Information Resources Management Act makes it clear that information and information resources residing in the various agencies of state government are assets owned by the people of Texas. For the purpose of information resources security and risk management, the concept of owners, custodians, and users of information resources, and their surrogate responsibilities to the people of Texas, is utilized in the development of an information security program. The effectiveness of the program depends to a large extent on the correct identification of those surrogate owners, custodians, and users of information. Owners, custodians, and users of data, software, and other information resources shall be identified, documented, and their responsibilities defined. All resources shall be assigned an owner. In cases where data or software is aggregated for purposes of ownership, the aggregation shall be at a level which assures individual accountability. The following distinctions among owner, custodian, and user responsibilities should guide determination of these roles.] [(i) Owner responsibilities. The owner of information resources is the designated individual upon whom responsibility rests for carrying out the program that uses the resources. That person is referred to herein as a program manager. The owner, or program manager, is responsible and authorized to: approve access and formally assign custody of the asset; judge the asset's value; specify data control requirements and convey them to users and custodians; and ensure compliance with applicable controls. Ownership responsibilities apply in the development of outsourcing contracts with private firms or with other agencies. These contracts must specify appropriate controls, based on risk assessment, to ensure protection of the state's confidential or sensitive information files, databases, and software from unauthorized modification, deletion, or disclosure.] [(ii) Custodian responsibilities. A custodian is the agent in charge of the organizational unit providing technical facilities, data processing and other support services to owners and users of automated information. The custodian of information resources is assigned the responsibility to: implement the controls specified by the owner; provide physical and procedural safeguards for the information resources within the facility; assist owners in evaluating the cost- effectiveness of controls; administer access to the information resources; and to make provisions for timely detection, reporting, and analysis of unauthorized attempts to gain access to information resources. Custodial responsibilities apply to all entities providing outsourcing services to state agencies.] [(iii) User responsibilities. The users of information resources have the responsibility to: use the resource only for the purposes specified by its owner; comply with controls established by the owner; and prevent disclosure of confidential or sensitive information.] [(D) The agency information security function acting on behalf of the agency head and with cooperation from program and technical management, shall assign information asset ownership and ownership responsibilities for all information resources within the agency.] [(E) Program managers, having been assigned information resource ownership, shall assign custody of program assets to appropriate technical and data center managers and ensure they are provided the appropriate direction to implement the security controls and procedures that have been defined.] [(F) Technical managers, assigned information resource custodianship, are charged with executing the monitoring techniques and procedures for detecting, reporting, and investigating breaches in information asset security.] [(G) An internal audit of the information security function shall be performed periodically, based on risk assessment, as directed by the agency head or the information resources manager acting on delegated authority for risk management decisions.] [(5) Risk analysis.] [(A) The information security function within each agency shall require a comprehensive risk analysis of all information processing systems be performed on a periodic basis as set by agency standards. Risk analysis results shall be presented to the owner of the information resource for risk management. Each step of the risk analysis process must be documented. The degree of risk acceptance (i.e., the exposure remaining after implementation of the recommended protective measures) must be identified.] [(B) A risk analysis report documenting the risk assessment must be submitted to the agency head. The risk analysis process provides the basis for preparing the agency's risk analysis report.] [(C) All information resources determined by agency management to be essential to the agency's critical mission and functions, the loss of which would have an unacceptable impact, shall have a written and cost effective contingency plan that will provide for the prompt and effective continuation of critical state missions in the event of a disaster. The contingency plan shall be tested and updated at least annually to assure that it is valid and remains current.] [(D) Data and software essential to the continued operation of critical agency functions shall be backed up. The security controls over the backup resources shall be as stringent as the protection required of the primary resources.] [(6) Personnel practices.] [(A) Each agency shall prepare a security manual that lists the agency's security policies and procedures. All agency personnel shall be required to provide written acknowledgment that they have received, read, and understand the security policies and procedures. The agency head, or the information resources manager acting on delegated authority, shall determine how often this written acknowledgment must be renewed.] [(B) Each agency shall establish procedures for reviewing information resource functions to determine which positions require special trust or responsibilities.] [(C) Agencies shall use non-disclosure agreements to document the acceptance by employees and contractors of special information security requirements as defined by agency standards and risk management decisions.] [(D) Agencies shall provide an ongoing awareness and training program in information security and in the protection of state information resources for all personnel whose duties bring them into contact with confidential or sensitive state information resources. Security training sessions for these personnel shall be held at least annually. Further, awareness and training in security shall not be limited to formal training sessions, but shall include periodic briefings and continual reinforcement of the value of security consciousness in all employees whose duties bring them into contact with confidential or sensitive state information resources.] [(E) State agencies shall take advantage of new employee orientation to establish security awareness and inform new employees and contractors of information security policies and procedures. If an employee leaves the employment of any agency of the state, for whatever reason, all security privileges shall be immediately revoked and the employee shall be prevented from having any opportunity to access information.] [(7) Physical security.] [(A) Management reviews of physical security measures shall be conducted annually, as well as whenever facilities or security procedures are significantly modified.] [(B) Physical access to central computer rooms shall be restricted to only authorized personnel. Authorized visitors shall be recorded and supervised.] [(C) Employees and information resources shall be protected from environmental hazards. Designated employees shall be trained to monitor environmental control procedures and equipment and shall be trained in desired response in case of emergencies or equipment problems.] [(D) Confidential or sensitive information, when handled or processed by terminals, communication switches, and network components outside the central computer room, shall receive the level of protection necessary to ensure its integrity and confidentiality. The required protection may be achieved by physical or logical controls, or a mix thereof.] [(E) Emergency procedures shall be developed and regularly tested.] [(8) Information security.] [(A) Authorized use and ownership.] [(i) All information and telecommunication resources leased or owned by the state and all time-sharing services billed to the state shall be used only to conduct state business.] [(ii) All computer software programs, applications, source code, object code, and documentation shall be deemed to be a work madefor hire and is state property and shall be protected as such if developed:] [(I) by state employees in the course and scope of their employment or with the use of state equipment, materials, or other resources, with the exception of employees of universities and other institutions of higher education, provided such university or institution has an intellectual property policy in place which addresses ownership rights regarding software development; or] [(II) by contract personnel acting under a contract with the state, unless the contract under which the software or documentation is developed specifically provides otherwise; or] [(III) with state funds.] [(iii) All computer software programs, applications, and documentation purchased for the use of the state is state property and shall be protected as such.] [(B) Confidentiality of data and systems.] [(i) Confidential information shall be accessible only to personnel who are authorized by the owner on a strict "need to know" basis in the performance of their duties. Data containing any confidential information shall be readily identifiable and treated as such in its entirety.] [(ii) When confidential or sensitive information from one agency is received by another agency in connection with the transaction of official business, the receiving agency shall maintain the confidentiality or sensitivity of the information in accordance with the conditions imposed by the providing agency.] [(C) Integrity. Controls shall be established to ensure the accuracy and completeness of data. User management shall ensure that data comes from the appropriate source for the intended use.] [(D) Passwords.] [(i) Except for public users of systems where such access is authorized, or for situations where risk analysis demonstrates no need for individual accountability of users, each user of a multiple-user automated system shall be assigned a unique personal identifier or user identification. User identification shall be authenticated before the system may grant that user access to automated information.] [(ii) A user's access authorization shall be removed from the system when the user's employment is terminated or the user transfers to a position where access to the system is no longer required.] [(iii) Systems which use passwords shall conform to the federal standard on password usage contained in the Federal Information Processing Standard Publication 112 (FIPS PUB 112), which specifies minimum criteria and provides guidance for selecting additional password security criteria, when appropriate. A current password standard compliance document shall be maintained for each system which uses passwords, specifying the criteria to be met for the 10 factors which address design, implementation, and use of access control systems as contained in the FIPS PUB 112 standard.] [(E) Auditability.] [(i) Audit trails shall be maintained to provide accountability for all accesses to confidential or sensitive information and software and for all changes to automated security or access rules.] [(ii) An auditable, continuous chain of custody shall record the transfer of confidential or sensitive information.] [(iii) A sufficiently complete history of transactions shall be maintained for each session involving access to confidential or sensitive information to permit an audit of the system by tracing the activities of individuals through the system.] [(iv) Automated systems which process confidential or sensitive information must provide the means whereby authorized personnel have the ability to audit and establish individual accountability for any action that can potentially cause access to, generation of, or effect the release of the information.] [(F) Access controls. Controls shall ensure that legitimate users of the computer cannot access stored software or data unless they have been authorized to do so.] [(G) Security breaches.] [(i) Security breaches shall be promptly investigated.] [(ii) If criminal action is suspected, the agency must contact the appropriate local law enforcement and investigative authorities immediately. Laws governing the admissibility of evidence are very strict, and without professional advice the agency may be jeopardizing possible legal actions.] [(H) Systems development and testing.] [(i) Test functions shall be kept either physically or logically separate from production functions. Copies of production data shall not be used for testing unless the data has been declassified or unless all personnel involved in testing are otherwise authorized access to the data.] [(ii) Appropriate information security and audit controls shall be incorporated into new systems. Each phase of systems acquisition shall incorporate corresponding development or assurances of security and auditability controls.] [(iii) After a new system has been placed in operation, all program changes shall be approved before implementation to determine whether they have been authorized, tested, and documented.] [(9) Authentication, data encryption, and key management.] [(A) Systems shall implement authentication functions that are consistent with the level of confidentiality or sensitivity of the data they contain and process.] [(B) It will not be a requirement at this time for agencies to use data encryption techniques for storage and transmission of data. However, those agencies who choose to employ data encryption shall adopt the data encryption standard, also referred to as the DES algorithm, which is defined in the Federal Information Processing Standard Publication 46-1 (FIPS PUB 46-1). It is highly recommended that electronic fund transfer (EFT) systems use the data encryption standard (DES). For systems employing encryption as described above, procedures shall be prescribed for secure handling, distribution, storage, and construction of DES key variables used for encryption and decryption. Protection of the key shall be at least as stringent as the protection required for the information encrypted with the key.] [(10) Data communication systems.] [(A) General network controls.] [(i) Network resources participating in the access of confidential information shall assume the confidentiality level of that information for the duration of the session. Controls shall be implemented commensurate with the highest risk.] [(ii) All network components under state control must be identifiable and restricted to their intended use.] [(B) Distributed network access security. Owners of distributed information resources served by distributed networks shall prescribe sufficient controls to ensure that access to those resources is restricted to authorized users and uses only. These controls shall selectively limit services based on:] [(i) user identification and authentication (e.g., password, smart card/token); or] [(ii) designation of other users, including the public where authorized, as a class (e.g., public access through dial-up or public switched networks), for the duration of a session; or] [(iii) physical access controls.] [(C) Application security. Network access to an application containing confidential or sensitive data, and data sharing between applications, shall be as authorized by the application owners and shall require authentication.] [(D) Alternate procedures. If the agency utilizes a communication network to process critical applications or functions, it shall, as part of its contingency plan, provide for an alternate means of accomplishing its program objectives in case the system or its communication network becomes unavailable. Alternative procedures shall be established that enable agency personnel to continue critical day-to-day governmental operations in spite of the loss of the communication network.] [(E) Dial-up access. For services other than those authorized for the public, users of dial-up terminals shall be positively and uniquely identifiable and their identity authenticated (e.g., by password) to the systems being accessed.] [(F) Warning statements. System identification screens shall include the following warning statements:] [(i) unauthorized use is prohibited;] [(ii) usage may be subject to security testing and monitoring; and] [(iii) abuse is subject to criminal prosecution.] [(11) Personal computers and word processors. Personal computer systems and word processors used to store, process, and/or access confidential or sensitive data, shall undergo risk analysis as required by the information security function. Risk analysis results shall be presented to the owner of the information resources for risk management. The degree of risk acceptance (i.e., the exposure remaining after implementation of the recommended protective measures) must be identified. The information security function must be prepared to demonstrate that security precautions have been established to ensure data confidentiality and the maintenance of information integrity.] [(12) Implementation schedule. Implementation of this rule shall be in accordance with the following schedule. Earlier implementation of any item would be advantageous to the protection of state information resources.] [(A) September 1, 1993--Establish an information security function (reference paragraph (4) of this subsection) to administer the agency information security program which shall include:] [(i) written internal policies and procedures for the protection of information resources;] [(ii) assignment of information asset ownership and custodianship and the attendant responsibilities for all information resources within the agency.] [(B) September 1, 1993--Implementation of all required personnel practices (reference paragraph (6) of this subsection).] [(C) September 1, 1994--Completion of risk analysis (reference paragraph (5) of this subsection) of all information resources (including mainframes, minicomputers, personal computers, local area networks and distributed processing systems) used to collect, record, process, store, retrieve, display, and transmit confidential or sensitive information, including:] [(i) documentation of risk analysis results;] [(ii) recommended protective measures;] [(iii) the degree of risk acceptance after such measures would be implemented;] (iv) a written disaster recovery plan. [(D) September 1, 1994--Implementation of all physical security requirements (reference paragraph (7) of this subsection):] [(i) physical access controls;] [(ii) identification of environmental hazards;] [(iii) development of environmental control procedures;] [(iv) emergency response training.] [(E) September 1, 1995--Implementation and testing of agency disaster recovery plans (reference paragraph (5)(C) of this subsection)]. [(F) September 1, 1996--Implementation of information resources protective measures as identified by risk analysis including those for mainframes, minicomputers, personal computers, local area networks, and distributed processing systems (reference paragraph (8) of this subsection):] [(i) logical and/or physical access controls to all information resources on a "need to know" basis;] [(ii) user authentication (passwords);] [(iii) data integrity controls;] [(iv) audit trails;] [(v) periodic internal audits;] [(vi) documentation and investigation of security breaches.] [(G) September 1, 1997--All remaining requirements consistent with these standards.] [(H) Waivers. The executive director of the department is hereby delegated authority by the board to grant a requesting state agency a compliance waiver from any implementation date of the schedule in this paragraph. Application for waiver will be made in writing to the department by the agency information resources manager. The agency must clearly demonstrate to the department through written justification that the overall economic interests of the state in matters of information security are best served by granting the compliance waiver and the requesting agency must submit a new written implementation schedule. The department will act on requests for waivers based on the agency's compliance with other information security standards not affected by the waiver, the agency's newly submitted implementation schedule, and the provision that the executive director of the department will notify the board when requests for waivers are received.] (c)-(e) (No change.) This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State on May 5, 1998. TRD-9807302 C.J. Brandt, Jr. General Counsel Department of Information Resources Earliest possible date of adoption: June 21, 1998 For further information, please call: (512) 475-2153 TITLE 4. AGRICULTURE PART VIII. Texas Agriculture Resources Protection Authority CHAPTER 101.General Rules SUBCHAPTER A.Routine Procedures 4 TAC sec.101.2, sec.101.20 The Texas Agriculture Resources Protection Authority (the Authority) proposes amendments to sec.101.2, concerning meetings of the Authority, and sec.101.20 concerning submission of reports by agencies. The amendments are proposed to make sec.101.2 consistent with changes made by the 75th Legislature and to correct an error in sec.101.20. House Bill 1144, 75th Legislature, 1997, changed the meeting requirement of the Authority from quarterly to annually. The amendment to sec.101.2 changes to annually all references to quarterly meetings and establishes the annual meeting date as the first Monday of June each year. The amendment to sec.101.20 corrects an error to clarify when reports are to be filed. Donnie Dippel, Assistant Commissioner for Pesticide Programs for the Texas Department of Agriculture, has determined that for the first five-year period the amendments are in effect there will be a $4200 per year savings to state government in the form of savings to government agencies represented on the board resulting from changing the meeting requirement to an annual meeting. Mr. Dippel also has determined that for each year of the first five years the amendments are in effect the public benefit will be elimination of unnecessary board meetings. There will be no effect on small or large businesses. There is no anticipated economic costs to persons who are required to comply with the amendment as proposed. Comments on the proposal may be submitted to Donnie Dippel, Assistant Commissioner for Pesticide Programs, Texas Department of Agriculture, P.O. Box 12847, Austin, Texas 78711. Comments on the proposal must be received no later than 30 days from the date of publication of the proposal in the Texas Register. The amendments are proposed under the Texas Agriculture Code, sec.76.009, as amended by House Bill 1144, 75th Legislature, 1997, which provides the Texas Agriculture Resources Protection Authority with the authority to adopt rules to carry out its duties. The Texas Agriculture Code, Chapter 76 is affected by this proposal. sec.101.2.Meetings. (a) The required annual
                                                                                                                                                                                                        [quarterly] meetings of the Texas Agriculture Resources Protection Authority (the Authority) shall be held on the first Monday of June each year
                                                                                                                                                                                                          [the third month of the calendar quarter] at 10 a.m. at a location designated by the commissioner for use of the Authority unless a different date, hour, or place is specified by call for the regular quarterly meeting to be held alternatively at another place, date, or hour. (b) Alternative annual
                                                                                                                                                                                                            [quarterly] meetings or special meetings may be called by the presiding officer of the Authority or by a majority of the members of the Authority. A call by a majority of the members must be in writing and delivered to the commissioner at least ten days in advance of the anticipated meeting date
                                                                                                                                                                                                              . The call shall state the time, place, and purpose of the meeting, including a proposed agenda. (c) - (e) (No change.) sec.101.20.Submission of Reports by Agencies. (a) Time and Place for Submission. (1) (No change.) (2) Such reports shall be submitted no later than the 30th day following the end of [the] each fiscal year quarter. (3) (No change.) (b) - (d) (No change.) This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State, on May 11, 1998. TRD-9807654 Dolores Alvarado Hibbs Deputy General Counsel Texas Agriculture Resources Protection Authority Earliest possible date of adoption: June 21, 1998 For further information, please call: (512) 463-7541 TITLE 13. CULTURAL RESOURCES PART I. Texas State Library and Archives Commission CHAPTER 2. General Policies and Procedures SUBCHAPTER A. Principles and Policies of the Commission 13 TAC sec.2.52 The Texas State Library and Archives Commission proposes an amendment to sec.2.52, concerning the exhibition of state archives. The amendment is being proposed to expand the loan of archival materials, historical items, and artifacts and to specify conditions under which those items will be loaned for public exhibition. Christopher LaPlante, Director, Archives and Information Services Division, has determined that for the first five year period the section is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the section as proposed. Mr. LaPlante also has determined that for each of the first five years the section is in effect the public benefit anticipated as a result of enforcing the rule will be to provide an increased opportunity for the public to view archival materials, historical items, and artifacts from the collections of the Texas State Library and Archives Commission, and to help ensure the security and stability of those items during their exhibition. There is no anticipated impact on small businesses. There are anticipated economic costs associated with transporting and insuring items loaned for public exhibition for those persons who are required to comply with the section as proposed. Comments on the proposal may be submitted to Christopher LaPlante, Director, Archives and Information Services Division, Texas State Library and Archives Commission, P.O. Box 12927, Austin, Texas 78711-2927. The amendment is proposed under Government Code sec.441.190 and sec.441.006 which provide the Texas State Library and Archives Commission with the authority to govern the State Library and Archives and adopt rules establishing standards and procedures for the protection, maintenance, and storage of archival state records. The following are the statutes that are affected by this section: Texas Government Code, sec.441.190, and Texas Government Code, sec.441.006. sec.2.52. Customer Service Policies. (a)-(c) (No Change) (d) Exhibition of State Archives. Archival
                                                                                                                                                                                                                [No archival] material, historical items, artifacts, or museum pieces will be loaned for public exhibition [except that items may be loaned to the State Preservation Board for display in the Capitol Complex Visitors Center] only
                                                                                                                                                                                                                  under conditions specified in paragraphs (1) - (8) of this subsection
                                                                                                                                                                                                                    [specified in writing by the director and librarian]. Requests for loan of the original Texas Declaration of Independence, original copies of the Constitutions of Texas, Treaties of the Republic of Texas, and certain other highly significant documents will require the formal approval of the Commission. Microfilm reproductions, preservation photocopies, other photographic reproductions, or digital images will be created prior to archival materials being lent for exhibition.
                                                                                                                                                                                                                      (1)
                                                                                                                                                                                                                        General Requirements. (A)
                                                                                                                                                                                                                          A formal loan request should be made in writing at least 60 days before the materials are to leave the Texas State Library and Archives Commission. The request shall be addressed to the Director and Librarian. The written request shall include the exhibition title, dates of exhibition and loan period, a general description of the exhibition, and complete citations for each item requested. If special circumstances warrant, the Director and Librarian may waive the 60-day requirement. (B)
                                                                                                                                                                                                                            The maximum loan period is normally six months. The Director and Librarian reserves the right to recall loaned materials for good cause at any time and will attempt to give reasonable notice thereof. (C)
                                                                                                                                                                                                                              The borrower must agree in writing to adhere to the commission rules governing the loan and exhibition of materials. If the borrower wishes to use its own incoming loan agreement form as well, it must first agree that the terms of the commission loan agreement are the controlling terms when there is a conflict between the two documents. (D)
                                                                                                                                                                                                                                The borrower may not take any of the actions detailed in clauses (i), (ii), and (iii) of this subparagraph without first obtaining written permission from the Director and Librarian. (i)
                                                                                                                                                                                                                                  Display commission materials in a location or exhibition other than that cited on the loan agreement. (ii)
                                                                                                                                                                                                                                    Transfer physical custody of the loaned items to another institution or third party. (iii) Alter, clean, or repair loaned items; perform any conservation treatment; or remove a document from a housing provided by commission (e.g., polyester encapsulation, mat, etc.). (2)
                                                                                                                                                                                                                                      Security and Environmental Conditions. (A)
                                                                                                                                                                                                                                        Archival material, historical items, and artifacts must be displayed in a facility equipped with fire protection equipment as described in National Fire Protection Association-- Recommended Practice for the Protection of Museums and Museum Collections (ANSI/NFPA 911-1991). (B)
                                                                                                                                                                                                                                          Items on loan must be secure at all times. Professional security guards or other trained personnel must regularly patrol exhibition areas during hours of public access. The borrower shall have sufficient 24-hour guards or a 24-hour electronic security system to effectively monitor and protect the exhibition, storage, and preparation areas at all times. (C)
                                                                                                                                                                                                                                            Temperature and humidity levels must be monitored and controlled. A temperature of 770 plus or minus 5 degrees and relative humidity of 50% plus or minus 5% without rapid fluctuations must be maintained in the storage, preparation, and exhibition areas. Before approving a loan and while items are on loan, the Director and Librarian may request copies of temperature and humidity readings from the borrower to verify that these requirements can and are being met. (D)
                                                                                                                                                                                                                                              Exhibition cases must be dirt-free, dust-proof, and secured with locks or security screws. Frames must also be dirt- and dust-proof and secured to the wall with security screws or other hanging methods approved by the Director and Librarian. Glass or acrylic sheeting, such as Plexiglas, Lucite, or Polycast must protect all materials displayed in frames or cases. The Director and Librarian may specify grades of acrylic sheeting that filter ultraviolet light for materials that are especially light sensitive. (E)
                                                                                                                                                                                                                                                The exhibition must be monitored daily to ensure security and stability of documents within the cases and frames as well as adequate maintenance and cleaning of the exhibit area. (F)
                                                                                                                                                                                                                                                  Eating, drinking, and smoking must be prohibited in the storage, preparation, and exhibition areas. (3)
                                                                                                                                                                                                                                                    Lighting Conditions. (A)
                                                                                                                                                                                                                                                      Incandescent bulbs are the preferred light source for exhibition lighting. All light sources must be filtered to remove the ultraviolet component. (B)
                                                                                                                                                                                                                                                        When lighting items exhibited in a case, exterior incandescent lights shall be used whenever possible. If interior case lights are used, fluorescent lights with ultraviolet filters are preferable because fluorescent tubes will have minimal affect on the temperature in the case. (C)
                                                                                                                                                                                                                                                          No original archival materials, historical items, or artifacts shall be exhibited where they will be exposed to direct or unfiltered sunlight. (4)
                                                                                                                                                                                                                                                            Handling and Installation. (A) Original archival materials, historical items, or artifacts may be handled and installed only by a curator, registrar, preparator, or conservator under contract to or on the staff of the borrower. (B)
                                                                                                                                                                                                                                                              The commission may encapsulate or mat documents for loan to minimize dangers associated with handling and exhibition. No item borrowed for exhibition may be altered, cleaned, repaired, or removed from housing provided by the commission without first obtaining written permission from the Director and Librarian. (C)
                                                                                                                                                                                                                                                                The commission reserves the right to directly supervise the installation of its materials. (D)
                                                                                                                                                                                                                                                                  If documents are displayed in exhibition cases, the cases must be dirt-free, dust-proof, and locked or secured with security screws. (E)
                                                                                                                                                                                                                                                                    All items must be handled, supported, and conveyed by means that will prevent damage during transport to and from the borrowing institution and within it. (F)
                                                                                                                                                                                                                                                                      All items must be given sufficient support to prevent damage during exhibition. (5)
                                                                                                                                                                                                                                                                        Inspections. (A)
                                                                                                                                                                                                                                                                          A commission staff member may inspect the exhibition area before the loan is approved. If, after a commission staff inspection, in the opinion of the Director and Librarian any loan requirement cannot be met, the loan will not be made. (B)
                                                                                                                                                                                                                                                                            Commission staff members or personnel designated by the Director and Librarian may make inspection trips at any time during the period of the loan. (6)
                                                                                                                                                                                                                                                                              Packing and Transportation. (A)
                                                                                                                                                                                                                                                                                Unless the commission specifies otherwise, commission staff will pack items going out on loan. The borrower is responsible for packing loan items to return to the commission. All items must be given sufficient support and protection to prevent damage during transit. (B)
                                                                                                                                                                                                                                                                                  The borrower will pay all costs associated with shipping or transporting the items on loan from the commission. (7)
                                                                                                                                                                                                                                                                                    Insurance. All borrowers other than state agencies must provide all- risk insurance coverage in an amount satisfactory to the commission for all loaned items from the time the items leave the commission until the time of return. Evidence of this policy must be provided the commission before any items are removed from the commission. (8)
                                                                                                                                                                                                                                                                                      Publicity and Credit. (A)
                                                                                                                                                                                                                                                                                        The Director and Librarian must approve any plans to reproduce loaned items for exhibition-related publications, other publications, and publicity purposes. (B)
                                                                                                                                                                                                                                                                                          Commission materials on exhibition may be photographed by the general public without the use of flash or tripod. (C)
                                                                                                                                                                                                                                                                                            In the exhibition and related publicity, the commission must receive clear and prominent credit. The following credit line shall be used: Archives and Information Services Division, Texas State Library and Archives Commission. (e)-(h) (No Change) This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State on May 5, 1998. TRD-9807283 Raymond Hitt Assistant State Librarian Texas State Library and Archives Commission Earliest possible date of adoption: June 21, 1998 For further information, please call: (512) 463-5440 TITLE 16. ECONOMIC REGULATION PART II. Public Utility Commission of Texas CHAPTER 23.Substantive Rules SUBCHAPTER H.Telephone 16 TAC 23.104 (Editor's note: The text of the following section proposed for repeal will not be published. The section may be examined in the offices of the Public Utility Commission of Texas or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The Public Utility Commission of Texas (PUC) proposes the repeal of sec.23.104 relating to Telecommunications Pricing. Project Number 18886 has been assigned to this proceeding. The Appropriation Act of 1997, HB 1, Article IX, Section 167 (Section 167) requires that each state agency review and consider for readoption each rule adopted by that agency pursuant to the Government Code, Chapter 2001 (Administrative Procedure Act). Such reviews shall include, at a minimum, an assessment by the agency as to whether the reason for adopting or readopting the rule continues to exist. The PUC held three workshops to conduct a preliminary review of its rules. As a result of these workshops, the PUC is reorganizing its current substantive rules located in 16 Texas Administrative Code (TAC) Chapter 23 to (1) satisfy the requirements of Section 167; (2) repeal rules no longer needed; (3) update existing rules to reflect changes in the industries regulated by the commission; (4) do clean-up amendments made necessary by changes in law and commission organizational structure and practices; (5) reorganize rules into new chapters to facilitate future amendments and provide room for expansion; and (6) reorganize the rules according to the industry to which they apply. As a result of this reorganization, sec.23.104 will be duplicative of proposed new sec.26.213 of this title (relating to Telecommunications Pricing) in Chapter 26 of this title (Substantive Rules Applicable to Telecommunications Service Providers). Mr. Nelson Parish, chief economic analyst, Office of Policy Development, has determined that for each year of the first five-year period the repeal is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the repeal. Mr. Parish has determined that for each year of the first five years the repeal is in effect, the public benefit anticipated as a result of the repeal will be the elimination of a duplicative rule. There will be no effect on small businesses as a result of repealing this section. There is no anticipated economic cost to persons as a result of repealing this section. Mr. Parish has also determined that for each year of the first five years the repeal is in effect there will be no impact on employment in the geographic area affected by the repeal of this section. Comments on the proposed repeal (16 copies) may be submitted to the Filing Clerk, Public Utility Commission of Texas, 1701 N. Congress Avenue, P.O. Box 13326, Austin, Texas 78711- 3326, within 30 days after publication. All comments should refer to Project Number 18886, repeal of sec.23.104. This repeal is proposed under the Public Utility Regulatory Act, Texas Utilities Code Annotated sec.14.002 (Vernon 1998) (PURA), which provides the Public Utility Commission with the authority to make and enforce rules reasonably required in the exercise of its powers and jurisdiction. Cross Reference to Statutes: Public Utility Regulatory Act sec.14.002. sec.23.104.Telecommunications Pricing. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State, on May 8, 1998. TRD-9807525 Rhonda Dempsey Rules Coordinator Public Utility Commission of Texas Earliest possible date of adoption: June 21, 1998 For further information, please call: (512) 936-7308 CHAPTER 25.Substantive Rules Applicable to Electric Service Providers The Public Utility Commission of Texas proposes new sec.25.84, Annual Reporting of Electric Utilities' Relationships with Their Affiliates, sec.25.271, Code of Conduct for Electric Utilities and Their Affiliates, sec.25.272, Corporate Support Service Agreements Between Electric Utilities and Their Affiliates, sec.25.273, Contracts Between Electric Utilities and Their Affiliates, and sec.25.274, Compliance Proceeding to Implement Code of Conduct for Electric Utilities and Their Affiliates. These sections are proposed under Project Number 17549. Section 25.84 replaces the rule provision currently located at sec.23.11(c) of this title, relating to General Reports, and requires that electric utilities' report to the commission annually on relationships with their affiliates. Section 25.271 establishes broad safeguards to govern the interaction between regulated electric utilities and their affiliates. Section 25.272 establishes the requirements for the implementation of corporate support service agreements between regulated utilities and their affiliates. Section 25.273 establishes the fair, competitive bidding process that utilities may use to obtain products and services from an affiliate or other third party, and establishes requirements for any contracts with affiliates that may result from this competitive bidding process. Section 25.274 establishes the requirements for the compliance proceedings that will be necessary for the implementation of these new rules relating to affiliate activities. In Project Number 14400, the commission's rulemaking to address integrated resource planning (completed in 1996), the commission indicated that it would address at a later date the issues of energy services unbundling and utilities' relationships with their affiliates. This rulemaking addresses affiliate activities, and the issue of energy services unbundling is being addressed in Project Number 19205. Based on its extensive experience in regulating the electric power industry and in implementing the pro-competitive policies adopted by the U.S. Congress, the Texas Legislature, and the Federal Energy Regulatory Commission, the commission finds that there is a strong likelihood that a utility will favor its affiliates where those affiliates are providing services in competition with other, non- affiliated entities. The commission concludes that this would not be in the public interest. Further, based on recent experience conducting periodic electric utility rate reviews and on other regulators' recent experiences with the motor carrier, telephone, and natural gas industries, the commission finds that there is a strong incentive for regulated utilities or their holding companies to subsidize their competitive activities with revenues or intangible benefits derived from their regulated monopoly businesses. The commission concludes that this is not in the public interest. Finally, the commission finds that current regulations governing the relations between and among units/divisions of an electric utility (or an electric utility holding company) are not adequate to prevent or discourage anticompetitive behavior. The commission concludes that articulating new rules which reflect the current state of competition in the electric power industry will provide regulatory certainty, facilitate more efficient competition to the benefit of customers, and fairly balance the equities among competing service providers. Based on its experience in regulating the electric power and local telephone industries, the commission has found that structural solutions are generally to be preferred over regulatory solutions in fostering competition. An example of a structural solution would be to completely prohibit a utility or its affiliate from engaging in activities which are or can be performed by unregulated entities. However, the commission is aware that efficient competition is fostered by encouraging the participation of many qualified participants, including unregulated affiliates. Consequently, these rules attempt to balance these potentially conflicting interests. In the natural gas industry, which has become significantly competitive at the wholesale level, such a balanced solution has been highly effective in fostering healthy competition. Providing market participants with real-time knowledge of utility-to-affiliate interactions, for example, has allowed the natural gas market to police itself, rather than require extensive regulatory involvement. In both natural gas and electricity, the delivery system remains a natural monopoly but the production (power generation) and merchant (marketing) functions are now competitive rather than natural monopolies. Within these markets, the playing field will be leveled, competition will be fostered, and customers will benefit from early, clear articulation of policies and processes governing the relationships between utilities' and affiliates' regulated and competitive functions. The benefit of such policies has been demonstrated in natural gas restructuring and in the commission's own two years of experience with the competitive wholesale electric power market. In proposing these rules relating to affiliate activities, therefore, the commission has three objectives: fostering fair competition for all participants in the market place, preventing cross- subsidization of competitive activities by monopoly rate payers, and preventing anticompetitive behavior and utilities' circumvention of their regulatory obligations. As a result of the commission's establishing the rules governing the relationships between regulated utilities and their competitive affiliates, participants in the market place will benefit from full knowledge of "the rules of the road" in the current regulatory environment. If the Texas Legislature removes existing legal barriers to entry by new entrants into competitive activities, those functions would be governed by this code of conduct as well. The commission requests that interested parties address the following issues in their comments on the proposed rules. The questions are grouped into twelve topics: application of the rules to cooperatives, application of the rules to affiliates that are also regulated utilities, separation of the utility from its affiliates, limitations on affiliate transactions, definition of corporate support services, migration of employees, use by an affiliate of a utility's name and logo, customer requests for information about products or services offered by affiliates, transfers of assets that take place before versus after the promulgation of these rules, regulation of transactions related to "exempt telecommunications carriers," the competitive bidding process, and review and approval of service agreements and contracts. This grouping provides a framework for discourse on these topics, and interested parties should organize their comments according to these categories. The commission also seeks any additional comments on the proposed rule that interested parties believe are appropriate. Furthermore, the commission will seek comment at a later date on the format of the annual reports required in proposed sec.25.84. First, the commission seeks comment on the application of the proposed rules. Are certain exemptions or modifications to these rules appropriate for electric cooperatives? If so, what exemptions or modifications would allow the commission to meet its stated objectives? How might customers of electric cooperatives be affected by exemptions or modifications of these rules? Second, the commission requests comment on how affiliates that are also regulated utilities, under the jurisdiction of this commission or another regulatory body, might be affected by the proposed rules. Are certain exemptions or modifications of these rules appropriate for affiliates that are also regulated utilities? If so, what exemptions or modifications would allow the commission to meet its stated objectives? Third, the commission requests comment on the provisions requiring separation of the utility from its affiliates. The commission notes that there is a clear trade-off between the degree of structural separation between utilities and their affiliates versus the amount of regulatory oversight that is required by the commission to ensure that its three stated objectives are met; in other words, the greater the separation, the less regulatory oversight required. To the extent that interested parties make arguments against structural separation due to potentially lost economies of scale and scope, such parties should provide an analysis showing how any alleged losses of economies of scale and scope compare to the increased costs to both the commission and the utility for the greater regulatory oversight required to balance the degree of separation between the utility and its affiliates. Fourth, the commission seeks comment on the proposal to limit transactions between utilities and their affiliates to the following three possibilities: corporate support services, products and services offered by the utility through tariffs, or products and services purchased by the utility as a result of competitive bidding. Should the commission allow any other affiliate transactions beyond those entered into through one of these three methods? Fifth, the commission solicits comment on the definition of corporate support services. Is the definition appropriate and sufficiently detailed? Sixth, the commission requests comment on the provisions relating to migration of employees between the regulated utility and its affiliates. The provision prohibiting temporary assignment of employees includes an exception for restoration in the event of a "major service interruption." Is it necessary to define what constitutes a "major service interruption?" In addition, how and when should utilities inform the commission that this exception has been invoked? The proposed transfer fee formula includes a fee of 10% of ending salary for the first year of experience, with an additional 0.5% of ending salary for each year of employment with the regulated utility. Would a different transfer fee formula be more appropriate? How can the commission ensure that there is a balance between allowing fair compensation to the utility, without unduly impeding professional growth opportunities for the utility's employees? Should this provision be applied under extraordinary circumstances, such as a major corporate restructuring involving a mass transfer of employees from the utility to a new affiliate? Should certain classes of employees be exempted from the transfer fee provision, such as clerical employees or those employees engaged in the provision of corporate support services? Or, in the alternative, should the fee apply only to employees whose total annual compensation is above a specified floor, such as $30,000? Seventh, the commission seeks comment on the provision requiring use of a disclaimer when an affiliate uses the utility's name or logo. Would an outright prohibition on the use of the utility's name or logo provide for more efficient implementation of these rules? To the extent that interested parties argue for allowing use of the regulated utility's name and logo by its affiliates, with or without a disclaimer, they should address how the commission can ensure that the utility is fairly compensated for use of the trade name and logo. For example, should utilities be entitled to receive royalty payments? Furthermore, is the disclaimer compromise the best possible means to inform consumers that there is a corporate relationship between the regulated and unregulated entities, while simultaneously informing consumers that the two entities have different regulatory obligations and oversight by the commission? Eighth, the commission requests comment on the provision requiring utilities to give customers a current list of all affiliated and non-affiliated providers when a customer requests information about products or services offered by affiliates and their competitors. The commission believes that customers should be able to rely on such lists as being reasonably accurate, but that a utility should not be held liable for any inaccuracy in the list or lack of service provider viability if such is not the fault of the utility. The commission requests comment on what additional safeguards could be put in place to address this issue. Ninth, the commission requests comment on the issue of how to address transfers of assets other than generation and transmission assets (from the utility to an affiliate) that take place before these rules are in effect. The proposed rules require that such asset transfers be subject to the competitive bidding requirements of sec.25.273. However, some utilities may already have made mass transfers of assets to their affiliates prior to these rules taking effect, which could afford the affiliate a competitive advantage not available to other entities, including those firms that are affiliated with a utility that transfers assets after the rules are adopted. How should the commission address this potential disparity in competitive advantage? Tenth, the commission requests comment as to whether these proposed rules are sufficient to achieve the commission's goal of regulating the transactions between utilities subject to the provisions of the Public Utility Holding Company Act of 1935 (PUHCA) and their affiliated "exempt telecommunications companies" (ETCs) pursuant to the federal Telecommunications Act of 1996 sec.103, as codified at 15 U.S.C.A sec.79z-5c. The commission has proposed rules relating specifically to affiliate transactions between PUHCA-jurisdictional utilities and their affiliated ETCs in Project Number 17508. Are separate rules for these specific affiliate transactions required? If not, are there any changes that need to be made to the rules proposed herein to properly regulate transactions between utilities and their affiliated ETCs? Eleventh, the commission seeks comment on the competitive bidding process set forth in proposed sec.25.273. The commission desires to provide sufficient guidance for what constitutes a "fair, competitive bidding process" without being overly prescriptive. How might these requirements be streamlined so as to provide greater flexibility for utilities to procure products and services in the event that such products and services are competitively available? What types of current services being obtained by a utility from an affiliate would fall under this rule? Should the commission establish a threshold annual dollar amount under which purchases by a utility from an affiliate, other than for corporate support services, would not be subject to the competitive bidding process? If so, what would be an appropriate threshold amount? Finally, the commission requests comment on the provisions relating to the commission's review and approval of service agreements and contracts. Specifically, proposed sec.25.272 and sec.25.273 state that corporate support service agreements and contracts are "subject to commission review and approval for compliance with PURA requirements and commission rules." Should the commission require approval of these service agreements and contracts prior to their implementation by the utility? What procedural requirements for review and approval of these documents should be instituted by the commission? How should existing service agreements and contracts be treated by the commission? Suzanne L. Bertin, assistant director, Office of Policy Development, has determined that for the first five-year period the sections are in effect there will be no fiscal implications for state or local government as a result of the enforcing or administering the sections. Ms. Bertin also has determined that for each year of the first five years the sections are in effect, the public benefit anticipated as a result of enforcing these sections will be improved regulatory oversight of electric utilities and enhanced competition in the provision of energy- related and telecommunications- related services. It is anticipated that there will be economic costs incurred by persons who are required to comply with the new sections as proposed. The costs incurred are likely to vary from utility to utility, and are difficult to ascertain. The benefits accruing from implementation of these rules, however, are expected to outweigh these costs. For each year of the first five years the sections are in effect, there will be no effect on small businesses as a result of enforcing the proposed sections. Ms. Bertin has further determined that for the first five years the proposed sections are in effect there may be a favorable impact on the opportunities for employment in the geographic areas of Texas affected by implementing the requirements of the rules, but the magnitude of such an impact cannot be ascertained. Comments on the proposed rule (16 copies) may be submitted to Filing Clerk, Public Utility Commission of Texas, 1701 N. Congress Avenue, P.O. Box 13326, Austin, Texas, 78701-3326, within 31 days after publication. Reply comments may be submitted within 45 days after publication. All comments should refer to Project Number 17549. The commission invites specific comments regarding the costs associated with, and benefits that will be gained by, implementation of the sections. The commission will consider the costs and benefits in deciding whether to adopt the sections. SUBCHAPTER D.Records, Reports, and Required Information 16 TAC sec.25.84 The commission staff will conduct a public hearing on this rulemaking under Government Code sec.2001.029 at the commission's offices on June 25, 1998, at 9:00 a.m. Section 25.84 is proposed under the Public Utility Regulatory Act, Texas Utilities Code Annotated (Vernon 1998) (PURA) sec.sec.11.002(a), 14.001, 14.002, 14.003, 14.151, 14.154, and 15 U.S.C.A. sec.79z-5c. Section 11.002(a) requires establishment of a comprehensive and adequate regulatory system by the Public Utility Commission of Texas to ensure just and reasonable rates, operations, and services. Section 14.001 grants the commission the general power to regulate and supervise the business of each utility within its jurisdiction. Section 14.002 provides the commission with the authority to make and enforce rules reasonably required in the exercise of its powers and jurisdiction. Section 14.003 grants the commission the authority to require submission of information by the utility regarding its affiliate activities. Section 14.151 grants the commission authority to prescribe the manner of accounting for all business transacted by the utility. Section 14.154 grants the commission limited authority over the utility's affiliates, with respect to their transactions with the utility. Finally, 15 U.S.C.A. sec.79z-5c grants the commission authority to regulate the transactions between PUHCA- jurisdictional utilities and their affiliated ETCs. Cross Reference to Statutes: PURA sec.sec.11.002(a), 14.001, 14.002, 14.003, 14.151, 14.154, 15 U.S.C.A. sec.79z-5c. sec.25.84. Annual Reporting of Electric Utilities' Relationships with Affiliates. (a) Purpose. This section establishes annual reporting requirements for activities between utilities and their affiliates, as allowed under sec.25.271 of this title (relating to Code of Conduct for Electric Utilities and Their Affiliates). (b) Application. This section applies to all electric utilities operating in the State of Texas as defined in the Public Utility Regulatory Act (PURA) sec.31.002 (1), and also to affiliates as defined in PURA sec.11.003 (2) to the extent specified herein. (c) Definitions. Any terms defined in sec.25.271 of this title have the same meanings herein. (d) Annual Report of Affiliate Activities. A "Report of Affiliate Activities" shall be filed annually with the commission. Using forms approved and provided by the commission, a utility shall report activities among itself and its affiliates in accordance with the requirements of sec.25.271 of this title. The report shall be filed by June 1, and shall encompass the time period from January 1 through December 31 of the immediately preceding year. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State, on April 23, 1998. TRD-9807804 Rhonda Dempsey Rules Coordinator Public Utility Commission of Texas Earliest possible date of adoption: June 7, 1998 For further information, please call: (512) 936-7308 SUBCHAPTER K.Relationships with Affiliates 16 TAC sec.25.271 Section 25.271 is proposed under the Public Utility Regulatory Act, Texas Utilities Code Annotated (Vernon 1998) (PURA) sec.sec.11.002(a), 14.001, 14.002, 14.003, 14.151, 14.154, 31.001(c), 32.101(c), 35.003(b), 35.034, 35.035, 36.003, 36.058, 38.021, 38.022, 55.006, 51.001 and 52.001 as well as 15 U.S.C.A. sec.79z-5c and Texas Revised Civil Statutes Annotated article 717p (Vernon Supplement 1998). Section 11.002(a) requires establishment of a comprehensive and adequate regulatory system by the Public Utility Commission of Texas to ensure just and reasonable rates, operations, and services. Section 14.001 grants the commission the general power to regulate and supervise the business of each utility within its jurisdiction. Section 14.002 provides the commission with the authority to make and enforce rules reasonably required in the exercise of its powers and jurisdiction. Section 14.003 grants the commission the authority to require submission of information by the utility regarding its affiliate activities. Section 14.151 grants the commission authority to prescribe the manner of accounting for all business transacted by the utility. Section 14.154 grants the commission limited authority over the utility's affiliates, with respect to their transactions with the utility. Section 31.001(c) requires that the commission formulate and apply rules, policies, and principles to protect the public interest in a more competitive electric market place. Section 32.101(c) requires that customer proprietary information be treated as highly sensitive trade secrets. Section 35.003(b) prohibits electric utilities from granting undue preference to a person in connection with the purchase or sale of energy or other services. Section 35.034 grants the commission authority to approve transfers of certain assets between utilities and affiliates. Section 35.035 governs the valuation of assets transferred by a utility to or from an affiliate. Section 36.003 requires the commission to ensure that a utility's rates are just and reasonable, sufficient, equitable, and consistent in application to each class of consumer, and not unreasonably preferential, prejudicial, or discriminatory. Section 36.058 sets forth the circumstances under which the commission may allow payments by a utility to an affiliate. Section 38.021 requires that utilities not grant an unreasonable preference to or impose an unreasonable disadvantage on different persons in the same classification. Sections 38.022 and 55.006 require that utilities not discriminate against competitors or engage in practices that restrict or impair competition in electric and telecommunications markets, respectively. Sections 51.001 and 52.001 require that the commission implement innovative new rules, policies, and principles to protect the public interest in telecommunications markets and provide equal opportunity to telecommunications competitors. 15 U.S.C.A. sec.79z-5c grants the commission authority to regulate the transactions between PUHCA-jurisdictional utilities and their affiliated ETCs. Finally, Texas Revised Civil Statutes Annotated article 717p (Vernon Supplement 1998) grants Texas river authorities and their affiliates certain rights and privileges that differ from those of other electric utilities in the state. Cross Reference to Statutes: PURA sec.sec.11.002(a), 14.001, 14.002, 14.003, 14.151, 14.154, 31.001(c), 32.101(c), 35.003(b), 35.034, 35.035, 36.003, 36.058, 38.021, 38.022, 55.006, 51.001, and 52.001, 15 U.S.C.A. sec.79z-5c, and Texas Revised Civil Statutes Annotated article 717p (Vernon Supplement 1998). sec.25.271. Code of Conduct for Electric Utilities and Their Affiliates. (a) Purpose. The provisions of this section establish broad safeguards to govern the interaction between regulated utilities and their affiliates. In promulgating these affiliate rules, the commission has three objectives: fostering fair competition for all participants in the market place, preventing cross-subsidization of competitive activities by monopoly rate payers, and preventing anticompetitive behavior and utilities' circumvention of their regulatory obligations. (b) Application. This section applies to all electric utilities operating in the State of Texas as defined in the Public Utility Regulatory Act (PURA) sec.31.002 (1), and also to affiliates as defined in PURA sec.11.003 (2) to the extent specified herein. River authorities are exempted from subsection (d) of this section pursuant to Texas Revised Civil Statutes Annotated article 717p (Vernon Supplement 1998). (c) Definitions. The following words and terms when used in this section shall have the following meaning unless the context clearly indicates otherwise: (1) Affiliate rules - The body of rules in Chapter 25, Subchapter K, relating to Relationships with Affiliates, inclusive of sec.sec.25.271 of this title, 25.272 of this title (relating to Corporate Support Service Agreements Between Electric Utilities and Their Affiliates), 25.273 of this title (relating to Contracts Between Electric Utilities and Their Affiliates) and 25.274 of this title (relating to Compliance Proceedings to Implement Code of Conduct for Electric Utilities and Their Affiliates). (2) Antitrust laws - Federal and state antitrust laws including the following: (A) Federal antitrust laws - Sherman Act, 15 United States Code sec.sec.1-7; Clayton Act, 15 United States Code sec.sec.12-27; and a portion of the Federal Trade Commission Act, 15 United States Code sec.45. (B) Texas antitrust laws - Texas Free Enterprise and Antitrust Act of 1983, Texas Business & Commerce Code sec.sec.15.01-15.52. (3) Arm's length transaction - The standard of conduct under which unrelated parties, each acting in its own best interest, would carry out a particular transaction. Applied to related parties, in testing whether a transaction is at "arm's length," it must be ascertained whether the transaction could have been made on the same terms to a disinterested third party in a bargained transaction. (4) Corporate support services - Those services, generally administrative in nature, that relate to the operation of companies in any corporate family, regardless of whether a company in the corporate familyis involved in the provision of energy, energy- related products or services, telecommunications, or telecommunications-related products or services. Examples of services meeting this definition include, but are not limited to, payroll, shareholder services, insurance, financial reporting, financial planning and analysis, corporate accounting, corporate security, human resources (compensation, benefits, employment policies), employee records, pension management, and telecommunications and information systems only to the extent they are not used in the provision of electricity, energy-related products or services or the provision of retail or wholesale telecommunications products or services. Examples of services not meeting this definition include, but are not limited to, regulatory affairs, lobbying, legal services, employee recruiting, engineering, purchasing of electric transmission, system operations, marketing, and telecommunications and information systems used in the provision of electricity or energy-related products or services or the provision of retail or wholesale telecommunications products or services. (5) Proprietary customer information - Any information compiled by an electric utility on a customer in the normal course of providing electric service which makes possible the identification of any individual customer by matching such information with the customer's name, address, account number, type or classification of service, historical electricity usage, expected patterns of use, types of facilities used in providing service, individual contract terms and conditions, price, current charges, billing records, or any other information that the customer has expressly requested not be disclosed. Information relating to customers that is aggregated, redacted, or organized in such a way as to make it impossible to identify the customer to whom the information relates does not constitute proprietary customer information. (6) Service agreements - Contracts between a utility and an affiliate for the provision of corporate support services. (7) Temporary, intermittent, or rotational assignments - Non-permanent assignments that have a duration of less than one year, that begin and end in intervals, or that are cyclical in nature. (d) Structural and transactional safeguards. (1) Separate and independent entities. A utility shall be a corporate entity separate from its affiliates, operating independently. (2) Separate officers, directors, and employees. A utility shall not jointly employ officers, directors, and employees with an affiliate. The exception is that a parent company officer or director may serve on the board of the utility or on the board of an affiliate providing services or products related to energy or telecommunications, but not on both the board of the utility and of an affiliate providing services or products related to energy or telecommunications. (3) Books and records. A utility shall maintain books, records, and accounts separate from those of its affiliates, subject to review by the commission, as follows: (A) In accordance with generally accepted accounting principles and consistent with state and federal guidelines, a utility shall record all transactions with its affiliates, whether direct or indirect. (B) A utility shall prepare financial statements that are not consolidated with those of its affiliates. (C) A utility and its affiliates shall maintain sufficient records to allow for an audit of the transactions between the utility and its affiliates. At any time, the commission may, at its discretion, require a utility to initiate, at the utility's expense, an audit performed by an independent third party. (4) No credit support by a utility. A utility shall not allow an affiliate to obtain credit under any arrangement that would permit a creditor, upon default, to have recourse to the utility's assets. The financial arrangements of a utility's affiliates are subject to the following restrictions: (A) Any indebtedness incurred by an affiliate will be without recourse to the utility; (B) A utility shall not enter into any agreements under terms of which the utility is obligated to commit funds in order to maintain the financial viability of an affiliate; (C) A utility shall not make any investment in an affiliate under circumstances in which the utility would be liable for the debts and/or liabilities of the affiliate incurred as a result of acts or omissions of an affiliate; (D) A utility shall not issue any security for the purpose of financing the acquisition, ownership, or operation of an affiliate; (E) A utility shall not assume any obligation or liability as guarantor, endorser, surety, or otherwise in respect of any security of an affiliate; (F) A utility shall not pledge, mortgage or otherwise use as collateral any assets of the utility for the benefit of an affiliate; (G) This subsection does not affect a utility's obligations under other law or regulations, such as the obligations of a public utility holding company under sec.23.18(c)(2) of this title (relating to Foreign Utility Company Ownership by Exempt Holding Companies). (5) Arm's length transactions. Transactions between a utility and its affiliates shall be at arm's length. With the exception of transactions relating to corporate support services, transactions between a utility and its affiliates for products and services shall be made only in accordance with tariffs or through a fair, competitive bidding process. (A) Tariffs. Tariffs shall meet the requirements delineated in sec.23.24 of this title (relating to Form and Filing of Tariffs). Except as provided for in subparagraph (C) of this paragraph, any sales of a product or service by a utility to its affiliate shall be governed by a tariff on file with the commission, making the same products and services available to any third party entity on the same terms and conditions. (B) Competitive bidding. (i) Purchase of products or services by a utility from its affiliate. Except as provided for in subparagraph (C) of this paragraph, a utility may not enter into a transaction to purchase a product or service from an affiliate unless the transaction is the result of a fair, competitive bidding process formalized in a contract subject to the provisions of sec.25.273 of this title (relating to Contracts Between Electric Utilities and Their Affiliates). (ii) Transfers of assets other than generation or transmission facilities. For purposes of this subparagraph, assets are defined as those that are in rate base, previously were in rate base, or are capital assets of the utility. Any transfer of assets from a utility to its affiliates, other than generation or transmission facilities, must be the result of a fair, competitive bidding process formalized in a contract subject to the provisions of sec.25.273 of this title. (C) Corporate support services. A utility may engage in transactions directly related to the provision of corporate support services with its affiliates, in accordance with the requirements relating to service agreements set forth in sec.25.272 of this title (relating to Corporate Support Service Agreements Between Utilities and Their Affiliates). As a general principle, such provision of corporate support services shall not allow or provide a means for the transfer of confidential information from the utility to the affiliate, create the opportunity for preferential treatment or unfair competitive advantage, create opportunities for cross-subsidization of affiliates, or otherwise provide any means to circumvent these affiliate rules. (D) Transfer of generation or transmission assets. The transfer of generation or transmission assets from a utility to an affiliate will be reviewed by the commission pursuant to the provisions of PURA sec.sec.14.101, 35.034, and 35.035 and any rule implementing those sections. (6) Employee migration. (A) Tracking migration of employees. A utility shall track and document all employee movement between the utility and its affiliates. Such information shall be made available to the commission on an annual basis in the context of the utility's filing pursuant to sec.25.84 of this title (relating to Annual Reporting of Electric Utilities' Relationships with Affiliates). The tracking information shall include the following: an identification code for the migrating employee, the respective titles held while employed at each entity, the effective dates of the migration, and amount of the transfer fee paid, if applicable. Movement of an employee from a utility to an affiliate or vice versa shall be accomplished through the employee's termination of employment with one company and acceptance of employment with the other. (B) Employee rotation. Temporary, intermittent, or rotational assignments of utility employees to affiliates are prohibited. The exception to this provision is that employees may be temporarily assigned to an affiliated or non-affiliated utility to assist in restoring power in the event of a major service interruption. (C) Transfer fee. A utility shall be entitled to a one-time payment by its affiliate for the costs that the utility has invested in development of an employee who changes employment from the utility to the utility's affiliate. Such fees shall be recorded in a separate account for future consideration by the commission. The fees shall be calculated using the following formula: transfer fee = final salary x ((years of service with utility x 0.5%) + 10%). This subparagraph should not be construed as to interfere with the conditions of employment resulting from a collective bargaining agreement recognized under federal law. (7) Use of property and equipment. A utility shall not own property in common with its affiliate unless prior approval is obtained from the commission. A utility's office space and office equipment shall be physically separate from that of its affiliates, where physical separation is accomplished by having office space and equipment in either separate buildings or in secure, controlled-access areas within a building. A utility shall not share computer systems and information systems with an affiliate, nor shall a utility allow an affiliate access to its computer and information systems. The exception to this provision is that computer systems and information systems may be shared only to the extent necessary for the provision of corporate support services; however, the utility shall ensure that the proper cost allocation mechanisms, security access, and other safeguards are in place to ensure full compliance with these affiliate rules. (e) Safeguards relating to provision of products and services. (1) Products and services available on a non-discriminatory basis. If a utility makes a product or service available to an affiliate, it shall make the same product or service available to all non-affiliates on a nondiscriminatory basis. A utility shall process all requests for a product or service from affiliated and non-affiliated entities on a non-discriminatory basis. If a utility's tariff allows for discretion in its application, the utility shall apply that provision in the same manner to its affiliates and non-affiliates, as well as to their respective customers. If a utility's tariff allows no discretion in its application, the utility shall strictly apply that provision. Utilities are prohibited from using customer-specific contracts to circumvent these requirements. (2) Discounts, rebates, or fee waivers. If a utility offers its affiliate a discount, rebate, or fee waiver for any product or service, it shall make the same available on a non-discriminatory basis to all non-affiliates. A pricing benefit made available by the utility through an open, competitive bidding process will be considered to satisfy this requirement. Specifically, no less than 24 hours prior to a utility's provision to its affiliate of a discount, rebate, or fee waiver, the utility shall post a conspicuously-placed notice on its Internet site or public electronic bulletin board for at least 30 consecutive calendar days providing the following information: the name of the affiliate involved in the transaction; the rate charged; the normal rate; the period for which the pricing benefit applies; the quantities and the delivery points involved in the transaction; any conditions or requirements applicable to the pricing benefit, along with documentation of any cost differential underlying the pricing benefit, and the procedures by which non-affiliates may obtain the same benefit. (3) Tying arrangements prohibited. A utility shall not condition or tie the provision of any product, service, pricing benefit, or waiver of associated terms or conditions, to the purchase of any good or service from its affiliate. Nor may the utility give the appearance of engaging in such a tying arrangement. (f) Information safeguards. (1) Proprietary customer information. A utility shall not release proprietary customer information to an affiliate or any other person, other than the customer, without prior affirmative written consent by the customer. The customer shall be advised in writing that, to the extent that the customer permits the release of such information, the information shall be made available to all affiliates and non- affiliates on a strictly nondiscriminatory basis. (2) Nondiscriminatory availability of aggregate customer proprietary information. A utility shall make aggregate proprietary customer information, including but not limited to information about a utility's energy purchases, sales, or operations or about a utility's energy-related goods or services, available to its affiliate only if the utility makes such information available to all non-affiliates under the same terms and conditions and at the same price as it is made available to any of its affiliates. In addition, no later than 24 hours prior to a utility's provision to its affiliate of aggregate proprietary customer information, the utility shall post a conspicuously-placed notice on its Internet site or other public electronic bulletin board for at least 30 consecutive calendar days providing the following information: the name of the affiliate to which the information will be provided; the rate charged for the information; a meaningful description of the information provided; and the procedures by which non-affiliates may obtain the same information under the same terms and conditions. (3) Information shared for corporate support services. A utility may exchange non- customer related proprietary information on an exclusive basis with its affiliates, provided the utility follows all commission-adopted pricing and reporting guidelines for such transactions and it is necessary to exchange this information in the provision of corporate support services pursuant to subsection (d)(5)(C) of this section. The affiliate's use of such non-customer- related proprietary information is limited to use in conjunction with corporate support services as defined in this rule and is not permitted for any other use. (4) Other limitations on information disclosure. Nothing in this rule is intended to alter the specific limitations on disclosure of confidential information in the Texas Utilities Code, the Texas Government Code, Chapter 552, and the commission's substantive and procedural rules. (g) Safeguards relating to joint marketing and advertising. (1) Utility name or logo. A utility shall not allow the use of its name or logo by an affiliate in any written or auditory information, through radio or television, Internet-based, or other electronic format accessible to the public, unless the affiliate includes a disclaimer with its use of the utility name or logo. Such disclaimer shall be located at the first instance of the name or logo in the material distributed, must be written in a bold and conspicuous manner or clearly audible, as appropriate for the communication medium, and shall state the following: "{Affiliate name} is not the same company as {utility name}, and is not regulated by the Public Utility Commission of Texas. Customers of {utility name} do not have to buy products or services from {affiliate name} to continue to receive service from the regulated company, {utility name}. If you have questions about your rights as a consumer, please contact the Public Utility Commission of Texas by calling toll-free, 1-888-PUC-TIPS. Or, if you are in Austin, please call 936- 7120." This disclaimer applies only to the affiliate's use of the utility's name or logo within the State of Texas. (2) Joint business development, joint marketing prohibited. (A) Unless otherwise provided by these rules, a utility shall not: (i) provide or acquire leads on behalf of its affiliates; (ii) solicit business, or acquire information on behalf of its affiliates; or (iii) give the appearance of speaking or acting on behalf of any of its affiliates. (B) A utility shall not engage in joint marketing or advertising of its products or services with those of an affiliate, and shall not act or appear to act on behalf of an affiliate in any communications and contacts with any existing or potential customers. Such joint marketing and communication includes, but is not limited to, the following activities: (i) joint sales calls; (ii) joint proposals, either as a request for proposal or a response to a request for proposal; (iii) joint advertising, sales, communications, or correspondence, except that a utility may allow an affiliate access to customer bill advertising inserts so long as access to such inserts is made available on the same terms and conditions to non-affiliates offering similar services as the utility affiliate that uses bill inserts; (iv) joint presentations at trade shows, conferences, or other marketing- type events within the State of Texas; and (v) providing links from a utility's Internet web site to an affiliate's Internet web site. (3) Consumer requests for specific affiliate information. If a consumer requests information from a utility about any of its affiliates, the utility shall refer the consumer to the affiliate for more information only if the consumer request specifically mentions the affiliate's name. If a consumer does not specifically mention the affiliate's name, the utility shall follow the procedures set forth in paragraph (4) of this subsection. Under this paragraph, the only information that a utility may provide to the consumer is the affiliate's address and telephone number. The utility shall not transfer the customer directly to the affiliate's customer service office via telephone or provide any other electronic link whereby the customer could contact the affiliate through the utility. When providing the consumer information about the affiliate, the utility shall not promote its affiliate or its affiliate's products or services. (4) Consumer requests for general information about products or services offered by affiliates and their competitors. If a consumer requests general information from a utility about products or services provided by its affiliate or its affiliate's competitors, the utility shall provide to the consumer a current list of all affiliated and non-affiliated providers of these products or services, and shall not promote its affiliate or its affiliate's products or services. The utility shall be responsible for maintaining this service provider list. All service providers shall be arranged on the list in a random manner, using a uniform typeface. Any non-affiliated providers shall be responsible for ensuring that current information regarding their name and contact information is communicated to the utility maintaining the list. The utility shall post the current service provider list on its Internet site or other public electronic bulletin board on an ongoing basis and in a conspicuous manner, and shall file a current version of the list with the commission on a quarterly basis. In the event that the number of providers exceeds 100, the utility may direct the consumer to a telephone directory instead of providing a list of suppliers. Unless otherwise provided for in these rules, a utility shall not offer or provide customers advice or assistance with respect to its affiliates or other service providers. (h) Remedies and enforcement. (1) Enforcement by the commission. In addition to other methods that may be available, the commission may enforce the provisions of this rule by: (A) Entering a cease and desist order or other comparable order directing the utility to discontinue or to correct violations; (B) Pursuing administrative penalties under PURA, Chapter 15, Subchapter B. (2) No immunity from antitrust enforcement. Nothing in these affiliate rules shall confer immunity from state or federal antitrust laws. Sanctions imposed by the commission for violations of this rule do not affect or preempt antitrust liability, but rather are in addition to any antitrust liability that may apply to the anticompetitive activity. Therefore, antitrust remedies also may be sought in federal or state court to cure anticompetitive activities by utilities and their affiliates. (3) No immunity from civil relief. Nothing in these affiliate rules shall preclude any form of civil relief that may be available under federal or state law, including, but not limited to, filing a complaint with the commission. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State, on May 13, 1998. TRD-9807805 Rhonda Dempsey Rules Coordinator Public Utility Commission of Texas Earliest possible date of adoption: June 7, 1998 For further information, please call: (512) 936-7308 16 TAC sec.25.272 Section 25.272 is proposed under the Public Utility Regulatory Act, Texas Utilities Code Annotated (Vernon 1998) (PURA) sec.sec.11.002(a), 14.001, 14.002, 14.003, 14.151, 14.154, 31.001(c), 32.101(c), 35.003(b), 35.034, 35.035, 36.003, 36.058, 38.021, 38.022, 55.006, 51.001 and 52.001 as well as 15 U.S.C.A. sec.79z-5c and Texas Revised Civil Statutes Annotated article 717p (Vernon Supplement 1998). Section 11.002(a) requires establishment of a comprehensive and adequate regulatory system by the Public Utility Commission of Texas to ensure just and reasonable rates, operations, and services. Section 14.001 grants the commission the general power to regulate and supervise the business of each utility within its jurisdiction. Section 14.002 provides the commission with the authority to make and enforce rules reasonably required in the exercise of its powers and jurisdiction. Section 14.003 grants the commission the authority to require submission of information by the utility regarding its affiliate activities. Section 14.151 grants the commission authority to prescribe the manner of accounting for all business transacted by the utility. Section 14.154 grants the commission limited authority over the utility's affiliates, with respect to their transactions with the utility. Section 31.001(c) requires that the commission formulate and apply rules, policies, and principles to protect the public interest in a more competitive electric market place. Section 32.101(c) requires that customer proprietary information be treated as highly sensitive trade secrets. Section 35.003(b) prohibits electric utilities from granting undue preference to a person in connection with the purchase or sale of energy or other services. Section 35.034 grants the commission authority to approve transfers of certain assets between utilities and affiliates. Section 35.035 governs the valuation of assets transferred by a utility to or from an affiliate. Section 36.003 requires the commission to ensure that a utility's rates are just and reasonable, sufficient, equitable, and consistent in application to each class of consumer, and not unreasonably preferential, prejudicial, or discriminatory. Section 36.058 sets forth the circumstances under which the commission may allow payments by a utility to an affiliate. Section 38.021 requires that utilities not grant an unreasonable preference to or impose an unreasonable disadvantage on different persons in the same classification. Sections 38.022 and 55.006 require that utilities not discriminate against competitors or engage in practices that restrict or impair competition in electric and telecommunications markets, respectively. Sections 51.001 and 52.001 require that the commission implement innovative new rules, policies, and principles to protect the public interest in telecommunications markets and provide equal opportunity to telecommunications competitors. 15 U.S.C.A. sec.79z-5c grants the commission authority to regulate the transactions between PUHCA-jurisdictional utilities and their affiliated ETCs. Finally, Texas Revised Civil Statutes Annotated article 717p (Vernon Supplement 1998) grants Texas river authorities and their affiliates certain rights and privileges that differ from those of other electric utilities in the state. Cross Reference to Statutes: PURA sec.sec.11.002(a), 14.001, 14.002, 14.003, 14.151, 14.154, 31.001(c), 32.101(c), 35.003(b), 35.034, 35.035, 36.003, 36.058, 38.021, 38.022, 55.006, 51.001, and 52.001, 15 U.S.C.A. sec.79z-5c, and Texas Revised Civil Statutes Annotated article 717p (Vernon Supplement 1998). sec.25.272.Corporate Support Service Agreements Between Electric Utilities and Their Affiliates. (a) Purpose. This section establishes the requirements for the implementation of service agreements between regulated utilities and their affiliates as allowed for the provision of corporate support services pursuant to sec.25.271 of this title (relating to Code of Conduct for Electric Utilities and Their Affiliates). (b) Application. This section applies to all electric utilities operating in the State of Texas as defined in the Public Utility Regulatory Act (PURA) sec.31.002 (1), and also to affiliates as defined in PURA sec.11.003(2) to the extent specified herein. (c) Definitions. Any terms defined in sec.25.271 of this title have the same meanings herein. (d) Service agreements. A utility shall have a single service agreement in place for each affiliate with which it has any transactions related to corporate support services. Such agreements shall be maintained on file with the commission as specified in these affiliate rules. (1) In addition to the standard terms, a service agreement shall include, at a minimum, the following provisions: (A) the effective date of the agreement and identification of the parties to the agreement; (B) the term of the agreement; (C) a narrative describing the services provided to or by the utility, including a list by specific service of all the affiliated companies that provide or receive these services; (D) the obligations of the parties to the agreement; (E) method by which costs to the utility will be determined, to include direct and allocated expenses; (F) the billing and payment procedures; (G) a process whereby the utility can challenge an expense billed by the affiliate; (H) availability of the affiliate company's accounting records to the utility; and (I) audits of the affiliate by the utility. (2) All purchases of corporate support services by a utility from an affiliate shall be at the lower of actual cost or market value. (3) All sales of corporate support services by a utility to an affiliate shall be at the higher of actual cost or market value. (4) Amended service agreements shall be filed with the commission whenever there is a change in the scope or nature of affiliate transactions between a utility and the affiliate; the amended service agreement shall be filed within 30 days of the change. (e) Review and approval. Service agreements are subject to commission review and approval for compliance with PURA requirements and commission rules. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State, on May 13, 1998. TRD-9807806 Rhonda Dempsey Rules Coordinator Public Utility Commission of Texas Earliest possible date of adoption: June 7, 1998 For further information, please call: (512) 936-7308 16 TAC sec.25.273 Section 25.273 is proposed under the Public Utility Regulatory Act, Texas Utilities Code Annotated (Vernon 1998) (PURA) sec.sec.11.002(a), 14.001, 14.002, 14.003, 14.151, 14.154, 31.001(c), 32.101(c), 35.003(b), 35.034, 35.035, 36.003, 36.058, 38.021, 38.022, 55.006, 51.001 and 52.001 as well as 15 U.S.C.A. sec.79z-5c and Texas Revised Civil Statutes Annotated article 717p (Vernon Supplement 1998). Section 11.002(a) requires establishment of a comprehensive and adequate regulatory system by the Public Utility Commission of Texas to ensure just and reasonable rates, operations, and services. Section 14.001 grants the commission the general power to regulate and supervise the business of each utility within its jurisdiction. Section 14.002 provides the commission with the authority to make and enforce rules reasonably required in the exercise of its powers and jurisdiction. Section 14.003 grants the commission the authority to require submission of information by the utility regarding its affiliate activities. Section 14.151 grants the commission authority to prescribe the manner of accounting for all business transacted by the utility. Section 14.154 grants the commission limited authority over the utility's affiliates, with respect to their transactions with the utility. Section 31.001(c) requires that the commission formulate and apply rules, policies, and principles to protect the public interest in a more competitive electric market place. Section 32.101(c) requires that customer proprietary information be treated as highly sensitive trade secrets. Section 35.003(b) prohibits electric utilities from granting undue preference to a person in connection with the purchase or sale of energy or other services. Section 35.034 grants the commission authority to approve transfers of certain assets between utilities and affiliates. Section 35.035 governs the valuation of assets transferred by a utility to or from an affiliate. Section 36.003 requires the commission to ensure that a utility's rates are just and reasonable, sufficient, equitable, and consistent in application to each class of consumer, and not unreasonably preferential, prejudicial, or discriminatory. Section 36.058 sets forth the circumstances under which the commission may allow payments by a utility to an affiliate. Section 38.021 requires that utilities not grant an unreasonable preference to or impose an unreasonable disadvantage on different persons in the same classification. Sections 38.022 and 55.006 require that utilities not discriminate against competitors or engage in practices that restrict or impair competition in electric and telecommunications markets, respectively. Sections 51.001 and 52.001 require that the commission implement innovative new rules, policies, and principles to protect the public interest in telecommunications markets and provide equal opportunity to telecommunications competitors. 15 U.S.C.A. sec.79z-5c grants the commission authority to regulate the transactions between PUHCA-jurisdictional utilities and their affiliated ETCs. Finally, Texas Revised Civil Statutes Annotated article 717p (Vernon Supplement 1998) grants Texas river authorities and their affiliates certain rights and privileges that differ from those of other electric utilities in the state. Cross Reference to Statutes: PURA sec.sec.11.002(a), 14.001, 14.002, 14.003, 14.151, 14.154, 31.001(c), 32.101(c), 35.003(b), 35.034, 35.035, 36.003, 36.058, 38.021, 38.022, 55.006, 51.001, and 52.001, 15 U.S.C.A. sec.79z-5c, and Texas Revised Civil Statutes Annotated article 717p (Vernon Supplement 1998). sec.25.273.Contracts Between Electric Utilities and Their Affiliates. (a) Purpose. This section establishes the requirements for the implementation of contracts between regulated utilities and their affiliates resulting from a fair, competitive bidding process as allowed pursuant to sec.25.271 of this title (relating to Code of Conduct for Electric Utilities and Their Affiliates). (b) Application. This section applies to all electric utilities operating in the State of Texas as defined in the Public Utility Regulatory Act (PURA) sec.31.002 (1), and also to affiliates as defined in PURA sec.11.003 (2) to the extent specified herein. (c) Definitions. Any terms defined in sec.25.271 of this title have the same meanings herein. (d) Competitive bidding required. The utility shall conduct competitive bidding, as required by sec.25.271 of this title, to procure products and services that are offered by an affiliate or to sell assets other than generation or transmission assets. The commission may require competitive bidding in the context of any proceeding or inquiry. When competitive bidding is required, the utility shall conduct competitive bidding pursuant to this section or sec.23.36 of this title (relating to Solicitation of Resources), as appropriate. (1) Notice. The utility shall provide reasonable notice of any request for proposals required pursuant to this section. Such notice shall include: (A) notice by publication in trade journals or newspapers as appropriate; and (B) notice by mail to persons who previously requested to be notified of the request for proposals. (2) Independent evaluator. The utility shall use an independent evaluator when an affiliate bid is included among the bids to be evaluated. If an independent evaluator is required, the utility shall maintain a record of communications with the independent evaluator. The independent evaluator shall in writing identify the bids that are most advantageous and warrant negotiation and contract execution, in accordance with the criteria set forth in the request for proposals. The utility retains responsibility for final selection of products or services subject to the review and approval of the commission. (3) Competitive bidding procedures. The utility shall make a request for proposals available to interested persons. (A) The request for proposals must clearly set forth the eligibility and selection criteria and shall specify the weight to be given to any non-cost selection criteria. (B) The utility shall strictly enforce the criteria specified in the request for proposals. (C) Requests for proposals shall require that each bidder, including utility affiliates, submit the prescribed number of copies of its bid to the utility or independent evaluator as appropriate. (4) Evaluation of bids. The utility or independent evaluator, as appropriate, shall evaluate each bid submitted in accordance with the criteria specified in the request for proposals. The utility or independent evaluator may not give preferential treatment or consideration to any bid. (5) Rejection of bids. The utility is not required to accept a bid and may reject any or all bids in accordance with the selection criteria specified in the request for proposals. (e) Contracts. A utility shall file with the commission a signed copy of any contracts entered into with an affiliate as the result of the fair, competitive bidding process described in subsection (d) of this section. A contract shall include, at a minimum, the following provisions: (1) the effective date of the agreement and parties to the agreement; (2) the term of the agreement; (3) a narrative describing the services provided to the utility, including a list by specific service of all the affiliated companies who provide or receive these services, or a narrative describing the assets (other than generation or transmission assets) being sold by the utility to the affiliate; (4) the obligations of the parties; (5) the price for those products, services, or assets governed by the contract; and (6) billing and payment procedures. (f) Review and approval. Contracts are subject to commission review and approval for compliance with PURA requirements and commission rules. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State, on May 13, 1998. TRD-9807807 Rhonda Dempsey Rules Coordinator Public Utility Commission of Texas Earliest possible date of adoption: June 7, 1998 For further information, please call: (512) 936-7308 16 TAC sec.25.274 Section 25.274 is proposed under the Public Utility Regulatory Act, Texas Utilities Code Annotated (Vernon 1998) (PURA) sec.sec.11.002(a), 14.001, 14.002, 14.003, 14.151, 14.154, 31.001(c), 32.101(c), 35.003(b), 35.034, 35.035, 36.003, 36.058, 38.021, 38.022, 55.006, 51.001 and 52.001 as well as 15 U.S.C.A. sec.79z-5c and Texas Revised Civil Statutes Annotated article 717p (Vernon Supplement 1998). Section 11.002(a) requires establishment of a comprehensive and adequate regulatory system by the Public Utility Commission of Texas to ensure just and reasonable rates, operations, and services. Section 14.001 grants the commission the general power to regulate and supervise the business of each utility within its jurisdiction. Section 14.002 provides the commission with the authority to make and enforce rules reasonably required in the exercise of its powers and jurisdiction. Section 14.003 grants the commission the authority to require submission of information by the utility regarding its affiliate activities. Section 14.151 grants the commission authority to prescribe the manner of accounting for all business transacted by the utility. Section 14.154 grants the commission limited authority over the utility's affiliates, with respect to their transactions with the utility. Section 31.001(c) requires that the commission formulate and apply rules, policies, and principles to protect the public interest in a more competitive electric market place. Section 32.101(c) requires that customer proprietary information be treated as highly sensitive trade secrets. Section 35.003(b) prohibits electric utilities from granting undue preference to a person in connection with the purchase or sale of energy or other services. Section 35.034 grants the commission authority to approve transfers of certain assets between utilities and affiliates. Section 35.035 governs the valuation of assets transferred by a utility to or from an affiliate. Section 36.003 requires the commission to ensure that a utility's rates are just and reasonable, sufficient, equitable, and consistent in application to each class of consumer, and not unreasonably preferential, prejudicial, or discriminatory. Section 36.058 sets forth the circumstances under which the commission may allow payments by a utility to an affiliate. Section 38.021 requires that utilities not grant an unreasonable preference to or impose an unreasonable disadvantage on different persons in the same classification. Sections 38.022 and 55.006 require that utilities not discriminate against competitors or engage in practices that restrict or impair competition in electric and telecommunications markets, respectively. Sections 51.001 and 52.001 require that the commission implement innovative new rules, policies, and principles to protect the public interest in telecommunications markets and provide equal opportunity to telecommunications competitors. 15 U.S.C.A. sec.79z-5c grants the commission authority to regulate the transactions between PUHCA-jurisdictional utilities and their affiliated ETCs. Finally, Texas Revised Civil Statutes Annotated article 717p (Vernon Supplement 1998) grants Texas river authorities and their affiliates certain rights and privileges that differ from those of other electric utilities in the state. Cross Reference to Statutes: PURA sec.sec.11.002(a), 14.001, 14.002, 14.003, 14.151, 14.154, 31.001(c), 32.101(c), 35.003(b), 35.034, 35.035, 36.003, 36.058, 38.021, 38.022, 55.006, 51.001, and 52.001, 15 U.S.C.A. sec.79z-5c, and Texas Revised Civil Statutes Annotated article 717p (Vernon Supplement 1998). sec.25.274.Compliance Proceeding to Implement Code of Conduct for Electric Utilities and Their Affiliates. (a) Purpose. This section establishes the requirements for the compliance proceeding necessary for the initial implementation of sec.25.271 of this title (relating to Code of Conduct for Electric Utilities and Their Affiliates). (b) Application. This section applies to all electric utilities operating in the State of Texas as defined in the Public Utility Regulatory Act (PURA) sec.31.002(1), and also to affiliates as defined in PURA sec.11.003(2) to the extent specified herein. (c) Definitions. Any terms defined in sec.25.271 of this title have the same meanings herein. (d) Filing of compliance plans. Within 45 days of the effective date of this section, each utility shall file a compliance plan explaining the mechanisms and procedures it proposes to employ to ensure the utility's full compliance with these affiliate rules. (1) Initial compliance plans. The utility shall file its initial compliance plan with the commission under the project number designated by the commission for that purpose. (A) The utility's initial compliance plan shall become effective on an interim basis on the day it is filed. (B) After the initial plan is reviewed, the commission will either approve the plan as filed or order necessary revisions. (C) If the utility seeks exemption from any portion of the rule it may list its proposed exemptions under the Application provisions of the initial compliance plan. Upon its review of the plan, the commission shall rule on the proposed exemptions and, if denied, specify the utility's schedule for meeting the provisions at issue. Any exemption from these affiliate rules is subject to review by the commission at any time on its own motion, to determine whether the exemption is still necessary to protect the public interest. (D) As a part of the utility's initial compliance plan, service agreements for all corporate support services and copies of existing contracts between utilities and their affiliates shall be filed with the commission. (2) Annual updates of compliance plans. By June 1 of each year, a utility shall review its compliance plan and file a revised version, if necessary, to indicate any changes in mechanisms and procedures for complying with the commission's affiliate rules. (3) Creation of new affiliates. Upon creation of a new affiliate, a utility shall immediately notify the commission and shall post a conspicuously-placed notice on its Internet site or other public electronic bulletin board for at least 30 consecutive calendar days. No later than 30 days after the creation of an affiliate, the utility shall file an amendment to its compliance plan with the commission, detailing how the utility will implement these affiliate rules with respect to the new affiliate. (e) Annual audit of utility activity with affiliates. For each calendar year following the effective date of this section, the utility shall have an audit prepared by an independent auditor according to generally accepted accounting principles and generally accepted auditing standards. The audit shall evaluate the utility's compliance with these affiliate rules on a comprehensive basis and in a detailed manner. By June 1 of each year, each utility shall file the independent auditor's report under a control number designated by the commission. The independent audit shall be at shareholder expense. (f) Compliance plan provisions. A utility's compliance plan shall address each provision of these affiliate rules. A utility shall provide sufficient detail to show how it will comply with all of the provisions of these affiliate rules. General statements that policies are in effect and appropriate personnel have been instructed to abide by them are not sufficient and are cause for immediate rejection of the compliance plan. The following provisions identify specific items that shall be included in the compliance plan; the items identified are not to be construed as exclusive, however. (1) Application of the affiliate rules. A utility shall: (A) list any approved exemptions from these affiliate rules; and (B) explain its methods for separating accounts and operations governed by affiliate rules from any utility operations outside the State of Texas. (2) Structural and transactional safeguards. (A) Separate entities. A corporate officer from the utility and parent company shall certify by affidavit the adequacy of specific mechanisms and procedures, as explained elsewhere in the compliance plan, to ensure that the utility is not utilizing the holding company or any of its affiliates as a conduit to circumvent these affiliate rules. (B) Separate officers, directors, and employees. To the extent that there are shared directors and officers as permitted by these affiliate rules, a corporate officer from the utility and parent company shall certify by affidavit the procedures and mechanisms in place, and the adequacy thereof, to ensure that such sharing does not in any way circumvent these affiliate rules. (3) Books and records. A utility shall: (A) show that its records are sufficient for commission or third-party audits, including an annual rules compliance review; and (B) describe its internal audit system. (4) No credit support to affiliate by utility. A utility shall: (A) certify by affidavit that it is providing no credit support to any of its affiliates; and (B) explain internal systems used to avoid affiliate recourse to utility assets. (5) Arm's length transactions. A utility shall explain its system for ensuring that all affiliate transactions are at arm's length. (6) Employee migration. A utility shall explain its system for tracking employee transfers between the utility and its affiliates, including how it will maintain records regarding: (A) job titles and job descriptions for positions held by migrating employees at each entity; (B) effective dates of migration; (C) amounts of transfer fees paid, as applicable. (7) Use of property and equipment. (A) A utility shall provide a description of any property held in common with an affiliate, including a description of the circumstances under which such shared ownership was approved by the commission. (B) A utility shall describe how it accomplishes physical separation of offices and equipment, including any related security access controls. For any shared computer systems, the utility shall: (i) describe access controls and cost allocation methods; and (ii) describe all other safeguard mechanisms used to ensure that these affiliate rules are not circumvented as a result of using the shared system. (8) Safeguards relating to provision of products and services. (A) Nondiscriminatory provision of products and services. For all products and services (including discounts, rebates, fee waivers, and bill inserts), a utility shall explain its procedures for making such products and services available to all non-affiliates, and for processing all requests for such products and services, on a non-discriminatory basis. (B) Discounts, rebates, and fee waivers. A utility shall explain its system for prior posting of information regarding discounts, rebates, fee waivers and any other activity where such is required by these affiliate rules. (9) Information safeguards. A utility shall describe its procedures for obtaining customer consent for use of proprietary information, and shall provide a sample customer consent form. (10) Joint marketing and advertising. (A) Use of name and logo. A utility shall explain its methods for implementing the use of utility name and logo disclaimer provisions of this rule and shall provide sample materials demonstrating use of the disclaimer. (B) Customer inquiries. A utility shall explain its procedures for responding to customer requests for product or service information, and shall provide to the commission sample materials used, such as, but not limited to, training materials for customer service representatives and sample customer service scripts. (C) List of non-affiliated service providers. A utility shall describe its procedures for maintaining and distributing a list of non-affiliated service providers. (11) Internal mechanisms for education and enforcement. A utility shall provide: (A) a description of how the utility will educate its employees regarding their obligations relating to these affiliate rules and the utility's compliance plan; (B) information regarding disciplinary measures that address any actions by utility employees that are in violation of these affiliate rules or the utility's compliance plan. (12) Other information. A utility shall provide any other information in its compliance plan that it believes will aid the commission in determining whether the utility is in full compliance with these affiliate rules. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State, on May 13, 1998. TRD-9807808 Rhonda Dempsey Rules Coordinator Public Utility Commission of Texas Earliest possible date of adoption: June 7, 1998 For further information, please call: (512) 936-7308 CHAPTER 26.Substantive Rules Applicable to Telecommunications Service Providers SUBCHAPTER J.Costs, Rates and Tariffs 16 TAC sec.26.213 The Public Utility Commission of Texas proposes new sec.26.213 relating to Telecommunications Pricing. Project Number 18886 has been assigned to this proceeding. This section details the pricing restrictions that a dominant certificated telecommunications utility (DCTU) subject to the provisions of this rule must conform with in providing different types of telecommunications services in Texas. This section also adds a subsection that allows such DCTUs to package, with restrictions, basic network services with certain discretionary services. By allowing such packaging and detailing the related restrictions, the section will foster additional competition in the local telecommunications markets in Texas while protecting consumers and competitors from potential discriminatory and unreasonable pricing practices by DCTUs. It should be noted that the section allows packaging, but does not require packaging of basic network services and discretionary services. The Appropriation Act of 1997, HB 1, Article IX, Section 167 (Section 167) requires that each state agency review and consider for readoption each rule adopted by that agency pursuant to the Government Code, Chapter 2001 (Administrative Procedure Act). Such reviews shall include, at a minimum, an assessment by the agency as to whether the reason for adopting or readopting the rule continues to exist. The PUC held three workshops to conduct a preliminary review of its rules. As a result of these workshops, the PUC is reorganizing its current substantive rules located in 16 Texas Administrative Code (TAC) Chapter 23 to (1) satisfy the requirements of Section 167; (2) repeal rules no longer needed; (3) update existing rules to reflect changes in the industries regulated by the commission; (4) do clean-up amendments made necessary by changes in law and commission organizational structure and practices; (5) reorganize rules into new chapters to facilitate future amendments and provide room for expansion; and (6) reorganize the rules according to the industry to which they apply. 16 TAC Chapter 26 has been established for all commission substantive rules applicable to telecommunications service providers. The duplicative sections of Chapter 23 will be proposed for repeal as each new section is proposed for publication in the new chapter. Proposed new sec.26.213 replaces and modifies sec.23.104, of this title (relating to Telecommunications Pricing). All but one of the definitions in this section have been deleted because they have been moved to proposed sec.26.5 of this title (relating to definitions). The definition for "service" as defined in 26.213(b) is specific to this section. Mr. Nelson Parish, chief economic analyst, Office of Policy Development, and Ms. Meena Thomas, assistant director, Office of Regulatory Affairs, have determined that for the first five- year period the section is in effect there will be no fiscal implications for state or local government as a result of the enforcing or administering the sections. Mr. Parish and Ms. Thomas have also determined that for each year of the first five years the section is in effect, the public benefit anticipated as a result of enforcing this section will be, generally, benefits associated with increased, but controlled, competition. Such benefits include, but are not limited to, more choice in telecommunications services, lower prices for telecommunications services, the ability to buy packages of telecommunications services that best suit their needs, and protection of the competitive market from anticompetitive and discriminatory behavior. Small businesses, being consumers of telecommunications services, would benefit from the increase in competition, as would larger businesses and residential customers. There is no anticipated economic cost to persons who are required to comply with the proposed new section. The proposed modifications to sec.26.213 as compared to existing sec.23.104 are simply an expansion of options (and restrictions related to those options) for companies subject to sec.23.104. For each year of the first five years the section is in effect, there will be no effect on the costs of small businesses as a result of enforcing the proposed section. Mr. Parish and Ms. Thomas have further determined that for the first five years the proposed section is in effect there will be no impact on the opportunities for employment in the geographic areas of Texas affected by implementing the requirements of the rules. The Texas Register will publish sec.26.213 as all new text. Interested persons may obtain a redline comparing proposed sec.26.213 to existing sec.23.104 at the Public Utility Commission of Texas, Central Records Division, under Project Number 18886. Comments on the proposed section (16 copies) may be submitted to Filing Clerk, Public Utility Commission of Texas, 1701 N. Congress Avenue, P.O. Box 13326, Austin, Texas, 78701-3326, within 30 days after publication. Reply comments may be submitted within 45 days after publication. All comments should refer to Project Number 18886. The commission invites specific comments regarding the costs associated with, and benefits that will be gained by, implementation of the amendment. The commission will consider the costs and benefits in deciding whether to adopt the amendment. A public hearing on this matter will be held on Monday, June 29, 1998 at 10:00 a.m., at the commission's offices at 1701 N. Congress Avenue, Austin, TX 78701. This section is proposed under the Public Utility Regulatory Act, Texas Utilities Code Annotated sec.14.002 (Vernon 1998) (PURA), which provides the Public Utility Commission of Texas with the authority to make and enforce rules reasonably required in the exercise of its powers and jurisdiction, and sec.52.001(b), which provides the Public Utility Commission of Texas with the authority to formulate and apply rules to protect the public interest and provide equal opportunity to each telecommunications utility in a competitive marketplace. Cross Index to Statutes: Public Utility Commission of Texas sec.14.002 and sec.52.001(b). sec.26.213. Telecommunications Pricing. (a) Purpose. The purpose of this section is to establish principles to foster economic efficiency and the public welfare in the pricing of telecommunications services. (b) Application. Except as otherwise provided herein, the provisions of this section shall apply to dominant certificated telecommunications utilities (DCTUs). Unless the DCTU has elected to be regulated under the terms of the Public Utility Regulatory Act (PURA) Chapter 58, the provisions of this section may be applied to a DCTU serving 31,000 or more but fewer than one million access lines only on a bona fide request by a holder of a certificate of operating authority or service provider certificate of operating authority. (c) Definition. As used in this section, "service" is a tariffed or contract offering which a customer may purchase to the exclusion of other offerings. For example: the various mileage bands for standard toll services are rate elements, not services; individual optional calling plans that can be purchased individually and which are offered as alternatives to each other are services, not rate elements. (d) General principles. (1) Subsidy-free pricing. (A) Telecommunications prices should be subsidy-free. Subsidy-free prices prevent one service or group of services from subsidizing or being subsidized by another. This language is not meant to preclude the use of explicit universal service support mechanisms to maintain affordable rates. (B) Pricing all services produced by a DCTU above long run incremental cost (LRIC) will ensure subsidy-free pricing. (C) In a subsidy-free pricing environment, support for universal basic telecommunications service must come from an explicit subsidy, such as a Universal Service Fund. (D) The transition to subsidy-free pricing should be undertaken in stages, in coordination with implementation of state and federal universal service support mechanisms and initiatives to reform pricing of access services. (2) Customer-specific pricing. When set above incremental cost and not used in an anticompetitive manner, customer-specific pricing can benefit the general body of ratepayers and foster economic efficiency by encouraging utilization of under- utilized facilities. (3) Inefficient or uneconomic costs. The commission has no obligation to ensure that a DCTU recovers inefficient or uneconomic costs. (e) Basic network services. Except as provided by paragraph (2) of this subsection, a DCTU may not exercise pricing flexibility for a basic network service. (1) The following services are initially classified as basic network services: (A) flat-rate residential and business local exchange telephone service, including primary directory listings and the receipt of a directory and any applicable mileage or zone charges; (B) tone dialing service; (C) lifeline and tel-assistance services; (D) service connection for basic services; (E) direct inward dialing service for basic services; (F) private pay telephone access service; (G) call trap and trace service; (H) access to 911 service, where provided by a local authority, and access to dual party relay service; (I) switched access service; (J) interconnection to competitive providers; (K) mandatory extended area service arrangements; (L) mandatory extended metropolitan service or other mandatory toll-free calling arrangements; (M) interconnection for commercial mobile service providers; (N) directory assistance; and (O) 1+ intraLATA message toll service. (2) An electing local exchange company (LEC) may lower the rate for a basic network service to the service's price floor. For an electing LEC that is required by the commission to perform long run incremental cost studies or elects to perform those studies, the price floor for switched access service or for any basic local telecommunications service shall be LRIC. For any other electing LEC, the price floor for basic local telecommunications service shall be the appropriate cost of the service. (3) In setting the price of a basic network service, the commission shall pursue the goal of maintaining basic services at affordable rates for customers. (f) Discretionary services. Except as provided by paragraph (5) of this subsection, a DCTU may not exercise pricing flexibility for a discretionary service. (1) The following services shall initially be classified as discretionary services. (A) 1+ intraLATA message toll services, where intraLATA equal access is available; (B) 0+, 0- operator services; (C) call waiting, call forwarding, and custom calling features not classified as competitive services; (D) call return, caller ID, and call control options not classified as competitive services; (E) central office-based PBX - type services; (F) billing and collection services; (G) integrated services digital network (ISDN) services; and (H) new services. (2) The price for a discretionary service shall not be set below LRIC or the price floor prescribed by sec.23.102 of this title (relating to Imputation), whichever is higher. An electing LEC may request the establishment of a price floor for a discretionary service that is above LRIC. (3) The price of a discretionary service shall not be set above the service's stand-alone cost. An electing LEC may request the establishment of a ceiling for a discretionary service that is below stand-alone cost. (4) The price ceiling for a discretionary service provided by an electing LEC may not be set below or above the rate in effect on September 1, 1995, without regard to proceedings pending under PURA sec.sec.12.004, 15.001, 15.002, 53.151 and 53.152 or under Government Code, Chapter 2001, Subchapter G. The ceiling may be raised only after the proceedings required under PURA, Chapter 60. Thereafter, on application by the DCTU or on the commission's own motion, the commission may change the price ceiling but may not increase the ceiling more than 10% annually. (5) Within the range of the floor and the ceiling established pursuant to this subsection, an electing LEC may change the price of a discretionary service but shall notify the commission of each change. Such price changes may include volume and term discounts, zone density pricing, packaging of services, customer specific pricing, and other promotional pricing flexibility. Packaging of services may include packaging of an installation service or charge with provision of the corresponding service. An electing LEC lowering the price of any component of a package of services, including an installation charge, shall demonstrate that the package of services affected by the price change recovers its LRIC within one year of the price change. (6) Discounts and other forms of pricing flexibility for discretionary services may not be preferential, prejudicial, or discriminatory. (g) Competitive services. Except as provided by paragraphs (2) and (4) of this subsection, a DCTU may not exercise pricing flexibility for a competitive service. (1) The following services shall initially be classified as competitive services: (A) services described in the WATS tariff as of January 1, 1995; (B) 800 and foreign exchange services; (C) private line service; (D) special access service; (E) services from public pay telephones; (F) paging services and mobile services (IMTS); (G) 911 premises equipment; (H) speed dialing; and (I) three-way calling. (2) The price for a competitive service shall not be set below LRIC or the price floor prescribed by sec.23.102 of this title, whichever is higher. An electing LEC may request the establishment of a price floor for a competitive service that is above the floor prescribed by this paragraph. (3) An electing LEC may set the price for a competitive service at any level above the floor prescribed in this subsection. Permissible pricing flexibility includes volume and term discounts, zone density pricing, packaging of services, customer specific contracts, and other promotional pricing flexibility, subject to the requirements of PURA sec.60.001 and sec.60.002. However, an electing LEC may not increase the price of a service in a geographic area in which that service or a functionally equivalent service is not readily available from another provider. The pricing flexibility allowed by this subsection permits the packaging of a competitive service with one or more discretionary services only if the DCTU demonstrates that the rate for the package of services is greater than the sum of the LRIC of the competitive service and the tariffed rates of the discretionary services included in the package. (4) Prices for competitive services may not be unreasonably preferential, prejudicial, or discriminatory. (h) Packaging of different types of services. (1) The packaging of basic network telecommunications services with competitive services is not permitted for a DCTU. (2) The packaging of basic network telecommunications services with any discretionary services tariffed as of the date of adoption of this section is permitted for a DCTU, except that a DCTU may not package the following services with basic network services: (A) 1+ intraLATA message toll services where intraLATA equal access is available; (B) central office-based PBX-type services; and (C) billing and collection services. (3) The packaging of basic network telecommunications services with discretionary services tariffed after the date of adoption of this section will be considered by the commission on a case-by-case basis. (4) A package that includes a basic network service may not be offered in a manner that results in any of the following: (A) a volume discount, (B) a term discount, (C) a reduction and/or waiver of installation charges, or (D) geographic deaveraging. (5) Calculating price floors and price ceilings for a package. A DCTU packaging basic network and discretionary services must: (A) set the price floor for the package equal to the sum of the LRICs of all of the basic network services in the package and the sum of either the LRICs or the price floors, prescribed by sec.23.102 of this title, of all discretionary services in the package; (B) set the price ceiling for the package no higher than the sum of the price ceilings of all of the basic network services, which are either the rates in effect when the DCTU elected or the rates changed as requested by the DCTU and/or set by the commission after the DCTU elected, and the sum of the price ceilings of all of the discretionary services, set as prescribed by subsections (f)(3) and (f)(4) of this section; (C) make the price ceiling equal to the price floor if the calculations in subparagraphs (A) and (B) of this paragraph would create a price ceiling below the price floor of the package; and (D) not raise the price of the package once such price has been lowered. (6) If a package of basic network and discretionary services is offered to any customer in a customer class, it must be offered to all customers within that customer class. (7) Prices for packages of basic network and discretionary services may not be unreasonably preferential, prejudicial, or discriminatory. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State, on May 8, 1998. TRD-9807524 Rhonda Dempsey Rules Coordinator Public Utility Commission of Texas Earliest possible date of adoption: June 21, 1998 For further information, please call: (512) 936-7308 PART VI. Texas Motor Vehicle Commission CHAPTER 107.Warranty Performance Obligations 16 TAC sec.107.8 The Texas Motor Vehicle Board proposes amendments to sec.107.8, concerning Decisions. The section sets forth guidelines for final decisions made under the Lemon Law. The proposal reinstates paragraphs which were inadvertently deleted when sec.107.8 was amended in January, 1998 to formulate a reasonable allowance for use for towable recreational vehicles. Paragraph sec.107.8(7) authorizes the Director, Motor Vehicle Division, to require the dealer to reimburse the complainant, manufacturer, distributor, or converter for the cost of any items or options added to the vehicle but only to the extent that they contributed to the defect forming the basis of the repurchase or replacement. Paragraph sec.107.8(8) authorizes the entry of an order requiring repair of a vehicle to obtain compliance with the manufacturer's warranty obligations under sec.3.08(i) or sec.6.07(b) if it does not qualify for repurchase or replacement under sec.6.07(c). Paragraph sec.107.8(9) makes provision for reconsideration of the ordered repurchase price if a vehicle is substantially damaged or has an adverse change in condition beyond ordinary wear and tear. Paragraph sec.107.8(10) requires the Board to enter a written order and provide a copy to the parties in each case where a hearing is held. Brett Bray, Director, Motor Vehicle Division has determined that for the first five-year period the sections are in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the sections. Mr. Bray also has determined that the public benefit anticipated as a result of the proposed amendments to sec.107.8 will be to maintain continuity of the Board's policies concerning lemon law hearings and provide guidelines concerning irregularities in the disposition of lemon law cases. There will be no effect on small businesses and no anticipated economic cost to persons who are required to comply with the sections as proposed. Comments on the proposal may be submitted to Brett Bray, Division Director, Motor Vehicle Division, Texas Department of Transportation, P. O. Box 2293, Austin, Texas 78768, (512) 416-4800. The Motor Vehicle Board will consider adoption of the proposed amendments at its meeting on July 9, 1998. The deadline for receipt of comments on the proposed amendments is 5:00 p.m. on June 22, 1998. The amendments are proposed under the Texas Motor Vehicle Commission Code, sec.3.06, which provides the Board with authority to adopt rules necessary and convenient to effectuate the provisions of the act and to govern practice and procedure before the agency. Motor Vehicle Commission Code, sec.6.07 is affected by the proposed amendment. sec.107.8.Decisions. Any decisions by the board and recommended decision by a hearing officer shall give effect to the presumptions provided the Texas Motor Vehicle Commission Code, sec.6.07(d), where applicable. (1)- (6) (No change.) (7)
                                                                                                                                                                                                                                                                                              In any award in favor of a complainant, the executive director may require the dealer involved to reimburse the complainant, manufacturer, distributor, or converter for the cost of any items or options added to the vehicle but only to the extent that one or more of such items or options contributed to the defect that served as the basis for the order of repurchase or replacement. In no event shall this paragraph be interpreted to mean that a manufacturer, distributor, or converter will be required to repurchase a vehicle due to a defect or condition that was solely caused by a dealer add-on item or option.
                                                                                                                                                                                                                                                                                                (8)
                                                                                                                                                                                                                                                                                                  If it is found by the commission that a complainant's vehicle does not qualify for replacement or repurchase, then the commission shall enter an order dismissing the complaint insofar as relief under the lemon law is concerned. However, the commission may enter an order in any proceeding, where appropriate, requiring repair work to be performed or other action taken to obtain compliance with the manufacturer's, distributor's, or converter's warranty obligations.
                                                                                                                                                                                                                                                                                                    (9)
                                                                                                                                                                                                                                                                                                      If the vehicle is substantially damaged or there is an adverse change in its condition, beyond ordinary wear and tear, from the date of delivery to the owner to the date of repurchase, and the parties are unable to agree on an amount of an allowance for such damage or condition, either party shall have the right to request reconsideration by the commission of the repurchase price contained in the final order.
                                                                                                                                                                                                                                                                                                        (10)
                                                                                                                                                                                                                                                                                                          The commission will issue a written order in each case in which a hearing is held and a copy of the order will be sent to all parties.
                                                                                                                                                                                                                                                                                                            This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State, on May 7, 1998. TRD-9807479 Brett Bray Director Texas Motor Vehicle Commission Proposed date of adoption: July 9, 1998 For further information, please call: (512) 463-8630 TITLE 22. EXAMINING BOARDS PART XXIII. Texas Real Estate Commission CHAPTER 535.Provisions of the Real Estate License Act SUBCHAPTER S.Registration of Easement or Right-of-Way Agents 22 TAC sec.535.400, sec.535.403 The Texas Real Estate Commission (TREC) proposes an amendment to sec.535.400, concerning registration of easement or right-of-way agents, and new sec.535.403, concerning renewal of registration. The amendment to sec.535.400 adopts by reference two revised application forms used by individuals or business entities in seeking registration as an easement or right-of-way agent. The proposed application forms, Forms ERW 1-1 and ERW 2-1, would require applicants to indicate the physical location of the applicant's office and to provide a mailing address if that address is different from the location of the office. An individual applicant also would designate a residence mailing address. These changes will ensure that the commission can communicate with the registrant by mail or in person. The revised Form ERW 2-1 would no longer require a business entity other than a corporation or limited liability company to provide a certificate of good standing from the Comptroller of Public Accounts since state law requires only corporations or limited liability companies to be in good standing prior to receiving a registration or license from the state. New sec.535.403 provides a procedure for annual renewal of a registration and adopts by reference an application form which a registrant would use for renewal. The new section is based on the commission's renewal process for other licenses issued by the commission. Generally, the commission would mail a renewal notice to each registrant, who would be required to file the renewal application, along with the statutory fee of $150, by the last day the current registration is valid. A registrant who fails timely to renew the registration would have to file a new application for registration to be issued another registration certificate. Mark A. Moseley, general counsel, has determined that for the first five-year period the sections are in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the sections. While there would be a nominal expense associated with mailing annual renewal notices to some 800 registrants, those expenses would be offset by the annual fee of $150 paid by each registrant. There is no anticipated impact on local or state employment as a result of implementing the sections. Mr. Moseley also has determined that for each year of the first five years the sections as proposed are in effect the public benefit anticipated as a result of enforcing the sections will be orderly procedures for registering and renewing the registration of easement or right-of-way agents. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the proposed sections, other than the annual registration fees set by statute at $150. Comments on the proposal may be submitted to Mark A. Moseley, General Counsel, Texas Real Estate Commission, P.O. Box 12188, Austin, Texas 78711-2188. The amendment and new section are proposed under Texas Civil Statutes, Article 6573a, sec.5(h), which authorize the Texas Real Estate Commission to make and enforce all rules and regulations necessary for the performance of its duties The statute that is affected by these sections is Texas Civil Statutes, Article 6573a. sec.535.400.Registration of Easement or Right-of-Way Agents. (a) The Texas Real Estate Commission adopts by reference the following forms approved by the Texas Real Estate Commission. These forms are published by and available from the Texas Real Estate Commission, P. O. Box 12188, Austin, Texas 78711- 2188. (1) ERW 1-1
                                                                                                                                                                                                                                                                                                              [1-0], Application For Easement Or Right-of-Way Agent Registration For An Individual; and (2) ERW 2-1
                                                                                                                                                                                                                                                                                                                [2-0], Application For Easement Or Right-of-Way Agent Registration For A Business. (b) An individual desiring to be registered by the commission as an easement or right- of-way agent must file form ERW 1-1
                                                                                                                                                                                                                                                                                                                  [1-0] with the commission. If the applicant is a business, the applicant must file form ERW 2-1
                                                                                                                                                                                                                                                                                                                    [2- 0]. All applicants must submit the applicable fees set forth in The Real Estate License Act, Texas Civil Statutes, Article 6573a, (the Act). The commission will not accept an application which has been submitted without the correct filing fees or which has been submitted in pencil. (c)-(f) (No change.) sec.535.403.Renewal of Registration. (a) The commission shall establish a time period for renewal of each registration, which shall end with the expiration date of the current registration. Each registrant has the responsibility to apply for renewal of a registration by making proper application as specified by this section. Applications must be made on the current renewal application form approved by the commission accompanied by the fee required by Section 11(a)(16) of The Real Estate License Act (the Act). Failure to receive a registration renewal application form from the commission does not relieve a registrant of the obligation to obtain the appropriate form and to apply for renewal to maintain registration. Failure to provide information requested by the commission in connection with a renewal application is grounds for disciplinary action under the Act, sec.9A(c)(4). A registrant who fails timely to pay a renewal fee must apply for and receive a new registration in order to act as an easement or right-of-way agent. (b) The Texas Real Estate Commission adopts by reference Renewal Application Form ERW 5-0, approved by the commission in 1998. This form is published by and available from the Texas Real Estate Commission, P.O. Box 12188, Austin, Texas 78711-2188. (c) The commission shall advise each registrant of the time period for filing a renewal application and paying the renewal fee by mailing a renewal application form to the registrant's last known business address at least three months before expiration of the current registration. The commission shall have no obligation to so notify a business entity such as a corporation, limited liability company or partnership, that has failed to designate an officer, manager or partner who meets the requirements of Section 6(d) of the Act. The commission may not renew a registration issued to a business entity unless the entity has designated an officer, manager or partner who meets the requirements of the Act. (d) An application for renewal will be deemed to have been timely filed if it shows a postmark on or before the expiration date of the registration. When the last day of the renewal period falls on a non-business day, renewal applications also will be deemed to have been timely filed if received or postmarked no later than the first business day following the last day of the renewal period. "Non- business" days are Saturday, Sunday and any other day upon which the commission offices are closed due to a state holiday designated in the General Appropriations Act or by other law. (e) Renewals by registrants who are on active duty in the United States armed forces or who are subject to the provisions of the Texas Education Code, sec.57.491, concerning certain student loans also will be governed by sec.535.92 of this title (Relating to Miscellaneous Provisions Concerning License Renewals). This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State, on May 8, 1998. TRD-9807516 Mark A. Moseley General Counsel Texas Real Estate Commission Earliest possible date of adoption: June 21, 1998 For further information, please call: (512) 465-3900 TITLE 25. HEALTH SERVICES PART I. Texas Department of Health CHAPTER 33.Early and Periodic Screening, Diagnosis, and Treatment On behalf of the State Medicaid Director, the Texas Department of Health (department) proposes the repeal of sec.33.263, sec.sec.33.301-33.309, sec.sec.33.314-33.318, sec.33.320, sec.sec.33.322-33.327, and sec.sec.33.331- 33.338, and new sec.sec.33.301-33.309, sec.sec.33.312-33.318, sec.sec.33.331- 33.334, and sec.sec.33.351-33.358 concerning the provision of dental services to Medicaid/Early and Periodic Screening, Diagnosis, and Treatment (EPSDT)-eligible recipients. Specifically, the new sections cover definitions; oral evaluations and dental services; preventive dental services; therapeutic dental services; emergency dental services; allowable services and limitations; eligibility for Texas Health Steps dental services; requirements for provider enrollment and continuing participation; termination of a provider agreement; charges to recipients; payment of claims; claims - time limits, submission, and denial; change to another provider; standards of care; management of complaints; performance of dental services; orthodontic services limitation; eligibility for orthodontic services; payment limitations for orthodontic services; post-payment orthodontic utilization review; types of department utilization reviews; selection of dentists for department utilization review; notification to provider of department utilization review; provider cooperation; disposition of department utilization review results; recoupment of overpayments as a result of department utilization review; administrative actions and/or sanctions; and referral for investigation of fraud or program abuse. These sections were originally adopted during 1981-1989, prior to the initiation of the claims processing contract with the National Heritage Insurance Company (NHIC) and the transfer of the EPSDT Program to the department from the Texas Department of Human Services. Subsequent organizational restructurings, transfer of the Medicaid Provider Sanctions Division from the department to the Health and Human Services Commission, and other interagency agreements and events, including the initiation of electronic claims processing, have made parts of many of the current sections inaccurate or inapplicable. Updating these inaccurate and inappropriate references requires repeal of the existing sections and proposal of new rules. Kathleen Hamilton, Director, Texas Health Steps (EPSDT), has determined that for the first five year period the sections are in effect, there will be no fiscal implications to state or local government as a result of administering the sections as proposed. The proposed rules merely clarify current policy and will not increase the scope of covered services to clients, as defined in current policy, and therefore reimbursement to providers will not increase. Ms. Hamilton has also determined that for each year of the first five years the sections are in effect, the public benefit of administering the sections will be better compliance with the policies and procedures related to the provision of and reimbursement for dental services to Medicaid/EPSDT-eligible recipients. There will be no effect on small or large businesses. There are no anticipated economic costs to persons who are required to comply with the sections as proposed. There is no anticipated impact on local employment. Comments on the proposal may be sent to Kathleen Hamilton, Director, THSteps Program, Texas Department of Health, 1100 West 49th Street, Austin, Texas, 78756, (512) 458-7745. Comments will be accepted for 30 days following publication of this proposal in the Texas Register. A public hearing will be held at the Brown-Heatly Building, 4900 North Lamar, Room 1410, Austin, Texas, on Thursday, June 4, 1998, at 10:00 a.m. SUBCHAPTER F.Special Cases 25 TAC sec.33.263 (Editor's note: The text of the following section proposed for repeal will not be published. The section may be examined in the offices of the Texas Department of Health or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The repeal is proposed under the Human Resources Code sec.32.021, and Government Code sec.531.021, which provide the Health and Human Services Commission with the authority to propose rules to administer the state's medical assistance program and are submitted by the Texas Department of Health under its agreement with the Health and Human Services Commission to operate the EPSDT program, and as authorized under Chapter 15, sec.1.07, Acts of the 72nd Legislature, First Called Session (1991). The repeal affects Chapter 32 of the Human Resources Code. sec.33.263.Absence of Services Reported by Utilization Review Committee. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State, on May 11, 1998. TRD-9807669 Susan K. Steeg General Counsel Texas Department of Health Earliest possible date of adoption: June 21, 1998 For further information, please call: (512) 458-7236 SUBCHAPTER G.Dental Services (Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Department of Health or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) 25 TAC sec.sec.33.301-33.309, 33.314-33.318, 33.320, 33.322-33.327 The repeals are proposed under the Human Resources Code sec.32.021, and Government Code sec.531.021, which provide the Health and Human Services Commission with the authority to propose rules to administer the state's medical assistance program and are submitted by the Texas Department of Health under its agreement with the Health and Human Services Commission to operate the EPSDT program, and as authorized under Chapter 15, sec.1.07, Acts of the 72nd Legislature, First Called Session (1991). The repeals affect Chapter 32 of the Human Resources Code. sec.33.301.Dental Examination and Treatment. sec.33.302.Emergency Services. sec.33.303.Preventive Services. sec.33.304.Therapeutic Services. sec.33.305.Allowable Services and Limitations. sec.33.306.Who Is Eligible for Early and Periodic Screening, Diagnosis, and Treatment Services (EPSDT)-Dental. sec.33.307.Application for Participation. sec.33.308.Requirements for Participation. sec.33.309.Termination of a Provider Agreement. sec.33.314.Charges to Recipients. sec.33.315.Payment of Claims. sec.33.316.Change to Another Provider. sec.33.317.Claims--Time Limits, Return, and Denial. sec.33.318.Interrupted or Incomplete Treatment Plans. sec.33.320.Dental Problems Discovered by Utilization Review Dentist. sec.33.322.Utilization of Peer Review or Grievance Committees. sec.33.323.Utilization of State Board of Dental Examiners. sec.33.324.Orthodontic Services. sec.33.325.Recipient's Eligibility for Orthodontic Services. sec.33.326.Provider Participation. sec.33.327.Post-payment Review. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State, on May 11, 1998. TRD-9807670 Susan K. Steeg General Counsel Texas Department of Health Earliest possible date of adoption: June 21, 1998 For further information, please call: (512) 458-7236 25 TAC sec.sec.33.301-33.309, 33.312-33.318 The new sections are proposed under the Human Resources Code sec.32.021, and Government Code sec.531.021, which provide the Health and Human Services Commission with the authority to propose rules to administer the state's medical assistance program and are submitted by the Texas Department of Health under its agreement with the Health and Human Services Commission to operate the EPSDT program, and as authorized under Chapter 15, sec.1.07, Acts of the 72nd Legislature, First Called Session (1991). The new sections affect Chapter 32 of the Human Resources Code. sec.33.301.Definitions. The following words and terms when used in Subchapters F, G, or H of this chapter, shall have the following meanings, unless the context clearly indicates otherwise. (1) Department - The Texas Department of Health. (2) Early and Periodic Screening, Diagnosis, and Treatment Program (EPSDT) - A component of the Medicaid program, also known as Texas Health Steps, which provides medical check-up and dental services to Medicaid and Texas Health Steps clients under age 21 years. (3) HHSC - Health and Human Services Commission. (4) Manual - The Texas Medicaid Provider Procedures Manual, including all updates published bimonthly in the Texas Medicaid Bulletin. (5) Medicaid - A medical and dental program provided under Title XIX of the federal Social Security Act and the Human Resources Code, Chapter 32. (6) NHIC - National Heritage Insurance Company (7) OIE - The Medicaid Office of Investigation and Enforcement at the Health and Human Services Commission. (8) Recipient - A person eligible for and covered by the Texas Medical Assistance Program and the Texas Health Steps program. (9) SBDE - State Board of Dental Examiners. sec.33.302.Oral Evaluations and Dental Services. (a) The name of the Early and Periodic Screening, Diagnosis, and Treatment program has been changed to Texas Health Steps. (b) In addition to initial and periodic diagnostic oral evaluations, which may include radiographs and other diagnostic tests, three categories of dental services are available -- preventive, therapeutic, and emergency -- as defined in the following sections. These services are described in the Medicaid dental fee schedule published annually by the department in the manual. These services are subject to the limitations listed in the dental fee schedule and in the description of Texas Health Steps dental services in the manual. Prior authorization may be required for certain services. Services delivered should conform to professionally recognized standards of care as recognized by the SBDE, and are subject to utilization review. sec.33.303.Preventive Dental Services. Preventive dental services include only: (1) dental prophylaxis; (2) topical application of fluoride; (3) dental sealants; (4) oral hygiene instructions; (5) nutritional counseling; and (6) fixed or removable space maintainers. sec.33.304.Therapeutic Dental Services. Therapeutic services include: (1) restorative; (2) endodontics; (3) periodontics; (4) fixed and removable prosthodontics; (5) maxillofacial prosthetics; (6) implant services; (7) oral and maxillofacial surgery; (8) adjunctive general services; and (9) orthodontics, as defined in sec.sec.33.331-33.334 of this title (relating to Orthodontic Services). sec.33.305.Emergency Dental Services. (a) Emergency dental services are limited to the following: (1) procedures necessary to control bleeding, relieve pain, and eliminate acute infection; (2) operative procedures required to prevent imminent loss of teeth; and (3) treatment of injuries to the teeth and supporting structures. (b) Routine restorative procedures and root canal therapy are not emergency services. (c) Prior authorization is not required for emergency dental services. sec.33.306.Allowable Services and Limitations. (a) For the most effective use of available funds and to offer services to as many recipients as possible, the department may impose certain limitations, such as those regarding allowable services and age, and others as described in the Medicaid dental fee schedule published in the manual. (b) Payment shall be made only for services that are medically necessary, allowable, and delivered in accordance with the Medicaid program requirements in effect on the date of service. (c) A prior authorization is not transferrable to another provider. sec.33.307.Eligibility for Texas Health Steps Dental Services. (a) Persons are eligible for dental services if they have a current Texas Medicaid identification or Medicaid verification letter that indicates Medicaid and Texas Health Steps eligibility for the time period during which services are delivered, and are under age 21. (b) Dental services can be continued through the month in which the recipient reaches 21. (c) Persons one year of age and older who are eligible for Medicaid and Texas Health Steps services may receive periodic, preventive dental services as defined in sec.33.303 of this title (relating to Preventative Dental Services) every six months based on the last paid date of preventive dental services, but no less frequently than six months after the previous dental checkup. sec.33.308.Requirements for Provider Enrollment and Continuing Participation. (a) Dentists and orthodontists providing Texas Health Steps dental services must: (1) be licensed by the SBDE; (2) operate in accordance with the laws relating to the practice of dentistry and the rules and regulations of the SBDE; (3) practice in the United States of America; and (4) be enrolled as Texas Health Steps dental providers. (b) Dentists who deliver emergency dental services as defined in sec.33.305 of this title (relating to Emergency Dental Services) to Medicaid and Texas Health Steps-eligible Texas recipients while the recipients are out of state are not required to be licensed by the SBDE, but must be authorized to provide Title XIX services in the state in which the services are delivered. (c) A provider's request for participation in the Texas Health Steps program and continued participation after enrollment is voluntary and may be denied by the Texas Health Steps Program for any of the following reasons: (1) disciplinary action(s) taken against the provider by the SBDE or the licensing entity of any other state; (2) previous or current Medicaid or other federally funded health care program violation(s); (3) prior imposition of sanctions by a regulatory entity of the State of Texas or any other state; (4) failure of the provider to comply with Texas Health Steps program rules; (5) a judgment or settlement of civil liability or a criminal conviction based on fraud or abuse in Medicaid or any other federally funded health care program in any state. This includes a plea into a first offender program, misdemeanor, or felony; (6) failure to comply with Family Code, sec.231.006, regarding payment of child support; (7) notification from the HHSC OIE of adverse action taken against the provider; or (8) any other reason authorized by rules, regulations, statute, or contract. (d) A provider shall cease providing Texas Health Steps services and notify the department or its claims processing contractor if the SBDE suspends or revokes the provider's license, unless the suspension or revocation is probated in its entirety and without conditions or limitations. sec.33.309.Termination of a Provider Agreement. (a) The agreement between the provider and the department for provision of Texas Health Steps dental services may be terminated without cause by either the provider or the department according to its terms with 30 days written notice. (b) The provider agreement may be terminated by the department for any of the following reasons: (1) breach of contract; (2) suspension or revocation of the provider's license by the SBDE unless the suspension or revocation is probated in its entirety and without conditions or limitations; (3) disciplinary action(s) taken by the SBDE or the dental licensing entity of any other state in which the provider has been previously licensed; (4) violation of any of the standards of care identified in sec.33.316 of this title (relating to Standards of Care); (5) conviction for fraud in any federal or state health care program, including, but not limited to, titles V, XVIII, XIX, XX, and XXI of the Social Security Act; (6) amendment or judicial interpretation of federal or state laws or other requirements in a way that would make it unfeasible or impossible for either party to fulfill the agreement, or if either party is unable to agree on changes necessary for the substantial continuation of the agreement; (7) denial of federal financial participation; (8) any other violations of HHSC rules; or (9) any other reason authorized by rule, regulation, statute, or contract. sec.33.312.Charges to Recipients. (a) A provider shall not require a down payment before providing Medicaid- allowable services to eligible recipients. (b) A provider shall not charge recipients for missed appointments. (c) A provider shall neither bill, nor take recourse against an eligible recipient, for a denied or reduced claim for services that are within the amount, duration, and scope of benefits of the Texas Health Steps dental program, if the denial or reduction is the result of any of the following errors that are attributed to the provider: (1) failure to submit a claim, including claims not received by the department's claims processing contractor; (2) failure to submit a claim within the filing deadlines, as described in sec.33.314 of this title (relating to Claims--Time Limits, Submission, and Denial); (3) filing of an incorrect paper or electronic claim; (4) failure to resubmit a corrected paper or electronic claim within the appropriate time period as described in sec.33.314 of this title (relating to Claims--Time Limits, Submission, and Denial); (5) failure to appeal a claim denial within the appropriate time period; or (6) errors made in claims preparation, appeal submission, or the appeal process. (d) A provider may bill a recipient for a dental service or item only if both: (1) a request for prior authorization or a claim for payment for the service or item was denied as not being medically necessary, or not a benefit of the Medicaid program, or not allowable according to program rules and policy requirements; and (2) the service or item was provided at the request of the recipient and the provider obtained a written client acknowledgment statement, as described in the manual, which was signed and dated by the recipient or the recipient's parent/guardian prior to the initiation of the specified dental service, and is retained in the recipient's dental record. sec.33.313.Payment of Claims. (a) The provider shall accept payment by the department as payment in full for services. (b) Providers will be reimbursed for allowable services delivered in accordance with applicable laws, regulations, operational instructions, and the provider agreement. Payment may be withheld or suspended for services not delivered in accordance with applicable rules and regulations. Medicaid payments will not be made for services that are allowable and payable by any other third-party insurer or assistance program. (c) In the event of the provider's death, a completed claim will be considered for payment only if the executor of the estate signs the claim and the services were performed by the provider in accordance with the Texas Health Steps program requirements. sec.33.314.Claims--Time Limits, Submission, and Denial. (a) Payment shall be denied if the following time limits for submitting claims are not met: (1) dental service claims must be received by the department's claims processing contractor within 95 days from the earliest date of service on the claim; (2) if a service is billed to another insurance resource, the claim must be received by the claims processing contractor within 95 days of the date of disposition by the other insurer; or (3) if a service is billed to a third-party resource that has not responded, the claim must be received by the claims processing contractor within 12 months of the service date. However, the claim may not be submitted before 110 days after the third party has been billed. (b) Claims which lack information necessary for processing shall be rejected as incomplete claims. A resubmitted claim containing the necessary information must be received by the claims processing contractor within 180 days from the last denial date. (c) The claims processing contractor must receive all claims appeals and requests for adjustments within 180 days of the claim's disposition date. This is the date on the remittance and status report on which the claim appears. (d) Claims for services shall be denied for any of the following reasons: (1) the recipient was not eligible for Texas Health Steps services on the date of service; (2) the service is not an allowable service; (3) the service was either not medically necessary or not delivered according to program rules and policy in effect on the date of service, or both; (4) the service required prior authorization, which the provider failed to obtain; (5) the service was prior authorized but was delivered after the expiration of the prior authorization period; (6) the service was provided by a nonparticipating, suspended, or otherwise ineligible dentist; (7) the claim was not prepared or submitted according to the appropriate claims filing or claims appeal criteria as described in the manual; or (8) a duplicate claim was submitted or the services were included in another claim previously paid. sec.33.315.Change to Another Provider. (a) A provider may refer a recipient to another provider or discontinue treatment for any of the following reasons: (1) treatment by a dental specialist, such as a pediatric dentist, periodontist, endodontist, orthodontist, or oral surgeon, is indicated; (2) services needed are outside the skills or scope of practice of the initial provider; or (3) documented failure by the recipient or the recipient's caretaker or guardian to keep appointments, noncompliance with the treatment plan, or conflicts with the recipient or other family members. (b) A recipient may select another provider if he or she so desires. (c) The department may refer a recipient to another provider as a result of adverse information obtained during a utilization review or resolution of a complaint from either party, or upon the provider's request. sec.33.316.Standards of Care. (a) Texas Health Steps recipients or their parents or guardians who can give informed consent shall: (1) receive information following an oral evaluation regarding: (A) the dental diagnosis; (B) scope of proposed treatment, including alternatives and risks; (C) anticipated results; (D) need for administration of sedation or anesthesia, including risks; and (2) receive a full explanation the treatment plan prior to its implementation. (b) Texas Health Steps recipients shall: (1) receive dental services specified in the treatment plan which meet the standards of care established by the laws relating to the practice of dentistry and the rules and regulations of the SBDE; (2) receive dental services free from abuse or harm from the provider or the provider's staff; and (3) receive only that treatment required to address documented medical necessity and which meets professionally recognized standards of health care as recognized by the SBDE. sec.33.317.Management of Complaints. (a) Texas Health Steps dental program administration. (1) The department has responsibility for the administration of Texas Health Steps dental services. This responsibility includes review of complaints and payments. In accordance with each agency's guidelines for referrals, the department shall refer a provider to the OIE and/or to the SBDE. If discrepancies or irregularities are reported to the department, or found during a utilization review, the department may take one or more administrative actions. These actions include, but are not limited to, the following: (A) providing oral, written, or personal educational contact with the provider; (B) referral to a departmental peer review; (C) requiring execution of a closed-end or time-limited provider agreement for a specified period of time; (D) requiring attendance at provider education sessions; (E) requiring prior authorization of selected services; (F) requiring review of all services before payment; (G) requiring review of all services after payment; (H) requiring submission of additional claim justification that is not normally required; (I) imposing vendor hold; (J) recouping of overpayments; or (K) referral to SBDE. (2) The department will notify the provider in writing of the review findings and of any proposed administrative action. This notification may occur before or after other action is taken by professional dental or governmental organizations. (3) Upon receipt of a provider's written request, the department shall afford the provider a fair hearing pursuant to sec.sec.1.51-1.55 of this title (relating to Fair Hearing Procedures) before taking any of the administrative actions listed at subsections (a)(1)(A)-(J) of this section. (b) Referrals to other state agencies. (1) OIE criteria for referrals by the department include, but are not limited to, complaints or allegations of provider fraud or abuse including program abuse; abuse or harm to a recipient; lack of medical necessity; overbilling; soliciting or collecting unauthorized payments from recipients; or failure to refund payments to recipients. Such complaints or allegations shall be made in writing and forwarded to the OIE. The OIE may utilize staff from the department or its claims processing contractor to assist in determining the validity of any complaints or allegations received. A departmental employee acting as an agent of OIE is governed by the parameters of authority and investigation for OIE. (2) Complaints about the practice of dentistry as described in the Texas Dental Practice Act or the rules and regulations of the SBDE shall be made in writing to the SBDE. (3) Allegations of fraud or abuse committed by a Texas Health Steps recipient shall be made in writing to the Office of Inspector General, Texas Department of Human Services, 701 West 51st Street, Austin, Texas, 78756. sec.33.318.Performance of Dental Services. All Texas Health Steps dental services shall be performed by the enrolled provider except for that work allowed to be done by a licensed dental hygienist, dental assistant, or certified dental technician in a commercial or office dental laboratory. The Texas Dental Practice Act and the rules and regulations of the SBDE define the scope of work that dental auxiliary personnel may perform. Any deviations from these practice limitations shall be reported to the SBDE and could result in sanctions or other actions being taken against the provider. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State, on May 11, 1998. TRD-9807672 Susan K. Steeg General Counsel Texas Department of Health Earliest possible date of adoption: June 21, 1998 For further information, please call: (512) 458-7236 SUBCHAPTER H.Dental Utilization Review 25 TAC sec.sec.33.331-33.338 (Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Department of Health or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The repeals are proposed under the Human Resources Code sec.32.021, and Government Code sec.531.021, which provide the Health and Human Services Commission with the authority to propose rules to administer the state's medical assistance program and are submitted by the Texas Department of Health under its agreement with the Health and Human Services Commission to operate the EPSDT program, and as authorized under Chapter 15, sec.1.07, Acts of the 72nd Legislature, First Called Session (1991). The repeals affect Chapter 32 of the Human Resources Code. sec.33.331.Types of Reviews. sec.33.332.Notification to Provider of Utilization Review. sec.33.333.Provider Cooperation. sec.33.334.Report of Findings. sec.33.335.Classification of Review Findings. sec.33.336.Restitution of Overpayments. sec.33.337.Administrative Actions. sec.33.338.Fraud or Abuse. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State, on May 11, 1998. TRD-9807671 Susan K. Steeg General Counsel Texas Department of Health Earliest possible date of adoption: June 21, 1998 For further information, please call: (512) 458-7236 25 TAC sec.sec.33.331-33.334, 33.351-33.358 The new sections are proposed under the Human Resources Code sec.32.021, and Government Code sec.531.021, which provide the Health and Human Services Commission with the authority to propose rules to administer the state's medical assistance program and are submitted by the Texas Department of Health under its agreement with the Health and Human Services Commission to operate the EPSDT program, and as authorized under Chapter 15, sec.1.07, Acts of the 72nd Legislature, First Called Session (1991). The new sections affect Chapter 32 of the Human Resources Code. sec.33.331.Orthodontic Services Limitations. (a) Orthodontic services are limited to treatment of severe handicapping malocclusion and related conditions as described and measured by the procedures and standards published in the manual. (b) Orthodontics only for cosmetic reasons is not an allowable service. sec.33.332.Eligibility for Orthodontic Services. (a) Recipients must be under age 21 and eligible for Medicaid and Texas Health Steps on the date that the prior authorization request for orthodontic services is approved. (b) If a recipient reaches age 21 or loses Medicaid eligibility before orthodontic treatment is completed, payment is provided to complete the single course of orthodontic treatment that was prior-authorized and initiated while the recipient was under 21 and Medicaid-eligible. sec.33.333.Payment Limitations for Orthodontic Services. (a) Except for the initial orthodontic visit, all orthodontic services must be prior-authorized by the dental director of the department's claims processing contractor according to the procedures described in the manual. (b) A prior authorization is issued for a complete plan of orthodontic treatment that includes all procedures for completion of the single course of treatment to be accomplished over a specified time period. (c) A prior authorization for orthodontic services issued to a requesting provider is not transferrable. (d) If a request for prior authorization of a plan of orthodontic services for a recipient is not approved, the provider may file a claim and receive payment to defray the costs of the diagnostic materials required for submitting the request. Department policy in effect at the time of service delivery shall determine the number of denials for which reimbursement of costs shall be available. sec.33.334.Post-payment Orthodontic Utilization Review. (a) Orthodontic utilization reviews are performed by a dentist licensed by the SBDE and who is board-certified as an orthodontist. (b) As part of an orthodontic utilization review, a provider may be required to submit study models and diagnostic work-up information and records at the provider's expense. sec.33.351.Types of Department Utilization Reviews. (a) The department or its claims processing contractor may conduct utilization reviews through automated analysis of a provider's pattern(s) of practice, including peer group analysis. Such analysis may result in the subsequent conduct of an on-site utilization review. The department or its claims processing contractor may conduct utilization reviews at the direction of OIE, according to HHSC rules. (b) The department may conduct dental utilization reviews which: (1) may include examination of: (A) recipients; (B) office records; (C) hospital records; (D) patient records, including radiographs; or (E) any other records determined to be necessary to conduct the review; and (2) are performed by a dentist licensed by the SBDE. Review of the work of specialists shall be substantiated by a specialist in the same field or by a panel which contains such a specialist when issues of patient care are involved. sec.33.352.Selection of Dentists for Department Utilization Review. (a) An individual or group dental provider may be selected by the department for a utilization review as a result of: (1) a random selection procedure from the current list of participating dental providers in a geographic area selected for review; (2) comparisons of claims submitted or patterns of practice in relation to other participating dentists; or (3) information or complaints received by the department, except those alleging fraud or abuse or violation of the Texas Dental Practice Act as described in sec.33.317 of this title (relating to Management of Complaints). (b) Providers suspected of program fraud or abuse will not be subject to a utilization review by the department, but will instead be referred to OIE for disposition. (c) Complaints regarding the practice of dentistry will be referred to SBDE. sec.33.353.Notification to Provider of Department Utilization Review. (a) The department shall give the provider at least 30 days notice of the time and place of a utilization review, unless such notice would jeopardize an active investigation. (b) At least seven days prior to a utilization review, the department shall give the provider a list of the recipients for whom all records must be provided, unless such notice would jeopardize an active investigation. (c) Prior notification requirements to providers do not apply to utilization reviews conducted under the direction of the OIE. sec.33.354.Provider Cooperation. (a) The provider, the provider's associate(s) in a group practice, or the provider's office staff shall not contact, examine, or treat recipients identified as part of the utilization review (with the exception of emergency services as defined in sec.33.305 of this title (relating to Emergency Dental Services), or upon approval of the provider's request by the department) from the time the provider receives notification identifying the recipients to be reviewed until notified in writing by the department that normal contacts may be resumed. (b) Prior to the utilization review, the provider must make available to the reviewing dentist any and all records maintained by the provider, including office records and radiographs, for each recipient identified as part of the review. (c) Failure to produce such records may result in recoupment of payments for all services delivered to those recipients whose records are withheld or otherwise not made available for the utilization review. sec.33.355.Disposition of Department Utilization Review Results. The results of utilization reviews shall be forwarded by the department to the OIE for evaluation and final disposition. Results of a review which reflects no deviation from review standards will be mailed to the provider in a timely manner upon completion of the review. sec.33.356.Recoupment of Overpayments as a Result of Department Utilization Review. If the results of a department utilization review indicate overpayment for services delivered or that payment was made for services not delivered, recoupment is required. The appropriate agency or agency designee will notify the provider of any overpayment identified and the method of recoupment. A provider's recoupment obligation may involve either or both of the following: (1) the dollar amount of the discrepancies in the claims reviewed; or (2) a dollar amount calculated by applying the monetary discrepancy rate found in the claims reviewed to all remaining claims for the types of services sampled with dates of service during the period under review. sec.33.357.Administrative Actions and/or Sanctions. Evaluation of a utilization review may result in one or more of the following administrative actions or sanctions by the appropriate agency or the agency's designee: (1) closure of the review with written notification to the provider; (2) discussion and interpretation of the utilization review results with the provider; (3) recoupment of any overpayment identified according to sec.33.356 of this title (relating to Recoupment of Overpayments as a Result of Department Utilization Review); (4) imposition of a vendor hold; (5) referral to the appropriate state licensing board; (6) referral to the OIE; (7) termination of a provider agreement; and (8) any other remedies authorized by rule, regulation, statute, or contract. sec.33.358.Referral for Investigation of Fraud or Program Abuse. Suspected cases of fraud or abuse will be immediately referred to the OIE. Department utilization reviews will not be initiated on any provider suspected of fraud or abuse. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State, on May 11, 1998. TRD-9807673 Susan K. Steeg General Counsel Texas Department of Health Earliest possible date of adoption: June 21, 1998 For further information, please call: (512) 458-7236 TITLE 28. INSURANCE PART I. Texas Department of Insurance CHAPTER 19.Agent's Licensing SUBCHAPTER U.Utilization Reviews for Medical Benefits Provided Under Workers' Compensation Insurance Coverage 28 TAC sec.sec.19.2001-19.2021 The Texas Department of Insurance proposes new Subchapter U, sec.sec.19.2001- 19.2021, concerning utilization reviews for medical benefits provided under workers' compensation insurance coverage. This subchapter implements the provisions of Insurance Code Article 21.58A, sec.14(c), which was amended by House Bill 3197 in 1997, 75th Legislature, Chapter 903. The amendment was effective September 1, 1997, but applies only to utilization reviews for medical benefits provided under workers' compensation insurance coverage after January 1, 1998. House Bill 3197 amended sec.14(c) such that, except as otherwise provided, Insurance Code Article 21.58A applies to utilization review of health care services provided to persons eligible for workers' compensation medical benefits under Title 5, Labor Code. It further provided that the Commissioner of Insurance shall regulate, in the manner provided for by Insurance Code Article 21.58A, a person who performs review of medical benefits provided for under Chapter 408, Labor Code, but that Article 21.58A, sec.14(c), does not affect the Texas Workers' Compensation Commission's authority to exercise the powers granted to it under Title 5, Labor Code. It also provided that, in the event of a conflict between Insurance Code Article 21.58A and Title 5, Labor Code, the latter prevails, and that the department and the Texas Workers' Compensation Commission may adopt rules as necessary to implement amended Insurance Code, Article 21.58A. It is upon this authority that the department proposes these rules. Proposed sec.19.2001 contains general provisions regarding this chapter, including the statutory basis, severability provisions and a designation of the purpose of the rules. Proposed sec.19.2002 contains limitations on applicability and assures that the subchapter does not affect the authority of the Texas Workers' Compensation Commission under Title 5, Labor Code. Proposed sec.19.2003 defines certain terms used in this subchapter. Proposed sec.19.2004 contains information regarding the certification of utilization review agents to perform review of medical benefits provided for under Title 5, Labor Code. The section states where to obtain and file an application for certification, and includes a list of information required to be submitted by the applicant. Requirements for filing revisions to the application during the review process are set forth, as well as the applicable time frames and certain duties of the applicant and the department during the application process. Requirements that an applicant must prove have been met prior to obtaining certification of registration are also listed. The section provides that a utilization review agent registered pursuant to this subchapter must apply for renewal of such registration every two years, and sets forth renewal requirements and procedures. The section also sets forth the process for appeal if an application or renewal is denied. Proposed sec.19.2005 contains the general standards of utilization review of medical benefits provided for under Chapter 408 of Title 5, Labor Code, and requires that the plan be reviewed by a physician and conducted in accordance with standards developed with input from other appropriate health care providers. The section also requires a description of the elements of review which must be provided, and requires written procedures for various operational aspects of the utilization review agent. The section requires use of written medically acceptable screening criteria, and allows delegation of review under certain circumstances. Proposed sec.19.2006 addresses qualification of personnel and required reporting thereon, and certain prohibitions regarding treatment of personnel. It requires that utilization review of health care be provided under the direction of a physician and that utilization review of dental health care be reviewed by a dentist. Proposed sec.19.2007 contains information regarding the prohibition of certain activities of utilization review agents. A utilization review agent's contact with and receipt of information from health care providers and injured employees is governed by proposed sec.19.2008. Proposed sec.19.2009 contains information regarding on-site review by a utilization review agent, generally prohibiting the utilization review agent from being present at an injured employee's examination or treatment without consent, and requiring certain identification protocol for utilization review staff during on-site visits. Proposed sec.19.2010 contains information regarding requirements of notice of determinations made by utilization review agents, excluding retrospective review. Requirements affording a health care provider a reasonable opportunity to discuss a proposed plan of treatment which has been denied are addressed in proposed sec.19.2011. Proposed sec.19.2012 states that appeals from an adverse determination made by a utilization review agent certified pursuant to this subchapter shall be governed by the Texas Workers' Compensation Act and applicable rules. Proposed sec.19.2013 deals with requirements of a utilization review agent's telephone accessibility. Confidentiality requirements with regard to utilization review are set forth in proposed sec.19.2014. Proposed sec.19.2015 describes various aspects of retrospective review of medical necessity. Requirements regarding a utilization review agent's complaint system, complaints to the department, and required reporting to the department are set forth in proposed sec.19.2016. Also set forth in this proposed section are authority and procedures for on-site review of the operations of utilization review agents by the department. Proposed sec.19.2017 contains the regulations for enforcement of the standards of utilization review and any other requirements under this subchapter. Proposed sec.19.2018 makes it a criminal offense to perform utilization review pursuant to this subchapter without a certificate of registration. Proposed sec.19.2019 contains information regarding insurance companies which perform utilization review. Utilization review agents performing only specialty review are addressed in proposed sec.19.2020. Proposed sec.19.2021 states that adverse determinations pursuant to this subchapter are not subject to independent review as set forth in Chapter 12 of this title (relating to Independent Review Organizations). Gloria Hunt, acting deputy commissioner, HMO/URA group, has determined that for each year of the first five years the proposed new subchapter is in effect, there will be no measurable fiscal impact on state or local government as a result of enforcing or administering the proposed chapter, and there will be no effect on the local employment or economy. Ms. Hunt has determined that for each year of the first five years the proposed new subchapter is in effect, the public benefits anticipated as a result of the proposed new subchapter will be the licensing and implementation of regulation of utilization review agents to perform utilization reviews for medical benefits provided under workers' compensation insurance coverage, which formerly performed utilization review, but which have not, under prior law, been subject to licensing by the department. The cost to a utilization review agent for the first five-year period the proposed new subchapter is in effect will be $2,695 for the licensing fees for utilization review agents set forth in the department's licensing fee rule, 28 TAC sec.19.802. This includes an Initial application cost of $2,150, and a biennial renewal cost of $545. Other, additional costs to utilization review agents during each of the first five years will depend upon the degree to which agents performing utilization review of workers' compensation benefits are already in compliance with the statutory and regulatory requirements. For example, utilization review agents must develop and file with the department a utilization review plan which contains screening criteria and review procedures. The rule also requires that the utilization review plan incorporate the review of appropriate health care providers, including primary and specialty doctors, and that the final plan be reviewed and approved by a physician. Prior to the change in the law resulting from House Bill 3197, utilization review agents were required to use certain screening tools, including fee and treatment guidelines developed by the Texas Workers' Compensation Commission. Some of those agents also may have been using additional screening criteria, and thus would not need to develop or purchase additional criteria. Professionally developed screening criteria for workers' compensation medical benefits is estimated to cost $400. The writing and production of the utilization review plan for delivery to the department is estimated to cost no more than $7500; this cost could be less depending upon whether an agent has in place a plan that meets the requirements of the statute and rule. Additionally, the rule requires use of certain licensed medical personnel at points in the review process, and additional costs may be incurred depending upon whether such personnel are already currently employed by, or under contract to, the agent. Utilization review must be under the direction of a physician (defined as a medical doctor or doctor of osteopathy), and utilization review must be under the direction of a physician, and adverse determinations must be referred to an appropriate professional (a doctor or other health care provider). The cost for a physician review is estimated to be on average $290 per review. Review by health care providers other than physicians is estimated to be on average $100 per review. In addition, utilization review personnel who obtain certain clinical information over the telephone must be nurses, physicians assistants, or other qualified health care providers. Many utilization review agents currently have at least one such person in their employ. The number of such personnel needed will vary depending upon the volume of business performed by a utilization review agent and the number of qualified personnel now employed by the agent. The cost of an additional person to meet this requirement is estimated to be $14 per hour, but could be greater depending upon the particular skills and qualifications of the person. The rules also require a utilization review agent to establish and maintain a system for responding to complaints and for tracking and annually reporting to the department information on complaints and adverse determinations. It is estimated that compliance with this provision will require a one-time cost of approximately $300 for purchase of software. Utilization review agents who do not already do so must maintain a toll-free telephone number, at an estimated average annual cost of $620 per 1,000 calls. The costs for insurance companies performing utilization review under sec.14(h) of the Utilization Review Act are anticipated to be the same as those for utilization review agents except that insurance companies will not have to pay the licensing fees. The costs of compliance with the rule would be the same for small and large businesses, with the variable for both being the extent to which each had already had in place criteria, personnel and procedures for compliance with the rule's requirements. It is estimated that, in an extreme scenario in which neither a large nor small utilization review business fully met the requirements for screening criteria, development of a utilization review plan, or installing a computer tracking system, the one-time cost to the small business (with revenue of $1 million or less) would be an estimated $.82 per $100 of revenue, and the one-time cost to a large business (with revenue of at least $2 million) is estimated to be $.41 per $100 of revenue. The costs of compliance are a requirement of statute as well as rule, and are thus mandatory on all companies to which the requirements apply. The assumptions on which these costs are based are subject to change as the department receives data during the comment period. Comments on the proposal must be submitted within 30 days after publication of the proposed sections in the Texas Register to Caroline Scott, Chief Clerk, Mail Code 113-2A, Texas Department of Insurance, P.O. Box 149104, Austin, Texas 78714-9104. An additional copy of the comments must be submitted to Gloria Hunt, Acting Deputy Commissioner, HMO/URA Group, Mail Code 108-6A, Texas Department of Insurance, P.O. Box 149104, Austin, Texas 78714-9104. Any requests for a public hearing should be submitted separately to the Office of the Chief Clerk. This subchapter is proposed under Insurance Code Articles 21.58A, sec.14(c) and 1.03A. The Insurance Code Article 21.58A, sec.14(c) provides that the department may promulgate standards and rules for the certification and operation of utilization review agents to review health care services provided to persons eligible for workers' compensation medical benefits under Title 5, Labor Code. The Insurance Code Article 1.03A provides that the Commissioner of Insurance may adopt rules and regulations to execute the duties and functions of the Texas Department of Insurance as authorized by statute. The Government Code, Chapter 2001, sec.sec.2001.004 et seq. authorizes and requires each state agency to adopt rules of practice setting forth the nature and requirement of available procedures and prescribes the procedures for adoption of rules by a state administrative agency. The following articles are affected by this proposal: Statute 28 TAC sec.sec.19.2001 - 19.2021 Insurance Code, Articles 21.58A and 1.03A sec.19.2001.General Provisions. (a) Statutory basis. This subchapter implements the provisions of the Insurance Code Article 21.58A, which was amended by H.B. 3197 in 1997, 75th Legislature, Chapter 903 which was effective September 1, 1997, but applies only to utilization reviews for medical benefits provided under workers' compensation insurance coverage conducted on or after January 1, 1998. (b) Severability. Where any terms or sections of this subchapter are determined by a court of competent jurisdiction to be inconsistent with any statutes of this state, or to be unconstitutional, the remaining terms and provisions of this subchapter shall remain in effect. (c) Purpose. The purpose of these rules is to: (1) promote the delivery of quality health care in a cost-effective manner, including protection of injured employee safety; (2) assure that utilization review agents adhere to reasonable standards for conducting utilization reviews; (3) foster greater coordination and cooperation between health care providers and utilization review agents; (4) improve communications and knowledge of medical benefits among all parties; and (5) ensure that utilization review agents maintain the confidentiality of medical records in accordance with applicable law. sec.19.2002.Limitations on Applicability. This subchapter does not affect the authority of the Texas Workers' Compensation Commission to exercise the powers granted to that commission under Title 5, Labor Code. This subchapter does not apply to a utilization review agent or other person which conducts only the functions of categories of utilization review listed in paragraphs (1)-(3) of this section: (1) a person who provides information to injured employees, their representatives and/or health care providers about scope of coverage or benefits provided for under workers' compensation insurance coverage and who does not determine whether particular health care provided or to be provided to an injured employee is medically reasonable and necessary; (2) a doctor, as defined in sec.19.2003 of this title (relating to Definitions), or any other individual licensed to provide health care, performing utilization review who is an employee of, or a contractor to, a certified utilization review agent; (3) a utilization review agency which conducts only the categories of utilization review listed in subparagraphs (A) - (D) of this paragraph: (A) reviews performed pursuant to any contract with the federal government for utilization review of patients eligible for services under Title XVIII or XIX of the Social Security Act (42 United States Code sec.sec.1395 et seq. or sec.sec.1396 et seq.); (B) reviews performed for the Texas Medicaid Program, except reviews performed by a health maintenance organization that contracts with the Health and Human Services Commission or an agency operating part of the state Medicaid managed care program to provide health care services to recipients of medical assistance under Chapter 32, Human Resources Code, the Chronically Ill and Disabled Children's Services Program created pursuant to Chapter 35, Health and Safety Code, any program administered under Title 2, the Human Resources Code, any program of the Texas Department of Mental Health and Mental Retardation, or any program of the Texas Department of Criminal Justice; (C) reviews of health care services provided under a policy or contract of automobile insurance promulgated by the department under the Insurance Code, Subchapter A, Chapter 5 or issued pursuant to the Insurance Code Article 1.14; or (D) reviews that apply to the terms and benefits of the employee welfare benefit plans as defined in Section 3(1) of the Employee Retirement Income Security Act of 1974 (29 U.S.C. Section 1002(1)). sec.19.2003.Definitions. The following words and terms, when used in this subchapter, shall have the following meanings unless the context clearly indicates otherwise. (1) Act--Insurance Code Article 21.58A, entitled "Health Care Utilization Review Agents." (2) Active practice--A minimum of 20 hours per week in the examination, diagnosis and/or treatment of patients. (3) Administrative Procedure Act--Government Code Chapter 2001. (4) Adverse determination--A determination by a utilization review agent that the medical benefits, as defined in this subchapter, furnished or proposed to be furnished to an injured employee are not reasonable and necessary. (5) Appeal process--The processes outlined in the Texas Workers' Compensation Act, including but not limited to Texas Labor Code sec.413.031 and Chapter 134, Subchapter G of this title (relating to Treatments and Services Requiring Preauthorization), Chapter 133, Subchapter D of this title, (relating to Dispute and Audit of Bills by Insurance Carriers). (6) Certificate--A certificate of registration granted by the commissioner to a utilization review agent. (7) Commissioner--The Commissioner of Insurance. (8) Compensable injury--An injury that arises out of and in the course and scope of employment for which compensation is payable under the Texas Workers' Compensation Act. (9) Complaint--An oral or written expression of dissatisfaction with a utilization review agent concerning the utilization review agent's process. A complaint is not an expression of dissatisfaction with a specific adverse determination, a misunderstanding or misinformation that is resolved promptly by supplying the appropriate information or clearing up the misunderstanding to the satisfaction of the complaining party. (10) Department--Texas Department of Insurance. (11) Dentist--A licensed doctor of dentistry, holding either a D.D.S. or a D.M.D. degree. (12) Doctor--A doctor of medicine, osteopathic medicine, optometry, dentistry, podiatry, or chiropractic who is licensed and authorized to practice. (13) Health care--Includes all reasonable and necessary medical aid, medical examinations, medical treatments, medical diagnoses, medical evaluations, and medical services. The term does not include vocational rehabilitation. The term includes: (A) medical, surgical, chiropractic, podiatric, optometric, dental, nursing, and physical therapy services provided by or at the direction of a doctor; (B) physical rehabilitation services performed by a licensed occupational therapist provided by or at the direction of a doctor; (C) psychological services prescribed by a doctor; (D) the services of a hospital or other health care facility; (E) a prescription drug, medicine, or other remedy; and (F) a medical or surgical supply, appliance, brace, artificial member, or prosthesis, including training in the use of the appliance, brace, member, or prosthesis. (14) Health care facility--A hospital, emergency clinic, outpatient clinic, or other facility providing health care. (15) Health care provider--Any person, corporation, facility, or institution licensed by a state to provide or otherwise lawfully providing health care that is eligible for independent reimbursement for those services. (16) Injured employee--An employee with a compensable injury under the Texas Workers' Compensation Act. (17) Inquiry--A request for information or assistance from a utilization review agent. (18) Insurance carrier-- (A) an insurance company; (B) a certified self-insurer for workers' compensation insurance; or (C) a governmental entity that self-insures, either individually or collectively. (19) Insurance company--A person authorized and admitted by the Texas Department of Insurance to do insurance business in this state under a certificate of authority that includes authorization to write workers' compensation insurance. (20) Life-threatening--A disease or condition resulting from a compensable injury, for which the likelihood of death is probable unless the course of the disease or condition is interrupted. (21) Medical benefit--Payment for health care reasonably required by the nature of a compensable injury and intended to: (A) cure or relieve the effects naturally resulting from the compensable injury, including reasonable expenses incurred by the injured employee for necessary treatment to cure and relieve the injured employee from the effects of an occupational disease before and after the injured employee knew or should have known the nature of the disability and its relationship to the employment; (B) promote recovery; or (C) enhance the ability of the injured employee to return to or retain employment. (22) Medical records--The entire history of diagnosis and treatment for a compensable injury, including but not limited to medical, dental, and other health care records from all disciplines rendering care to an injured employee. (23) Nurse--A professional or registered nurse, a licensed vocational nurse, or a licensed practical nurse. (24) Open records law--Government Code, Chapter 552. (25) Person--An individual, a corporation, a partnership, an association, a joint stock company, a trust, an unincorporated organization, any similar entity or any combination of the foregoing acting in concert. (26) Physician--A licensed doctor of medicine or a doctor of osteopathy. (27) Preauthorization--The process of a doctor, other health care provider or health care facility requesting approval to provide a specific treatment or service prior to rendering the treatment or service as delineated in Chapter 134, subchapter G of this title (relating to Treatments and Services Requiring Preauthorization.) (28) Retrospective review--The process of reviewing health care which has been provided to injured employees to determine if the health care was medically reasonable and necessary under the Texas Workers' Compensation Act. (29) Screening criteria--The written policies, decision rules, medical protocols, TWCC fee and treatment guidelines, and TWCC rules and advisories used by the utilization review agent as part of the utilization review process (e.g., appropriateness evaluation protocol (AEP), and intensity of service, severity of illness, discharge, and appropriateness screens (ISD-A)). The TWCC Treatment Guidelines are tools that identify recommended treatment parameters and typical courses of intervention, whose purpose is to clarify those services that are reasonable and medically necessary. The guidelines are not to be used as fixed treatment protocols by either the health care provider or insurance carrier and shall not be viewed as prescriptive or the sole basis for approval or denial of proposed services. There may be injured employees who will require more or less treatment than is recommended in the guidelines. Treatment falling outside the parameters of the guidelines will be subject to more careful scrutiny and may require additional documentation of special circumstances to justify the need for treatment. Each guideline includes specific ground rules which establish the use of the guideline. (30) Texas Workers' Compensation Act--Texas Labor Code, Title 5. (31) Treating doctor--The doctor primarily responsible for treating the injured employee's compensable injury as defined in the Texas Labor Code, sec.401.011(42). (32) TWCC--Texas Workers' Compensation Commission. (33) Utilization review--A system for preauthorization, or preauthorization and retrospective review to determine if health care proposed to be provided, being provided, or which has been provided to an injured employee is medically reasonable and necessary. Utilization review shall not include the spinal surgery second opinion process as delineated in Chapter 133, subchapter C of this title (relating to Second Opinions for Spinal Surgery), or elective requests for clarification of coverage or prepayment guarantee. (34) Utilization review agent--An insurance carrier, the carriers' agent(s), and/or any entity contracted or subcontracted to provide utilization review. (35) Utilization review plan--The screening criteria and utilization review procedures of a utilization review agent. (36) Working day--A weekday, excluding New Years Day, Memorial Day, Fourth of July, Labor Day, Thanksgiving Day, and Christmas Day. (37) Workers' compensation insurance coverage: (A) an approved insurance policy, pursuant to Article 5.56 of the Insurance Code, to secure the payment of compensation under the Texas Workers' Compensation Act; (B) coverage to secure the payment of compensation through self-insurance as provided by the Texas Workers' Compensation Act; or (C) coverage provided by a governmental entity to secure the payment of compensation under the Texas Workers' Compensation Act. sec.19.2004.Certification of Utilization Review Agents. (a) An application for certification of a utilization review agent must be filed with the Texas Department of Insurance at the following address: Texas Department of Insurance, Mail Code 108-6A, P. O. Box 149104, Austin, TX 78714- 9104. (b) The application must be submitted on a form which can be obtained from the Utilization Review Section, Mail Code 108-6A, Texas Department of Insurance, 333 Guadalupe, P. O. Box 149104, Austin, TX 78714-9104. (c) The attachments to the application form require the following information: (1) a summary description of the utilization review plan which must include the matters listed in subparagraphs (A) and (B) of this paragraph. The utilization review plan must meet the requirements of sec.19.2005 of this title (relating to General Standards of Utilization Review); (A) an adequate summary description of screening criteria and review procedures to be used to determine health care is medically reasonable and necessary; and (B) a certification, signed by an authorized representative of the company, that screening criteria and review procedures to be applied in review determination are established with input from appropriate health care providers and approved by physicians; (2) copies of procedures established for informing appropriate parties of the process for appeal of an adverse determination to TWCC. These procedures must comply with the provisions of Chapter 133, Subchapter D of this title (relating to Dispute and Audit of Bills by Insurance Carriers); (3) copies of procedures established for handling oral or written complaints by injured employees, their representatives or health care providers. These procedures must comply with sec.19.2016 of this title (relating to Complaints and Information); (4) copies of policies and procedures which ensure that all applicable state and federal laws to protect the confidentiality of medical records are followed. These procedures must comply with sec.19.2014 of this title (relating to Confidentiality); (5) a certification signed by an authorized representative of the company that the utilization review agent will comply with the provisions of the Act, the Texas Workers' Compensation Act and TWCC Rules; (6) a description of the categories of persons and names of the personnel employed or under contract to perform utilization review; (7) a description of the hours of operation within the State of Texas and how the utilization review agent may be contacted during weekends and holidays. This description must be in compliance with sec.19.2013 of this title (relating to Utilization Review Agent's Telephone Access); (8) representative samples of all materials provided by the utilization review agent/applicant to inform its clients, injured employees, their representatives or providers of the requirements of the utilization review plan. Samples shall include language for notification of an adverse determination made in a utilization review; (9) a description of the basis by which the utilization review agent compensates its employees or agents to ensure compliance with paragraph (10) of this subsection; (10) a certification signed by an authorized representative of the company that the utilization review agent shall not permit or provide compensation or anything of value to its employees or agents, condition employment or its employee or agent evaluations, or set its employee or agent performance standards based on: the amount or volume of adverse determinations; reductions or limitations on lengths of stay, duration of treatment, medical benefits, services, or charges; or on the number or frequency of telephone calls or other contacts with health care providers or injured employees, which are inconsistent with the provisions of this subchapter; (11) the organizational information, documents and all amendments, including: (A) the bylaws, rules and regulations, or any similar document regulating the conduct of the internal affairs of the applicant with a notarized certification bearing the original signature of an officer or authorized representative of the applicant that they are true, accurate, and complete copies of the originals; (B) for an applicant that is publicly held, the name of each stockholder or owner of more than five percent of any stock or options; (C) a chart showing the internal organizational structure of the applicant's management and administrative staff; and (D) a chart showing contractual arrangements of the utilization review agent related to utilization review; (12) the name and biographical information for each director, officer and executive of the applicant. (d) The utilization review agent shall report any material changes in the information in the application or renewal form referred to in this section, not later than the 30th day after the date on which the change takes effect. Material changes include but are not limited to new personnel hired as directors, officers, or executives, changes in the organizational structure, changes in contractual relationships, changes in the utilization review plan and changes in methods of compensation to utilization review agents or their employees. (e) The application process is described in paragraphs (1)-(4) of this subsection. (1) The department shall have 60 days after receipt of an application to process the application and to certify or deny it. The department shall give the applicant written notice of any omissions or deficiencies noted as a result of the review conducted pursuant to this paragraph. (2) The applicant must correct the omissions or deficiencies in the application within 30 days of the date of the department's latest notice of such omissions or deficiencies. If the applicant fails to do so, the application file will be closed as an incomplete application. The application fee will not be refundable. (3) The applicant may waive any of the time limits described in this subsection, except in paragraph (2). The applicant may waive the time limit in paragraph (2) of this subsection only with the consent of the department. (4) The department shall maintain an application file which shall contain the application, notices of omissions or deficiencies, responses and any written materials generated by any person that was considered by the department in evaluating the application. (f) An applicant for a certificate of registration as a utilization review agent must provide evidence that the applicant: (1) has available the services of doctors, nurses, physician's assistants, or other health care providers qualified to provide the service requested by the provider to carry out its utilization review activities in a timely manner; (2) meets any applicable provisions of this subchapter and regulations relating to the qualifications of the utilization review agents or the performance of utilization review; (3) has policies and procedures which protect the confidentiality of medical records in accordance with applicable state and federal laws; (4) makes itself accessible to injured employees, their representatives and health care providers 40 working hours a week during normal business hours in this state in each time zone in which it operates. (g) A utilization review agent must apply for renewal of the certificate of registration every two years from the date of certification. A renewal form must be used for this purpose. The renewal fee must be submitted with the renewal form. The renewal form can be obtained from the address listed in subsection (b) of this section. The completed renewal form, a summary of the current screening criteria, a statement signed by an authorized representative of the company certifying that all information previously submitted is true and correct and all changes have been previously filed to the application certified by the department, and the renewal fee must be submitted to the department at the address listed in subsection (a) of this section. A utilization review agent may continue to operate under its certificate of registration, if the information and the fee have been filed for renewal and timely received by the department, until the renewal is finally denied or issued by the department. If the required information and fee are not received prior to the deadline for renewal of the certificate of registration, the certificate of registration will automatically expire and the utilization review agent must complete and submit a new application form and a new fee with all required information. (h) If an application or renewal is initially denied under this section, the applicant or registrant may appeal such denial under the terms of the provisions of Chapter 1, Subchapter A of this title (relating to Rules of Practice and Procedure) and Government Code, Chapter 2001. A hearing of such appeal shall be conducted within 45 days of the date the petition for such hearing is filed with the commissioner. A decision by the commissioner shall be rendered within 60 days of the date of the hearing. (i) A utilization review agent providing utilization review on the effective date of this subchapter must abide by the provisions of this subchapter effective upon its adoption, and must file with the department its original application within 180 days of the effective date of this subchapter. Utilization review agents that have received their certificate of registration prior to the adoption of these rules, and are performing workers' compensation utilization review as defined in sec.19.2003 of this title (relating to Definitions), must file with the department all changes to their original application as set forth in subsections (c) and (d) of this section within 180 days of the effective date of this subchapter. (j) A utilization review agent will be required to make a single application and fee payment for one certification to cover all lines of utilization review business. sec.19.2005.General Standards of Utilization Review. The utilization review plan shall be reviewed by a physician and conducted in accordance with standards developed with input from appropriate health care providers, including doctors engaged in an active practice that are both primary and specialty doctors, and approved by a physician. The utilization review plan shall include the following components: (1) a description of the elements of review which the utilization review agent provides, including but not limited to: (A) preauthorization in accordance with Chapter 134, Subchapter G of this title (relating to Treatments and Services Requiring Preauthorization); (B) the elements of review in the TWCC guidelines contained in Chapter 134 of this title (relating to Guidelines for Medical Services, Charges, And Payments); (C) the elements of review contained in Chapter 133, Subchapter D of this title (relating to Dispute and Audit of Bills by Insurance Carriers). (2) written procedures for: (A) identification of individuals with special circumstances who may require flexibility in the application of screening criteria through utilization review decisions. Special circumstances include, but are not limited to, a person who has a disability, an acute condition or life-threatening illness. Disability shall not be construed to mean an injured employee who is off work or receiving income benefits; (B) notification of the utilization review agent's determinations provided in accordance with Chapter 134, Subchapter G of this title and as addressed in sec.19.2010(b) of this title (relating to Notice of Determinations Made by Utilization Review Agents, Excluding Retrospective Review); (C) informing appropriate parties of the process for appeal of an adverse determination to TWCC, as required by sec.19.2011 and sec.19.2012 of this title (relating to Requirements Prior to Adverse Determination and Appeal of Adverse Determinations of Utilization Review Agents; (D) receiving or redirecting a toll-free normal business hour and after-hour calls, either in person or by recording, and assurance that a toll-free number will be maintained 40 hours per week during normal business hours as addressed in sec.19.2013 of this title (relating to Utilization Review Agent's Telephone Access); (E) review including: (i) any form used during the review process; (ii) time frames that shall be met during the review; (F) handling of oral or written complaints by injured employees, their representatives or health care providers as addressed in sec.19.2016(a) of this title (relating to Complaints and Information); (G) determining if doctors or other health care providers utilized by the utilization review agent are licensed, qualified and appropriately trained; (H) assuring that injured employee-specific information obtained during the process of utilization review, as addressed in sec.19.2014 of this title (relating to Confidentiality), will be: (i) kept confidential in accordance with applicable federal and state laws; (ii) used solely for the purposes of utilization review, quality assurance and case management; (iii) shared with only those agencies who have authority to receive such information; and (iv) in the case of summary data, not considered confidential if it does not provide sufficient information to allow identification of individual injured employees; (I) providing prior written notice to a doctor or health care provider when publishing data, including quality review studies or performance tracking data which identifies a particular doctor, or health care provider; (3) screening criteria. Each utilization review agent shall utilize written medically acceptable screening criteria as defined in sec.19.2003 of this title (relating to Definitions) and review procedures which are established and periodically evaluated and updated, at a minimum, upon certification renewal with appropriate involvement from the doctors, including doctors engaged in an active practice, and other health care providers. Utilization review decisions shall be made in accordance with currently accepted medical or health care practices, taking into account special circumstances of each case that may require deviation from the norm stated in the screening criteria. Screening criteria must be objective, clinically valid, compatible with established principles of health care, and flexible enough to allow deviations from the norm when justified on a case-by-case basis. Screening criteria must be used to determine only whether to approve the requested treatment. Denials must be referred to an appropriate doctor or other health care provider to determine whether health care is medically reasonable and necessary. Such written screening criteria and review procedures shall be available for review and inspection to determine appropriateness and compliance as deemed necessary by the commissioner, his or her designated representative, or TWCC and copying as necessary for the commissioner and/or TWCC to carry out the lawful duties under the Insurance Code, and the Texas Labor Code, provided, however, that any information obtained or acquired under the authority of this subchapter and the Act, is confidential and privileged and not subject to the open records law or subpoena except to the extent necessary for the commissioner to enforce this subchapter and the Act, and for TWCC to enforce the Texas Workers' Compensation Act. (4) delegation of review. Provide circumstances, if any, under which the utilization review agent may delegate the review to qualified personnel in the hospital or health care facility where the health care is to be provided. Such delegation shall not relieve the utilization review agent of full responsibility for compliance with this subchapter, the Act, and the Texas Workers' Compensation Act, including the conduct of those to whom utilization review has been delegated. sec.19.2006.Personnel. (a) Personnel employed by or under contract with the utilization review agent to perform utilization review shall be appropriately trained and qualified and, if applicable, currently licensed. Personnel who obtain information regarding an injured employee's specific medical condition, diagnosis and treatment options or protocols directly from the doctor or other health care provider, either orally or in writing, and who are not doctors shall be nurses, physicians assistants, or health care providers qualified to provide the service requested by the provider. This provision shall not be interpreted to require such qualifications for personnel who perform clerical or administrative tasks. (b) A utilization review agent may not permit or provide compensation or any thing of value to its employees or agents, condition employment or its employee or agent evaluations, or set its employee or agent performance standards, based on: the amount or volume of adverse determinations; reductions or limitations on lengths of stay, duration of treatment, medical benefits, services, or charges; or the number or frequency of telephone calls or other contacts with health care providers or injured employees, which are inconsistent with the provisions of this subchapter. (c) The utilization review agent is required to provide the name, number, type, and minimum qualification or qualifications of the personnel either employed or under contract to perform the utilization review to the commissioner. Utilization review agents shall be required to adopt written procedures used to determine if doctors or other health care providers utilized by the utilization review agent are licensed, qualified, and appropriately trained, and must maintain records on such. (d) Utilization review conducted by a utilization review agent shall be under the direction of a physician currently licensed to practice medicine by a state licensing agency in the United States. Such physician may be employed by or under contract to the utilization review agent. (e) Utilization review of dental health care shall be reviewed by a dentist currently licensed by a state licensing agency in the United States. sec.19.2007.Prohibitions of Certain Activities of Utilization Review Agents. (a) A utilization review agent may not engage in unnecessary or unreasonably repetitive contacts with the health care provider or injured employee and shall base the frequency of contacts or reviews on the severity or complexity of the injured employee's condition or on necessary treatment and return to work planning activity. (b) A utilization review agent shall not set or impose any notice or other review procedures contrary to the requirements of this subchapter, the Texas Workers' Compensation Act, and the TWCC rules. sec.19.2008.Utilization Review Agent Contact with and Receipt of Information from Health Care Providers. (a) A health care provider may designate one or more individuals as the initial contact or contacts for utilization review agents seeking routine information or data. In no event shall the designation of such an individual or individuals preclude a utilization review agent or medical advisor from contacting a health care provider or others in his or her employ where a review might otherwise be unreasonably delayed or where the designated individual is unable to provide the necessary information or data requested by the utilization review agent. (b) Unless precluded or modified by contract, the workers' compensation insurance carrier shall reimburse health care providers for the reasonable costs of providing written medical information, including copying and transmitting any requested injured employee records or other documents pursuant to Chapter 133, Subchapter B of this title, (relating to Required Reports). A health care provider's charge for providing medical information to a utilization review agent shall not exceed the cost of copying records set by rules of the Texas Workers' Compensation Commission and may not include any costs that are either otherwise specified in TWCC rules and/or guidelines as not reimbursed separately or are recouped as a part of the charge for health care. (c) When conducting utilization review the utilization review agent shall require only the information necessary to complete the review. This information may include identifying information about the injured employee, the treating health care provider, and facilities rendering care. It may also include clinical information regarding the diagnoses of the injured employee and the medical history of the injured employee relevant to the diagnoses and the compensable injury, the injured employee's prognosis, and the treatment plan prescribed by the treating health care provider along with the provider's justification for the treatment plan. It must include the medical information to substantiate the medical necessity for the specific treatment in review. These items shall only be requested when relevant to the utilization review in question, and be requested as appropriate from the health care provider or health care facility. The required information should be obtained from the appropriate source since no one source will have all of this information. (1) Utilization review agents shall not routinely require hospitals and doctors to supply numerically codified diagnoses or procedures. Utilization review agents may ask for such coding, since if it is known, its inclusion in the data collected increases the effectiveness of the communication. (2) Utilization review agents shall not routinely request copies of medical records on all injured employees reviewed. During utilization review, copies of medical records should only be required when a difficulty develops in determining whether the health care is medically reasonable and necessary. In those cases, only the necessary or pertinent sections of the record should be required. (d) Information in addition to that described in this section may be requested by the utilization review agent or voluntarily submitted by the health care provider when there is significant lack of agreement between the utilization review agent and health care provider regarding the appropriateness of health care during the review process. "Significant lack of agreement" means that the utilization review agent: (1) has tentatively determined, through its professional staff, that a service cannot be authorized to be provided or reimbursed; (2) has referred the case to a physician for review; and (3) has talked to or attempted to talk to the health care provider for further information. (e) The utilization review agent shall share all pertinent clinical and demographic information on individual injured employees among its various divisions (e.g., preauthorization, return to work planning, case management) to avoid duplicate requests for information from injured employees or health care providers. (f) Notwithstanding any other provision of this subchapter, a utilization review agent may not require as a condition of treatment approval, or for any other reason, the observation of a psychotherapy session or the submission or review of a mental health therapist's process or progress notes. This does not preclude the utilization review agent from requiring submission of an injured employee's medical record. sec.19.2009.On-Site Review by the Utilization Review Agent. (a) Unless approved by an injured employee and the treating doctor or modified by contract, a utilization review agent shall be prohibited from observing, participating in, recording, or otherwise being present during an injured employee's examination, treatment, procedure or therapy. In no event shall this section otherwise be construed to limit or deny contact with an injured employee or the health care provider for purposes of conducting utilization review unless otherwise specifically prohibited by law. (b) Utilization review agents' staff shall identify themselves by name and by the name of their organization and, for on-site reviews, should carry picture identification and the utilization review company identification card with the certification or registration number assigned by the Texas Department of Insurance. Utilization review agents should assure that their on-site review staff register with the appropriate contact person, if available, prior to requesting any clinical information or assistance from hospital staff, and wear appropriate hospital supplied identification tags while on the premises. Utilization review agents shall agree, if so requested, that the medical records remain available in the designated areas during the on-site review, and that reasonable hospital administrative procedures shall be followed by on-site review staff so as to not disrupt hospital operations or patient care. Such procedures, however, should not obstruct or limit the ability of the utilization review agent to efficiently conduct the necessary review. sec.19.2010.Notice of Determinations Made by Utilization Review Agents, Excluding Retrospective Review. (a) A utilization review agent shall notify the injured employee, their representative and the treating doctor or the treating doctor's designated representative (e.g., referred health care providers or health care facilities) of a determination made in a utilization review. (b) The notification and time frames for notification required by this section must be made in accordance with TWCC rules contained in Chapter 134, Subchapter G of this title (relating to Treatments and Services Requiring Preauthorization.) (c) Notification of adverse determination by the utilization review agent must include: (1) the principal reasons for the adverse determination; (2) the clinical basis for the adverse determination; (3) a description or the source of the screening criteria that were utilized as guidelines in making the determination; and (4) a description of the procedure for the complaint process to the Department and appeal process to TWCC. sec.19.2011.Requirements Prior to Adverse Determination. Subject to the notice requirements of sec.19.2010 of this title (relating to Notice of Determinations Made By Utilization Review Agents, Excluding Retrospective Review), in any instance where the utilization review agent is questioning whether the health care is medically reasonable and necessary, the health care provider who ordered the services shall be afforded a reasonable opportunity to discuss the plan of treatment for the injured employee and the clinical basis for the utilization review agent's decision with a physician, doctor, or, in the case of dental health care, with a dentist, prior to issuance of an adverse determination. The utilization review agent shall have written procedures describing how the opportunity is afforded. sec.19.2012.Appeal of Adverse Determination of Utilization Review Agents. Appeals from an adverse determination by a utilization review agent shall be governed by the Texas Workers' Compensation Act and the applicable rules and procedures of the TWCC including but not limited to Chapter 134, Subchapter G of this title (relating to Treatments and Services Requiring Preauthorization) and Chapter 133, subchapter D of this title (relating to Dispute and Audit of Bills by Insurance Carriers). sec.19.2013.Utilization Review Agent's Telephone Access. (a) A utilization review agent shall have appropriate personnel reasonably available by toll-free telephone at least 40 hours per week during normal business hours in both time zones in Texas, if applicable, to discuss injured employee's care and allow response to telephone review requests. (b) A utilization review agent must have a telephone system capable of accepting or recording or providing instructions to incoming calls during other than normal business hours and shall respond to such calls not later than two working days from the date on which the call was received or the date the details necessary to respond have been received from the caller. sec.19.2014.Confidentiality. (a) A utilization review agent shall preserve the confidentiality of individual medical records to the extent required by law. (b) A utilization review agent may not disclose or publish individual medical records, personal information, or other confidential information about an injured employee obtained in the performance of utilization review without the prior written consent of the injured employee or as otherwise required by law. Personal information shall include, at a minimum, name, address, phone number, social security number, and financial information. If such authorization is submitted by anyone other than the individual who is the subject of the personal or confidential information requested, such authorization must: (1) be dated; and (2) contain the signature of the individual who is the subject of the personal or confidential information requested. The signature must have been obtained one year or less prior to the date the disclosure is sought or the authorization is invalid. (c) A utilization review agent may provide confidential information to a third party under contract or affiliated with the utilization review agent for the sole purpose of performing or assisting with utilization review. Information provided to third parties shall remain confidential. (d) If an individual submits a written request to the utilization review agent for access to recorded personal information about the individual, the utilization review agent shall within 10 business days from the date such request is received: (1) inform the individual submitting the request of the nature and substance of the recorded personal information in writing; and (2) permit the individual to see and copy, in person, the recorded personal information pertaining to the individual or to obtain a copy of the recorded personal information by mail, at the discretion of the individual, unless the recorded personal information is in coded form, in which case an accurate translation in plain language shall be provided in writing. (e) A utilization review agent's charges for providing a copy of recorded personal information to individuals shall not exceed ten cents per page and may not include any costs that are otherwise recouped as part of the charge for utilization review. (f) The utilization review agent may not publish data which identifies a particular doctor or other health care provider, including any quality review studies or performance tracking data, without prior written notice to the involved health care provider. This prohibition does not apply to internal systems or reports used by the utilization review agent. (g) Documents in the custody of the utilization review agent that contain confidential injured employee information or doctor or other health care provider financial data shall be destroyed by a method which induces complete destruction of the information when the agent determines the information is no longer needed. (h) All injured employee, doctor, and other health care provider data shall be maintained by the utilization review agent in a confidential manner which prevents unauthorized disclosure to third parties. Nothing in this article shall be construed to allow a utilization review agent to take actions that violate a state or federal statute or regulation concerning confidentiality of injured employee records and the confidentiality provisions in the Texas Workers' Compensation Act. (i) To assure confidentiality, a utilization review agent must, when contacting a doctor's office or hospital, provide its certification number, the caller's name, and professional qualifications to the provider's named utilization review representative in the health care provider's office. (j) Upon request by the provider, the utilization review agent shall present written documentation that it is acting as an agent of the insurance carrier for the relevant injured employee. (k) The utilization review agent's procedures shall specify that specific information exchanged for the purpose of conducting reviews will be considered confidential, be used by the review agent solely for the purposes of utilization review, and shared by the utilization review agent with only those third parties who have authority to receive such information. The utilization review agent's process shall specify that procedures are in place to assure confidentiality and that the utilization review agent agrees to abide by the confidentiality provisions of the Texas Workers' Compensation Act and any other federal and state laws governing the issue of confidentiality. Summary data which does not provide sufficient information to allow identification of individual injured employees or health care providers need not be considered confidential. (l) Medical records and injured employee specific information shall be maintained by the utilization review agent in a secure area with access limited to essential personnel only. (m) Information generated and obtained by the utilization review agents in the course of utilization review shall be retained for at least two years from the date of the final decision in the utilization review. (n) Notwithstanding the provisions in subsections (a) through (m) of this section, the utilization review agent shall provide to the commissioner and/or the Texas Workers' Compensation Commission on request individual medical records or other confidential information for determination of compliance with this subchapter. The information is confidential and privileged and is not subject to the open records law, Government Code, Chapter 552, or to subpoena, except to the extent necessary to enable the commissioner to enforce this subchapter. sec.19.2015.Retrospective Review of Medical Necessity. (a) When a retrospective review is performed: (1) such retrospective review shall be based on written screening criteria as defined in sec.19.2003 of this title (relating to Definitions) established and periodically updated, at a minimum, upon certification renewal with appropriate involvement from doctors, including doctors engaged in an active practice, and other health care providers; and (2) such retrospective review shall be under the direction of a physician and performed in accordance with Chapter 133, Subchapter D of this title (relating to Dispute and Audit of Bills by Insurance Carriers). (b) When retrospective review results in an adverse determination or denial of payment, the utilization review agent shall notify the health care providers of the opportunity to appeal the determination through the appeal process as outlined in Chapter 133, Subchapter D of this title (relating to Dispute and Audit of Bills by Insurance Carriers. sec.19.2016.Complaints and Reporting Requirements. (a) Utilization review agent's complaint system. A utilization review agent shall establish and maintain a complaint system that provides reasonable procedures for the resolution of oral or written complaints initiated by injured employees, their representatives, or health care providers, concerning the utilization review process, and shall maintain records of such complaints for three years from the time the complaints are filed. The complaint procedure shall include a written response to the complainant by the agent within 30 days of the agent's receipt of the complaint. (b) Utilization review agent's reporting requirements to the department. By March 1, of each year, the utilization review agent shall submit to the commissioner or his or her delegated representative a summary report of all complaints involving workers' compensation at such times and in such form as the commissioner may require, and shall permit the commissioner to examine the complaints and all relevant documents at any time. The summary report covers reviews performed by the utilization review agent during the preceding calendar year and includes: (1) the total number of written notices of adverse determinations; (2) a listing of adverse determinations for preauthorization, by the medical condition that is the source of the dispute using primary ICD-9 (physical diagnosis) or DSM-IV (mental health diagnosis) code, and by the treatment in dispute, if any, using CPT (procedure) code or other relevant procedure code if a CPT designation is not available, or any other nationally recognized numerically codified diagnosis or procedure; (3) the classification of party requesting review (i.e., health care provider, injured employee, their representative, etc.); (4) the subject matter of the complaint. Complaints shall be categorized as follows: (A) administration (e.g., copies of medical records not paid for, too many calls or written requests for information from provider, too much information requested from provider); (B) qualifications of utilization review agent's personnel; (C) complaint process (e.g., treating doctor has not been afforded the opportunity to discuss plan of treatment with utilization review physician, no notice of adverse determination, no notice of clinical basis for adverse determination, written procedures for appeal to TWCC not provided). (c) Complaints to the department. Within a reasonable time period, upon receipt of a written complaint alleging a violation of this subchapter or the Act, by a utilization review agent, from an injured employee, their representative or health care provider, the commissioner or his or her delegated representative shall investigate the complaint, notify the utilization review agent of the complaint, require response by the utilization review agent addressing the complaint within 10 days of receipt of the complaint, and furnish a written response to the complainant and the utilization review agent named. This response must include the following: (1) a statement of the original complaint; (2) a statement of the findings of the commissioner or his or her delegated representative and an explanation of the basis of such findings; (3) corrective actions, if any, on the part of the utilization review agent which the commissioner or his or her designated representative finds appropriate and whether the utilization review agent has voluntarily agreed to take such action; and (4) a time frame in which any corrective actions should be completed. (d) Evidence of corrective action. The utilization review agent will provide evidence of corrective action within the specified time frame to the commissioner or his or her representative. (e) Authority of the department to make inquiries. In addition to the authority of the commissioner to respond to complaints described in subsection (b) of this section, the department is authorized to address inquiries to any utilization review agent in relation to the agents' business condition or any matter connected with its transactions which the department may deem necessary for the public good or for a proper discharge of its duties. It shall be the duty of the agent to promptly answer such inquiries in writing. (f) Lists of utilization review agents. The commissioner shall maintain and update monthly a list of utilization review agents issued certificates and the renewal date for those certificates. The commissioner shall provide the list at cost to all individuals or organizations requesting the list. (g) On-site review by the Texas Department of Insurance. (1) The commissioner or the commissioner's designated representative is authorized to make a complete on-site review of the operations of each utilization review agent at the principal place of business for such agent, as often as is deemed necessary. (2) Utilization review agents will be notified of the scheduled on-site visit by letter, which will specify, as a minimum, the identity of the commissioner's designated representative and the expected arrival date and time. (3) The utilization review agent must make available during such on-site visits all records relating to its operation. (4) The commissioner or the designated representative may perform periodic telephone audits of utilization review agents authorized to conduct business in this state to determine if the agents are reasonably accessible. sec.19.2017.Administrative Violations. (a) If the commissioner, through the commissioner's designated representative, believes that any person or entity conducting utilization review pursuant to this article is in violation of the Act or applicable regulations, the commissioner's designated representative shall notify the utilization review agent or insurance carrier of the alleged violation and may compel the production of any and all documents or other information as necessary to determine whether or not such violation has taken place. (b) The commissioner's designated representative may initiate the proceedings under this section. (c) Proceedings under this section are a contested case for the purpose of Government Code, Chapter 2001. (d) If the commissioner determines that the utilization review agent, insurance carrier, or other person or entity conducting utilization review pursuant to this subchapter has violated or is violating any provision of this Act, the commissioner may: (1) impose sanctions under the Insurance Code, Article 1.10, sec.7; (2) issue a cease and desist order under the Insurance Code Article 1.10A; or; (3) assess administrative penalties under the Insurance Code Article 1.10E. (e) If the utilization review agent has violated or is violating any provisions of the Insurance Code other than the Act, or applicable rules of the department, sanctions may be imposed under the Insurance Code Article 1.10 or 1.10A. (f) The commission of fraudulent or deceptive acts or omissions in obtaining, attempting to obtain, or use of certification as a utilization review agent shall be a violation of the Act. sec.19.2018.Criminal Penalties. Any person or entity performing utilization review without a certificate as required by the Act commits an offense. Except as otherwise provided by this section, an offense under this section is a Class A misdemeanor. If it is shown in the trial of a violation of this section that the person or entity has once before been convicted of a violation of this section, on conviction the person or entity shall be punished for a third degree felony. Each day of violation constitutes a separate offense. sec.19.2019.Responsibility of Insurance Companies Performing Utilization Review Under the Insurance Code, Article 21. 58A, sec.14(h). (a) An insurance company licensed by the department and performing utilization review under the Insurance Code Article 21.58A, sec.14 (h) will be subject to sec.19.2001 of this title (relating to General Provisions), sec.19.2002 of this title (relating to Limitations on Applicability), sec.19.2003 of this title (relating to Definitions), sec.19.2004(c)(1) - (10) and (d) of this title (relating to Certification of Utilization Review Agents), sec.19.2005 of this title (relating to General Standards of Utilization Review), sec.19.2006 of this title (relating to Personnel), sec.19.2007 of this title (relating to Prohibitions of Certain Activities of Utilization Review Agents), sec.19.2008 of this title (relating to Utilization Review Agent Contact with and Receipt of Information from Health Care Providers), sec.19.2009 of this title (relating to On-Site Review by the Utilization Review Agent), sec.19.2010 of this title (relating to Notice of Determinations Made by Utilization Review Agents), sec.19.2011 of this title (relating to Requirements Prior to Adverse Determination), sec.19.2012 of this title (relating to Appeal of Adverse Determination of Utilization Review Agents), sec.19.2013 of this title (relating to Utilization Review Agent's Telephone Access), sec.19.2014 of this title (relating to Confidentiality), sec.19.2015 of this title (relating to Retrospective Review of Medical Necessity), sec.19.2016 of this title (relating to Complaint and Information), sec.19.2017 of this title (relating to Administrative Violations), and sec.19.2020 of this title (relating to Specialty Utilization Review Agent) with respect to their operations under the provisions of the Act, sec.14(h). (b) When an insurance company performs utilization review under the Texas Workers' Compensation Act or TWCC rules for an insurance carrier, an employer, or a utilization review agent other than the insurance company itself, such insurance company shall be required to obtain a certificate under this subchapter and comply with all the provisions of this subchapter. (c) Insurance companies performing utilization review under sec.14(h) of the Act must register with the department and submit written documentation demonstrating compliance with all the filing requirements defined in sec.19.2004(c)(1) - (10) and (d) of this title (relating to Certification of Utilization Review Agents) and the name, address, contact name and phone number of the insurance company. sec.19.2020.Specialty Utilization Review Agent. (a) A utilization review agent that solely performs specialty review under the Insurance Code Article 21.58A, sec.14(j) is not subject to the Insurance Code Article 21.58A, sec.4(b), (c), (h) or (k) or sec.6(b)(3) of the Act. A utilization review agent that does not solely perform specialty review, is not subject to the provisions of this section or the Insurance Code Article 21.58A, sec.14(j). (b) A utilization review agent that performs specialty review under the Insurance Code Article 21.58A, sec.14 (j) is subject to this subchapter, except sec.19.2004 (c)(1)(B) and (c)(6) of this title (relating to Certification of Utilization Review Agents); the first sentence of sec.19.2005 of this title (relating to General Standards of Utilization Review); sec.19.2006 (a), (d), (e) of this title (relating to Personnel); and sec.19.2011 of this title (relating to Requirements Prior to Adverse Determination) and sec.19.2012 of this title (relating to Appeal of Adverse Determination of Utilization Review Agents). (c) A specialty utilization review agent must submit, by attachment to the application, assurance that the utilization review plan shall be reviewed by a health care provider of the appropriate specialty and conducted in accordance with standards developed with input from a health care provider of the appropriate specialty. (d) A specialty utilization review agent must submit by attachment to the application a description of the categories of personnel who perform utilization review, such as doctors, nurses, physicians assistants, or other health care providers of the same specialty as the utilization review agent and who are licensed or otherwise authorized to provide the specialty health care by a state licensing agency in the United States, except that this provision does not require those qualifications from personnel who perform solely clerical or administrative tasks. (e) An applicant for a certificate of registration as a specialty utilization review agent must provide evidence that the applicant has available the services of doctors, nurses, physician's assistants, or other health care providers of the same specialty as the utilization review agent and who are licensed or otherwise authorized to provide the specialty health care by a state licensing agency in the United States to carry out its utilization review activities in a timely manner. (f) Personnel employed by or under contract with the specialty utilization review agent to perform utilization review shall be appropriately trained and qualified and, if applicable, currently licensed. Personnel who obtain information regarding an injured employee's specific medical condition, diagnosis, and treatment options or protocols directly from the doctor or health care provider, either orally or in writing, and who are not doctors, shall be nurses, physician's assistants, or other health care providers of the same specialty as the utilization review agent and who are licensed or otherwise authorized to provide the specialty health care by a state licensing agency in the United States. This provision shall not be interpreted to require such qualifications for personnel who perform clerical or administrative tasks. (g) Utilization review conducted by a specialty utilization review agent shall be conducted under the direction of a health care provider of the same specialty and shall be licensed or otherwise authorized to provide the specialty health care by a state licensing agency in the United States. (h) Subject to the notice requirements of sec.19.2012 of this title (relating to Appeal of Adverse Determination), in any instance where the specialty utilization review agent questions whether the health care is medically reasonable and necessary, the health care provider who ordered the services shall, prior to the issuance of an adverse determination, be afforded a reasonable opportunity to discuss the plan of treatment for the patient and the clinical basis for the decision of the utilization review agent with a health care provider of the same specialty as the utilization review agent. (i) Appeals from an adverse determination by a specialty utilization review agent shall be governed by the Texas Workers' Compensation Act and the applicable rules and procedures of the TWCC including but not limited to Chapter 134, Subchapter G of this title (relating to Treatments and Services Requiring Preauthorization) and Chapter 133, Subchapter D of this title (relating to Dispute and Audit of Bills by Insurance Carriers). sec.19.2021. Independent Review Organizations Non-Involvement. The rules of the commissioner in Chapter 12 of this title, (relating to Independent Review Organizations) are not applicable to this subchapter. sec.19.2021.Independent Review Organizations Non-Involvement. The rules of the commissioner in Chapter 12 of this title, (relating to Independent Review Organizations) are not applicable to this subchapter. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State, on May 11, 1998. TRD-9807660 Lynda Nesenholtz Assistant General Counsel Texas Department of Insurance Earliest possible date of adoption: June 21, 1998 For further information, please call: (512) 463-6327 CHAPTER 21.Trade Practices SUBCHAPTER O.Notice of Availability of Coverage Under the Texas Health Insurance Risk Pool 28 TAC sec.sec.21.2301-21.2306 The Texas Department of Insurance proposes new Subchapter O, sec.sec.21.2301- 21.2306, concerning a notice of the availability of coverage through the Texas Health Insurance Risk Pool (Health Pool). The new subchapter requires a notice to be provided by health carriers that provide health coverage in this state in certain instances. The Health Pool brings Texas into compliance with the federal Health Insurance Portability and Accountability Act of 1996 and will increase access to health coverage, enhance health coverage portability, and reduce family impoverishment among medically uninsurable Texans without diminishing the availability of traditional health coverage. Section 21.2301 states that the purpose of these rules is to facilitate public awareness of and enrollment in the Health Pool. Section 21.2302 defines terms used in the subchapter. Section 21.2303 sets forth procedures for delivering the notice and delineates to whom the notice must be sent. Section 21.2304 refers to a notice developed by the department that health carriers may use and sets forth criteria for the notice if a health carrier chooses to develop and utilize a notice other than the notice developed by the department. Section 21.2305 contains the promulgated Notice of Availability of Coverage Under the Texas Health Insurance Risk Pool. Section 21.2306 states that the subchapter applies to any application for health coverage received, processed or acted upon by a health carrier on or after July 1, 1998. Rose Ann Reeser, associate commissioner, regulation and safety, has determined that for the first five-year period the proposed sections are in effect, there will be no additional fiscal impact on state or local government as a result of enforcing or administering the proposed sections, and there will be no effect on local employment or local economy. Ms. Reeser has also determined that for each year of the first five years the proposed sections are in effect, the public benefit anticipated as a result of enforcing the subchapter will be facilitation of public awareness of the availability of coverage and subsequent enrollment of eligible individuals in the Health Pool. The Health Pool will increase access to health coverage, enhance health coverage portability, and reduce family impoverishment among medically uninsurable Texans. The cost of compliance for persons affected by this section will be between $0.10 and $0.25 per notice. The actual total cost to each health carrier will vary depending on the number of applicants to whom the notice must be sent. A health carrier will only have to send the notice in certain situations, such as when coverage for an applicant is rejected, when coverage is offered at rates higher than the health carrier's standard rate, or when coverage is offered with conditional riders. In an effort to minimize costs, health carriers are allowed to deliver the notice along with other correspondence rather than in a separate mailing. Ms. Reeser has determined that the maximum cost associated with the proposed sections is, estimated to be $0.25 per notice. The total cost to the health carrier is not dependent upon the size of the health carrier, but rather is dependent upon the health carrier's number of applicants, the health carrier's underwriting criteria, and the number of applicants who are not offered standard coverage or are offered coverage at a rate in excess of the health carrier's standard rate. Both small businesses and the largest businesses affected by these sections would incur the same cost per notice. The cost per hour of labor would not vary between the smallest and largest businesses, assuming that a small business and the largest business have to provide this notice to approximately the same percentage of their applicants. Comments on the proposal must be submitted in writing within 30 days after publication of the proposed subchapter in the Texas Register to Caroline Scott, General Counsel and Chief Clerk, Mail Code 113-2A, Texas Department of Insurance, P.O. Box 149104, Austin, Texas 78714-9104. An additional copy of the comments should be submitted to Linda Von Quintus, Deputy Commissioner, Regulation and Safety, Mail Code 107-2A, Texas Department of Insurance, P.O. Box 149104, Austin, Texas 78714-9104. The new subchapter is proposed under the Insurance Code, Articles 3.77 and 1.03A. Article 3.77, sec.8 gives the commissioner authority to adopt rules as necessary and proper to implement Article 3.77. Article 1.03A provides that the commissioner of insurance may adopt rules and regulations to execute the duties and functions of the Texas Department of Insurance as authorized by statute. Insurance Code, Article 3.77 is affected by this proposal. sec.21.2301.Purpose. The purpose of these rules is to facilitate public awareness of the availability of coverage under and enrollment in the Texas Health Insurance Risk Pool (Health Pool). The rule accomplishes this purpose through implementing efficient and economical procedures for notifying persons that they may be eligible for coverage under the Health Pool. sec.21.2302.Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise: (1) Eligible individual - An individual who is a resident of Texas who has applied or for whom application has been made for health coverage. (2) Health carrier - Any entity authorized under the Texas Insurance Code or another insurance law of this state, which provides health coverage in this state, including an insurance company, a group hospital service corporation under Chapter 20, a health maintenance organization under the Texas Health Maintenance Organization Act (Chapter 20A), an approved nonprofit health corporation, a fraternal benefit society under Chapter 10, and a stipulated premium company under Chapter 22. (3) Health coverage - Individual health coverage issued by a health carrier that provides coverage for hospital, medical or surgical expenses, or any other health care plan or arrangement that pays for or furnishes medical or health care services whether by insurance or otherwise. The term does not include accident, dental-only, vision-only, fixed indemnity, credit insurance or other limited coverage, coverage issued as a supplement to liability insurance, insurance arising out of a workers' compensation or similar law, automobile medical-payment insurance, or insurance under which benefits are payable with or without regard to fault and which is statutorily required to be contained in any liability insurance policy or equivalent self-insurance. (4) Health Pool - The Texas Health Insurance Risk Pool. sec.21.2303.Delivery of Notice. (a) A health carrier shall provide written notice of Health Pool availability to an eligible individual who has applied for health coverage from the health carrier, if the health carrier: (1) refuses to issue health coverage to or for the eligible individual; (2) offers health coverage to or for the eligible individual with riders excluding an individual or a medical condition or illness of an individual from coverage by that policy; or (3) offers health coverage to or for the eligible individual at rates higher than the health carrier's standard rate. (b) The notice shall be sent with the written notification of the action taken or proposed to be taken by the health carrier on the eligible individual's application for coverage from the health carrier. sec.21.2304.Notice. (a) The health carrier may use the Form Health Pool Notice provided at Figure 1 in sec.21.2305 of this title (relating to Form). (b) In lieu of the notice outlined in subsection (a) of this section, a health carrier may opt to provide a notice that contains substantially similar language to the language contained in Figure 1 in sec.21.2305 of this title (relating to Form). The substantially similar language shall be in a readable and understandable format and shall include a clear, complete and accurate description of the items set out in paragraphs (1) - (5) of this subsection in the following order: (1) a heading in bold print and all capital letters indicating the information in the notice relates to availability of coverage under the Health Pool; (2) a statement in bold print that the notice is being provided to advise the individual that he/she may be eligible for coverage from the Health Pool; (3) a listing of the reasons an individual may be eligible for coverage under the Health Pool including: (A) two refusals or rejections for health coverage from health carriers, (B) the offer of health coverage with a rider that excludes certain health conditions of the individual (and an example of such rider similar to the following: For example, a health carrier will provide coverage to the individual with an exclusion of the individual's diabetes, heart disease, cancer, etc.); (C) a statement offering health coverage with rates that exceed the rates of the Health Pool; (D) the individual has been diagnosed with one of the medical conditions specified by the Health Pool Board of Directors that qualifies him/her for Health Pool coverage; or (E) the individual has maintained health coverage for the previous 18 months with no gap in coverage greater than 63 days, the most recent health coverage was with an employer-sponsored plan, government plan or church plan. (4) a statement that the individual should contact the Health Pool for additional information regarding eligibility, coverages, cost, limitations, exclusions and termination provisions; (5) in bold print the full name, address and telephone numbers of the Health Pool as shown in sec.21.2305(b) and as subsequently updated. (c) The notice shall be in no less than 10 point type. sec.21.2305.Form. (a) Form Health Pool Notice is included in subsection (b) of this section in its entirety and has been filed with the Office of the Secretary of State. The address and phone numbers are variable to encompass any future changes. The form can be obtained from the Texas Department of Insurance, Life/Health Group, MC 106-1A, P.O. Box 149104, Austin, Texas 78714-9014. (b) Form Health Pool Notice: Figure: 28 TAC sec.21.2305(b) sec.21.2306.Compliance and Effective Date. The requirements of this subchapter apply to any application for health coverage received, processed or acted upon by a health carrier on or after July 1, 1998. If before the effective date of these rules, a health carrier has provided notice to eligible individuals that contains information substantially similar to that required by the notice described in this subchapter, such notice shall be deemed to comply with the requirements of this subchapter. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State, on May 11, 1998. TRD-9807441 Lynda Nesenholtz Assistant General Counsel Texas Department of Insurance Earliest possible date of adoption: June 21, 1998 For further information, please call: (512) 463-6327 TITLE 37. PUBLIC SAFETY AND CORRECTIONS PART I. Texas Department of Public Safety CHAPTER 3.Traffic Law Enforcement SUBCHAPTER B.Enforcement Action 37 TAC sec.sec.3.22-3.24 The Texas Department of Public Safety proposes amendments to sec.sec.3.22-3.24, concerning Enforcement Action. Amendment to sec.3.22(a) omits unnecessary language regarding a written warning. Amendment to sec.3.23(b)(2) adds residence address and date of birth as required information which must be furnished by a violator. Amendment to sec.3.24 reflects the nonsubstantive changes in statute from Texas Civil Statutes to Texas Transportation Code. Tom Haas, Chief of Finance, has determined that for each year of the first five- year period the rule is in effect there will be no fiscal implications as a result of enforcing or administering the rule. Mr. Haas also has determined that for each year of the first five years the rule is in effect the public benefit anticipated as a result of enforcing the rule will be clarification of department policy. There is no anticipated cost to persons who are required to comply with the sections as proposed. There are no anticipated economic costs to small or large businesses. Comments on the proposal may be submitted to Duncan R. Fox, Senior Assistant General Counsel, Legal Services, Texas Department of Public Safety, Box 4087, Austin, Texas 78773-0140, (512) 424-2890. The amendments are proposed pursuant to Texas Government Code, sec.411.006(4), which authorizes the director to adopt rules, subject to commission approval, considered necessary for the control of the department. Texas Government Code, sec.411.006(4), is affected by this proposal. sec.3.22.Written Warning. (a) General. The department believes that warnings given for traffic law violations constitute acceptable enforcement action when given under proper circumstances. Warnings will be given for traffic law violations of a relatively minor degree [to take care of the area between legal and substantially illegal operation of motor vehicles]. (b) (No Change.) sec.3.23.Citation and Custody Arrest. (a) (No Change.) (b) Custody arrests. (1) (No Change.) (2) Under no circumstances will a custody arrest be used to punish the violator or as a convenience to the trooper. In obtaining information for a notice to appear in court, the violator is required by statute to furnish his name , residence address and date of birth
                                                                                                                                                                                                                                                                                                                      [and current home address]. It is desirable to elicit pertinent information such as occupation, telephone number, and business address, etc., for possible future use in the processing of warrants. However, the violator's failure to respond in the latter instance is not, standing alone, a sufficient reason to make a custody arrest, for they are not legally compelled to provide such additional information. sec.3.24.Speed Law Enforcement. (a) (No Change.) (b) Interpretation of Texas Transportation Code, sec.545.363(a)
                                                                                                                                                                                                                                                                                                                        [Civil Statutes, Article 170(a)]. (1) The exception "except when reduced speed is necessary for safe operation" will not apply when it is practicable for the offending driver to drive onto the shoulder and allow the impeded traffic to pass. (2) The exception "except when reduced is necessary ....in compliance with law" will be interpreted to exempt at all times a driver of a vehicle or combination of vehicles who is driving at or near the maximum legal limit for that vehicle or combination of vehicles. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State, on May 5, 1998. TRD-9807313 Dudley M. Thomas Director Texas Department of Publis Safety Earliest possible date of adoption: June 21, 1998 For further information, please call: (512) 424-2890 SUBCHAPTER F.Texas Registered Vehicles Not Requiring Inspection 37 TAC sec.3.91 The Texas Department of Public Safety proposes an amendment to sec.3.91, concerning NATO Agreement Vehicle Inspection Exemptions. The amendment to subsection (b) updates the NATO member countries. Tom Haas, Chief of Finance, has determined that for each year of the first five- year period the rule is in effect there will be no fiscal implications as a result of enforcing or administering the rule. Mr. Haas also has determined that for each year of the first five years the rule is in effect the public benefit anticipated as a result of enforcing the rule will be to exempt motor vehicles imported into the United States from a foreign country by members of a military force or civilian component that is a party to the NATO Agreement of 1953 from the Texas vehicle inspection requirements. There is no anticipated cost to persons who are required to comply with the section as proposed. There are no anticipated economic costs to small or large businesses. Comments on the proposal may be submitted to Duncan R. Fox, Senior Assistant General Counsel, Legal Services, Texas Department of Public Safety, Box 4087, Austin, Texas 78773-0140, (512) 424-2890. The amendment is proposed pursuant to Texas Transportation Code, sec.548.002 which authorizes the department to adopt rules to administer and enforce this chapter. Texas Transportation Code, sec.548.002 is affected by this proposal. sec.3.91.NATO Agreement Vehicle Inspection Exemptions. (a) (No Change.) (b) The NATO member countries are Belgium, Canada, Denmark, France, Germany,
                                                                                                                                                                                                                                                                                                                          Greece, Iceland
                                                                                                                                                                                                                                                                                                                            [Ireland], Italy, Luxemburg, Netherlands, Norway, Portugal, Spain,
                                                                                                                                                                                                                                                                                                                              Turkey, United Kingdom of Great Britain and Northern Ireland, and the
                                                                                                                                                                                                                                                                                                                                United States of America [, and West Germany]. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State, on May 5, 1998. TRD-9807312 Dudley M. Thomas Director Texas Department of Public Safety Earliest possible date of adoption: June 21, 1998 For further information, please call: (512) 424-2890 PART XIII. Texas Commission on Fire Protection CHAPTER 421.Standards for Certification 37 TAC sec.sec.421.1, 421.3, 421.5, 421.7, 421.9 (Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Commission on Fire Protection or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The Texas Commission on Fire Protection proposes the repeal of sec.sec.421.1, 421.3, 421.5, 421.7, and 421.9, concerning standards for certification. The subject matter of the repealed sections will be replaced by proposed new sections dealing with the same subject. Anthony C. Calagna, Fire Fighter Advisory Committee Chairman, has determined that for the first five year period the repeal is in effect there will be no fiscal implications for state and local governments. Mr. Calagna also also determined that for each of the first five years the repeal is in effect the public benefit anticipated as a result of enforcing the repeal will be that obsolete language will be replaced with new sections that implement legislative changes. There are no additional costs of compliance for small or large businesses and for individuals required to comply with the changes. There is no local employment impact resulting from the change. Comments on the proposal may be submitted to: Gary L. Warren Sr., Executive Director, Texas Commission on Fire Protection, P.O. Box 2286, Austin, Texas 78768-2286 or e-mail to tcfp@mail.capnet.state.tx.us. The repeal is proposed under Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and Texas Government Code, sec.419.022(a)(5), which provides the commission with authority to establish minimum requirements for fire protection personnel. Texas Government Code, sec.419.022(a)(5) is affected by the proposed repeal. sec.421.1.Procedures for Meetings. sec.421.3.Minimum Standards Set by the Commission. sec.421.5.Definitions sec.421.7.Minimum Standards for Employment sec.421.9.Designation of Fire Protection Duties This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State, on May 11, 1998. TRD-9807586 T. R. Thompson General Counsel Texas Commission on Fire Protection Earliest possible date of adoption: June 21, 1998 For further information, please call: (512) 918-7189 The Texas Commission on Fire Protection proposes new sec.sec.421.1, 421.3, 421.5, 421.7, and 421.9, concerning standards for certification. The new chapter includes sections pertaining to procedures for advisory committee meetings, standards set by the commission for functional position descriptions, definitions, recognition of previous volunteer training, and designation of fire protection duties. The new sec.421.1 changes the references to the fire fighter advisory committee to address statutory changes and adds provisions for removal of committee members. New sec.421.3 deletes unnecessary language. New sec.421.5 changes definitions mainly to integrate the volunteer certification program into the paid fire protection personnel certification program. New sec.421.7 transfers language concerning recognition of previous volunteer training from the repealed volunteer rules. Finally, new sec.421.9 adds language to address statutory changes allowing individual certification and define compensation limits for persons designated as volunteer or other auxiliary fire fighters. Anthony C. Calagna, Fire Fighter Advisory Committee Chairman, has determined that for the first five year period the new chapter is in effect there will be no fiscal implications for state or local governments. Mr. Calagna also has determined that for each of the first five years the new chapter is in effect the public benefit anticipated as a result of enforcing the new chapter will be elimination of duplication of training and certification requirements by consolidating the paid and volunteer programs. There will be no additional costs of compliance for small or large businesses or individuals required to comply with the new chapter. The commission has determined that the proposed new sections relating to standards for certification will have no impact on private real property interests and no takings impact assessment is required pursuant to the Government Code, sec.2007.043(b) and sec.2.18 of the Attorney General's Private Real Property Rights Preservation Act Guidelines. There is no local employment impact resulting from the change. Comments on the proposal may be submitted to: Gary L. Warren Sr., Executive Director, Texas Commission on Fire Protection, P.O. Box 2286, Austin, Texas 78768-2286 or e-mail to tcfp@mail.capnet.state.tx.us. The new chapter is proposed under Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; Texas Government Code, sec.419.022, which provides the commission with authority to establish minimum requirements for fire protection personnel; Texas Government Code sec.419.032, which provides the commission with authority to establish standards for employment as fire protection personnel; Texas Government Code, sec.419.0322, which provides for limits on compensation; and Texas Government Code, sec.419.071, which provides the commission with authority to establish standards for the volunteer certification program. Texas Government Code, sec.419.022 is affected by the proposed new chapter. sec.421.1.Procedures for Meetings (a) Time and places. The Fire Fighter Advisory Committee and Testing Committee shall meet at such times and places in the State of Texas as it deems proper. The Fire Fighter Advisory Committee shall meet at least twice each calendar year. (b) Meeting called. Meetings shall be called by the chairman, by the commission, or upon the written request of five members. (c) Quorum. A majority of members shall constitute a quorum. (d) Members. The Fire Fighter Advisory Committee shall consist of nine members appointed by the commission. The Testing Committee shall consist of members appointed by the Commission upon the recommendation of the Fire Fighter Advisory Committee. Committee members serve at the will of the commission. (e) Officers. Officers of the Fire Fighter Advisory Committee and the Testing Committee shall consist of a chairman, vice-chairman, and secretary. The committee shall elect its officers from the appointed members at its first meeting and thereafter at its first meeting following January 1 of each year or upon the vacancy of an office. (f) Responsibility. The Fire Fighter Advisory Committee shall review commission rules relating to fire protection personnel and fire departments and recommend changes in the rules to the commission. (g) Effective Date. All rules recommended by the Fire Fighter Advisory Committee and finally adopted by the commission before May 1st, should go into effect January 1st, of the following year and rules recommended by the Fire Fighter Advisory Committee and finally adopted after May 1st, should go into effect no sooner than one year from January 1st, of the following year, unless the committee recommends a sooner effective date for issues such as health and safety or undue hardship. (h) Removal. It is a ground for removal from an advisory committee appointed by the Commission if a member is absent from more than half of the regularly scheduled committee meetings that the member is eligible to attend during a calendar year unless the absence is excused by a majority vote of the committee. sec.421.3.Minimum Standards Set by the Commission. (a) General statement. It shall be clearly understood that the specified minimum standards herein described are designated as a minimum program. Employing entities are encouraged to exceed the minimum program wherever possible. Continuous in-service training beyond the minimum standards for fire protection personnel is strongly recommended. Nothing in these regulations shall limit or be construed as limiting the powers of the Civil Service Commission, or the employing entity, to enact rules and regulations which establish a higher standard of training than the minimum specified, or which provides for the termination of the services of unsatisfactory employees during or upon completion of the prescribed probationary period. (b) Functional position descriptions. (1) Structural fire protection personnel. The following general position for structural fire protection personnel serves as a guide for anyone interested in understanding the qualifications, competencies, and tasks required of the fire fighter operating in the State of Texas. It is ultimately the responsibility of an employer to define specific job descriptions within each jurisdiction. (A) Qualifications. Successfully complete a commission approved course; achieve a passing score on written and performance certification examinations; must be at least 18 years of age; generally, the knowledge and skills required show the need for a high school education or equivalent; ability to communicate verbally, via telephone and radio equipment; ability to lift, carry, drag, and balance weight equivalent to the average human weight; ability to interpret written, and oral instructions; ability to work effectively in high stress situations; ability to work effectively in an environment with loud noises and flashing lights; ability to function through an entire work shift; ability to calculate weight and volume ratios; ability to read and understand English language manuals including chemical, medical and technical terms, and road maps; ability to accurately discern street signs and address numbers; ability to document, in writing, all relevant information in prescribed format in light of legal ramifications of such; ability to converse in English with coworkers and other emergency response personnel. Good manual dexterity with ability to perform all tasks related to the protection of life and property; ability to bend, stoop, and crawl on uneven surfaces; ability to withstand varied environmental conditions such as extreme heat, cold, and moisture; and ability to work in low or no light, confined spaces, elevated heights and other dangerous environments. (B) Competency. A basic fire fighter must demonstrate competency handling emergencies utilizing equipment and skills in accordance with the objectives in Chapter 1 of the Commission Certification Curriculum Manual, adopted by the Texas Commission on Fire Protection. (2) Aircraft fire protection personnel. The following general position description for aircraft fire protection personnel serves as a guide for anyone interested in understanding the qualifications, competencies, and tasks required of aircraft fire protection personnel operating in the State of Texas. It is ultimately the responsibility of an employer to define specific job descriptions within each jurisdiction. (A) Qualifications. In addition to the qualifications for basic structural fire protection personnel: familiarity with geographic and physical components of an airport; ability to use and understand communication equipment, terminology, and procedures utilized by airports; ability and knowledge in the application of fire suppression agents; and ability to effectively perform fire suppression and rescue operations. (B) Competency. Basic fire fighting and rescue personnel must demonstrate competency handling emergencies utilizing equipment and skills in accordance with the objectives in Chapter 2 of the Commission Certification Curriculum Manual, adopted by the Texas Commission on Fire Protection. sec.421.5.Definitions. The following words and terms, when used in this part, shall have the following meanings, unless the context clearly indicates otherwise. (1) Accredited training--A curriculum or training program which carries written approval from the commission, credit hours that appear on an official transcript from an accredited college or university and any fire service training received from a nationally recognized source, i.e., the National Fire Academy. (2) Admission to employment--An entry level full-time employee of a local government entity in one of the categories of fire protection personnel. (3) Approved training--Any training which will be used toward any level of certification must be submitted to the commission for approval prior to the commencement of the training. The training submission must be in a manner specified by the commission and contain all information requested by the commission. The commission will not grant credit twice for the same subject content or course. (4) Assigned/work--A fire protection personnel or a part-time fire protection employee shall be considered "assigned/working" in a position, any time the individual is receiving compensation and performing the duties that are regulated by the Texas Commission on Fire Protection certification. (5) Assistant fire chief--The officer occupying the first position subordinate to the head of a fire department. (6) Auxiliary fire fighter--A volunteer fire fighter. (7) Benefits--Benefits shall include, but are not limited to, inclusion in group insurance plans (such as health, life, and disability) or pension plans, stipends, free water usage, and reimbursed travel expenses (such as meals, mileage, and lodging). (8) Class hour--Defined as not less than 50 minutes of instruction, also defined as a contact hour; a standard for certification of fire protection personnel. (9) Code--The official legislation creating the commission. (10) College credits--Credits earned for studies satisfactorily completed at an accredited institution of higher education, or courses delivered through the National Emergency Training Center residency programs, and recommended for college credit by the American Council on Education (ACE). (11) Commission--Texas Commission on Fire Protection. (12) Compensation--Compensation is to include wages, salaries, and "per call" payments (for attending drills, meetings or answering emergencies). (13) Coordinator--The official responsible for a commission approved training curriculum, training facility, and/or school (other than fire department) by whatever title he/she may be called. (14) Department--A fire department which is a part of, or is administered by, a municipality or other governmental entity which is responsible for fire prevention and protection. (15) Expired--Any certification that has not been renewed on or before the end of the certification period. (16) Federal fire fighter--A person as defined in the Texas Government Code, sec. 419.084(h). (17) Fire chief--The head of a fire department. (18) Fire protection personnel--Any person who is a permanent full-time employee of a government entity and who is assigned duties in one of the following categories/disciplines: fire suppression, fire inspection, fire and arson investigation, marine fire fighting, aircraft fire fighting, fire training, fire education, fire administration and others employed in related positions necessarily or customarily appertaining thereto. (19) Fire suppression duties--Engaging in the controlling or extinguishment of a fire of any type or performing activities which are required for and directly related to the control and extinguishment of fires or standing by on the employer's premises or apparatus or nearby in a state of readiness to perform these duties. (20) Full-time--An officer or employee is considered full-time if the employee works an average of 40 hours a week or averages 40 hours per week or more during a work cycle in a calendar year. For the purposes of this definition paid leave will be considered time worked. (21) Government entity--The local authority having jurisdiction as employer of full-time fire protection personnel in a state agency, incorporated city, village, town or county, education institution or political subdivision. (22) High school--A school accredited as a high school by the Texas Education Agency. (23) Lead instructor--An individual charged with the responsibility of conducting a training school under the provision of the Code. (24) Municipality--Any incorporated city, village, or town of this state and any county or political subdivision or district in this state. Municipal pertains to a municipality as herein defined. (25) Participating volunteer fire fighter--An individual who voluntarily seeks certification and regulation by the Commission under the Government Code, Chapter 419, Subchapter D. (26) Participating volunteer fire department--A fire department that voluntarily seeks regulation by the Commission under the Government Code, Chapter 419, Subchapter D. (27) Part-time fire protection employee--An individual who is designated as a part-time fire protection employee and who receives compensation, including benefits and reimbursement for expenses. A part-time fire protection employee is not full-time as defined in this section. (28) Recognition of training--A document issued by the Commission stating that an individual has completed the training requirements of a specific phase level of the Basic Fire Suppression Curriculum. (29) School--Any school, college, university, academy, or local training program which offers fire service training and included within its meaning the combination of course curriculum, instructors, and facilities. (30) Trainee--An individual who is participating in a commission approved training program. (31) Training officer--The officer or supervisor, by whatever title he or she may be called, that is in charge of a commission approved training program. (32) Volunteer fire protection personnel--Any person who has met the requirements for membership in a volunteer fire service organization, who is assigned duties in one of the following categories: fire suppression, fire inspection, fire and arson investigation, marine fire fighting, aircraft fire fighting, fire training, fire education, fire administration and others in related positions necessarily or customarily appertaining thereto. (33) Years of experience--Defined as full years of service while an individual is certified as fire protection personnel and is an employee of a government entity, a member in a volunteer fire service organization, and/or an employee of a regulated non- governmental fire department. Concurrent experience may not be used twice. sec.421.7.Recognition of Previous Volunteer Training. Recognition of previous training. Volunteer fire fighters may seek recognition towards completion of the commission's basic fire suppression curriculum for previous hours of training received before December 31, 1992, if: (1) documentation of previous hours of training received is evaluated by the commission staff and deemed equivalent to the requirements of the commission approved basic fire suppression curriculum; or (2) previous hours of training received were documented by the State Firemen's and Fire Marshals' Association of Texas before April 1, 1993. sec.421.9. Designation of Fire Protection Duties. (a) An individual who performs one or more fire protection duties, listed in the Texas Government Code, sec.419.021(3)(C), for a fire department of local government shall be designated to only one of the following categories: (1) fire protection personnel; (2) a part-time fire protection employee; or (3) a volunteer fire fighter or other auxiliary fire fighter. (b) A fire department or local government regulated by the commission may not designate the same person under more than one category under this section. The designation shall be made on the records of the department and the designation shall be made available for inspection by the commission or sent to the commission on request. (c) A fire department or local government regulated by the commission shall report to the commission on the proper form, within 14 calendar days of a person's employment to, termination from, or change of designation to a position as fire protection personnel or part-time fire protection employee. In the case of a termination, the employing entity shall report an individual's last known home address to the commission. (d) A fire department may not in a calendar year compensate, reimburse, or provide benefits to a person the department has designated as a volunteer or other auxiliary fire fighter in an amount that is equal to or more than what a person receives working 2,080 hours at the federal minimum wage. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State, on May 11, 1998. TRD-9807619 T. R. Thompson General Counsel Texas Commission on Fire Prorection Earliest possible date of adoption: June 21, 1998 For further information, please call: (512) 918-7189 CHAPTER 423.Fire Suppression SUBCHAPTER A.Minimum Standards for Structure Fire Protection Personnel Certification 37 TAC sec.sec.423.1, 423.3, 423.5, 423.7, 423.9, 423.11 (Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Commission on Fire Protection or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The Texas Commission on Fire Protection proposes the repeal of sec.sec.423.1, 423.3, 423.5, 423.7, 423.9, and 423.11, concerning minimum standards for structure fire protection personnel certification. The subject matter of the repealed sections will be replaced by proposed new sections dealing with the same subject. Anthony C. Calagna, Fire Fighter Advisory Committee Chairman, has determined that for the first five year period the repeal is in effect there will be no fiscal implications for state and local governments. Mr. Calagna also has determined that for each of the first five years the repeal is in effect the public benefit anticipated as a result of enforcing the repeal will be that obsolete language will be replaced with new sections that implement legislative changes. There are no additional costs of compliance for small or large businesses and for individuals required to comply with the changes. There is no local employment impact resulting from the change. Comments on the proposal may be submitted to: Gary L. Warren Sr., Executive Director, Texas Commission on Fire Protection, P.O. Box 2286, Austin, Texas 78768-2286 or e-mail to tcfp@mail.capnet.state.tx.us. The repeal is proposed under Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and Texas Government Code, sec.419.022, which provides the commission with authority to establish minimum training standards for fire protection personnel positions. Texas Government Code, sec.419.022 is affected by the proposed repeal. sec.423.1.Minimum Standards for Basic Structural Fire Protection Personnel. sec.423.3.Minimum Standards for Intermediate Structure Fire Protection Personnel sec.423.5.Minimum Standards for Advanced Structure Fire Protection Personnel Certification. sec.423.7.Minimum Standards for Master Structure Fire Protection Personnel Certification. sec.423.9.Higher Levels of Certification. sec.423.11.International Fire Service Accreditation Congress (IFSAC) Certification. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State, on May 11, 1998. TRD-9807587 T. R. Thompson General Counsel Texas Commission on Fire Protection Earliest possible date of adoption: June 21, 1998 For further information, please call: (512) 918-7189 37 TAC sec.sec.423.1, 423.3, 423.5, 423.7, 423.9, 423.11, 423.13 The Texas Commission on Fire Protection proposes new sec.sec.423.1, 423,3, 423,5, 423.7, 423.9, 423.11, and 423.13, concerning minimum standards for structure fire protection personnel certification. New sec.423.1 reorganizes existing language to clarify that the provisions apply to all persons holding structure fire protection personnel positions. New sec.423.3 adds language to integrate volunteer training to qualify for basic structure fire protection personnel certification. New sec.sec.423.5, 423.7, 423.9, 423.11, and 423.13, pertaining to higher levels of structure certification renumber existing sections pertaining to the same subject matter. Anthony C. Calagna, Fire Fighter Advisory Committee Chairman, has determined that for the first five year period the new sections are in effect there will be no fiscal implications for state or local governments. The elimination of an additional testing requirement for certified volunteer fire fighters who become employed will result in a savings of $30 per person to local governments that employ such persons. Mr. Calagna also has determined that for each of the first five years the new sections are in effect the public benefit anticipated as a result of enforcing the new sections will be elimination of duplication of examination requirements deemed unnecessary resulting from integration of paid and volunteer certification programs. There are no additional costs of compliance for small or large businesses or individuals required to comply with the new chapter. The commission has determined that the proposed new sections relating to will have no impact on private real property interests and no takings impact assessment is required pursuant to the Government Code, sec.2007.043(b) and sec.2.18 of the Attorney General's Private Real Property Rights Preservation Act Guidelines. There is no local employment impact resulting from the change. Comments on the proposal may be submitted to: Gary L. Warren Sr., Executive Director, Texas Commission on Fire Protection, P.O. Box 2286, Austin, Texas 78768-2286 or e-mail to tcfp@mail.capnet.state.tx.us. The new sections are proposed under Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; Texas Government Code, sec.419.022, which provides the commission with authority to establish minimum training standards for fire protection personnel positions; and Texas Government Code sec.419.032, which provides the commission with authority to establish standards for employment as fire protection personnel. Texas Government Code, sec.419.022 is affected by the proposed new sections. sec.423.1. Minimum Standards for Structure Fire Protection Personnel. (a) Training programs that are intended to satisfy the requirements for basic structure fire protection personnel certification must meet the curriculum, competencies, and hour requirements of this subchapter. All applicants for certification must meet the examination requirements of this section. (b) All full-time employees of any local government entity, who are assigned structure fire protection duties must be certified by the commission within one year from the date of their employment in a structural fire protection personnel position. (c) Prior to being assigned to fire suppression duties as a full- time employee, all personnel must complete a commission approved basic structure fire suppression program and successfully pass the commission examination pertaining to that curriculum. (d) All personnel holding any level of structure fire protection personnel certification must comply with the continuing education requirements specified in sec. 441.7 of this title (relating to Continuing Education for Structure Fire Protection Personnel). sec.423.3.Minimum Standards for Basic Structure Fire Protection Personnel Certification. (a) In order to become certified as basic structure fire protection personnel, an individual must: (1) complete a commission approved basic structure fire suppression program and successfully pass the commission examination as specified in Chapter 439 of this title (relating to Examinations for Certification). An approved basic structure fire suppression program shall consist of one or any combination of the following: (A) completion of a commission approved Basic Fire Suppression Curriculum, as specified in Chapter 1 of the commission's document titled "Commission Certification Curriculum Manual," as approved by the commission in accordance with Chapter 443 of this title (relating to Certification Curriculum Manual); or (B) completion of the four phase levels of the approved Basic Fire Suppression Curriculum, as specified in Chapter 1 of the commission's document titled "Commission Certification Curriculum Manual," as approved by the commission in accordance with Chapter 443 of this title (relating to Certification Curriculum Manual); or (C) completion of an out-of-state training program deemed equivalent to the commission-approved basic fire suppression curriculum; or (D) completion of a military training program deemed equivalent to a commission- approved basic fire suppression curriculum; or (E) documentation of the receipt of an advanced certificate or training records from the State Firemen's and Fire Marshals' Association of Texas, that is deemed equivalent to a commission approved basic fire suppression curriculum. (2) complete as a minimum the certification requirements and hold a current certification by the Texas Department of Health, as an emergency care attendant. Any higher level of emergency medical certification recognized by the Texas Department of Health, such as EMT or paramedic may also be used to satisfy the emergency medical training requirement of this section. (b) A basic fire suppression program may be submitted to the commission for approval by another jurisdiction as required in Texas Government Code, sec.419.032(d), Appointment of Fire Protection Personnel. These programs include out-of-state and military programs and shall be deemed equivalent by the commission if the subjects taught, subject content, and total hours of training meet or exceed those contained in Chapter 1 of the commission's document titled "Commission Certification Curriculum Manual," as approved by the commission in accordance with Chapter 443 of this title (relating to Certification Curriculum Manual). (c) Except as provided in subsection (a)(1)(E) of this section, the commission approved basic fire suppression curriculum must be taught by a training facility that has been certified by the commission as provided in Chapter 427, of this title (relating to Certified Training Facilities). (d) A person who holds or is eligible to hold a certificate upon employment as a part-time structural firefighter may be certified as a structural fire protection personnel, of the same level of certification, without meeting the applicable examination requirements. (e) If a person holds a current certification as a part-time structural firefighter, the Texas Department of Health emergency care attendant certification may be satisfied by documentation of equivalent training or certification in lieu of current certification by the Texas Department of Health. (f) Individuals from another jurisdiction who possess valid documentation of accreditation from the International Fire Service Accreditation Congress as a Fire Fighter II and Driver Operator (Fire Fighter III, Fire Officer I, and Driver Operator if accredited under the 1987 or earlier edition of NFPA 1001) shall be eligible to take the commission examination for basic structural fire protection personnel. sec.423.5.Minimum Standards for Intermediate Structure Fire Protection Personnel Certification. (a) Applicants for Intermediate Structure Fire Protection Personnel Certification must complete the following requirements: (1) hold as a prerequisite a Basic Structure Fire Protection Personnel Certification as defined in sec.423.3 of this title (relating to Minimum Standards for Basic Structure Fire Protection Personnel Certification); (2) acquire a minimum of four years of fire protection experience and complete the courses listed in one of the following options: (A) Option 1--Successfully complete six semester hours of fire science or fire technology from an approved Fire Protection Degree Program and submit documentation as required by the Commission that the courses comply with subsections (c) and (d) of this section; (B) Option 2--Complete a minimum of 96 hours of instruction in any National Fire Academy courses; (C) Option 3--Successfully complete three semester hours of college courses listed in Option 1 and a minimum of 48 hours in any National Fire Academy courses. (b) College level courses from both the upper and lower division may be used to satisfy the education requirement for Intermediate Structure Fire Protection Personnel Certification. (c) Non-traditional credit awarded at the college level, such as credit for experience or credit by examination obtained from attending any school in the commission's document titled "Commission Certification Curriculum Manual" or for experience in the fire service, may not be counted toward higher levels of certification. (d) The training required in this section must be in addition to any training used to qualify for any lower level of Structure Fire Protection Personnel Certification. Repeating a course or course of similar content cannot be used towards higher levels of certification. sec.423.7.Minimum Standards for Advanced Structure Fire Protection Personnel Certification. (a) Applicants for Advanced Structure Fire Protection Personnel certification must complete the following requirements: (1) hold as a prerequisite an Intermediate Structure Fire Protection Personnel Certification as defined in sec.423.5 of this title (relating to Minimum Standards for Intermediate Structure Fire Protection Personnel Certification); (2) acquire a minimum of eight years of fire protection experience and complete the courses listed in one of the following options: (A) Option 1--Successfully complete six semester hours of fire science or fire technology from an approved Fire Protection Degree Program and submit documentation as required by the Commission that the courses comply with subsection (c) and (d) of this section; or (B) Option 2--Complete a minimum of 96 hours of instruction in any National Fire Academy courses; or (C) Option 3--Successfully complete three semester hours of college courses listed in Option 1 and a minimum of 48 hours in any National Fire Academy courses. (b) College level courses from both the upper and lower division may be used to satisfy the education requirement for Advanced Structure Fire Protection Personnel Certification. (c) Non-traditional credit awarded at the college level, such as credit for experience or credit by examination obtained from attending any school in the commission's document titled "Commission Certification Curriculum Manual" or for experience in the fire service, may not be counted toward higher levels of certification. (d) The training required in this section must be in addition to any training used to qualify for any lower level of Structure Fire Protection Personnel Certification. Repeating a course or course of similar content cannot be used towards higher levels of certification. sec.423.9. Minimum Standards for Master Structure Fire Protection Personnel Certification. (a) Applicants for Master Structure Fire Protection Personnel Certification must complete the following requirements: (1) hold as a prerequisite an Advanced Structure Fire Protection Personnel Certification as defined in sec. 423.7 of this title (relating to Minimum Standards for Advanced Structure Fire Protection Personnel Certification); and (2) acquire a minimum of twelve years of fire protection experience, and 60 college semester hours or an associate degree, which includes at least 18 college semester hours in fire science subjects. (b) College level courses from both the upper and lower division may be used to satisfy the education requirement for Master Structure Fire Protection Personnel Certification. sec.423.11.Higher Levels of Certification. (a) An individual may receive higher levels of certification in structural fire protection while being assigned to another discipline, provided that all requirements for the higher level or levels of certification must be met. (b) Repetitive training cannot be used toward higher levels of certification. sec.423.13. International Fire Service Accreditation Congress (IFSAC) Certification. Individuals holding current commission Structure Fire Protection Personnel Certification may be granted International Fire Service Accreditation Congress (IFSAC) Certification by making application to the commission for the IFSAC seal and paying applicable fees. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State, on May 11, 1998. TRD-9807620 T. R. Thompson General Counsel Texas Commission on Fire Protection Earliest possible date of adoption: June 21, 1998 For further information, please call: (512) 918-7189 SUBCHAPTER B.Minimum Standards for Aircraft Crash and Rescue Fire Protection Personnel 37 TAC sec.sec.423.201, 423.203, 423.205, 423.207, 423.209 (Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Commission on Fire Protection or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The Texas Commission on Fire Protection proposes the repeal of sec.sec.423.201, 423.203, 423.205, 423.207, and 423.209, concerning minimum standards for aircraft crash and rescue fire protection personnel certification. The subject matter of the repealed sections will be replaced by proposed new sections dealing with the same subject. Anthony C. Calagna, Fire Fighter Advisory Committee Chairman, has determined that for the first five year period the repeal is in effect there will be no fiscal implications for state and local governments. Mr. Calagna also has determined that for each of the first five years the repeal is in effect the public benefit anticipated as a result of enforcing the repeal will be that obsolete language will be replaced with new sections that implement legislative changes. There are no additional costs of compliance for small or large businesses and for individuals required to comply with the changes. There is no local employment impact resulting from the change. Comments on the proposal may be submitted to: Gary L. Warren Sr., Executive Director, Texas Commission on Fire Protection, P.O. Box 2286, Austin, Texas 78768-2286 or e-mail to tcfp@mail.capnet.state.tx.us. The repeal is proposed under Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and Texas Government Code, sec.419.022, which provides the commission with authority to establish minimum training standards for fire protection personnel in advanced or specialized fire protection personnel positions. Texas Government Code, sec.419.022 is affected by the proposed repeal. sec.423.201.Minimum Standards for Aircraft Crash and Rescue Fire Protection Prsonnel. sec.423.203.Minimum Standards for Basic Aircraft Rescue and Fire Protection Personnel Certification. sec.423.205.Minimum Standards for Intermediate Aircraft Rescue and Fire Protection Personnel. sec.423.207. Minimum Standards for Advanced Aircraft Rescue and Fire Protection Personnel Certification. sec.423.209. Minimum Standards for Master Aircraft and Fire Protection Personnel Certification. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State, on May 11, 1998. TRD-9807588 T. R. Thompson General Counsel Texas Commission on Fire Protection Earliest possible date of adoption: June 21, 1998 For further information, please call: (512) 918-7189 SUBCHAPTER B.Minimum Standards for Aircraft Fire Protection Personnel 37 TAC sec.sec.423.201, 423.203, 423.205, 423.207, 423.209 The Texas Commission Fire Protection proposes new sec.sec.423.201, 423.203, 423.205, 423.207, and 423.209, concerning minimum standards for aircraft fire protection personnel. New sec.423.201 concerning aircraft fire protection personnel clarifies existing language concerning requirements for assignment to aircraft fire suppression duties to include testing and training in an approved fire suppression course as well as testing and training in an approved aircraft fire protection course. Certification must be obtained within one year of assignment rather than two. Emergency Care Attendant certification is not required for assignment, but is required for aircraft fire protection personnel certification in addition to testing and training in both basic structure fire suppression and aircraft fire protection pursuant to new sec.423.203. New sec.sec.423.205, 423.207, and 423.209, concerning higher levels of aircraft certification change the terminology from "aircraft rescue and fire protection personnel" to "aircraft fire protection personnel." Anthony C. Calagna, Fire Fighter Advisory Committee Chairman, has determined that for the first five year period the new sections are in effect there will be no fiscal implications for state or local governments. Mr. Calagna also has determined that for each of the first five years the new sections are in effect the public benefit anticipated as a result of enforcing the new sections will be that the public is assured that personnel assigned to aircraft fire protection duties are adequately trained prior to assignment. There are no additional costs of compliance for small or large businesses or individuals required to comply with the new chapter. The commission has determined that the proposed new sections relating to minimum standards for aircraft fire protection personnel will have no impact on private real property interests and no takings impact assessment is required pursuant to the Government Code, sec.2007.043(b) and sec.2.18 of the Attorney General's Private Real Property Rights Preservation Act Guidelines. There is no local employment impact resulting from the change. Comments on the proposal may be submitted to: Gary L. Warren Sr., Executive Director, Texas Commission on Fire Protection, P.O. Box 2286, Austin, Texas 78768-2286 or e-mail to tcfp@mail.capnet.state.tx.us. The new sections are proposed under Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; Texas Government Code, sec.410.022, which provides the commission authority to establish minimum training standards for fire protection personnel in advanced or specialized fire protection personnel positions; Texas Government Code sec.419.032, which provides the commission with authority to establish standards for employment as fire protection personnel; and Texas Government Code, sec.419.038, which provides the commission with authority to establish requirements for aircraft certification. Texas Government Code, sec.419.022 is affected by the proposed new sections. sec.423.201.Minimum Standards for Aircraft Fire Protection Personnel. (a) Aircraft fire protection personnel are employees of a local governmental entity who, as a permanent duty assignment, fight aircraft fires at airports; stand by for potential crash landings; and perform aircraft and fire fighting duties. (b) All personnel identified as aircraft fire protection personnel must be certified to at least the basic level by the commission within one year from their employment in an aircraft fire protection personnel position. (c) Prior to being assigned to aircraft fire suppression duties, all personnel must: (1) successfully complete a commission approved basic fire suppression course and pass the commission's examination pertaining to that curriculum; and (2) successfully complete a commission approved basic aircraft fire protection course and pass the commission's examination pertaining to that curriculum. (d) "Stand by" means the act of responding to a designated position in the movement area on the airfield at which initial response fire and rescue units will await the arrival of an aircraft experiencing an announced emergency. (e) "Movement area" is comprised of all runways, taxiways, and other areas of the airport which are used for taxiing or hover taxiing, take-off, and landing of aircraft, exclusive of loading ramps and aircraft parking areas. (f) All personnel holding any level of aircraft fire protection personnel certification shall be required to comply with the continuing education specified in sec.441.9 of this title (relating to Continuing Education Requirements for Aircraft Fire Protection Personnel). (g) Aircraft fire protection personnel who are assigned structure fire suppression duties must be certified, as a minimum, as basic structural fire protection personnel. sec.423.203.Minimum Standards for Basic Aircraft Fire Protection Personnel Certification. (a) Training programs that are intended to satisfy the requirements for basic aircraft fire protection personnel certification must meet the curriculum, competencies, and hour requirements of these sections. All applicants for certification must meet the examination requirements of this section. (b) In order to obtain basic aircraft fire protection personnel certification the individual must: (1) hold or be eligible to hold basic structure fire protection personnel certification; (2) complete a training program specific to aircraft fire suppression consisting of one of the following: (A) a commission approved Basic Aircraft Fire Suppression curriculum as specified in Chapter 2 of the Commission Certification Curriculum Manual for Paid Fire Protection Personnel as approved by the commission in accordance with Chapter 443 of this title (relating to Certification Curriculum Manual). This course must be taught by a training facility that has been certified by the commission as provided in Chapter 427 of this title (relating to Certified Training Facilities); or (B) an out-of-state training program that has been submitted to the commission for evaluation and found to be equivalent to or to exceed the commission approved basic aircraft fire suppression curriculum. (C) a military training program that has been submitted to the commission for evaluation and found to be equivalent to or to exceed the commission approved basic aircraft fire suppression curriculum; (3) successfully pass a commission examination pertaining to aircraft fire protection conducted according to the rules set forth in Chapter 439 of this title (relating to Examinations for Certification). (c) Out-of-state or military training programs which are submitted to the commission for the purpose of determining equivalency will be considered equivalent if the subjects taught, subject content, hours of training in each subject, and total hours of training meet or exceed the requirements set forth in Chapter 2 (pertaining to Basic Aircraft Fire Protection) of the Commission Certification Curriculum Manual for Paid Fire Protection Personnel. (d) A person who holds or is eligible to hold a certificate upon employment as a part-time aircraft firefighter may be certified as an aircraft fire protection personnel, of the same level of certification, without meeting the applicable examination requirements. (e) If a person holds a current certification as a part-time aircraft firefighter, the Texas Department of Health emergency care attendant certification may be satisfied by documentation of equivalent training or certification in lieu of current certification by the Texas Department of Health. sec.423.205. Minimum Standards for Intermediate Aircraft Fire Protection Personnel Certification. (a) Applicants for Intermediate Aircraft Fire Protection Personnel Certification must complete the following requirements: (1) hold as a prerequisite a Basic Aircraft Fire Protection Personnel Certification as defined in sec. 423.203 of this title (relating to Minimum Standards for Basic Aircraft Fire Protection Personnel Certification); (2) acquire a minimum of four years of fire protection experience and complete the courses listed in one of the following options: (A) Option 1--Successfully complete six semester hours of fire science or fire technology from an approved Fire Protection Degree Program and submit documentation as required by the Commission that the courses comply with subsections (c) and (d) of this section; or (B) Option 2--Complete a minimum of 96 hours of instruction in any National Fire Academy courses; or (C) Option 3--Successfully complete three semester hours of college courses listed in Option 1 and a minimum of 48 hours in any National Fire Academy courses. (b) College level courses from both the upper and lower division may be used to satisfy the education requirement for Intermediate Aircraft Fire Protection Personnel Certification. (c) Non-traditional credit awarded at the college level, such as credit for experience or credit by examination obtained from attending any school in the commission's document titled "Commission Certification Curriculum Manual" or for experience in the fire service, may not be counted toward higher levels of certification. (d) The training required in this section must be in addition to any training used to qualify for any lower level of Aircraft Fire Protection Personnel Certification. Repeating a course or course of similar content cannot be used towards higher levels of certification. sec.423.207. Minimum Standards for Advanced Aircraft Fire Protection Personnel Certification. (a) Applicants for Advanced Aircraft Fire Protection Personnel certification must complete the following requirements: (1) hold as a prerequisite an Intermediate Aircraft Fire Protection Personnel Certification as defined in sec.423.205 of this title (relating to Minimum Standards for Advanced Aircraft Fire Protection Personnel Certification); (2) acquire a minimum of eight years of fire protection experience and complete the courses listed in one of the following options: (A) Option 1--Successfully complete six semester hours of fire science or fire technology from an approved Fire Protection Degree Program and submit documentation as required by the Commission that the courses comply with subsections (c) and (d) of this section; or (B) Option 2--Complete a minimum of 96 hours of instruction in any National Fire Academy courses; or (C) Option 3--Successfully complete three semester hours of college courses listed in Option 1 and a minimum of 48 hours in any National Fire Academy courses. (b) College level courses from both the upper and lower division may be used to satisfy the education requirement for Advanced Aircraft Fire Protection Personnel Certification. (c) Non-traditional credit awarded at the college level, such as credit for experience or credit by examination obtained from attending any school in the commission's document titled "Commission Certification Curriculum Manual" or for experience in the fire service, may not be counted toward higher levels of certification. (d) The training required in this section must be in addition to any training used to qualify for any lower level of Aircraft Fire Protection Personnel Certification. Repeating a course or course of similar content cannot be used towards higher levels of certification. sec.423.209. Minimum Standards for Master Aircraft Fire Protection Personnel Certification. (a) Applicants for Master Aircraft Fire Protection Personnel Certification must complete the following requirements: (1) hold as a prerequisite an Advanced Aircraft Fire Protection Personnel Certification as defined in sec.423.207 of this title (relating to Minimum Standards for Advanced Aircraft Fire Protection Personnel Certification); and (2) acquire a minimum of twelve years of fire protection experience, and 60 college semester hours or an associate degree, which includes at least 18 college semester hours in fire science subjects. (b) College level courses from both the upper and lower division may be used to satisfy the education requirement for Master Aircraft Fire Protection Personnel Certification. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State, on May 11, 1998. TRD-9807621 T. R. Thompson General Counsel Texas Commission on Fire Protection Earliest possible date of adoption: June 21, 1998 For further information, please call: (512) 918-7189 SUBCHAPTER C.Minimum Standards for Marine Fire Protection Personnel 37 TAC sec.sec.423.301, 423.303, 423.305, 423.307, 423.309 (Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Commission on Fire Protection or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The Texas Commission on Fire Protection proposes the repeal of sec.sec.423.301, 423.303, 423.305, 423.307, and 423.309, concerning minimum standards for marine fire protection personnel. The subject matter of the repealed sections will be replaced by proposed new sections dealing with the same subject. Anthony C. Calagna, Fire Fighter Advisory Committee Chairman, has determined that for the first five year period the repeal is in effect there will be no fiscal implications for state and local governments. Mr. Calagna also has determined that for each of the first five years the repeal is in effect the public benefit anticipated as a result of enforcing the repeal will be that obsolete language will be replaced with new sections that implement legislative changes. There are no additional costs of compliance for small or large businesses and for individuals required to comply with the changes. There is no local employment impact resulting from the change. Comments on the proposal may be submitted to: Gary L. Warren Sr., Executive Director, Texas Commission on Fire Protection, P.O. Box 2286, Austin, Texas 78768-2286 or e-mail to tcfp@mail.capnet.state.tx.us. The repeal is proposed under Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and Texas Government Code, sec.419.022, which provides the commission with authority to establish minimum training standards for fire protection personnel in advanced or specialized fire protection personnel positions. Texas Government Code, sec.419.022 is affected by the proposed repeal. sec.423.301. Minimum Standards for Marine Fire Protection Personnel. sec.423.303.Minimum Standards for Basic Marine Fire Protection Personnel Certification. sec.423.305. Minimum Standards for Intermediate Marine Fire Protection Personnel. sec.423.307.Minimum Standards for Advanced Marine Fire Protection Personnel Certification. sec.423.309.Minimum Standards for Master Marine Fire Protection Personnel Certification. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State, on May 11, 1998. TRD-9807589 T. R. Thompson General Counsel Texas Commission on Fire Protection Earliest possible date of adoption: June 21, 1998 For further information, please call: (512) 918-7189 The Texas Commission on Fire Protection proposes new sections sec.sec.423.301, 423.303, 423.305, 423.307, and 423.309, concerning minimum standards for marine fire protection personnel. New sec.423.301 and sec.423.303 clarifies the requirements for assignment and certification as marine fire protection personnel in the same manner as aircraft fire protection personnel, including eligibility for structure certification by meeting testing and training requirements for structure certification. New sec.sec.423.305, 423.307, and 423.309, readopt existing provisions for higher levels of marine certification. Anthony C. Calagna, Fire Fighter Advisory Committee Chairman, has determined that for the first five year period the new sections are in effect there will be no fiscal implications for state or local governments. Mr. Calagna also has determined that for each of the first five years the new sections are in effect the public benefit anticipated as a result of enforcing the new sections will be that the public is assured that personnel assigned to marine fire protection duties are adequately trained prior to assignment. There are no additional costs of compliance for small or large businesses or individuals required to comply with the new chapter. The commission has determined that the proposed new sections relating to minimum standards for marine fire protection personnel will have no impact on private real property interests and no takings impact assessment is required pursuant to the Government Code, sec.2007.043(b) and sec.2.18 of the Attorney General's Private Real Property Rights Preservation Act Guidelines. There is no local employment impact resulting from the change. Comments on the proposal may be submitted to: Gary L. Warren Sr., Executive Director, Texas Commission on Fire Protection, P.O. Box 2286, Austin, Texas 78768-2286 or e-mail to tcfp@mail.capnet.state.tx.us. The new sections are proposed under Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; Texas Government Code, sec.419.022, which provides the commission with authority to establish minimum training standards for fire protection personnel in advanced or specialized fire protection personnel positions; Texas Government Code sec.419.032, which provides the commission with authority to establish standards for employment as fire protection personnel; and Texas Government Code, sec.419.037, which provides the commission with authority to establish requirements for marine certification. Texas Government Code, sec.419.022 is affected by the proposed new sections. sec.423.301. Minimum Standards For Marine Fire Protection Personnel. (a) Marine Fire Protection Personnel are employees of a local governmental entity who work aboard a fire boat with a minimum pumping capacity of 2,000 gallons per minute, and fights fires that occur on or adjacent to a waterway, waterfront, channel, or turning basin. (b) All full time employees of any local government entity, who are assigned marine fire protection duties must be certified by the commission within one year from the date of their employment in a marine fire protection personnel position. (c) Prior to being assigned to marine fire suppression duties, all personnel must: (1) successfully complete a commission approved basic fire suppression course and pass the commission's examination pertaining to that curriculum; and (2) successfully complete a commission approved basic marine fire suppression course and pass the commission's examination pertaining to that curriculum. (d) All personnel holding any level of Marine Fire Protection Personnel certification shall be required to comply with the continuing education specified in sec.441.11 of this title (relating to Continuing Education Requirements for Marine Fire Protection Personnel). sec.423.303.Minimum Standards For Basic Marine Fire Protection Personnel Certification. (a) Training programs that are intended to satisfy the requirements for Basic Marine Fire Protection Personnel certification, must meet the curriculum, competencies, and hour requirements of this subchapter. All applicants for certification must meet the examination requirements of this section. (b) In order to obtain basic Marine Fire Protection Personnel certification the individual must: (1) hold or be eligible to hold basic structure fire protection personnel certification; (2) complete a training program specific to marine fire protection consisting of one of the following: (A) complete the commission approved Basic Marine Fire Protection Curriculum as specified in Chapter 3, of the commission's document titled "Commission Certification Curriculum Manual", as approved by the commission in accordance with Chapter 443, of this title, relating to Certification Curriculum Manual. The commission approved marine fire protection curriculum must be taught by a training facility that has been certified by the commission as provided in Chapter 427 of this title (relating to Minimum Standards for Certified Training Facilities); or (B) an out-of-state training program that has been submitted to the commission for evaluation and found to be equivalent to or exceed the commission approved Basic Marine Fire Protection Curriculum; or (C) a military training program that has been submitted to the commission for evaluation and found to be equivalent to the commission approved Basic Marine Fire Protection Curriculum. (3) successfully pass the commission examination as specified in Chapter 439 of this title (relating to Examinations for Certification) prior to assignment. (c) Out-of-state or military training programs which are submitted to the commission for the purpose of determining equivalency will be considered equivalent if the subjects taught, subject content, hours of training in each subject, and total hours of training meet or exceed the requirements set forth in Chapter 3 (pertaining to Marine Fire Protection) of the Commission's Certification Curriculum Manual for Paid Fire Protection Personnel. (d) A person who holds or is eligible to hold a certificate upon employment as a part-time marine fire protection personnel may be certified as a marine fire protection personnel, of the same level of certification, without meeting the applicable examination requirements. (e) If a person holds a current certification as a part-time marine fire protection personnel, the Texas Department of Health emergency care attendant certification may be satisfied by documentation of equivalent training or certification in lieu of current certification by the Texas Department of Health. sec.423.305. Minimum Standards For Intermediate Marine Fire Protection Personnel Certification. (a) Applicants for Intermediate Marine Fire Protection Personnel Certification must complete the following requirements: (1) hold as a prerequisite a Basic Marine Fire Protection Personnel Certification as defined in sec.423.303 of this title (relating to Minimum Standards for Basic Marine Fire Protection Personnel Certification). (2) acquire a minimum of four years of fire protection experience and complete the courses listed in one of the following options: (A) Option #1 - Successfully complete six semester hours of fire science or fire technology from an approved Fire Protection Degree Program and submit documentation as required by the Commission that the courses comply with subsection (c) and (d) of this section; or (B) Option #2 - Complete a minimum of 96 hours of instruction in any National Fire Academy courses. (C) Option #3 - Successfully complete three semester hours of college courses listed in Option #1 and a minimum of 48 hours in any National Fire Academy courses. (b) College level courses from both the upper and lower division may be used to satisfy the education requirement for Intermediate Marine Fire Protection Personnel Certification. (c) Non-traditional credit awarded at the college level, such as credit for experience or credit by examination obtained from attending any school in the commission's document titled "Commission Certification Curriculum Manual" or for experience in the fire service, may not be counted toward higher levels of certification. (d) The training required in this section must be in addition to any training used to qualify for any lower level of Marine Fire Protection Personnel Certification. Repeating a course or course of similar content cannot be used towards higher levels of certification. sec.423.307.Minimum Standards For Advanced Marine Fire Protection Personnel Certification. (a) Applicants for Advanced Marine Fire Protection Personnel certification must complete the following requirements: (1) hold as a prerequisite an Intermediate Marine Fire Protection Personnel Certification as defined in sec. 423.305 of this title (relating to Minimum Standards for Intermediate Marine Fire Protection Personnel Certification). (2) acquire a minimum of eight years of fire protection experience and complete the courses listed in one of the following options: (A) Option #1 - Successfully complete six semester hours of fire science or fire technology from an approved Fire Protection Degree Program and submit documentation as required by the Commission that the courses comply with subsections (c) and (d) of this section; or (B) Option #2 - Complete a minimum of 96 hours of instruction in any National Fire Academy courses; or (C) Option #3 - Successfully complete three semester hours of college courses listed in Option #1 and a minimum of 48 hours in any National Fire Academy courses. (b) College level courses from both the upper and lower division may be used to satisfy the education requirement for Advanced Marine Fire Protection Personnel Certification. (c) Non-traditional credit awarded at the college level, such as credit for experience or credit by examination obtained from attending any school in the commission's document titled "Commission Certification Curriculum Manual" or for experience in the fire service, may not be counted toward higher levels of certification. (d) The training required in this section must be in addition to any training used to qualify for any lower level of Marine Fire Protection Personnel Certification. Repeating a course or course of similar content cannot be used towards higher levels of certification. sec.423.309.Minimum Standards for Master Marine Fire Protection Personnel Certification. (a) Applicants for Master Marine Fire Protection Personnel Certification must complete the following requirements: (1) hold as a prerequisite an Advanced Marine Fire Protection Personnel Certification as defined in sec. 423.307 of this title (relating to Minimum Standards for Advanced Marine Fire Protection Personnel Certification); and (2) acquire a minimum of twelve years of fire protection experience, and 60 college semester hours or an associate degree, which includes at least 18 college semester hours in fire science subjects. (b) College level courses from both the upper and lower division may be used to satisfy the education requirement for Master Marine Fire Protection Personnel Certification. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State, on May 11, 1998. TRD-9807622 T. R. Thompson General Counsel Texas Commission on Fire Protection Earliest possible date of adoption: June 21, 1998 For further information, please call: (512) 918-7189 CHAPTER 425.Fire Protection Instructor SUBCHAPTER A.Fire Service Instructor Certification 37 TAC sec.sec.425.1, 425.3, 425.5, 425.7, 425.9 (Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Commission on Fire Protection or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The Texas Commission on Fire Protection proposes the repeal of sec.sec.425.1, 425.3, 425.5, 425.7, and 425.9, concerning minimum standards for fire service instructor certification. The subject matter of the repealed sections will be replaced by proposed new sections dealing with the same subject. Anthony C. Calagna, Fire Fighter Advisory Committee Chairman, has determined that for the first five year period the repeal is in effect there will be no fiscal implications for state and local governments. Mr. Calagna also has determined that for each of the first five years the repeal is in effect the public benefit anticipated as a result of enforcing the repeal will be that obsolete language will be replaced with new sections that implement legislative changes. There are no additional costs of compliance for small or large businesses and for individuals required to comply with the changes. There is no local employment impact resulting from the change. Comments on the proposal may be submitted to: Gary L. Warren Sr., Executive Director, Texas Commission on Fire Protection, P.O. Box 2286, Austin, Texas 78768-2286 or e-mail to tcfp@mail.capnet.state.tx.us. The repeal is proposed under Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and Texas Government Code, sec.419.028(3), which provides the commission with authority to certify persons as qualified fire protection instructors under conditions the commission prescribes. Texas Government Code, sec.419.028 is affected by the proposed repeal. sec.425.1.Minimum Standards for Fire Service Instructor Certification. sec.425.3.Minimum Standards for Basic Fire Service Instructor Certification. sec.425.5.Minimum Standards for Intermediate Fire Service Instructor Certification. sec.425.7.Minimum Standards for Advanced Fire Service Instructor Certification. sec.425.9.Minimum Standards for Master Fire Service Instructor Certification. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State, on May 11, 1998. TRD-9807590 T. R. Thompson General Counsel Texas Commission on Fire Protection Earliest possible date of adoption: June 21, 1998 For further information, please call: (512) 918-7189 CHAPTER 425.Fire Instructors SUBCHAPTER A.Fire Service Instructor Certification 37 TAC sec.sec.425.1, 425.3, 425.5, 425.7, 425.9 The Texas Commission on Fire Protection proposes new sec.sec.425.1, 425.3, 425.5, 425.7, and 425.9, concerning minimum standards for fire instructor certification. New sec.425.1 readopts existing language. new sec.425.3 integrates provisions allowing for volunteer instructors to be certified as basic fire service instructors. New sec.425.5 and sec.425.7 clarify the college course requirements for intermediate and advanced fire service instructor certification. New sec.425.9 allows for volunteer instructors to obtain master fire service instructor certification. Anthony C. Calagna, Fire Fighter Advisory Committee Chairman, has determined that for the first five year period the new sections are in effect there will be no fiscal implications for state government. The cost to local governments for obtaining instructor training courses may decrease by approximately $250 per person due to the changes in requirements for persons who may teach instructor courses. Mr. Calagna also has determined that for each of the first five years the new sections are in effect the public benefit anticipated as a result of enforcing the new sections will be that volunteer instructors are considered the same as paid instructors and the availability of aproved fire instructor courses may increase. There are no additional costs of compliance for small or large businesses or individuals required to comply with the new chapter. The commission has determined that the proposed new sections relating to fire instructor certification will have no impact on private real property interests and no takings impact assessment is required pursuant to the Government Code, sec.2007.043(b) and sec.2.18 of the Attorney General's Private Real Property Rights Preservation Act Guidelines. There is no local employment impact resulting from the change. Comments on the proposal may be submitted to: Gary L. Warren Sr., Executive Director, Texas Commission on Fire Protection, P.O. Box 2286, Austin, Texas 78768-2286 or e-mail to tcfp@mail.capnet.state.tx.us. The new sections are proposed under Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and Texas Government Code, sec.419.028, which provides the commission the authority to certify persons as qualified fire protection instructors under conditions the commission prescribes. Texas Government Code, sec.419.028 is affected by the proposed new sections. sec.425.1.Minimum Standards for Fire Service Instructor Certification. (a) Fire service instructor certificates will be issued by the commission when an individual completes the training and teaching requirements designated in the various certification levels. Complete course descriptions are on file in the commission office for all instructor courses listed in this section. (b) An out-of-state or military instructor training program may be accepted by the commission as meeting the training and experience requirements for certification as a fire service instructor if the program has been submitted to the commission for evaluation and found to be equivalent to or to exceed the commission approved instructor course for that particular level of fire service instructor certification. A program that has been accredited by the International Fire Service Accreditation Congress shall be considered for evaluation for equivalence to the commission's training requirements for the corresponding level of certification. sec.425.3Minimum Standards for Basic Fire Service Instructor Certification. (a) In order to become certified as a basic fire service instructor the individual must: (1) be a member of a paid, volunteer, or regulated non- governmental fire department; (2) have a minimum of three years experience relating to fire protection in one or more or any combination of the following: (A) a paid, volunteer, or regulated non-governmental fire department; or (B) a department of a state agency, education institution or political subdivision providing fire protection training and related responsibilities; (3) be a high school graduate or possess a GED certificate; (4) possess an active certificate from the commission in a discipline with a commission-approved curriculum. (5) have completed "Instructional Techniques for Company Officers" or 15 class hours of teacher instructional training courses; and (6) submit an instructor application, with documentation to verify the aforementioned requirements, to the commission for processing. (b) Approved areas of instruction shall include the following. (1) Possession of one or more active certifications as stated in subsection (a)(4) of this section will be considered as documentation of knowledge/expertise to instruct in all of the subject areas identified in the curricula in which the certificate(s) are held. (2) Individuals desiring to instruct in basic and advanced subjects they have not previously been approved for must have completed the course they are seeking to instruct or have completed comparable training in the same subject area. Proof of training shall be attached to and submitted with a Course/School Prior Approval Form when making application for course approval by the commission. Proof of training in a subject need be submitted only once. The following items are acceptable for proof of training: (A) submit a copy of a commission approved certificate of completion bearing the course approval number and course identification number; (B) college semester courses of equivalent training identified on college transcripts; or (C) provide complete written documentation of equivalent training for staff review. (c) The basic fire service instructor certification meets requirements of NFPA 1041, Standard for Fire Service Instructor Professional Qualifications, for Fire Instructor Level I. sec.425.5.Minimum Standards for Intermediate Fire Service Instructor Certification. (a) In order to become certified as an intermediate fire service instructor, the individual must: (1) have completed all the requirements listed under sec. 425.3(a) and (b) of this title (relating to Minimum Standards for Basic Fire Service Instructor Certification) except for sec.425.3(a)(5). (Note: Basic fire service instructor certification is not a prerequisite for intermediate fire service instructor certification); and (2) have completed a commission approved "Methods of Teaching" course consisting of at least three college semester hours or 40 class hours, or the National Fire Academy course, "Instructional Methodology." (b) The intermediate fire service instructor certification meets requirements of NFPA 1041, Standard for Fire Service Instructor Professional Qualifications, for Fire Instructor Level I and Fire Instructor Level II. Instructors wanting to meet NFPA 1041 for Fire Service Instructor Level II must meet the requirements for Fire Service Instructor I. sec.425.7.Minimum Standards for Advanced Fire Service Instructor Certification. (a) In order to become certified as an advanced fire service instructor the individual must: (1) hold as a prerequisite an intermediate fire service instructor certificate; (2) be a member of a paid, volunteer, or regulated non-governmental fire department and have as a minimum five years of experience in one or more or any combination of the following: (A) a paid, volunteer, or regulated non-governmental fire department; or (B) a department of a state agency, education institution or political subdivision--devoting full time to fire service training and related responsibilities; and (3) successfully complete the following commission approved instructor training courses: (A) a commission approved "Instructional Aids" course of at least three college semester hours or 40 class hours. (The National Fire Academy course, "Instructional Methodology," can be substituted for "Methods of Teaching" and "Instructional Aids"); and (B) a commission approved course in "Analysis and Course Making" consisting of at least three college semester hours or 40 class hours; and (C) a commission approved course in "Organization and Use of Instructional Materials" consisting of at least three college semester hours or 40 class hours. (The National Fire Academy course "Course Development" can be substituted for "Analysis and Course Making" and "Organization and Use of Instructional Material.") (b) The advanced fire service instructor certification meets requirements of NFPA 1041, Standard for Fire Service Instructor Professional Qualifications, for Fire Instructor Level III. Instructors wanting to meet NFPA 1041 for Fire Service Instructor Level III must meet the requirements for Fire Service Instructor II. sec.425.9.Minimum Standards for Master Fire Service Instructor Certification. (a) In order to become certified as a master fire service instructor the individual must: (1) hold as a prerequisite an advanced instructor certification; (2) hold as a prerequisite a master structural fire protection personnel certification, a master aircraft fire protection personnel certification, master inspector certification, or master fire and arson investigator certification; and (3) be a member of a paid, volunteer, or regulated non-governmental fire department. (b) The master fire service instructor certification meets requirements of NFPA 1041, Standard for Fire Service Instructor Professional Qualifications, for Fire Instructor Level IV only if Fire Administration I and Fire Administration II (college level) are completed. Instructors wanting to meet NFPA 1041 for Fire Service Instructor Level IV must meet the requirements for Fire Service Instructor Level III. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State, on May 11, 1998. TRD-9807623 T. R. Thompson General Counsel Texas Commission on Fire Protection Earliest possible date of adoption: June 21, 1998 For further information, please call: (512) 918-7189 CHAPTER 425.Fire Protection Personnel Instructors SUBCHAPTER B.Instructor Training Courses 37 TAC sec.425.201 (Editor's note: The text of the following section proposed for repeal will not be published. The section may be examined in the offices of the Texas Commission on Fire Protection or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The Texas Commission on Fire Protection proposes the repeal of sec.425.201, concerning instructor training courses. The subject matter of the repealed sections will be replaced by proposed new sections dealing with the same subject. Anthony C. Calagna, Fire Fighter Advisory Committee Chairman, has determined that for the first five year period the repeal is in effect there will be no fiscal implications for state and local governments. Mr. Calagna also has determined that for each of the first five years the repeal is in effect the public benefit anticipated as a result of enforcing the repeal will be that obsolete language will be replaced with new sections that implement legislative changes. There are no additional costs of compliance for small or large businesses and for individuals required to comply with the changes. There is no local employment impact resulting from the change. Comments on the proposal may be submitted to: Gary L. Warren Sr., Executive Director, Texas Commission on Fire Protection, P.O. Box 2286, Austin, Texas 78768-2286 or e-mail to tcfp@mail.capnet.state.tx.us. The repeal is proposed under Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and Texas Government Code, sec.419.028(3), which provides the commission with authority to certify persons as qualified fire protection instructors under conditions the commission prescribes. Texas Government Code, sec.419.028 is affected by the proposed repeal. sec.425.201.Instructor Training Courses. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State, on May 11, 1998. TRD-9807591 T. R. Thompson General Counsel Texas Commission on Fire Protection Earliest possible date of adoption: June 21, 1998 For further information, please call: (512) 918-7189 CHAPTER 425.Fire Instructors SUBCHAPTER B.Fire Education Specialist Certification 37 TAC sec.sec.425.201, 425.203, 425.205, 425.207, 425.209 The Texas Commission on Fire Protection proposes new sec.sec.425.201, 425.203, 425.205, 425.207, and 425.209, concerning minimum standards for fire education specialist certification. New sec.425.201 readopts existing language and renumbers the section. New sec.425.203 adds language to recognize volunteer fire department experience to qualify for basic fire education specialist certification. New sec.425.205 and sec.425.207 clarify course requirements for intermediate and advanced fire education specialist certification. New sec.425.209 increases the number of fire science hours for master fire education specialist from 15 to 18 to align with master requirements for other certifications. Anthony C. Calagna, Fire Fighter Advisory Committee Chairman, has determined that for the first five year period the new sections are in effect there will be no fiscal implications for state government. The cost to local governments for obtaining instructor training courses may decrease by approximately $250 per person due to the changes in requirements for persons who may teach instructor courses. Mr. Calagna also has determined that for each of the first five years the new sections are in effect the public benefit anticipated as a result of enforcing the new sections will be that volunteer instructors are considered the same as paid instructors and the availability of aproved fire instructor courses may increase. There are no additional costs of compliance for small or large businesses or individuals required to comply with the new chapter. The commission has determined that the proposed new sections relating to fire education specialist certification will have no impact on private real property interests and no takings impact assessment is required pursuant to the Government Code, sec.2007.043(b) and sec.2.18 of the Attorney General's Private Real Property Rights Preservation Act Guidelines. There is no local employment impact resulting from the change. Comments on the proposal may be submitted to: Gary L. Warren Sr., Executive Director, Texas Commission on Fire Protection, P.O. Box 2286, Austin, Texas 78768-2286 or e-mail to tcfp@mail.capnet.state.tx.us. The new sections are proposed under Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and Texas Government Code, sec.419.028, which provides the commission the authority to certify persons as qualified fire protection instructors under conditions the commission prescribes. Texas Government Code, sec.419.028 is affected by the proposed new sections. sec.425.201. Minimum Standards for Fire Education Specialist Certification. (a) Fire education specialist certificates will be issued by the commission when an individual completes the training and teaching requirements designated in the various certification levels. Complete course descriptions are on file in the commission office for all instructor courses listed in this section. (b) An out-of-state or military instructor training program may be accepted by the commission as meeting the training and experience requirements for certification as a fire education specialist if the program has been submitted to the commission for evaluation and found to be equivalent to or to exceed the commission approved instructor course for that particular level of fire education specialist certification. sec.425.203. Minimum Standards for Basic Fire Education Specialist Certification. (a) In order to become certified as a basic fire education specialist the individual must: (1) be a full-time employee of a department of a state agency, an education institution or political subdivision--providing fire protection training and have a minimum of three years full-time experience in one or more or any combination of the following: (A) a paid, volunteer, or regulated non-governmental fire department; or (B) a department of a state agency, an education institution or political subdivision providing fire protection training; (2) be a high school graduate or possess a GED certificate; (3) have completed "Instructional Techniques for Company Officers" or 15 class hours of teacher instructional training courses; and (4) submit an instructor application, with documentation to verify the aforementioned requirements, to the commission for processing. (b) Approved areas of instruction shall include the following. (1) Individuals shall provide acceptable proof of training at the time of application in each subject area they desire to provide instruction in. Individuals must have completed the course they are seeking to instruct or have completed comparable training in the same subject area. Proof of training in a subject need be submitted only once. The following items are acceptable for proof of training: (A) submit a copy of a commission approved certificate of completion bearing the course approval number and course identification number; (B) college semester courses of equivalent training identified on college transcripts; or (C) provide complete written documentation of equivalent training for staff review. (2) Individuals desiring to instruct in basic and advanced subjects they have not previously been approved for must meet the requirements of paragraph (1) of this subsection for acceptable proof of training. Proof of training shall be attached to and submitted with a Course/School Prior Approval Form when making application for course approval by the commission. (c) The basic fire education specialist certification meets requirements of NFPA 1041, Standard for Fire Service Instructor Professional Qualifications, for Fire Instructor Level I. sec.425.205. Minimum Standards for Intermediate Fire Education Specialist Certification. (a) In order to become certified as an intermediate fire education specialist, the individual must: (1) have completed all the requirements listed under sec.425.203(a) and (b) of this title (relating to Minimum Standards for Basic Fire Education Specialist Certification) except for sec.425.203(b)(3). (Note: Basic fire education specialist certification is not a prerequisite for intermediate fire education specialist certification); and (2) have completed a commission approved "Methods of Teaching" course consisting of at least three college semester hours or 40 class hours, or the National Fire Academy course, "Instructional Methodology." (b) The intermediate fire education specialist certification meets requirements of NFPA 1041, Standard for Fire Service Instructor Professional Qualifications, for Fire Instructor Level I and Fire Instructor Level II. Instructors wanting to meet NFPA 1041 for Fire Service Instructor Level II must meet the requirements for Fire Service Instructor I. sec.425.207.Minimum Standards for Advanced Fire Education Specialist Certification. (a) In order to become certified as an advanced fire education specialist must: (1) hold as a prerequisite an intermediate fire education specialist certificate; (2) be a full-time employee of a department of a state agency, an educational institution or political subdivision--devoting full time to fire service training and related responsibilities and have a minimum of five years full-time experience in one or more or any combination of the following: (A) a paid, volunteer, or regulated non-governmental fire department; or (B) a department of a state agency, an education institution or political subdivision--devoting full time to fire service training and related responsibilities; and (3) successfully complete the following commission approved instructor training courses: (A) a commission approved "Instructional Aids" course of at least three college semester hours or 40 class hours. (The National Fire Academy course, "Instructional Methodology" can be substituted for "Methods of Teaching" and "Instructional Aids"); and (B) a commission approved course in "Analysis and Course Making" consisting of at least three college semester hours or 40 class hours; and (C) a commission approved course in "Organization and Use of Instructional Materials" consisting of at least three college semester hours or 40 class hours. (The National Fire Academy course "Course Development" can be substituted for "Analysis and Course Making" and "Organization and Use of Instructional Material.") (b) The advanced fire education specialist certification meets requirements of NFPA 1041, Standard for Fire Service Instructor Professional Qualifications, for Fire Instructor Level III. Instructors wanting to meet NFPA 1041 for Fire Service Instructor Level III must meet the requirements for Fire Service Instructor II. sec.425.209. Minimum Standards for Master Fire Education Specialist Certification. (a) In order to become certified as a master fire education specialist the individual must: (1) hold as a prerequisite an advanced fire education specialist certification; and (2) acquire one of the following combinations of college education and the listed years of experience in a paid fire department, or department of a state agency, education institution or political subdivision--devoting full time to fire service training and related responsibilities: (A) an associate degree or 60 college semester hours either of which must include 12 college semester hours in fire science and 12 years of experience; or (B) an associate degree or 60 college semester hours, either of which must include at least 15 college semester hours in fire science subjects and at least nine years of experience; or (C) an associate degree in fire science and at least six years of experience; or (D) a baccalaureate degree or 120 college semester hours, either of which must include at least 18 college semester hours in fire science subjects and at least six years of experience; or (E) a masters degree which must include at least 18 college semester hours in fire science hours and at least four years of experience. (b) The master fire education specialist certification meets requirements of NFPA 1041, Standard for Fire Service Instructor Professional Qualifications, for Fire Instructor Level IV only if Fire Administration I and Fire Administration II (college level) are completed. Instructors wanting to meet NFPA 1041 for Fire Service Instructor Level IV must meet the requirements for Fire Service Instructor III. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State, on May 11, 1998. TRD-9807624 T. R. Thompson General Counsel Texas Commission on Fire Protection Earliest possible date of adoption: June 21, 1998 For further information, please call: (512) 918-7189 CHAPTER 425.Fire Protection Instructor SUBCHAPTER C.Fire Education Specialist Certification 37 TAC sec.sec.425.301, 425.303, 425.305, 425.307, 425.309 (Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Commission on Fire Protection or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The Texas Commission on Fire Protection proposes the repeal of sec.sec.425.301, 425.303, 425.305, 425.307, and 425.309, concerning minimum standards for fire education specialist certification. The subject matter of the repealed sections will be replaced by proposed new sections dealing with the same subject. Anthony C. Calagna, Fire Fighter Advisory Committee Chairman, has determined that for the first five year period the repeal is in effect there will be no fiscal implications for state and local governments. Mr. Calagna also hasdetermined that for each of the first five years the repeal is in effect the public benefit anticipated as a result of enforcing the repeal will be that obsolete language will be replaced with new sections that implement legislative changes. There are no additional costs of compliance for small or large businesses and for individuals required to comply with the changes. There is no local employment impact resulting from the change. Comments on the proposal may be submitted to: Gary L. Warren Sr., Executive Director, Texas Commission on Fire Protection, P.O. Box 2286, Austin, Texas 78768-2286 or e-mail to tcfp@mail.capnet.state.tx.us. The repeal is proposed under Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and Texas Government Code, sec.419.028(3), which provides the commission with authority to certify persons as qualified fire protection instructors under conditions the commission prescribes. Texas Government Code, sec.419.028 is affected by the proposed repeal. sec.425.301. Minimum Standards for Fire Education Specialist Certification. sec.425.303. Minimum Standards for Basic Fire Education Specialist Certification. sec.425.305. Minimum Standards for Intermediate Fire Education Specialist Certification. sec.425.307. Minimum Standards for Advanced Fire Education Specialist Certification. sec.425.309. Minimum Standards for Master Fire Education Specialist Certification. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State, on May 11, 1998. TRD-9807592 T. R. Thompson General Counsel Texas Commission on Fire Protection Earliest possible date of adoption: June 21, 1998 For further information, please call: (512) 918-7189 CHAPTER 425.Fire Instructors SUBCHAPTER C.Associate Instructor Certification 37 TAC sec.425.301 The Texas Commission on Fire Protection proposes new section sec.425.301, concerning minimum standards for associate instructor certification. New sec.425.301 clarifies course requirements for associate instructor certification. Anthony C. Calagna, Fire Fighter Advisory Committee Chairman, has determined that for the first five year period the new sections are in effect there will be no fiscal implications for state government. The cost to local governments for obtaining instructor training courses may decrease by approximately $250 per person due to the changes in requirements for persons who may teach instructor courses. Mr. Calagna also has determined that for each of the first five years the new sections are in effect the public benefit anticipated as a result of enforcing the new sections will be that volunteer instructors are considered the same as paid instructors and the availability of aproved fire instructor courses may increase. There are no additional costs of compliance for small or large businesses or individuals required to comply with the new chapter. The commission has determined that the proposed new sections relating to associate instructor certification will have no impact on private real property interests and no takings impact assessment is required pursuant to the Government Code, sec.2007.043(b) and sec.2.18 of the Attorney General's Private Real Property Rights Preservation Act Guidelines. There is no local employment impact resulting from the change. Comments on the proposal may be submitted to: Gary L. Warren Sr., Executive Director, Texas Commission on Fire Protection, P.O. Box 2286, Austin, Texas 78768-2286 or e-mail to tcfp@mail.capnet.state.tx.us. The new section is proposed under Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and Texas Government Code, sec.419.028, which provides the commission the authority to certify persons as qualified fire protection instructors under conditions the commission prescribes. Texas Government Code, sec.419.028 is affected by the proposed new section. sec.425.301.Minimum Standards for Associate Instructor Certification. (a) The Associate Instructor certificate is designed for an individual that is not: (1) fire protection personnel; or (2) a part-time fire protection employee; or (3) a volunteer fire fighter; or (4) an employee of a department of a state agency, an employee of an educational institution or political subdivision providing fire protection training. (b) An out-of-state or military instructor training program may be accepted by the commission as meeting the training and experience requirements for certification as an associate instructor if the program has been submitted to the commission for evaluation and found to be equivalent to or to exceed the commission approved instructor course for associate instructor certification. (c) In order to be certified as an Associate Instructor the individual must: (1) have completed a commission approved "Methods of Teaching" course consisting of at least three college semester hours or 40 class hours; and (2) submit an instructor application, with documentation to verify the aforementioned items to the commission for processing. (d) Approved areas of instruction shall include the following. (1) Individuals shall provide acceptable proof of training at the time of application in each basic and advanced subject area in which they desire to provide instruction. Individuals must have completed the course they are seeking to instruct or have completed comparable training in the same subject area. Proof of training in a subject need be submitted only once. The following items are acceptable for proof of training: (A) submit a copy of a commission approved certificate of completion bearing the course approval number and course identification number; (B) college semester courses of equivalent training identified on college transcripts; or (C) provide complete written documentation of equivalent training for staff review. (2) Individuals desiring to instruct in basic and advanced subjects they have not previously been approved for must meet the requirements of this section for acceptable proof of training. Proof of training shall be attached and submitted with a Course/School Prior Approval Form when making application for course approval by the commission. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State, on May 11, 1998. TRD-9807625 T. R. Thompson General Counsel Texas Commission on Fire Protection Earliest possible date of adoption: June 21, 1998 For further information, please call: (512) 918-7189 CHAPTER 425.Fire Protection Instructor SUBCHAPTER D.Associate Instructor Certification 37 TAC sec.425.401 (Editor's note: The text of the following section proposed for repeal will not be published. The section may be examined in the offices of the Texas Commission on Fire Protection or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The Texas Commission on Fire Protection proposes the repeal of sec.425.401, concerning minimum standards for associate instructor certification. The subject matter of the repealed sections will be replaced by proposed new sections dealing with the same subject. Anthony C. Calagna, Fire Fighter Advisory Committee Chairman, has determined that for the first five year period the repeal is in effect there will be no fiscal implications for state and local governments. Mr. Calagna also has determined that for each of the first five years the repeal is in effect the public benefit anticipated as a result of enforcing the repeal will be that obsolete language will be replaced with new sections that implement legislative changes. There are no additional costs of compliance for small or large businesses and for individuals required to comply with the changes. There is no local employment impact resulting from the change. Comments on the proposal may be submitted to: Gary L. Warren Sr., Executive Director, Texas Commission on Fire Protection, P.O. Box 2286, Austin, Texas 78768-2286 or e-mail to tcfp@mail.capnet.state.tx.us. The repeal is proposed under Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and Texas Government Code, sec.419.028(3), which provides the commission with authority to certify persons as qualified fire protection instructors under conditions the commission prescribes. Texas Government Code, sec.419.028 is affected by the proposed repeal. sec.425.401.Minimum Standards for Associate Instructor Certification. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State, on May 11, 1998. TRD-9807593 T. R. Thompson General Counsel Texas Commission on Fire Protection Earliest possible date of adoption: June 21, 1998 For further information, please call: (512) 918-7189 CHAPTER 425.Fire Instructor SUBCHAPTER D.Instructor Training Courses 37 TAC sec.425.401 The Texas Commission on Fire Protection proposes new sec.425.401, concerning instructor training courses. New sec.425.401 reorganizes existing language to clarify the qualifications of persons who may teach approved instructor training courses. Anthony C. Calagna, Fire Fighter Advisory Committee Chairman, has determined that for the first five year period the new sections are in effect there will be no fiscal implications for state government. The cost to local governments for obtaining instructor training courses may decrease by approximately $250 per person due to the changes in requirements for persons who may teach instructor courses. Mr. Calagna also has determined that for each of the first five years the new sections are in effect the public benefit anticipated as a result of enforcing the new sections will be that volunteer instructors are considered the same as paid instructors and the availability of aproved fire instructor courses may increase. There are no additional costs of compliance for small or large businesses or individuals required to comply with the new chapter. The commission has determined that the proposed new sections relating to instructor training courses will have no impact on private real property interests and no takings impact assessment is required pursuant to the Government Code, sec.2007.043(b) and sec.2.18 of the Attorney General's Private Real Property Rights Preservation Act Guidelines. There is no local employment impact resulting from the change. Comments on the proposal may be submitted to: Gary L. Warren Sr., Executive Director, Texas Commission on Fire Protection, P. O. Box 2286, Austin, Texas 78768-2286 or e-mail to tcfp@mail.capnet.state.tx.us. The new section is proposed under Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and Texas Government Code, sec.419.028, which provides the commission the authority to certify persons as qualified fire protection personnel instructors under conditions the commission prescribes. Texas Government Code, sec.419.028 is affected by the proposed new section. sec.425.401. Instructor Training Courses. (a) In order for a Methods of Teaching, Instructional Aids, Analysis and Course Making, or Organization and Use of Instructional Materials course to be accepted by the commission toward any level of instructor certification, the course must be taught by an individual who holds one of the following two qualifications: (1) a bachelor's degree with the following: (A) as a minimum, a minor in education, or 12 semester hours of education instructional courses, or 120 class hours in the following courses: Methods of Teaching, Instructional Aids, Analysis and Course Making, and Organization and Use of Instructional Materials; and (B) three years' teaching experience in a fire department, department of a state agency, educational institution, or political subdivision of the state, during which time the individual taught a minimum of 200 class hours; or (2) an associate's degree with the following: (A) 12 semester hours of education instructional courses or 120 class hours in the following courses: Methods of Teaching, Instructional Aids, Analysis and Course Making, and Organization and Use of Instructional Materials; and (B) five years' teaching experience in a fire department, department of a state agency, educational institution, or political subdivision of the state, during which time the individual taught a minimum of 400 class hours. (b) Other related information: (1) Descriptions of all approved instructor training courses are on file in the office of the commission. (2) In all cases the National Fire Academy course, Course Development, can be substituted for both Analysis and Course Making and Organization and Use of Instructional Materials. (3) In all cases the National Fire Academy course, Instructional Methodology, can be substituted for both Methods of Teaching and Instructional Aids. (4) The commission has entered into an agreement of reciprocity with the Texas Commission on Law Enforcement Officer Standards and Education (TCLEOSE) concerning the commission's Methods of Teaching Course and the TCLEOSE Basic Instructor Course. For the purpose of instructor certification, both agencies will consider the courses equivalent. (5) The commission has entered into an agreement of reciprocity with the Texas Department of Health for the purpose of instructor certification. The commission will recognize the Texas Department of Health's 40-hour state instructor certification course as meeting the training requirements for the Texas Commission on Fire Protection's Intermediate Instructor certification. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State, on May 11, 1998. TRD-9807626 T. R. Thompson General Counsel Texas Commission on Fire Protection Earliest possible date of adoption: June 21, 1998 For further information, please call: (512) 918-7189 CHAPTER 427.Certified Training Facilities 37 TAC sec.sec.427.1, 427.3, 427.5, 427.7, 427.9, 427.11, 427.13, 427.15, 427.17, 427.19 (Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Commission on Fire Protection or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The Texas Commission on Fire Protection proposes the repeal of sec.sec.427.1, 427.3, 427.5, 427.7, 427.9, 427.11, 427.13, 427.15, 427.17, and 427.19, concerning certified training facilities. The subject matter of the repealed sections will be replaced by proposed new sections dealing with the same subject. Anthony C. Calagna, Fire Fighter Advisory Committee Chairman, has determined that for the first five year period the repeal is in effect there will be no fiscal implications for state and local governments. Mr. Calagna also has determined that for each of the first five years the repeal is in effect the public benefit anticipated as a result of enforcing the repeal will be that obsolete language will be replaced with new sections that implement legislative changes. There are no additional costs of compliance for small or large businesses and for individuals required to comply with the changes. There is no local employment impact resulting from the change. Comments on the proposal may be submitted to: Gary L. Warren Sr., Executive Director, Texas Commission on Fire Protection, P.O. Box 2286, Austin, Texas 78768-2286 or e-mail to tcfp@mail.capnet.state.tx.us. The repeal is proposed under Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and Texas Government Code, sec.419.028(2), which provides the commission the authority to certify facilities operated for training fire protection personnel or recruits. Texas Government Code, sec.419.028 is affected by the proposed repeal. sec.427.1.Minimum Standards for Certified Training Facilities for Fire Protection Personnel. sec.427.3.Facilities. sec.427.5.Apparatus. sec.427.7.Protective Clothing. sec.427.9.Equipment. sec.427.11.Reference Material. sec.427.13.Records. sec.427.15.Testing Procedures. sec.427.17.Staff. sec.427.19.General Information. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State, on May 11, 1998. TRD-9807594 T. R. Thompson General Counsel Texas Commission on Fire Protection Earliest possible date of adoption: June 21, 1998 For further information, please call: (512) 918-7189 The Texas Commission on Fire Protection proposes new sec.sec.427.1, 427.3, 427.5, 427.7, 427.9, 427.11, 427.13, 427.15, 427.17, and 427.19, pertaining certified training facilities. The chapter is comprised of sections pertaining to requirements for certification as certified training facilities for fire protection personnel including facility requirements, apparatus, protective clothing, equipment, reference materials, records, testing procedures, staff, and general information. New sec.427.1 adds certification requirements for training facilities that provide basic instruction for certification as a hazardous materials technician and streamlines the documentation required for approval of a course where the facility has previously been approved. New sec.427.3 concerning facilities eliminates obsolete language concerning insurance key rate credit and adds new subsection (7) concerning an area for performance skills training and testing. New sec.427.5 and sec.427.7 concerning apparatus and protective clothing readopt existing language. New sec.427.9 concerning equipment allows the use of training simulators and mock training aids. New sec.427.11 and sec.427.13 readopts existing language concerning reference materials and records. New sec.427.15 adds training facility testing requirements for hazardous material technician training. Section 427.15 also includes provisions applicable to volunteer training facilities conducting an approved basic fire suppression phase level training program for volunteer fire fighters. New sec.427.17 concerning staff streamlines existing language. New sec.427.19 adds language to recognize training through a program that has been approved by the commission as equivalent. The new Chapter is intended to integrate and continue to recognize training at volunteer training facilities currently certified by the commission. Anthony C. Calagna, Fire Fighter Advisory Committee Chairman, has determined that for the first five year period the new sections are in effect there will be fiscal implications for state and local governments. The commission may experience an increase in training facility certification fees totaling $200 per year from the addition of approvals for hazardous materials technician courses. Local governments that choose to obtain approval to teach basic instruction for hazardous materials technician will incur an additional $20.00 certification fee. Mr. Calagna also has determined that for each of the first five years the new sections are in effect the public benefit anticipated as a result of enforcing the new sections will be uniformity in training for hazardous materials technician training and providing more flexibility for scheduling training by integrating the volunteer phase level training program. There are no additional costs of compliance for small or large businesses or individuals required to comply with the new chapter. The commission has determined that the proposed new sections relating to certified training facilities will have no impact on private real property interests and no takings impact assessment is required pursuant to the Government Code, sec.2007.043(b) and sec.2.18 of the Attorney General's Private Real Property Rights Preservation Act Guidelines. There is no local employment impact resulting from the change. Comments on the proposal may be submitted to: Gary L. Warren Sr., Executive Director, Texas Commission on Fire Protection, P.O. Box 2286, Austin, Texas 78768-2286 or e-mail to tcfp@mail.capnet.state.tx.us. The new sections are proposed under Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and Texas Government Code, sec.419.028, which provides the commission the authority to certify facilities operated for training fire protection personnel or recruits. Texas Government Code, sec.419.028 is affected by the proposed new sections. sec.427.1.Minimum Standards for Certified Training Facilities for Fire Protection Personnel. (a) A training facility that provides basic instruction, for certification, to fire protection personnel in any of the following disciplines must be certified by the Texas Commission on Fire Protection: (1) structural fire protection personnel; (2) aircraft fire protection personnel; (3) marine fire protection personnel; (4) fire inspector; (5) arson investigator or fire investigator; (6) hazardous materials technician. (b) A certified training facility may be approved to instruct in any one or all of the basic fire protection personnel curriculums. Minimum requirements for each curriculum must be met to receive certification. (c) Minimum requirements for certification as a certified training facility shall include facilities, apparatus, equipment, reference materials, and records to support a quality education and training program. The resources must provide for classroom instruction, demonstrations, and practical exercises for the trainees to develop the knowledge and skills required for basic fire protection personnel certification. (d) The facilities and training shall be performance oriented, when required. Practical performance training with maximum participation by trainees shall be an integral part of the training program. The evaluation process for each phase of training will emphasize, as required, performance testing to determine if the trainee has acquired the knowledge and skills to achieve the required level of competency as required by the respective curriculum. (e) It must be clearly understood that the minimum standard for training facilities is applicable only as the title implies and does not address the additional training facility resources which are required for the continuing in- service training essential to the development and maintenance of a well- coordinated and effective fire service organization. (f) An organization, installation, or facility must submit a written application for certification as a certified training facility to the commission. Such application will include descriptions and addresses of physical facilities together with inventory of apparatus, equipment, and reference material to be utilized in conducting the basic curriculum as specified by the commission. It is not required that the equipment be owned by, permanently assigned to, nor kept at a training facility, but must be readily available for instructional purposes. A training facility must submit a letter of commitment with the original training facility certification application authorizing the use of resources not controlled by the training facility from the provider of said resources. Photographs of resources annotated to reflect their identity must be included with the application. When seeking basic course approvals, the facility shall certify that the resources are provided in accordance with this chapter. (g) All training must be submitted to the commission for approval at least 20 days prior to the proposed starting date of the training. (h) A certified training facility must submit a written request to the commission to be issued, at no charge, one Commission Certification Curriculum Manual which is to be utilized by the certified training facility instructors. The certified training facility instructors are responsible for ensuring that all subjects are taught as required by the respective curriculum. Additional copies of the Commission Certification Curriculum Manual may be purchased from the commission. Certified training facilities that renew their certification will receive appropriate updates, at no charge, to the Commission Certification Curriculum Manual. sec.427.3. Facilities. The following minimum resources, applicable to the curricula, are required for certification as a certified training facility. These facilities may be combined or separated utilizing one or more structures. In either event the facilities must be available and used by the instructor and trainees. (1) A training tower equivalent to two or more stories in height. The term "training tower" as used in these standards is a structure suitable for training in the practical application of ladder evolutions, rescue drills, hose advancement, and rope work. (2) A facility for classroom instruction shall have seating capacity for anticipated trainees conducive for an effective learning environment. (3) Area for practical application of principles and procedures of fire fighting, hose loading, pumper operation, to include friction loss, nozzle reaction, fire stream patterns, and GPM discharge utilizing various layouts for hand lines and master stream appliances. (4) An enclosed area or room for use in practical training with self-contained breathing apparatus. This may be a smoke and fire room or enclosed area which can be charged with smoke-producing devices to provide a realistic training environment. (5) A structure suitable for interior live fire training and meeting the requirements of the basic curriculum pertaining to the particular discipline(s) which the training facility is approved to teach, shall be available for use by the instructors to teach interior live fire training. NFPA 1403, Standard on Live Fire Training Evolutions in Structures shall be used as a guide when conducting interior live fire training. (6) Facilities to conduct exterior live fire training as required by the basic curriculum pertaining to the particular discipline(s) which the training facility is approved to teach, shall be available for use by the instructors to teach exterior live fire training. (7) If performance skills are part of the curriculum, suitable area(s) for practicing required skills, demonstration of skills, and performance testing must be available. sec.427.5.Apparatus. (a) Certified training facility--approved for basic structural fire protection personnel. (1) A pumper apparatus fully equipped as required by the basic fire suppression curriculum shall be readily available for use by the instructors for instructional purposes. (2) Ladders or a ladder truck as required by the basic fire suppression curriculum shall be readily available for use by the instructors for instructional purposes. (b) Certified training facility--approved for basic aircraft fire protection personnel. Fire apparatus that is equipped to perform aircraft operations as required by the basic aircraft fire protection curriculum must be readily available for use by the instructors for instructional purposes. sec.427.7.Protective Clothing. Each and every set of protective clothing, including proximity clothing, that will be used during the course of instruction for a commission approved basic fire protection personnel curriculum shall comply with sec. 435.1(b) of this title (relating to Protective Clothing). sec.427.9. Equipment. The following minimum equipment, applicable to the curriculum(s) the training facility is certified to teach, are required for certification as a certified training facility. The equipment must be available for use by the certified training facility: (1) self-contained breathing apparatus in sufficient numbers to enable each trainee to wear the equipment for at least the life of one breathing air tank during the training. (Note: Must comply with sec.435.3(2) of this title (relating to Self-contained Breathing Apparatus)); (2) standard classroom equipment to include chalkboard, speaker rostrum, supportive instructional aids available to include audio-visual projection equipment. The use of cutaways, models, flip charts, and other visual aids are recommended to enhance effectiveness of the instruction. (Note: The instructor needs to ensure all necessary equipment is available for trainees to use regarding the basic performance skills as identified in appropriate curriculum and to comply with sec. 427.15 of this title (relating to Testing Procedures)); and (3) other equipment, which may include training simulators and mock training aids, and tools required by the applicable curriculum. sec.427.11. Reference Material. A reference library is required. The library must contain the publications required to conduct research and develop lesson plans covering the material required in the applicable basic curriculum. sec.427.13.Records. (a) Training records shall be maintained by the training facility that reflect: (1) who was trained, subject, instructor, and date of instruction. (Note: Individual records are required rather than class records); and (2) individual trainee test scores to include performance testing. (b) All training records must be maintained for a minimum of three years. sec.427.15. Testing Procedures. (a) A system for evaluating the effectiveness of the instruction, and the comprehension of the trainee is required. (b) If performance skills are part of the applicable curriculum, performance testing shall be done and records kept indicating that each trainee has demonstrated an ability to consistently perform, individually and as a member of a team, all tasks and operations associated with the training in a safe manner and level of competency which contributes to the successful achievement of the purpose for which the task or operation is being performed. (c) Performance testing should be utilized to the maximum extent practical. The performance skills contained in the applicable basic curriculum shall be utilized to satisfy performance skills requirements. Each trainee shall be prepared to demonstrate any performance skill before a commission representative as may be required in Chapter 439 (relating to Examinations for Certification). (d) Written tests shall be designed to encompass the contents of the subjects being taught and phrased in a manner which can be readily understood by a trainee whose comprehension is at a level consistent with the academic level of the material being presented. (1) Periodic written tests serve the dual purpose of permitting the instructor to evaluate the effectiveness of the instruction and the comprehension of the trainees. The instructor must determine that each trainee understands and comprehends the subject matter being presented. Trainees must maintain a grade average of not less than 70% for all periodic tests administered during the course. (A) A minimum of eight periodic written tests shall be administered during the course for certification of structural fire protection personnel, covering the subjects listed in the basic fire suppression curriculum. (B) A minimum of four periodic written tests shall be administered during the course for certification of aircraft fire protection personnel, marine fire protection personnel, fire inspectors, arson investigator, and fire investigator covering the subjects listed in the applicable curriculum. (C) A minimum of two periodic written tests shall be administered during the course for certification of hazardous materials technicians covering the subjects listed in the applicable curriculum. (2) Comprehensive written tests shall be administered utilizing one of the following options. (A) Option A. A midterm and a final comprehensive written test shall be administered, if this option is utilized. The first or midterm comprehensive test shall be given no later than midway through the curriculum and shall relate to subjects presented from the beginning of the training until the date of test. The final comprehensive test shall be given at the conclusion of the training curriculum and shall relate to subject matter presented from the beginning of the training until the date of the test. Each trainee must maintain a grade average of not less than 70% for the two comprehensive tests. A trainee may be allowed one retest at the discretion of the training facility. (B) Option B. A final comprehensive test shall be administered at the conclusion of the course and shall cover all subjects listed in the training curriculum. Each trainee must score a grade of not less than 70% on the final examination. A trainee may be allowed one retest, at the discretion of the training facility. (C) Option C. If the training facility is conducting an approved basic fire suppression phase level program, a test will be administered by the certified training facility at the completion of each phase of the curriculum. Trainees must obtain a grade of not less than 70% for all tests administered for each phase. (3) The tests in paragraphs (1) and (2) of this subsection shall be in addition to the commission examination required in Chapter 439 of this title (relating to Examinations for Certification). (e) A master copy of written tests will be maintained for review by commission representatives. The certified training facility shall maintain copies of all tests for a minimum of three years. sec.427.17. Staff. (a) A training officer, as a minimum, must possess an intermediate fire service instructor certification (refer to sec. 425.3 of this title (relating to Intermediate Fire Service Instructor)). A newly appointed training officer must, as a minimum, possess an intermediate fire service instructor certification within one year from date of appointment. (b) A coordinator, as a minimum, must possess an intermediate fire education specialist certification (refer to sec. 425.303 of this title (relating to Intermediate Fire Education Specialist Certification)). A newly appointed coordinator must as a minimum possess an intermediate fire education specialist certification within one year from date of appointment. (c) All instructors, except guest instructors must possess fire instructor certification The instructor or instructors that will be providing instruction must be approved by the commission to instruct in the applicable curriculum or subjects. (d) The lead instructor, as a minimum, shall possess an intermediate fire instructor certification. The lead instructor must have completed the course he or she is seeking to instruct or have completed comparable training in the same subject area. (e) Guest instructors, including fire protection personnel utilized on a limited basis, are not required to be certified as instructors. A guest instructor is defined as an individual with special knowledge, skill, and expertise in a specific subject area who has the ability to enhance the effectiveness of the training. Guest instructors can teach under the endorsement of the instructor responsible for the subject being taught. sec.427.19. General Information. (a) All Texas certified training facilities shall meet these minimum requirements. No training credit will be recognized from a Texas training facility that has not been certified by the commission, unless the program has been approved by the commission as being equivalent. The commission shall take action on an application for certification of a training facility within 90 days from receipt of same. (b) Certified training facilities are subject to inspection by the commission at any time during regular business hours. (c) In order to retain the certification as a certified training facility, schools desiring to make substantial changes in the facility or other conditions under which the school was approved shall coordinate such plans with the commission. (d) The commission shall be notified, in writing, within 14 days of any change in the certified training. (e) The commission may revoke the certification of a training facility when, in the judgment of the commission, the training facility: (1) is inadequate and fails to provide the quality of training for which the facility was approved; (2) fails to comply with commission rules and/or these minimum standards; or (3) fails to submit required reports in a timely manner or submits false reports to the commission. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State, on May 11, 1998. TRD-9807627 T. R. Thompson General Counsel Texas Commission on Fire Protection Earliest possible date of adoption: June 21, 1998 For further information, please call: (512) 918-7189 CHAPTER 429.Minimum Standards for Fire Inspectors 37 TAC sec.sec.429.1, 429.3, 429.5, 429.7, 429.9 (Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Commission on Fire Protection or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The Texas Commission on Fire Protection proposes the repeal of sec.sec.429.1, 429.3, 429.5, 429.7, and 429.9, concerning minimum standards for fire inspector certification. The subject matter of the repealed sections will be replaced by proposed new sections dealing with the same subject. Anthony C. Calagna, Fire Fighter Advisory Committee Chairman, has determined that for the first five year period the repeal is in effect there will be no fiscal implications for state and local governments. Mr. Calagna also has determined that for each of the first five years the repeal is in effect the public benefit anticipated as a result of enforcing the repeal will be that obsolete language will be replaced with new sections that implement legislative changes. There are no additional costs of compliance for small or large businesses and for individuals required to comply with the changes. There is no local employment impact resulting from the change. Comments on the proposal may be submitted to: Gary L. Warren Sr., Executive Director, Texas Commission on Fire Protection, P.O. Box 2286, Austin, Texas 78768-2286 or e-mail to tcfp@mail.capnet.state.tx.us. The repeal is proposed under Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and Texas Government Code, sec.419.022, which provides the commission with authority to establish minimum training standards for fire protection personnel in advanced or specialized fire protection personnel positions. Texas Government Code, sec.419.022 is affected by the proposed repeal. sec.429.1.Minimum Standards for Fire Inspection Personnel. sec.429.3.Minimum Standards for Basic Fire Inspector Certification. sec.429.5.Minimum Standards for Intermediate Fire Inspector Certification. sec.429.7.Minimum Standards for Advanced Fire Inspector Certification. sec.429.9.Minimum Standards for Master Fire Inspector Certification. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State, on May 11, 1998. TRD-9807595 T. R. Thompson General Counsel Texas Commission on Fire Protection Earliest possible date of adoption: June 21, 1998 For further information, please call: (512) 918-7189 The Texas Commission on Fire Protection proposes new sec.sec.4291, 429.3, 429.5, 429.7, and 429.9, concerning standards for fire inspectors. The chapter includes sections concerning assignment of fire inspection personnel, basic fire inspector certification, and higher levels including intermediate, advanced, and master certification. New sec.429.1 clarifies the requirement of training and testing prior to assignment to fire code enforcement duties to be consistent with the suppression disciplines. New sec.429.3 concerning basic fire inspector certification eliminates language that allowed training to be completed within one year of initial appointment inasmuch as new sec.429.1 requires training prior to assignment. New sec.sec.429.5, 429.7, and 429.9 readopt existing language pertaining to higher levels of fire inspector certification. Anthony C. Calagna, Fire Fighter Advisory Committee Chairman, has determined that for the first five year period the new sections are in effect there will be no fiscal implications for state or local governments. Mr. Calagna also has determined that for each of the first five years the new sections are in effect the public benefit anticipated as a result of enforcing the new sections will be that the public is assured that personnel assigned fire code enforcement duties are adequately trained prior to assignment. There are no additional costs of compliance for small or large businesses or individuals required to comply with the new chapter. The commission has determined that the proposed new sections relating to standards for fire inspector certification will have no impact on private real property interests and no takings impact assessment is required pursuant to the Government Code, sec.2007.043(b) and sec.2.18 of the Attorney General's Private Real Property Rights Preservation Act Guidelines. There is no local employment impact resulting from the change. Comments on the proposal may be submitted to: Gary L. Warren Sr., Executive Director, Texas Commission on Fire Protection, P. O. Box 2286, Austin, Texas 78768-2286 or e-mail to tcfp@mail.capnet.state.tx.us. The new sections are proposed under Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and Texas Government Code, sec.419.022, which provides the commission with authority to establish minimum training standards for fire protection personnel in advanced or specialized fire protection personnel positions. Texas Government Code, sec.419.022 is affected by the proposed new chapter. sec.429.1.Minimum Standards for Fire Inspection Personnel. (a) All full-time personnel, as employed by a government entity who are assigned fire code enforcement activities, must be certified by the commission as fire inspectors. (b) All full-time employees of a governmental entity who are assigned fire code enforcement duties must be certified, as a minimum, as a basic fire inspector as specified in sec.429.3 of this title (relating to Minimum Standards for Basic Fire Inspector Certification) within one year of initial appointment to such position. (c) Prior to being assigned to fire code enforcement duties as a full-time employee, all personnel must complete a commission approved basic fire inspection training program and successfully pass the commission examination pertaining to that curriculum. (d) All individuals holding any level of fire inspector certification shall be required to comply with the continuing education requirements in sec.441.13 of this title (relating to Continuing Education Requirements for Fire Inspection Personnel). (e) Code enforcement is defined as the enforcement of laws, codes, and ordinances of the authority having jurisdiction pertaining to fire prevention. sec.429.3.Minimum Standards for Basic Fire Inspector Certification. (a) Training programs that are intended to satisfy the requirements of this section must meet the curriculum, competencies, and hour requirements of this section. All applicants for certification must meet the examination requirements of this section. (b) In order to be certified by the commission as a Basic Fire Inspector an individual must: (1) complete a commission approved fire inspection training program and successfully pass the commission examination as specified in Chapter 439 of this title (relating to Examinations for Certification). An approved basic fire inspection training program shall consist of one of the following: (A) completion of the commission approved Basic Fire Inspector Curriculum, as specified in Chapter 4 of the commission's document titled "Commission Certification Curriculum Manual," as approved by the commission in accordance with Chapter 443 of this title (relating to Certification Curriculum Manual); or (B) successful completion of an out of state training program which has been submitted to the commission for evaluation and found to meet the minimum requirements as listed in the commission approved Basic Fire Inspector Curriculum as specified in Chapter 4 of the commission's document titled "Commission Certification Curriculum Manual"; or (C) successful completion of the following college courses: Fundamentals of Fire Protection 3 semester hours; Fire Protection Systems 3 semester hours; Fire Prevention 3 semester hours; Building Code 3 semester hours; Building Construction 3 semester hours; Hazardous Materials I 3 semester hours; Fundamentals of Speech 3 semester hours. Total semester hours 21* *NOTE: Building Code and Building Construction may be combined into a single three semester hour class. If this is the case, the total semester hours may be reduced to 18; or (D) successful completion of a minimum of 240 hours of instruction in a National Fire Academy resident program for fire inspection. The resident program must include the basic course, Fire Inspection Principles (80 hours), and a minimum of 160 hours of instruction in at least two of the following courses: (i) Fire Prevention Specialist II (80 hours); or (ii) Plans Review for Inspectors (80 hours); or (iii) Code Management: A Systems Approach (80 hours); or (iv) Management of Fire Prevention Programs (80 hours); or (v) Strategic Analysis of Fire Prevention Programs (80 hours). (c) National Fire Academy resident courses of equal or greater class hours that replace a course discontinued by the National Fire Academy may be used towards requirements for certification in place of the discontinued course. (d) A person who holds or is eligible to hold a certificate upon employment as a part-time fire inspector may be certified as a fire inspector, of the same level of certification, without meeting the applicable examination requirements. sec.429.5. Minimum Standards for Intermediate Fire Inspector Certification. (a) Applicants for Intermediate Fire Inspector Certification must complete the following requirements: (1) hold as a prerequisite a Basic Fire Inspector Certification as defined in sec.429.3 of this title (relating to Minimum Standards for Basic Fire Inspector Certification); (2) acquire a minimum of four years of fire protection experience and complete the courses listed in one of the following options: (A) Option 1--Successfully complete six semester hours of fire science or fire technology from an approved Fire Protection Degree Program and submit documentation as required by the Commission that the courses comply with subsections (c) and (d) of this section; or (B) Option 2--Complete a minimum of 96 hours of instruction in any National Fire Academy courses; or (C) Option 3--Successfully complete three semester hours of college courses listed in Option 1 and a minimum of 48 hours in any National Fire Academy courses. (b) College level courses from both the upper and lower division may be used to satisfy the education requirement for Intermediate Fire Inspector Certification. (c) Non-traditional credit awarded at the college level, such as credit for experience or credit by examination obtained from attending any school in the commission's document titled "Commission Certification Curriculum Manual" or for experience in the fire service, may not be counted toward higher levels of certification. (d) The training required in this section must be in addition to any training used to qualify for any lower level of Fire Inspector Certification. Repeating a course or course of similar content cannot be used towards higher levels of certification. sec.429.7. Minimum Standards for Advanced Fire Inspector Certification. (a) Applicants for Advanced Fire Inspector certification must complete the following requirements: (1) hold as a prerequisite an Intermediate Fire Inspector Certification as defined in sec.429.5 of this title (relating to Minimum Standards for Intermediate Fire Inspector Certification); (2) acquire a minimum of eight years of fire protection experience and complete the courses listed in one of the following options: (A) Option 1--Successfully complete six semester hours of fire science or fire technology from an approved Fire Protection Degree Program and submit documentation as required by the Commission that the courses comply with subsections (c) and (d) of this section; or (B) Option 2--Complete a minimum of 96 hours of instruction in any National Fire Academy courses; or (C) Option 3--Successfully complete three semester hours of college courses listed in Option 1 and a minimum of 48 hours in any National Fire Academy courses. (b) College level courses from both the upper and lower division may be used to satisfy the education requirement for Advanced Fire Inspector Certification. (c) Non-traditional credit awarded at the college level, such as credit for experience or credit by examination obtained from attending any school in the commission's document titled "Commission Certification Curriculum Manual" or for experience in the fire service, may not be counted toward higher levels of certification. (d) The training required in this section must be in addition to any training used to qualify for any lower level of Fire Inspector Certification. Repeating a course or course of similar content cannot be used towards higher levels of certification. sec.429.9. Minimum Standards for Master Fire Inspector Certification. (a) Applicants for Master Fire Inspector Certification must complete the following requirements: (1) hold as a prerequisite an Advanced Fire Inspector Certification as defined in sec. 429.7 of this title (relating to Minimum Standards for Advanced Fire Inspector Certification); and (2) acquire a minimum of 12 years of fire protection experience, and 60 college semester hours or an associate degree, which includes at least 18 college semester hours in fire science subjects. (b) College level courses from both the upper and lower division may be used to satisfy the education requirement for Master Fire Inspector Certification. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State, on May 11, 1998. TRD-9807628 T. R. Thompson General Counsel Texas Commission on Fire Protection Earliest possible date of adoption: June 21, 1998 For further information, please call: (512) 918-7189 CHAPTER 431.Minimum Standards for Fire and Arson Investigator 37 TAC sec.sec.431.1, 431.3, 431.5, 431.7, 431.9, 431.11 (Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Commission on Fire Protection or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The Texas Commission on Fire Protection proposes the repeal of sec.sec.431.1, 431.3, 431.5, 431.7, 431.9, and 431.11, concerning minimum standards for fire and arson investigator certification. The subject matter of the repealed sections will be replaced by proposed new sections dealing with the same subject. Anthony C. Calagna, Fire Fighter Advisory Committee Chairman, has determined that for the first five year period the repeal is in effect there will be no fiscal implications for state and local governments. Mr. Calagna also has determined that for each of the first five years the repeal is in effect the public benefit anticipated as a result of enforcing the repeal will be that obsolete language will be replaced with new sections that implement legislative changes. There are no additional costs of compliance for small or large businesses and for individuals required to comply with the changes. There is no local employment impact resulting from the change. Comments on the proposal may be submitted to: Gary L. Warren Sr., Executive Director, Texas Commission on Fire Protection, P.O. Box 2286, Austin, Texas 78768-2286 or e-mail to tcfp@mail.capnet.state.tx.us. The repeal is proposed under Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and Texas Government Code, sec.419.022, which provides the commission with authority to establish minimum training standards for fire protection personnel in advanced or specialized fire protection personnel positions. Texas Government Code, sec.419.022 is affected by the proposed repeal. sec.431.1. Minimum Standards for Fire and Arson Investigation Personnel. sec.431.3.Minimum Standards for Basic Fire and Arson Investigator Certification. sec.431.5. Minimum Standards for Intermediate Fire and Arson Investigator Certification. sec. 431.7. Minimum Standards for Advanced Fire and Arson Investigator Certification. sec.431.9.Minimum Standards for Master Fire and Arson Investigator Certification. sec.431.11. Minimum Standards for Fire and Arson Investigator Certification for Law Enforcement Personnel. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State, on May 11, 1998. TRD-9807596 T. R. Thompson General Counsel Texas Commission on Fire Protection Earliest possible date of adoption: June 21, 1998 For further information, please call: (512) 918-7189 CHAPTER 431.Fire Investigation SUBCHAPTER A.Minimum Standards for Arson Investigator Certification 37 TAC sec.sec.431.1, 431.3, 431.5, 431.7, 431.9, 431.11 The Texas Commission on Fire Protection proposes new sec.sec.431.1, 431.3, 431.5, 431.7, 431.9, and 431.11, concerning Fire Investigation including new Subchapter A pertaining to arson investigator certification. New Subchapter A redesignates the existing "fire and arson investigator" as simply "arson investigator" and is intended to apply to investigators who are licensed peace officers. New sec.431.1 clarifies the requirement of training and testing prior to assignment to arson investigation duties in a manner consistent with suppression disciplines and corrects a cross reference relating to continuing education requirements. New sec.431.3 deletes language allowing training to be completed within one year of appointment to comply with the requirement of testing and training prior to assignment in new sec.431.1. New sec.sec.431.5, 431.7, 431.9, and 431.11 concerning higher levels of arson investigator certification readopt existing language with the simplified designation of "arson investigator." Anthony C. Calagna, Fire Fighter Advisory Committee Chairman, has determined that for the first five year period the new sections are in effect there will be no fiscal implication for state or local governments. Mr. Calagna also has determined that for each of the first five years the new sections are in effect the public benefit anticipated as a result of enforcing the new sections will be that the public is assured that personnel assigned to arson investigation duties by a fire department are adequately trained prior to assignment to such duties. There are no additional costs of compliance for small or large businesses or individuals required to comply with the new chapter. The commission has determined that the proposed new sections relating to fire investigation will have no impact on private real property interests and no takings impact assessment is required pursuant to the Government Code, sec.2007.043(b) and sec.2.18 of the Attorney General's Private Real Property Rights Preservation Act Guidelines. There is no local employment impact resulting from the change. Comments on the proposal may be submitted to: Gary L. Warren Sr., Executive Director, Texas Commission on Fire Protection, P.O. Box 2286, Austin, Texas 78768-2286 or e-mail to tcfp@mail.capnet.state.tx.us. The new sections are proposed under Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and Texas Government Code, sec.419.022, which provides the commission with authority to establish minimum training standards for fire protection personnel in advanced or specialized fire protection personnel positions. Texas Government Code, sec.419.022 is affected by the proposed new sections. sec.431.1.Minimum Standards for Arson Investigation Personnel . (a) All full-time personnel employed by any local government entity in Texas who are assigned arson investigation duties must be certified by the commission. (b) All full-time employees of a local government entity in Texas who are assigned arson investigation duties must be certified, as a minimum, as a basic arson investigator as specified in sec.431.3 of this title (relating to Minimum Standards for Basic Arson Investigator Certification) within one year from the date of initial appointment to such position. (c) Prior to being assigned to arson investigation duties as a full-time employee, all personnel must complete a commission approved basic fire investigator training program and successfully pass the commission examination pertaining to that curriculum. (d) All individuals holding any level of arson investigation certification shall be required to comply with the continuing education requirements in sec.441.15 of this title (relating to Continuing Education Requirements for Arson Investigator or Fire Investigator. sec.431.3.Minimum Standards for Basic Arson Investigator Certification. (a) Training programs that are intended to satisfy the requirements of this section must meet the curriculum, competencies, and hour requirements of this section. All applicants for certification must meet the examination requirements of this section. (b) In order to be certified by the commission as a Basic Arson Investigator an individual must: (1) possess a current basic peace officer's license from the Texas Commission on Law Enforcement Officer Standards and Education; (2) hold a current commission as a peace officer with the employing entity for which the arson investigations will be done; (3) complete a commission approved basic fire investigation training program and successfully pass the commission examination as specified in Chapter 439 of this title (relating to Examinations for Certification). An approved basic fire investigation training program shall consist of one of the following: (A) completion of the commission approved Basic Fire Investigator Curriculum, as specified in Chapter 5 of the commission's document titled "Commission Certification Curriculum Manual," as approved by the commission in accordance with Chapter 443 of this title (relating to Certification Curriculum Manual); or (B) successful completion of the National Fire Academy Resident Fire Arson Investigator Course; or (C) successful completion of an out of state training program which has been submitted to the commission for evaluation and found to meet the minimum requirements as listed in the commission approved Basic Fire Investigator Curriculum as specified in Chapter 5 of the commission's document titled "Commission Certification Curriculum Manual"; or (D) successful completion of the following college courses: Arson Investigator I 3 semester hours Arson Investigator II 3 semester hours Hazardous Materials I 3 semester hours Building Construction 3 semester hours Fire Protection Systems 3 semester hours Total semester hours 15 NOTE: The three semester hour course "Building Codes and Construction" may be substituted for Building Construction. (c) A person who holds or is eligible to hold a certificate upon employment as a part-time arson investigator may be certified as an arson investigator, of the same level of certification, without meeting the applicable examination requirements. sec.431.5.Minimum Standards for Intermediate Arson Investigator Certification. (a) Applicants for Intermediate Arson Investigator Certification must complete the following requirements: (1) hold as a prerequisite a Basic Arson Investigator Certification as defined in sec.431.3 of this title (relating to Minimum Standards for Basic Arson Investigator Certification); (2) acquire a minimum of four years of fire protection experience and complete the courses listed in one of the following options: (A) Option 1--Successfully complete six semester hours of fire science or fire technology from an approved Fire Protection Degree Program and submit documentation as required by the Commission that the courses comply with subsections (c) and (d) of this section; or (B) Option 2--Complete a minimum of 96 hours of instruction in any National Fire Academy courses; or (C) Option 3--Successfully complete three semester hours of college courses listed in Option 1 and a minimum of 48 hours in any National Fire Academy courses. (b) College level courses from both the upper and lower division may be used to satisfy the education requirement for Intermediate Arson Investigator Certification. (c) Non-traditional credit awarded at the college level, such as credit for experience or credit by examination obtained from attending any school in the commission's document titled "Commission Certification Curriculum Manual" or for experience in the fire service, may not be counted toward higher levels of certification. (d) The training required in this section must be in addition to any training used to qualify for any lower level of Arson Investigator Certification. Repeating a course or course of similar content cannot be used towards higher levels of certification. sec.431.7.Minimum Standards for Advanced Arson Investigator Certification. (a) Applicants for Advanced Arson Investigator certification must complete the following requirements: (1) hold as a prerequisite an Intermediate Arson Investigator Certification as defined in sec.431.5 of this title (relating to Minimum Standards for Intermediate Arson Investigator Certification); (2) acquire a minimum of eight years of fire protection experience and complete the courses listed in one of the following options: (A) Option 1--Successfully complete six semester hours of fire science or fire technology from an approved Fire Protection Degree Program and submit documentation as required by the Commission that the courses comply with subsections (c) and (d) of this section; or (B) Option 2--Complete a minimum of 96 hours of instruction in any National Fire Academy courses; or (C) Option 3--Successfully complete three semester hours of college courses listed in Option 1 and a minimum of 48 hours in any National Fire Academy courses. (D) Option 4--Advanced Arson for Profit (Bureau of Alcohol, Tobacco, and Firearms resident or field course, 80 hours) (b) College level courses from both the upper and lower division may be used to satisfy the education requirement for Advanced Arson Investigator Certification. (c) Non-traditional credit awarded at the college level, such as credit for experience or credit by examination obtained from attending any school in the commission's document titled "Commission Certification Curriculum Manual" or for experience in the fire service, may not be counted toward higher levels of certification. (d) The training required in this section must be in addition to any training used to qualify for any lower level of Arson Investigator Certification. Repeating a course or course of similar content cannot be used towards higher levels of certification. sec.431.9. Minimum Standards for Master Arson Investigator Certification. (a) Applicants for Master Arson Investigator Certification must complete the following requirements: (1) hold as a prerequisite an Advanced Arson Investigator Certification as defined in sec.431.7 of this title (relating to Minimum Standards for Advanced Arson Investigator Certification); and (2) acquire a minimum of twelve years of fire protection experience, and 60 college semester hours or an associate degree, which includes at least 18 college semester hours in fire science subjects. (b) College level courses from both the upper and lower division may be used to satisfy the education requirement for Master Arson Investigator Certification. sec.431.11.Minimum Standards for Arson Investigator Certification for Law Enforcement Personnel. A permanent, full-time, full-paid law enforcement officer designated as a arson investigator by an "appropriate" local authority is eligible for certification by complying with this chapter. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State, on May 11, 1998. TRD-9807629 T. R. Thompson General Counsel Texas Commission on Fire Protection Earliest possible date of adoption: June 21, 1998 For further information, please call: (512) 918-7189 SUBCHAPTER B.Fire Investigator Certification 37 TAC sec.431.201 sec.431.203 The Texas Commission on Fire Protection proposes new sec.431.201 and sec.431.203, concerning Fire Investigation including new Subchapter B concerning fire investigator certification. New Subchapter B incorporates provisions previously in repealed Chapter 451 concerning fire cause and origin investigation and redesignates the "fire cause and origin investigator" as simply "fire investigator" and is intended to apply to investigators who are not licensed peace officers. New sec.431.201 and sec.431.203 transfer existing language from repealed Chapter 451 and allows certified arson investigators no longer holding a current commission as a peace officer to maintain certification as a "fire investigator." Anthony C. Calagna, Fire Fighter Advisory Committee Chairman, has determined that for the first five year period the new sections are in effect there will be no fiscal implications for state or local governments. Mr. Calagna also has determined that for each of the first five years the new sections are in effect the public benefit anticipated as a result of enforcing the new sections will be requirements for fire investigator certification are simplified and provide for maintenance of investigator certification after employment. There are no additional costs of compliance for small or large businesses or individuals required to comply with the new chapter. The commission has determined that the proposed new sections relating to fire investigation will have no impact on private real property interests and no takings impact assessment is required pursuant to the Government Code, sec.2007.043(b) and sec.2.18 of the Attorney General's Private Real Property Rights Preservation Act Guidelines. There is no local employment impact resulting from the change. Comments on the proposal may be submitted to: Gary L. Warren Sr., Executive Director, Texas Commission on Fire Protection, P.O. Box 2286, Austin, Texas 78768-2286 or e-mail to tcfp@mail.capnet.state.tx.us. The new sections are proposed under Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and Texas Government Code, sec.419.022, which provides the commission with authority to establish minimum training standards for fire protection personnel in advanced or specialized fire protection personnel positions. Texas Government Code, sec.419.022 is affected by the proposed new sections. sec.431.201.Minimum Standards for Fire Investigation Personnel. (a) All individuals holding a Fire Investigator certification shall be required to comply with the continuing education requirements in sec.441.15 of this title (relating to Continuing Education Requirements for Arson Investigator or Fire Investigator. (b) An individual certified under this subchapter shall limit his or her investigation to determining fire cause and origin. If evidence of criminal conduct in violation of the Penal Code, Chapter 28 (Arson, Criminal Mischief, and other Property Damage or Destruction) is discovered, the investigator shall immediately transfer custody and control of the investigation to a certified arson investigator or licensed peace officer. (c) A person who previously held an arson investigator certification who no longer holds a current commission as a peace officer may apply for certification as a fire investigator in accordance with this subchapter. sec. 431.203. Minimum Standards for Fire Investigator Certification. (a) Training programs that are intended to satisfy the requirements of this section meet the curriculum, competencies, and hour requirements of this section. All applicants for certification must meet the examination requirements of this section. (b) In order to be certified by the commission as a Fire Investigator an individual must complete a commission approved basic fire investigation training program as specified in sec. 431.3(b)(3) of this title (relating to Minimum Standards for Basic Arson Investigator Certification) and successfully pass the commission examination as specified in Chapter 439 of this title. (c) A person who holds or is eligible to hold a certificate upon employment as a part-time fire investigator may be certified as a full-time fire investigator without meeting the applicable examination requirements. (d) A person who holds or is eligible to hold a certificate as a Fire Investigator may be certified as an Arson Investigator by meeting the requirements of Chapter 431, Subchapter A, but shall not be required to repeat the applicable examination requirements. (e) There are no higher levels of certification for the Fire Investigator. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State, on May 11, 1998. TRD-9807630 T. R. Thompson General Counsel Texas Commission on Fire Protection Earliest possible date of adoption: June 21, 1998 For further information, please call: (512) 918-7189 CHAPTER 435.Firefighter Safety 37 TAC sec.sec.435.1, 435.3, 435.5, 435.7 (Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Commission on Fire Protection or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The Texas Commission on Fire Protection proposes the repeal of sec.sec.435.1, 435.3, 435.5, and 435.7, concerning fire fighter safety. The subject matter of the repealed sections will be replaced by proposed new sections dealing with the same subject. Anthony C. Calagna, Fire Fighter Advisory Committee Chairman, has determined that for the first five year period the repeal is in effect there will be no fiscal implications for state and local governments. Mr. Calagna also has determined that for each of the first five years the repeal is in effect the public benefit anticipated as a result of enforcing the repeal will be that obsolete language will be replaced with new sections that implement legislative changes. There are no additional costs of compliance for small or large businesses and for individuals required to comply with the changes. There is no local employment impact resulting from the change. Comments on the proposal may be submitted to: Gary L. Warren Sr., Executive Director, Texas Commission on Fire Protection, P.O. Box 2286, Austin, Texas 78768-2286 or e-mail to tcfp@mail.capnet.state.tx.us. The repeal is proposed under Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; Texas Government Code, sec.419.022(4), which provides the commission with authority to assist in performing staffing studies for fire departments; Texas Government Code, sec.419.040, which provides the commission with authority to approve standards for protective clothing used by fire protection personnel; Texas Government Code, sec.419.041, which provides the commission with authority to approve standards for self-contained breathing apparatus (SCBA); and Texas Government Code, sec.419.042, which provides the commission with authority to adopt standards for protective clothing and SCBA. Texas Government Code, sec.sec.419.022, 419.040, 419.041, and 419.042 are affected by the proposed repeal. sec.435.1. Protective Clothing. sec.435.3. Self-Contained Breathing Apparatus. sec.435.5. Commission Recommendations. sec.435.7. Fire Department Staffing Studies. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State, on May 11, 1998. TRD-9807597 T. R. Thompson General Counsel Texas Commission on Fire Protection Earliest possible date of adoption: June 21, 1998 For further information, please call: (512) 918-7189 The Texas Commission on Fire Protection proposes new sec.sec.435.1, 435.3, 435.5, and 435.7, concerning fire fighter safety. The new chapter includes sections pertaining to protective clothing, self-contained breathing apparatus, recommended safety standards, and fire department staffing studies. New sec.435.1 redefines personnel required to have protective clothing consistent with applicable National Fire Protection Association Standards. New sec.sec.435.3, 435.5, and 435.7 readopt existing language. Anthony C. Calagna, Fire Fighter Advisory Committee Chairman, has determined that for the first five year period the new sections are in effect there will be no fiscal implications to state government. The cost to local government may increase by $650 per person representing the cost of protective clothing if the entity employs fire protection personnel other than those assigned fire suppression duties who are exposed to hazardous conditions from fire and other emergencies. Mr. Calagna also has determined that for each of the first five years the new sections are in effect the public benefit anticipated as a result of enforcing the new sections will be that public employees exposed to hazardous conditions from fire and other emergencies are adequately protected. There are no additional costs of compliance for small or large businesses or individuals required to comply with the new chapter inasmuch as the employing local government is required to provide the clothing or an allowance. The commission has determined that the proposed new sections relating to fire fighter safety will have no impact on private real property interests and no takings impact assessment is required pursuant to the Government Code, sec.2007.043(b) and sec.2.18 of the Attorney General's Private Real Property Rights Preservation Act Guidelines. There is no local employment impact resulting from the change. Comments on the proposal may be submitted to: Gary L. Warren Sr., Executive Director, Texas Commission on Fire Protection, P.O. Box 2286, Austin, Texas 78768-2286 or e-mail to tcfp@mail.capnet.state.tx.us. The new sections are proposed under Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and Texas Government Code, sec.419.042, which provides the commission with authority to adopt standards for protective clothing and SCBA. Texas Government Code, sec.sec.419.022, 419.040, 419.041, and 419.042 are affected by the proposed new chapter. sec.435.1.Protective Clothing. The employing entity shall: (1) purchase, provide, and maintain a complete set of protective clothing for all fire protection personnel who would be exposed to hazardous conditions from fire or other emergencies or where the potential for such exposure exists or provide an adequate clothing allowance and require the fire protection personnel to purchase and maintain a complete set of protective clothing. A complete set of protective clothing shall consist of garments, including bunker coats, bunker pants, boots, gloves, helmets, and protective hoods, worn by fire protection personnel in the course of performing fire-fighting operations; (2) ensure that all protective clothing which are used by fire protection personnel assigned to fire suppression duties comply with the minimum standards of the National Fire Protection Association: (A) the National Fire Protection Association standard applicable to protective clothing is the standard in effect at the time the entity contracts for new, rebuilt, or used protective clothing; (B) an entity may continue to use protective clothing in use or contracted for before a change in the National Fire Protection Association standard, unless the commission determines that the protective clothing constitutes an undue risk to the wearer, in which case the commission shall order that the use be discontinued and shall set an appropriate date for compliance with the revised standard; (C) fire fighter boots purchased or contracted for prior to May 16, 1988, are not required to meet the minimum standards for protective clothing; (D) protective hoods purchased or contracted for prior to August 16, 1991, are not required to meet the minimum standards for protective clothing; (E) protective clothing for proximity fire fighting purchased or contracted for prior to August 14, 1992, are not required to meet the standards for protective clothing; (3) maintain and provide upon request by the commission, a departmental standard operating procedure regarding the use of protective clothing during fire suppression operations. sec.435.3.Self-contained Breathing Apparatus. The employing entity shall: (1) purchase, provide, and maintain a complete self-contained breathing apparatus for each on duty fire protection personnel who would be exposed to hazardous atmospheres from fire or other emergencies or where the potential for such exposure exists; (2) ensure that all self-contained breathing apparatus used by fire protection personnel complies with the minimum standards of the National Fire Protection Association identified in NFPA 1981, Standard on Open-Circuit Self-contained Breathing Apparatus for Fire Fighters: (A) the National Fire Protection Association standard applicable to a self- contained breathing apparatus is the standard in effect at the time the entity contracts for new, rebuilt, or used self- contained breathing apparatus; (B) an entity may continue to use a self-contained breathing apparatus that meets the requirements of an earlier edition of NFPA 1981, unless the commission determines that the continued use of the self-contained breathing apparatus constitutes an undue risk to the wearer, in which case the commission shall order that the use be discontinued and shall set an appropriate date for compliance with the revised standard; (C) an entity may continue to use a self-contained breathing apparatus in use or contracted for before a change in the National Fire Protection Association standard, unless the commission determines that the continued use of the self- contained breathing apparatus constitutes an undue risk to the wearer, in which case the commission shall order that the use be discontinued and shall set an appropriate date for compliance with the revised standard; (3) ensure that at least monthly, inspections of respiratory protection equipment are conducted and include a check of the entire unit for deteriorated components, air tightness of cylinders and valves, gauge comparison, reducing valve and bypass valve operation, and check of the regulator, exhalation valve, and low-air alarm. The SCBA shall be cleaned and returned to service; (4) ensure that compressed breathing air from any source, including but not limited to transferred air from vendor cylinders to other cylinders, fire department air compressors, cascade systems and private sources, that is used to fill the cylinders of a self-contained breathing apparatus complies with the minimum standards of the National Fire Protection Association for air quality testing of compressed breathing air and identified in NFPA 1500, 1992 edition, Standard on Fire Department Occupational Safety and Health Program: (5) ensure that at least every six months, samples of the air used to fill the cylinders of self-contained breathing apparatus are tested by a testing laboratory which currently holds accreditation to test breathing air from a nationally recognized accrediting organization. Air samples shall be taken directly from the point where self-contained breathing apparatus cylinders are connected for filling. If a fill station has more than one port where a self- contained breathing apparatus cylinder can be attached and if only one sample is taken from the fill station, then the sample shall be taken from the port that ensures that all components of the fill station are tested. It is "recommended" that the air used to fill cylinders of self-contained breathing apparatus be tested at least every three (3) months. (6) develop procedures to ensure that all bottles used on self- contained breathing apparatus are tested as required by the manufacturer and the Department of Transportation; (7) maintain and supply upon request by the commission, records and reports documenting compliance with commission requirements concerning self-contained breathing apparatus and a record of all tests shall be made and the record shall be retained for a period of no less than three years; (8) maintain and provide upon request by the commission, a departmental standard operating procedure regarding the use of self-contained breathing apparatus; and (9) flow test the regulators of all self-contained breathing apparatus annually or as recommended by the manufacturer. The flow test shall be performed in accordance with the manufacturer's recommendations. sec.435.5.Commission Recommendations. The commission recommends that all employing entities use as a guide, for all fire protection operations, the following publications: (1) NFPA 1403 "Live Fire Training Evolutions"; (2) NFPA 1500 "Fire Department Occupational Safety and Health Program." sec.435.7. Fire Department Staffing Studies. (a) Section 419.022(a)(4) Texas Government Code provides that the commission may "on request, assist in performing staffing studies of fire departments." Staffing studies must take into consideration all the objectives and missions of the fire department. The commission does not have the resources or the staff to directly assist in performing the necessary tasks to perform a staffing study. Many staffing studies have been developed that can be used to assist in evaluating the needs of a fire department. (b) A city should ultimately decide on the level of fire protection it is willing to provide to its citizens. The city and fire department should, as a minimum, address the needs of prevention, investigation and suppression as outlined in the appropriate NFPA Standards. That decision should be based on facts, the safety of its citizens, and the safety of the fire fighters providing that protection. (c) The commission will assist by maintaining information pertinent to fire department staffing. The information shall be maintained in the Ernest A. Emerson Fire Protection Resource Library at the Texas Commission on Fire Protection. Copies shall be made available, free of charge, to anyone requesting such information to the extent permitted by copyright laws. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State, on May 11, 1998. TRD-9807631 T. R. Thompson General Counsel Texas Commission on Fire Protection Earliest possible date of adoption: June 21, 1998 For further information, please call: (512) 918-7189 CHAPTER 437.Fees 37 TAC sec.sec.437.1, 437.3, 437.5, 437.7, 437.9, 437.11, 437.13, 437.15, 437.17 (Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Commission on Fire Protection or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The Texas Commission Fire Protection proposes the repeal of sec.sec.437.1, 437.3, 437.5, 437.7, 437.9, 437.11, 437.13, 437.15, and 437.17, concerning fees. The subject matter of the repealed sections will be replaced by proposed new sections dealing with the same subject. Anthony C. Calagna, Fire Fighter Advisory Committee Chairman, has determined that for the first five year period the repeal is in effect there will be no fiscal implications for state and local governments. Mr. Calagna also has determined that for each of the first five years the repeal is in effect the public benefit anticipated as a result of enforcing the repeal will be that obsolete language will be replaced with new sections that implement legislative changes. There are no additional costs of compliance for small or large businesses and for individuals required to comply with the changes. There is no local employment impact resulting from the change. Comments on the proposal may be submitted to: Gary L. Warren Sr., Executive Director, Texas Commission on Fire Protection, P.O. Box 2286, Austin, Texas 78768-2286 or e-mail to tcfp@mail.capnet.state.tx.us. The repeal is proposed under Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; Texas Government Code, sec.419.025, which provides authority to set a fee for the standards manual; sec.419.026, which provides authority to establish fees for certification and testing; and Texas Government Code, sec.419.034, which provide authority to collect fees for certificate renewal and proficiency testing. Texas Government Code, sec.sec.419.025, 419.026, and 419.034 are affected by the proposed repeal. sec.437.1. Fees-Purpose and Scope. sec.437.3.Fees-Certification. sec.437.5.Fees-Renewal. sec.437.7.Fees-Standards Manual. sec.437.9. Fees-Commission Certification Curriculum Manual. sec.437.11. Fees-Copying. sec.437.13.Fees-Basic Certification Examination. sec.437.15.Fees-Proficiency Examination. sec.437.17. Fees-International Fire Service Accreditation Congress (IFSAC) Seal. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State, on May 11, 1998. TRD-9807598 T. R. Thompson General Counsel Texas Commission on Fire Protection Earliest possible date of adoption: June 21, 1998 For further information, please call: (512) 918-7189 37 TAC sec.sec.437.1, 437.3, 437.5, 437.7, 437.9, 437.11, 437.13, 437.15 The Texas Commission on Fire Protection proposes new sec.sec.437.1, 437.3, 437.5, 437.7, 437.9, 437.11, 437.13, and 437.15 concerning fees. The new chapter includes sections concerning purpose and scope, fees for certification, renewal fees, standards manual fees, curriculum, manual fees, copying fees, and examination fees. New sec.437.1 concerning purpose and scope readopts existing language. New sec.437.3 certification fees eliminates unnecessary language listing each area of certification inasmuch as the same fee applies to all certificates issued by the commission whether the certificate holder is full- time, part-time, volunteer, or unaffiliated and clarifies the fees required for training facility certification. New sec.437.5 deletes language pertaining to inactive certificates and adds language concerning renewal of a certificate expired for less than one year. The section also establishes a procedure whereby the commission may consider requests for waiver of late fees. New sec.sec.437.7, 437.9, and 437.11 readopt existing language concerning manual and copying fees. New sec.437.13 simplifies the provisions concerning examination fees. New sec.437.15 establishes a fee of $5.00 to recover the cost of International Fire Service Accreditation Congress seals issued by the commission. Anthony C. Calagna, Fire Fighter Advisory Committee Chairman, has determined that for the first five year period the new sections are in effect there will be fiscal implications to state government resulting from the increase in certification fees for volunteer certification from $5.00 to $20, estimated at approximately $3,300 per year. There may be fiscal implications to local governments if the entity chooses to pay the increased certification fee for volunteer fire fighters in the amount of $15.00 per person. Local governments may experience a cost savings resulting from the procedures for waiver of late fees depending on the number and amount of fees involved. Mr. Calagna also has determined that for each of the first five years the new sections are in effect the public benefit anticipated as a result of enforcing the new sections will be consistent standards and fees for both paid and volunteer fire service personnel. There are no additional costs of compliance for small or large businesses required to comply with the new chapter. Volunteer fire service personnel who seek certification from the commission will experience a $15 annual increase in certification fees. The commission has determined that the proposed new sections relating to fees will have no impact on private real property interests and no takings impact assessment is required pursuant to the Government Code, sec.2007.043(b) and sec.2.18 of the Attorney General's Private Real Property Rights Preservation Act Guidelines. There is no local employment impact resulting from the change. Comments on the proposal may be submitted to: Gary L. Warren Sr., Executive Director, Texas Commission on Fire Protection, P.O. Box 2286, Austin, Texas 78768-2286 or e-mail to tcfp@mail.capnet.state.tx.us. The new sections are proposed under Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and Texas Government Code, sec.419.026, which provides the commission with authority to establish fees for certification and examinations. Texas Government Code, sec.419.026 is affected by the proposed new chapter. sec.437.1. Fees--Purpose and Scope. (a) The purpose of these sections is to set forth requirements governing the fees charged for the issuance of certificates to fire protection personnel, to establish the procedures for the collection of annual renewal fees, manual fees, Commission Certification Curriculum Manual fees, and copying fees as prescribed by the Government Code, Executive Branch, Chapter 419, sec.419.025 and sec.419.026, and commission rule. (b) These sections shall govern all proceedings before and dealing with the Texas Commission on Fire Protection, concerning certification fees, renewal fees, manual fees, Commission Certification Curriculum Manual fees, and copying fees. Hearings and appellate proceedings regarding these fees shall be governed by these sections where applicable and by the rules of the practice and procedure of the Texas Commission on Fire Protection and the Administrative Procedure and Texas Register Act, Chapter 2001, Texas Government Code. sec.437.3. Fees--Certification. (a) A $20 certification fee is required for each certificate issued by the commission. (b) Certification fees shall not be combined with other fees such as renewal fees, fees for commission manuals, fees for Commission Certification Curriculum Manuals, or copying fees. (c) The employing entity shall be responsible for all certification fees required as a condition of employment. (d) Nothing in this section shall prohibit an individual from paying a certification fee for any certificate which he or she is qualified to hold, providing the certificate is not required as a condition of employment (see subsection (c) of this section concerning certification fees). (e) If a person re-enters the fire service whose certificate(s) has been expired for one year or longer, the employing entity must: (1) within 14 days of employment, notify the Commission that the individual has been employed; (2) prior to assignment to any fire suppression duties, obtain documented proof that the individual has passed the proficiency test as required by sec.439.13 of this title (relating to Testing for Proof of Proficiency) within one calendar year prior to the date of employment; and (3) within one year from the date of employment, make application for certification of the individual and pay the certification fee as required by subsection (a) and (b) of this section (concerning certification fees). Upon payment of the required fees, the certificates previously held by the individual for which he or she continues to qualify, will be re-issued. The employing entity has the option of making the application and paying the fee at any time within the one-year period. (f) Any person who holds a certificate, and is no longer employed by an entity that is regulated by the Commission may submit in writing a request together with the required fee to receive a one- time certificate stating the level of certification in each discipline held by the person on the date that person left employment, pursuant to the Texas Government Code, sec.419.033(b). Multiple certifications may be listed on the one-time certificate. The one-time fee for the one-time certificate shall be the same as the current certification fee provided in subsection (a) of this section. (g) A facility that provides basic level training for any discipline for which the Commission has established a Basic Curriculum must be certified by the commission. The training facility will be charged a separate certification fee for each discipline. sec.437.5. Fees--Renewal. (a) The annual renewal fee shall be $20 and shall be assessed for each certified individual and certified training facility. If an individual holds more than one certificate, the commission may collect only one $20 renewal fee which will renew all certificates held by the individual. (b) Renewal fees shall not be combined with other fees, such as certification fees, fees for commission manuals, fees for Commission Certification Curriculum Manuals, and copying fees. (c) The employing entity shall pay the renewal fee for all certificates which a person must possess as a condition of employment. (d) If a person re-enters the fire service whose certificate(s) has been expired for less than one year, the employing entity must: (1) within 14 days of employment notify the commission that the individual has been employed, and (2) pay all applicable renewal fee(s) and any applicable late fee(s). Upon payment of the required fees, the certificates previously held by the individual, for which he or she continues to qualify, will be renewed. (e) Nothing in this section shall prohibit an individual from paying a renewal fee for any certificate which he or she is qualified to hold providing the certificate is not required as a condition of employment. (f) Certification renewal notices will be mailed to all employing entities at least 60 days prior to October 31 of each calendar year. (g) All certification renewal fees must be returned with the renewal notice to the commission. (h) All certification renewal fees must be paid on or before the renewal date posted on the renewal notice to avoid penalty. (i) All certification renewal fees received from one to 30 days after the renewal date posted on the renewal notice will cause the entity responsible for payment to be assessed a $10 penalty in addition to the renewal fee for each individual for which a renewal fee was due. (j) All certification renewal fees received more than 30 days after the renewal date posted on the renewal notice will cause the entity responsible for payment to be assessed a $20 penalty in addition to the renewal fee for each individual for which a renewal fee was due. (k) At the discretion of the commission, an informal conference may be held to determine what action should be taken, if any, in addition to the penalty assessed for certification renewal fees received after the due date. (l) The certification period shall be from November 1 through October 31 of each calendar year. (m) An individual certificate holder not employed by a fire department must notify the commission of his or her home address within 14 calendar days of a change of address. (n) An individual or entity may petition the commission for a waiver of the late fees required by this section if the person's certificate expired because of the individual or employing entity's good faith clerical error, or expired as a result of termination of the person's employment where the person has been restored to employment through a disciplinary procedure or a court action. All required renewal fees including applicable late fees and all required continuing education must be submitted before the waiver request may be considered. (1) Applicants claiming good faith clerical error must submit a sworn statement together with any supporting documentation that evidences the applicant's good faith efforts to comply with commission renewal requirements and that failure to comply was due to circumstances beyond the control of the applicant. (2) Applicants claiming restoration to employment as a result of a disciplinary or court action must submit a certified copy of the order restoring the applicant to employment. sec.437.7.Fees--Standards Manual. (a) A fee of $25 will be charged for each copy of the commission's standards manual. A $12 annual subscription fee will be charged to receive revisions. (b) Standards manual fees shall not be combined with certification fees or renewal fees. Standards manual fees may be combined with fees for the commission certification curriculum manual and copying fees. sec.437.9.Fees--Commission Certification Curriculum Manual. (a) A fee of $30 will be charged for each set of the commission certification curriculum manual. A $12 annual subscription fee will be charged to receive revisions. (b) Fees for the commission certification curriculum manual shall not be combined with renewal fees or certification fees. Commission certification curriculum manual fees may be combined with commission standards manual fees and copy fees. sec.437.11. Fees--Copying. (a) All photographic reproduction of records or documents in the files of the Commission and prepared on standard office machines will be furnished for a fee. (b) A fee will be charged for address and telephone number lists of fire service agencies. (c) A fee will be charged for mailing peel-off labels of fire service agencies. (d) Copy fees shall not be combined with renewal fees or certification fees. Copy fees may be combined with commission standards manual fees and commission certification curriculum manual fees. sec.437.13. Fees--Examination (a) A non-refundable fee of $15 shall be charged for each written examination administered by the commission. (b) Examination fees will not be combined with any other fees, such as renewal fees, fees for commission manuals, and copying fees. (c) A non-refundable fee of $15 shall be charged for each performance skills examination administered at a training facility providing field examiners. If the skills examination is administered at Austin, or other place designated by the commission, a non-refundable fee of $50 shall be charged. (d) A basic academy that receives a notice of course approval is entitled to one copy of the performance skills book at no charge. A fee of $5.00 shall be charged for each additional performance skills book. sec.437.15.Fees--International Fire Service Accreditation Congress (IFSAC) Seal. A $5.00 fee shall be charged for each IFSAC seal issued by the commission. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State, on May 11, 1998. TRD-9807632 T. R. Thompson General Counsel Texas Commission on Fire Earliest possible date of adoption: June 21, 1998 For further information, please call: (512) 918-7189 CHAPTER 439. Examinations for Certification 37 TAC sec.sec.439.1, 439.3, 439.5, 439.7, 439.9, 439.11, 439.13, 439.15, 439.17 (Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Commission on Fire Protection or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The Texas Commission on Fire Protection proposes the repeal of sec.sec.439.1, 439.3, 439.5, 439.7, 439.9, 439.11, 439.13, 439.15, and 439.17, concerning examinations for certification. The subject matter of the repealed sections will be replaced by proposed new sections dealing with the same subject. Mr. Anthony C. Calagna, Fire Fighter Advisory Committee Chairman, has determined that for the first five year period the repeal is in effect there will be no fiscal implications for state and local governments. Mr. Calagna has also determined that for each of the first five years the repeal is in effect the public benefit anticipated as a result of enforcing the repeal will be that obsolete language will be replaced with new sections that implement legislative changes. There are no additional costs of compliance for small or large businesses and for individuals required to comply with the changes. There is no local employment impact resulting from the change. Comments on the proposal may be submitted to: Gary L. Warren Sr., Executive Director, Texas Commission on Fire Protection, P.O. Box 2286, Austin, Texas 78768-2286 or e-mail to tcfp@mail.capnet.state.tx.us. The repeal is proposed under Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and Texas Government Code, sec.419.032(b), concerning basic certification examinations. Texas Government Code, sec.419.032 is affected by the proposed repeal. sec.439.1. Effective Date. sec.439.3. Requirements - General. sec.439.5.Definitions. sec.439.7. Procedures. sec.439.9. Eligibility. sec.439.11.Grading. sec.439.13. Performance Skill Evaluation. sec.439.15. Testing for Proof of Proficiency. sec.439.17. Testing for Certification Status. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State on May 11, 1998. TRD-9807599 T.R. Thompson General Counsel Texas Commission on Fire Protection Earliest possible date of adoption: June 21, 1998 For further information, please call: (512) 918-7189 37 TAC sec.sec.439.1, 439.3, 439.5, 439.7, 439.9, 439.11, 439.13, and 439.15 The Texas Commission on Fire Protection proposes new sec.sec.439.1, 439.3, 439.5, 439.7, 439.9, 439.11, 439.13, and 439.15, concerning examinations for certification. The chapter includes sections pertaining to general requirements, definitions, procedures, eligibility, grading, performance skill evaluation, proficiency testing, and testing for certification status. New sec.439.1 eliminates obsolete language pertaining to certified aircraft fire protection personnel applying for structure certification. New sec.439.3 simplifies the definition of a field examiner. New sec.439.5 concerning procedures adds language which pertains to application for testing at a certified volunteer training facility. New sec.439.7 allows the commission to retest an existing certificate holder as part of a disciplinary matter. New sec.439.9 readopts existing language pertaining to grading. New sec.439.11 clarifies the qualifications of an instructor for remedial training required for a second retest in a performance skills evaluation. New sec.439.13 conforms the requirements for proficiency examinations to statutory changes and provides a procedure for consideration of requests for waiver of examination requirements for certificates expired for more than one year. New sec.439.15 concerning testing for certification status outlines the type of programs considered which may be evaluated for equivalency to qualify for a commission examination. Mr. Anthony C. Calagna, Fire Fighter Advisory Committee Chairman, has determined that for the first five year period the new sections are in effect there will be no fiscal implications for state government. There may be fiscal implications for local governments that have paid examination fees in the past for certified volunteer fire fighters that become employed by local governments who are no longer required to test again in the amount of $65 per person. Mr. Calagna has also determined that for each of the first five years the new sections are in effect the public benefit anticipated as a result of enforcing the new sections will be elimination of unnecessary examination costs and an increase in the availability of certified fire protection personnel available for employment. There are no additional costs of compliance for small or large businesses or individuals required to comply with the new chapter. The commission has determined that the proposed new sections relating to examinations for certification will have no impact on private real property interests and no takings impact assessment is required pursuant to the Government Code, sec.2007.043(b) and sec.2.18 of the Attorney General's Private Real Property Rights Preservation Act Guidelines. There is no local employment impact resulting from the change. Comments on the proposal may be submitted to: Gary L. Warren Sr., Executive Director, Texas Commission on Fire Protection, P.O. Box 2286, Austin, Texas 78768-2286 or e-mail to tcfp@mail.capnet.state.tx.us. The new sections are proposed under Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and Texas Government Code, sec.419.032, concerning basic certification examinations. Texas Government Code, sec.419.032 is affected by the proposed new chapter. sec.439.1. Requirements - General. (a) In order to be certified by the commission as fire protection personnel, an individual must complete an approved curriculum as required for that discipline and pass a commission examination pertaining to that discipline. (b) The commission examination shall consist of at least a written test. (c) The commission examination may also include a performance test. If a performance test is included in the examination then the written test and the performance test together constitute a complete examination. sec.439.3. Definitions. The following words and terms used in this chapter, have the following definitions unless the context clearly indicates otherwise. (1) Certificate of Completion - A signed statement certifying that an individual has successfully completed a commission approved basic certification curriculum for a particular discipline, including having been evaluated by field examiners on performance skills identified by the commission. The Certificate of Completion will be on a form provided by the commission and is to be completed and signed by the provider of training and issued to the individual upon successful completion of the training. The certificate of completion must, as a minimum, identify the provider of training, the course I.D. number, the course approval number, hours of instruction, date issued, curriculum name, training officer or course coordinator, and the name of the person completing the course. The certificate of completion qualifies an individual to take an original certification examination. (2) Commission - The Texas Commission on Fire Protection (3) Curriculum - The competencies established by the commission as a minimum requirement for certification in a particular discipline. (4) Eligibility - A determination of whether or not an individual has met the requirements set by the commission and would therefore be allowed to take a commission examination. (5) Endorsement of eligibility - A signed statement testifying to the fact that an individual has met all requirements specified by the commission and is qualified to take a commission examination. An endorsement of eligibility will be issued, when appropriate, by a member of the commission staff. An endorsement of eligibility qualifies an individual to take a proficiency examination or an examination for certification status. (6) Examination - A state test administered by the commission which an examinee must pass as one of the requirements for certification. Exams will be based on curricula as currently adopted in the Commission Certification Curriculum Manual. The state test can consist of only a written test or it can consist of a test that contains both a written portion and a performance skills portion. (7) Examinee - An individual who has met the commission requirements and therefore qualifies to take the commission examination. (8) Field examiner - An individual that has successfully completed the commission administered field examiner orientation and has received a certificate of completion from the commission. An approved field examiner must sign an agreement to comply with the commission's testing procedures. The field examiner must as a minimum, possess a Fire Instructor Certification. The field examiner must be approved by the commission to instruct all subject areas identified in the curriculum that they will be evaluating. The field examiner must work under the supervision of a staff examiner to administer commission examinations, except when evaluating performance skills during an approved basic certification school. The field examiner must receive an examiner orientation course every three years administered by a certified instructor authorized by the commission. (9) Staff examiner - A member of the commission staff who has been assigned by the commission the responsibility to administer a commission examination. A staff examiner who conducts or supervises performance skill evaluations must meet the same requirements as field examiners. sec.439.5. Procedures. (a) Procedures for conducting written and/or performance examinations are determined by the commission. (b) The commission shall prescribe the content of any certification examination that tests the knowledge and/or skill of the examinee concerning the discipline addressed by the examination. (c) An individual who fails to pass a commission written examination will be given one additional opportunity to pass the examination. This opportunity must be exercised within 180 days after the date of the first failure. An examinee who fails to pass the examination within the required time may not sit for the same examination again until the examinee has re-qualified by repeating the entire approved curriculum applicable to that examination. (d) To apply for a commission examination, the designated training officer or coordinator of the entity providing the training must have completed and submitted the Course/School Prior Approval Submission Form to the commission 20 calendar days prior to the proposed starting date of the course. Upon commission approval of the course, the commission will tentatively schedule a time and place for the examination. A reasonable attempt shall be made to schedule the examination as soon as possible after the completion of the applicable course and at a place agreeable to the provider of training. The provider of training will receive the following: (1) Notice of Course Approval--This document will serve as notification that the course has been approved by the commission and will contain the Approval Number assigned by the commission, the course I.D. number and the number of hours approved for the course. (2) Application for Testing form--The provider of training must have each examinee complete the Application for Testing form and return it to the commission office no later than the tenth day of instruction. In no case may the Application for Testing be submitted less than 14 calendar days prior to the tentatively scheduled examination date. The commission, upon receipt of the Application for Testing form, will confirm the time and place for the examination. (3) Certificate of Completion form--This form must be completed by the provider of training and issued to each student when the student has successfully completed the applicable curriculum. (e) To apply for a commission examination at a certified volunteer training facility, the designated training officer or coordinator of the entity providing the training must have each examinee complete the Application for Testing form and return it to the commission no later than 30 days prior to the requested examination date. Upon receipt of the Application(s) for Testing, the commission will tentatively schedule a time and place for the examination. A reasonable attempt shall be made to schedule the examination at a time and place agreeable to the provider of training and examinees. The provider of training will receive from the commission at least seven randomly selected performance skills objectives from Section II of the Performance Evaluation Forms booklet that each examinee must successfully complete prior to the commission examination. (f) Commission examinations, or retests, for less than eight examinees must be conducted in Austin, Texas, or other place designated by the commission. The commission must coordinate with the provider of training as to the time of the examination. (g) Commission examinations, or retests, for less than eight examinees must be conducted in accordance with this section, provided that entity providing the training agrees to pay an examination fee equal to amount that would be charged for eight examinees. (h) If a performance test is part of the commission examination, examinees that are required to take the commission examination in Austin, Texas, or other place designated by the commission, shall be required to furnish a complete set of protective clothing that complies with sec.435.1(2) of this title (relating to Protective Clothing). Examinees are encouraged, but not required, to provide a self- contained breathing apparatus that complies with sec.435.3(2) of this title (relating to Self-Contained Breathing Apparatus) that the examinee is familiar with and an extra full cylinder. (i) If the designated training officer or coordinator of the entity providing the training determines that the time and/or place of the examination as set by the commission is not acceptable for good cause, he may request the commission to reschedule or relocate the examination providing the request is received at least 20 days prior to the original scheduled time of the examination or the new proposed time, whichever would result in the earliest notification. The commission shall give all such request due consideration and may reschedule or relocate the examination as necessary. (j) Each examination must be administered by a member of the commission staff known as a "Staff Examiner." (k) The staff examiner may administer the examination alone or with the assistance of one or more additional examiners. The additional examiners shall be known as field examiners and shall be approved by the commission. (l) The staff examiner must: (1) ensure that the examination remains secure and is conducted under conditions warranting honest results; and (2) collect all examination materials from any examinee who is dismissed. (m) The staff or field examiner must: (1) monitor the examination while in progress; (2) control entrance to and exit from the test site; (3) permit no one in the room while the written test is in progress except examiners, examinees, and commission staff; (4) assign or re-assign seating; and (5) bar admission to or dismiss any examinee who fails to comply with any of the provisions of subsections (a) and (b) of this section. (n) Examination booklets, answer sheets, scratch paper and grade roster(s) will be delivered to the staff examiner by means specified by the commission. The staff examiner must immediately document any errors detected in the examination materials provided. (o) The staff examiner must remit to the commission all examination booklets, answer sheets and scratch paper in the return container provided by the commission immediately following the completion of the written examination. (p) All official grading and notification must come from the commission. The commission staff must inform the training officer or coordinator of preliminary test results within three business days after completion of the examination. The commission staff must notify the training officer or coordinator of the official test results in writing within 30 days after completion of the examination. (q) The commission will provide one individual written grade report to each examinee, within 30 days after the completion of the examination. This report may be mailed to an address specified by the examinee. If the written grade report should prove to be undeliverable, it shall be the responsibility of the examinee to contact the commission office to make arrangements for an additional grade report. (r) If performance skills are required as part of a certification examination, the entity applying for the certification examination shall be responsible for providing the required number of Approved Field Examiners. The number of Field Examiners shall be determined by the commission. (s) Each written examination may have two types of questions: pilot and active. Pilot questions are new questions placed on the examination for statistical purposes only. These questions do not count against an examinee if answered incorrectly. (t) The Basic Fire Suppression examination includes 150 active questions with an option of adding up to 20 pilot questions. The time allowed for the completion of the written examination will not exceed three hours. sec.439.7. Eligibility. (a) An examination may not be taken by one who currently holds an active certificate from the commission in the discipline to which the examination pertains, unless required by the commission in a disciplinary matter. (b) In order to qualify for a commission examination, the examinee must: (1) meet or exceed the minimum requirements set by the commission as a prerequisite for the specified examination; (2) provide the staff examiner with a copy of a Certificate of Completion for the course required for the specific examination sought or an endorsement of eligibility issued by the commission; (3) bring to the test site and display upon request some identification which contains a photograph of the examinee; (4) report on time, to the proper location; and (5) comply with all the written and verbal instructions of the examiner. (c) No person shall be permitted to: (1) violate any of the fraud provisions of this section; (2) disrupt the examination; (3) bring into the examination site any books, notes, or other written materials related to the content of the examination; (4) refer to, use, or possess any such written material at the examination site; (5) give or receive answers or communicate in any manner with another examinee during the examination; (6) communicate at any time or in any way, the contents of an examination to another person for the purpose of assisting or preparing a person to take the examination; (7) steal, copy, or in any way part of the examination; (8) engage in any deceptive or fraudulent act either during an examination or to gain admission to it; or (9) solicit, encourage, direct, assist, or aid another person to violate any provision of this section. sec.439.9. Grading. (a) For a score to be valid and remain valid: (1) the examinee must complete the answer sheet, or otherwise record the answers, as instructed by the examiner; and (2) if performance skills are required as a part of the examination, the examinee must demonstrate performance skill objectives in a manner consistent with performance evaluation forms provided by the commission. Passage of a performance skill requires successful completion of all mandatory tasks and accumulation of the number of points required for passage on each individual performance evaluation form. (b) The minimum passing score on each written examination shall be 70%. This means that 70% of the total possible valid questions must be answered correctly. The commission may, at its discretion, invalidate any question. (c) If the commission invalidates an examination score for any reason, it may also, at the discretion of the commission and for good cause shown, require a retest to obtain a substitute valid test score. sec.439.11. Performance Skill Evaluation. (a) State performance skill evaluation. If performance skill objectives are part of an approved curriculum the examinee must complete a state performance skill evaluation in accordance with subsection (b) of this section. The state performance skill evaluation may be part of an original certification examination administered at the conclusion of a basic certification course at an approved training facility, as part of a Test for Certification Status, or as part of a commission examination for Proof of Proficiency. (b) Evaluation procedures. The state performance skill evaluation must consist of at least three successfully completed performance skill objectives evaluated by staff examiners or by field examiners under the supervision of a staff examiner after completion of an approved curriculum. (1) The performance skill objectives must consist of one skill pertaining to self-contained breathing apparatus and at least two other skills identified as a critical skill in Section I of the Performance Evaluation Forms booklet. (2) Each student's performance evaluation form for each skill must be signed by the examiner performing the evaluation. (3) An examinee who fails a performance skill evaluation may be allowed a retest at a time and place to be determined by the staff examiner. If the candidate fails the retest, remedial training conducted by a certified instructor who is approved to teach in that specific subject area is required for a second retest. Remedial training must be of no less duration than the recommended curriculum instructional hours for the section in which the failed skill(s) is reflected. An examinee being retested on a performance skill must be retested on any skill, randomly selected by the staff examiner, from the same subject area as the performance skill objective that was failed. (4) If the examinee fails the final retest as part of a state performance skill evaluation, the examinee must requalify by repeating the entire curriculum applicable to the examination. (c) Original certification examination. If performance skill objectives are part of an original certification examination, the examinee must be evaluated for competency by an approved field examiner at a certified training facility on at least seven successfully completed performance skill objectives selected by the commission to qualify for a state performance skill evaluation. The evaluation for competency to qualify for the state performance skills evaluation may occur at any time during the course of instruction. The number of opportunities to successfully complete particular performance skill objectives evaluated during an academy is at the discretion of the training officer or course coordinator. The training facility must maintain copies of performance evaluation forms on each examinee to document competency. The instructor of a particular subject may not evaluate the performance skill related to that subject unless the instructor is an approved field examiner. At the conclusion of a course at an approved training facility, the examinee must complete the state performance skill evaluation in accordance with subsection (b) of this section. (d) Testing for certification status. If performance skill objectives are part of a commission examination as provided in sec.439.17 of this title (relating to Testing for Certification Status), the performance skill evaluation must consist of at least three successfully completed performance skill objectives evaluated in accordance with subsection (b) of this section by staff examiners or by field examiners at an approved training facility with the consent of its training officer or course coordinator. (e) Proficiency examination. If performance skill objectives are part of a commission examination as provided in sec.439.15 of this title (relating to Testing for Proof of Proficiency), the performance skill evaluation must consist of at least three successfully completed performance skill objectives evaluated in accordance with subsection (b) of this section by staff examiners or by field examiners at an approved training facility with the consent of its training officer or course coordinator. sec.439.13. Testing for Proof of Proficiency. (a) An individual whose certificate(s) has been expired for one year or longer may not renew the certificate or certificates that were previously held. (b) The individual may obtain a new certificate or certificates in the discipline or disciplines which was previously held by passing a commission proficiency examination pertaining to the discipline or disciplines which was previously held and becoming certified within the time specified for that discipline or disciplines. The proficiency examination must be passed prior to assignment to fire suppression duties. If performance skills are part of the proficiency examination and it has been less than four years since the previously held certificate expired, the individual may be exempted from that portion of the examination if the individual can document twenty hours of continuing education for each year since the expiration of the certificate. The continuing education must be in subjects contained in the basic curriculum for the discipline. At least one-half of the continuing education must be hands-on performance skills. (c) For the purposes of this section, the time that a person serves in the military who is called to active duty in accordance with applicable federal law or that a person serves in the state legislature who qualifies for legislative leave under the provisions of Texas Civil Statutes, Article 6252-4c, is not considered a break in service for any reason and the person is not required to complete the examination requirement upon return to employment to a fire protection personnel position in order to obtain a new certificate, provided that the individual must comply with the continuing education requirement applicable to the certificate previously held by the individual after the effective date of this rule except as provided by federal law. (d) An individual or entity may petition the commission for a waiver of the examination required by this section if the person's certificate expired because of the individual or employing entity's good faith clerical error, or expired as a result of termination of the person's employment where the person has been restored to employment through a disciplinary procedure or a court action. All required renewal fees including applicable late fees and all required continuing education must be submitted before the waiver request may be considered. (1) Applicants claiming good faith clerical error must submit a sworn statement together with any supporting documentation that evidences the applicant's good faith efforts to comply with commission renewal requirements and that failure to comply was due to circumstances beyond the control of the applicant. (2) Applicants claiming restoration to employment as a result of a disciplinary or court action must submit a certified copy of the order restoring the applicant to employment. sec.439.15. Testing for Certification Status. (a) If an individual who has never held certification in a discipline defined in sec.421.5 of this title (relating to the definition of fire protection personnel), seeks certification in that discipline two years or longer after passing a commission examination pertaining to that discipline, the individual shall: (1) complete all requirements and become certified by the commission within the time specified for that discipline; and (2) successfully complete the current commission requirements for certification in that discipline; or (3) pass a commission certification examination pertaining to that discipline. The certification examination for some disciplines consists of a written examination only, while the certification examination for other disciplines consists of both a written portion and a performance skills portion. In any case, all portions of an examination must be passed before the individual is considered to have passed the examination. The certification examination must be passed prior to assignment to fire suppression duties. If it has been less than four years since an individual passed the performance skills portion of an examination pertaining to a discipline, the individual may be exempted from that portion of the examination if the individual can document twenty hours of continuing education for each year since the individual last passed the performance skills portion of an examination pertaining to the discipline. The continuing education must be in subjects contained in the basic curriculum for the discipline. At least one-half of the continuing education must be hands-on performance skills. (b) If an individual completes an approved training program that has been evaluated and deemed equivalent to a basic certification curriculum approved by the commission, such as an out-of-state or military training program or a training program administered by the State Firemen and Fire Marshals' Association of Texas, the individual must document equivalent training to that required by the commission for certification in the discipline in question, and pass a commission examination for certification status in order to become eligible for certification by the commission as fire protection personnel. If the individual is employed as fire protection personnel, then the examination for certification status must be passed prior to assignment. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State on May 11, 1998. TRD-9807633 T.R. Thompson General Counsel Texas Commission on Fire Protection Earliest possible date of adoption: June 21, 1998 For further information, please call: (512) 918-7189 CHAPTER 441. Continuing Education 37 TAC sec.sec.441.1, 441.3, 441.5, 441.7, 441.9, 441.11, 441.13, 441.15 (Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Commission on Fire Protection or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The Texas Commission on Fire Protection proposes the repeal of sec.sec.441.1, 441.3, 441.5, 441.7, 441.9, 441.11, 441.13, and 441.15, concerning continuing education. The subject matter of the repealed sections will be replaced by proposed new sections dealing with the same subject. Mr. Anthony C. Calagna, Fire Fighter Advisory Committee Chairman, has determined that for the first five year period the repeal is in effect there will be no fiscal implications for state and local governments. Mr. Calagna has also determined that for each of the first five years the repeal is in effect the public benefit anticipated as a result of enforcing the repeal will be that obsolete language will be replaced with new sections that implement legislative changes. There are no additional costs of compliance for small or large businesses and for individuals required to comply with the changes. There is no local employment impact resulting from the change. Comments on the proposal may be submitted to: Gary L. Warren Sr., Executive Director, Texas Commission on Fire Protection, P.O. Box 2286, Austin, Texas 78768-2286 or e-mail to tcfp@mail.capnet.state.tx.us. The repeal is proposed under Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and Texas Government Code, sec.419.032(b), which authorizes the commission to establish qualifications relating to continuing education or training programs. Texas Government Code, sec.419.032 is affected by the proposed repeal. sec.441.1. Objective. sec.441.3. Definitions. sec.441.5. Requirements. sec.441.7. Continuing Education for Structure Fire Protection Personnel. sec.441.9. Continuing Education for Aircraft Crash And Rescue Fire Protection Personnel. sec.441.11. Continuing Education for Marine Fire Protection Personnel. sec.441.13. Continuing Education for Fire Inspection Personnel. sec.441.15. Continuing Education for Fire And Arson Investigator. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State on May 11, 1998. TRD-9807600 T.R. Thompson General Counsel Texas Commission on Fire Protection Earliest possible date of adoption: June 21, 1998 For further information, please call: (512) 918-7189 37 TAC sec.sec.441.1, 441.3, 441.5, 441.7, 441.9, 441.11, 441.13, 441.15, 441.17 The Texas Commission on Fire Protection proposes new sec.sec.441.1, 441.3, 441.5, 441.7, 441.9, 441.11, 441.13, 441.15, and 441.17, concerning continuing education. The chapter is comprised of sections concerning objectives, definitions, general requirements, and continuing education requirements for each category of certification. New sec.441.1 outlines the basic objective of continuing education. New sec.441.3 provides definitions for the chapter. New sec.441.5 adds language concerning continuing education for hazardous materials technician training and interactive computer-based training. The section also clarifies the continuing education exemption for illness or injury and adds continuing education requirements for individual certificate holders not affiliated with a department. New sec.441.7 deletes language that disallowed continuing education credit for certain subjects in the basic curriculum for structure fire protection personnel. New sec.441.9 concerning continuing education for aircraft fire protection personnel clarifies that continuing education must meet federal requirements even if it exceeds 20 hours. New sec.sec.441.11, 441.l3, and 441.15 concerning continuing education for marine, fire inspector, and fire investigator fire protection personnel delete language that disallowed credit for certain subjects from the basic curricula. New sec.441.17 adds a requirement of ten hours of continuing education for hazardous materials technician. Mr. Anthony C. Calagna, Fire Fighter Advisory Committee Chairman, has determined that for the first five year period the new sections are in effect there will be no fiscal implications for state government. Local governments that choose to certify individuals as hazardous materials technicians will experience an increase in cost of $50-$200 depending on the source of training. Mr. Calagna has also determined that for each of the first five years the new sections are in effect the public benefit anticipated as a result of enforcing the new sections will be that the public is assured that persons holding hazardous materials technician certification maintain competency as well as individual certificate holders not employed by a fire department. There are no additional costs of compliance for small or large businesses. Individual certificate holders not employed by a fire department will incur costs of $50- $200 per year depending on the source of continuing education training. The commission has determined that the proposed new sections relating to continuing education will have no impact on private real property interests and no takings impact assessment is required pursuant to the Government Code, sec.2007.043(b) and sec.2.18 of the Attorney General's Private Real Property Rights Preservation Act Guidelines. There is no local employment impact resulting from the change. Comments on the proposal may be submitted to: Gary L. Warren Sr., Executive Director, Texas Commission on Fire Protection, P. O. Box 2286, Austin, Texas 78768-2286 or e-mail to tcfp@mail.capnet.state.tx.us. The new sections are proposed under Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and Texas Government Code, sec.419.032(b), which authorizes the commission to establish qualifications relating to continuing education or training programs. Texas Government Code, sec.419.032 is affected by the proposed new chapter. sec.441.1. Objective. Continuing education is intended to maintain or increase the knowledge and skills pertinent to the fire service. sec.441.3. Definitions. The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. (1) Certification period--That period from the time a certificate is obtained or renewed until it is time for the certificate to be renewed again. See sec.437.5(b) of this title (relating to Fees-- Renewal) for the definition of renewal period. (2) Qualified instructor--An individual who may or may not be certified, but has, in either case, met as a minimum the requirements for basic instructor certification. (3) Track A--Training intended to maintain previously learned skills as stated in the commission certification curriculum manual for the assigned discipline. (4) Track B--Training intended to develop new skills in an assigned discipline. sec.441.5. Requirements. (a) Continuing education shall be required in order to renew certification which has a continuing education requirement stated in this chapter. (b) The continuing education requirement for renewal of certification shall consist of a minimum of 20 hours of training to be conducted during the certification period. Only 20 total hours of continuing education shall be required to renew all Texas Commission on Fire Protection certificates if any individual holds more than one certificate, except as provided in sec.441.17 of this title (relating to Continuing Education for Hazardous Materials Technician). (c) Track A training must be conducted by a qualified or certified instructor. Interactive computer-based continuing education training that is supervised and verified by a certified instructor is acceptable. (d) The continuing education program must be administered by a certified instructor. (e) No more than four hours per year in any one section of the appropriate chapter of the Commission Certification Curriculum Manual may be counted toward the 20-hour continuing education requirement for Track A. (f) There shall be no "hour per subject limit" placed on Track B courses, except that emergency medical courses shall be limited to four hours per year. (g) The administrative head of the department may select subject matter for continuing education appropriate for a particular discipline. (h) The administrative head of the department must certify whether or not the individuals whose certificates are being renewed have complied with the continuing education requirements of this chapter on the certification renewal application. Unless exempted from the continuing education requirements, an individual who fails to comply with the continuing education requirements in this chapter shall be notified by the commission of the failure to comply. (i) After notification from the commission of a failure to comply with continuing education requirements, an individual who holds a certificate is prohibited from performing any duties authorized by a required certificate until such time as the deficiency has been resolved and written documentation is furnished by the department head for approval by the commission, through its Fire Service Standards and Certification Division director. No person may assign duties or accept an assignment of duties in violation of this rule. Continuing education hours obtained to resolve a deficiency may not be applied to the continuing education requirements for the current certification period. (j) Any person who is a member of a paid or volunteer fire department who is on extended leave for six months or longer because of illness or injury may be exempted from the continuing education requirement for the current renewal period. Such exemptions shall be reported by the head of the department to the commission at renewal time. (k) Any individual who is not a member of a paid or volunteer fire department who is unable to perform work, substantially similar in nature as would be performed by fire protection personnel assigned to that discipline, may be exempted from the continuing education requirement for the current renewal period. Commission staff shall determine the exemption with documentation of the illness or injury and time frames provided by the individual. (l) In order to renew certification for any discipline which has a continuing education requirement stated in this chapter, an individual holder of a basic certificate not employed by a regulated entity must comply with the continuing education requirements for that discipline. The continuing education must be in subjects contained in the basic curriculum for the discipline. At least one-half of the continuing education must be hands-on performance skills if performance skill objectives are part of the curriculum for the discipline. Only 20 total hours of continuing education for each certification period shall be required to renew all certificates the individual holds, except as provided in sec.441.17 of this title. (m) In order to renew certification for any discipline which has a continuing education requirement stated in this chapter, an individual holder of a higher level certificate, not employed by a regulated entity, must comply with the continuing education requirements for that discipline. The continuing education may be either Track A or B Only 20 total hours of continuing education for each certification period shall be required to renew all certificates the individual holds, except as provided in sec.441.17 of this title. sec.441.7. Continuing Education for Structure Fire Protection Personnel. (a) Continuing education will be required for personnel certified as structure fire protection personnel. (b) Subjects selected to satisfy the continuing education requirement may be selected from either Track A, Track B, or a combination of the two. sec.441.9. Continuing Education for Aircraft Fire Protection Personnel. (a) Continuing education will be required for personnel assigned as aircraft fire protection personnel. (b) Continuing education must meet the specific training requirements of FAR 139.319, j, 2 and 3 (pertaining to Aircraft Rescue and Firefighting Operational Requirements). Continuing education required by this subsection may exceed 20 hours, if necessary, to complete all required subjects. sec.441.11. Continuing Education for Marine Fire Protection Personnel. (a) Continuing education will be required for personnel certified as marine fire protection personnel for any certification period beginning after October 31, 1993. (b) Subjects selected to satisfy the continuing education requirement may be selected from either Track A, Track B, or a combination of the two. sec.441.13. Continuing Education for Fire Inspection Personnel. (a) Continuing education will be required for personnel certified as fire inspection personnel. (b) Subjects selected to satisfy the continuing education requirement may be selected from either Track A, Track B, or a combination of the two. sec.441.15. Continuing Education for Arson Investigator or Fire Investigator. (a) Continuing education will be required for personnel certified arson investigation or fire investigation personnel. (b) Subjects selected to satisfy the continuing education requirement may be selected from either Track A, Track B, or a combination of the two. sec.441.17. Continuing Education for Hazardous Materials Technician. (a) Ten hours of continuing education will be required for individuals certified as a hazardous materials technician. This will be in addition to continuing education required by other sections of this chapter. (b) Subjects selected to satisfy the continuing education requirement may be selected from either Track A or Track B, or a combination of the two. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State on May 11, 1998. TRD-9807634 T.R. Thompson General Counsel Texas Commission on Fire Protection Earliest possible date of adoption: June 21, 1998 For further information, please call: (512) 918-7189 CHAPTER 443. Certification Curriculum Manual 37 TAC sec.sec.443.1, 443.3, 443.5, 443.7, 443.9 (Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Commission on Fire Protection or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The Texas Commission on Fire Protection proposes the repeal of sec.sec.443.1, 443.3, 443.5, 443,7, and 443.9, concerning the certification curriculum manual. The subject matter of the repealed sections will be replaced by proposed new sections dealing with the same subject. Mr. Anthony C. Calagna, Fire Fighter Advisory Committee Chairman, has determined that for the first five year period the repeal is in effect there will be no fiscal implications for state and local governments. Mr. Calagna has also determined that for each of the first five years the repeal is in effect the public benefit anticipated as a result of enforcing the repeal will be that obsolete language will be replaced with new sections that implement legislative changes. There are no additional costs of compliance for small or large businesses and for individuals required to comply with the changes. There is no local employment impact resulting from the change. Comments on the proposal may be submitted to: Gary L. Warren Sr., Executive Director, Texas Commission on Fire Protection, P.O. Box 2286, Austin, Texas 78768-2286 or e-mail to tcfp@mail.capnet.state.tx.us. The repeal is proposed under Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and Texas Government Code, sec.419.022, which provides the commission with authority to establish minimum training standards for fire protection personnel. Texas Government Code, sec.419.022 is affected by the proposed repeal. sec.443.1. Curriculum Approval by the Fire Protection Personnel Advisory Committee. sec.443.3. Curriculum Approval by the Texas Commission On Fire Protection. sec.443.5. Effective Date of New Curricula or Changes to Curricula Required by Law or Rule. sec.443.7. Effective Date of New Curricula or Changes or Revisions to Existing Curricula Which are Voluntary. sec.443.9. National Fire Protection Association Standard. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State on May 11, 1998. TRD-9807601 T.R. Thompson General Counsel Texas Commission on Fire Protection Earliest possible date of adoption: June 21, 1998 For further information, please call: (512) 918-7189 The Texas Commission on Fire Protection proposes new sec.sec.443.1, 443.3, 443.5, 443.7, and 443.9, concerning the certification curriculum manual. The new chapter contains sections pertaining to approval by the Fire Fighter Advisory Committee, approval by the commission, effective date of curricula required by law or rule, effective date of voluntary curricula, and compliance with National Fire Protection Association (NFPA) standards. The new sec.sec.443.1, 443.3, 443.5, 443.7, and 443.9 readopt existing language concerning procedures for adoption of curricula but reference the new Fire Fighter Advisory Committee created by 1997 legislative changes which combined the former Fire Protection Personnel Advisory Committee and the Volunteer Fire Fighter Advisory Committee. The new sections require approval by the advisory committee and commission, with required curricula going into effect the following January unless a safety consideration is involved. Voluntary curricula are effective on the date specified by the commission. The rules also require review and updating of curricula to meet new or revised NFPA professional qualification standards. Mr. Anthony C. Calagna, Fire Fighter Advisory Committee Chairman, has determined that for the first five year period the new sections are in effect there will be no fiscal implications for state or local governments. Mr. Calagna has also determined that for each of the first five years the new sections are in effect the public benefit anticipated as a result of enforcing the new sections will be that the curriculum approval process is consistent with statutory changes made during the 1997 legislative session. There are no additional costs of compliance for small or large businesses or individuals required to comply with the new chapter. The commission has determined that the proposed new sections relating to the certification curriculum manual will have no impact on private real property interests and no takings impact assessment is required pursuant to the Government Code, sec.2007.043(b) and sec.2.18 of the Attorney General's Private Real Property Rights Preservation Act Guidelines. There is no local employment impact resulting from the change. Comments on the proposal may be submitted to: Gary L. Warren Sr., Executive Director, Texas Commission on Fire Protection, P.O. Box 2286, Austin, Texas 78768-2286 or e-mail to tcfp@mail.capnet.state.tx.us. The new sections are proposed under Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and Texas Government Code, sec.419.022, which provides the commission with authority to establish minimum training standards for fire protection personnel. Texas Government Code, sec.419.022 is affected by the proposed new chapter. sec.443.1. Curriculum Approval by the Fire Fighter Advisory Committee. (a) All new curricula or changes to curricula for fire protection personnel must be submitted to the Fire Fighter Advisory Committee for approval. (b) The Fire Fighter Advisory Committee may: (1) submit new curricula or changes to curricula to a subcommittee formed of members of the Fire Fighter Advisory Committee for study and review before approval; or (2) submit new curricula or changes to curricula to an advisory committee formed of members of the fire service who are recommended by the Fire Fighter Advisory Committee and appointed by the Commission to report to the Fire Fighter Advisory Committee, for study and review before approval. (c) All new curricula or changes to curricula approved by the Fire Fighter Advisory Committee shall be placed on the next scheduled meeting agenda of the Texas Commission on Fire Protection. sec.443.3. Curriculum Approval by the Texas Commission on Fire Protection. (a) All new curricula or changes to curricula approved by the Fire Fighter Advisory Committee must receive final approval by the Texas Commission on Fire Protection. (b) Curricula not approved by the Commission shall be sent back to the Committee for further development. The Commission shall indicate to the Committee the reasons that the curriculum was not approved. sec.443.5. Effective Date of New Curricula or Changes to Curricula Required by Law or Rule. (a) New curricula will become effective on January 1 of the year following final approval by the commission. (b) Changes to curricula will become effective on January 1 of the year following final approval by the commission. (c) Changes to curricula which involve reference materials will become effective on January 1 of the year following final approval by the commission or on the date specified by the commission, as recommended by the Fire Fighter Advisory Committee, depending on the impact of the change will have on the curricula. (d) Changes to curricula that involve a safety consideration as determined by the Fire Fighter Advisory Committee shall become effective immediately following final approval by the commission. sec.443.7. Effective Date of New Curricula or Changes or Revisions to Existing Curricula Which Are Voluntary. (a) New curricula will become effective on the date recommended by the Fire Fighter Advisory Committee and specified by the Commission. (b) Changes to curricula will become effective on the date recommended by the Fire Fighter Advisory Committee and specified by the Commission. (c) Changes to curricula that involve a safety consideration as determined by the Fire Fighter Advisory Committee shall become effective immediately following final approval by the Commission. sec.443.9. National Fire Protection Association Standard. (a) All curricula for fire protection personnel must, as a minimum, meet the standards, to include manipulative skills objectives and knowledge objectives, of the current NFPA standard pertaining to the discipline, if such a standard exist and subject to subsection (c) of this section. (b) New curricula presented to the Fire Fighter Advisory Committee must, as a minimum, meet the standards of the current edition of the applicable NFPA standard for the discipline, if such a standard exist. (c) If a NFPA standard is adopted or an existing NFPA standard is revised, all curricula for fire protection personnel must meet the standards of the new or revised applicable NFPA standard, on the first day of January following 365 days from the official adoption date of the applicable NFPA standard. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State on May 11, 1998. TRD-9807635 T.R. Thompson General Counsel Texas Commission on Fire Protection Earliest possible date of adoption: June 21, 1998 For further information, please call: (512) 918-7189 CHAPTER 445. Administrative Inspections and Penalties 37 TAC sec.sec.445.1, 445.3, 445.5, 445.7, 445.9, 445.11, 445.13, 445.15, 445.17, 445.19, 445.21 (Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Commission on Fire Protection or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The Texas Commission on Fire Protection proposes the repeal of sec.sec.445.1, 445.3, 445.5, 445.7, 445.9, 445.11, 445.13, 445.15, 445.17, 445.19, and 445.21, concerning administrative inspections and penalties. The subject matter of the repealed sections will be replaced by proposed new sections dealing with the same subject. Mr. Anthony C. Calagna, Fire Fighter Advisory Committee Chairman, has determined that for the first five year period the repeal is in effect there will be no fiscal implications for state and local governments. Mr. Calagna has also determined that for each of the first five years the repeal is in effect the public benefit anticipated as a result of enforcing the repeal will be that obsolete language will be replaced with new sections that implement legislative changes. There are no additional costs of compliance for small or large businesses and for individuals required to comply with the changes. There is no local employment impact resulting from the change. Comments on the proposal may be submitted to: Gary L. Warren Sr., Executive Director, Texas Commission on Fire Protection, P.O. Box 2286, Austin, Texas 78768-2286 or e-mail to tcfp@mail.capnet.state.tx.us. The repeal is proposed under Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; Texas Government Code, sec.419.027, which provides the commission with authority to inspect each facility conducting training for fire protection personnel and recruits and fire departments for compliance with statutes and commission rules; and Texas Government Code, sec.419.906, which provides the commission with the authority to impose administrative penalties for violations of chapter 419 or commission rules. Texas Government Code, sec.419.027 and sec.419.906 are affected by the proposed repeal. sec.445.1. Entity Inspections. sec.445.3. Right of Access. sec.445.5. Duty to Comply; Enforcement. sec.445.7. Procedures. sec.445.9. Minor Violations. sec.445.11. Major Violations. sec.445.13. Disciplinary Hearings. sec.445.15. Judicial Enforcement. sec.445.17. Liability for Violations. sec.445.19. Inspection Forms. sec.445.21. Effective Date. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State on May 11, 1998. TRD-9807602 T.R. Thompson General Counsel Texas Commission on Fire Protection Earliest possible date of adoption: June 21, 1998 For further information, please call: (512) 918-7189 SUBCHAPTER A. Paid Fire Department Inspections 37 TAC sec.sec.445.1, 445.3, 445.5, 445.7, 445.9, 445.11, 445.13, 445.15, 445.17, 445.19 The Texas Commission on Fire Protection proposes new sec.sec.445.1, 445.3, 445.5, 445.7, 445.9, 445.11, 445.13, 445.15, 445.17, and 445.19, concerning administrative inspections and penalties. The chapter includes Subchapter A applicable to inspection of departments with paid fire protection personnel. New sec.445.1, concerning entity inspections, sec.445.5 concerning duty to comply, sec.445.17, concerning liability for violations, and sec.445.19 concerning inspections forms readopt existing language. New sec.445.3 clarifies the right of access of commission representatives to make inspections of regulated entities. New sec.445.7 streamlines the procedures for determining major and minor violations to allow more administrative discretion in the conduct of inspections. New sec.445.9 and sec.445.11 streamline the procedure for responding to violations and allow for the probation of administrative penalties. New sec.445.13 deletes notice requirements that conflicted with the Administrative Procedure Act. New sec.445.15 changes language to allow agency discretion in initiating disciplinary proceedings. Mr. Anthony C. Calagna, Fire Fighter Advisory Committee Chairman, has determined that for the first five year period the new sections are in effect there will be no fiscal implications for state or local governments. Mr. Calagna has also determined that for each of the first five years the new sections are in effect the public benefit anticipated as a result of enforcing the new sections will be a more efficient administration of the commission's inspection program. There are no additional costs of compliance for small or large businesses or individuals required to comply with the new chapter. The commission has determined that the proposed new sections relating to paid fire department inspections will have no impact on private real property interests and no takings impact assessment is required pursuant to the Government Code, sec.2007.043(b) and sec.2.18 of the Attorney General's Private Real Property Rights Preservation Act Guidelines. There is no local employment impact resulting from the change. Comments on the proposal may be submitted to: Gary L. Warren Sr., Executive Director, Texas Commission on Fire Protection, P.O. Box 2286, Austin, Texas 78768-2286 or e-mail to tcfp@mail.capnet.state.tx.us. The new sections are proposed under Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; Texas Government Code, sec.419.027, which provides the commission with authority to inspect each facility conducting training for fire protection personnel and recruits and fire departments for compliance with statutes and commission rules; Texas Government Code, sec.419.036, concerning disciplinary actions; and Texas Government Code, sec.419.906, which provides the commission with the authority to impose administrative penalties for violations of chapter 419 or commission rules. Texas Government Code, sec.sec.419.027, 419.036, and 419.906 are affected by the proposed new sections. sec.445.1. Entity Inspections. (a) The commission shall conduct at least biennial inspections of the entities that fall under the regulatory authority of the commission. (b) The purpose of these inspections shall be to promote safety and proficiency in the fire service by ensuring compliance with state law and commission rules pertaining to minimum standards for fire protection personnel education, protective clothing, self-contained breathing apparatus, or any other aspect of the fire service regulated by the commission. sec.445.3. Right of Access. (a) A duly authorized representative of the commission may enter the premises of any entity regulated by the commission at any time during normal working hours and in such manner as to minimize interference with the operations of the entity to determine whether or not the entity is in compliance with the Code and the rules of the commission. (b) No person shall refuse to permit, or interfere with an inspection authorized by the Code or commission rules. (c) Interference with, or refusal to permit an inspection under the Code or commission rules is grounds for discipline. (d) The commission's right of access will be enforced through either administrative or judicial procedures as is necessary or required. sec.445.5. Duty To Comply; Enforcement. (a) An entity regulated by the commission shall have the duty to implement and maintain compliance with the rules and the Code. (b) Every regulated entity under the Code shall be given an inspection covering the categories established by the commission. An entity found to be in noncompliance with the Code or rules of the commission shall be subject to warnings, administrative penalties, and other discipline as appropriate. sec.445.7. Procedures. (a) The inspector shall, if possible, notify the current or acting, on duty and available, department head of the inspector's presence at the department and his intention to conduct a departmental inspection. (b) During the course of the inspection, any noncompliance with state law or commission rule shall be noted. Violations shall be determined to be either minor or major violations based upon the following guidelines. (1) Minor violations shall be defined as those violations which the inspector determines do not pose a serious threat to personnel safety due to lack of personnel protection equipment or training, are not widespread, or are not repeat violations of the same nature for which the entity was cited within the previous five years. (2) Major violations shall be defined as those violations which in the inspector's opinion constitute an immediate threat to personnel safety, flagrant or repeated violations in the same or similar areas, fraud, or obvious attempts to circumvent state law or commission rule. (c) In order to determine compliance with commission requirements pertaining to a particular item, the inspector may examine as many items of protective clothing and equipment deemed necessary by the inspector. sec.445.9. Minor Violations. If during the course of a departmental inspection, the inspector determines the department has committed minor violations, the following procedures shall apply. (1) The inspector shall issue a formal notice of noncompliance identifying the findings of fact. (2) The department then has 14 calendar days from the date the formal notice of noncompliance is received to correct the violations and provide the commission with proof of compliance or to provide the commission with a written schedule of actions which will be carried out to achieve compliance. The schedule of actions will allow necessary amounts of time for such things as obtaining items through city requisitions and bid processes, when necessary. Lack of funds is not an acceptable reason for delay. (3) If the department fails to provide proof of compliance or a written schedule of actions within the 14 calendar days, an administrative penalty of up to $300 may be recommended by the commission staff. If the department has been compelled to submit proof of compliance or a schedule of actions for the same or similar violations within the previous five years, the administrative penalty shall be up to $600. (4) In the event the department fails to achieve compliance in accordance with the agreed-upon schedule of actions, an administrative penalty of up to $600 may be recommended by the commission staff unless the commission staff determines that sufficient reason exists for extending the time allowed for compliance. (5) In all cases where an administrative penalty is recommended by the commission staff, the department may be granted 14 calendar days to pay the administrative penalty and come into compliance or submit a written notice of appeal. (6) If the department fails to pay the administrative penalty and come into compliance within the required time frame, a hearing may be scheduled. If determined by the hearing process that violations occurred, the department may be: (A) allowed extra time to come into compliance; (B) assessed appropriate penalties which may be probated and may include suspension of certificates, administrative penalties, hearing costs, and attorneys fees; (C) required to furnish proof of compliance. sec.445.11. Major Violations. If during the course of a departmental inspection the inspector determines the department has committed major violations, the following procedures shall apply. (1) The inspector shall issue a formal notice of noncompliance identifying the findings of fact. (2) An administrative penalty of up to $500 may be recommended by the commission staff. If it is determined by the commission that the department has been subjected to an administrative penalty for the same or similar violations within the previous five years, the administrative penalty may be up to $1,000. (3) The department then has 14 calendar days from the date of the receipt of the formal notice of noncompliance to pay the administrative penalty, correct the violations, and to provide the commission with proof of compliance or submit written notice of appeal. (4) If the department fails to pay the administrative penalty and come into compliance within the total 14 calendar day time frame, a hearing shall be scheduled. If determined by the hearing process that violations occurred, the department may be: (A) allowed extra time to come into compliance; (B) assessed appropriate penalties which may be probated and may include suspension of certificates, administrative penalties, hearing costs, and attorneys fees; (C) required to furnish proof of compliance. sec.445.13. Disciplinary Hearings. Upon the filing of a complaint with the commission charging a regulated entity with a violation of the Code or commission regulations as grounds for disciplinary action, the commission shall provide for a hearing of the charges. The commission's rules of practice and procedure govern disciplinary proceedings under this chapter. sec.445.15. Judicial Enforcement. If a department is found to have committed major violations of the same or similar nature on three or more occasions within the previous five years, proceedings for injunctive relief, penalties, and discipline may be instituted; provided, however, that this section shall not prohibit the commission from resorting to judicial enforcement for any violation of the Code or rules. sec.445.17. Liability for Violations. The issuance of violation notices, administrative penalties, orders, and the permitting of a regulated entity to correct deficiencies in no way relieves the entity from the duty to, at all times, remain in complete compliance with the Code or commission rules or from the liability it could incur from failing to fulfill its statutory and regulatory duties. sec.445.19. Inspection Forms. The executive director, or his designee, shall develop forms for the inspection of records, equipment, clothing, and facilities which shall be on file at the commission office and available for public inspections. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State on May 11, 1998. TRD-9807636 T.R. Thompson General Counsel Texas Commission on Fire Protection Earliest possible date of adoption: June 21, 1998 For further information, please call: (512) 918-7189 SUBCHAPTER B. Volunteer Fire Department Inspections 37 TAC sec.sec.445.201, 445.203, 445.205, 445.207 The Texas Commission on Fire Protection proposes new sec.sec.445.201, 445.203, 445.205, and 445.207, concerning administrative inspections and penalties. The new chapter includes Subchapter B concerning volunteer fire department inspections. New Subchapter B provides for inspections of volunteer fire departments. The new chapter incorporates sections from repealed volunteer rules to provide for voluntary inspections. New sec.445.201 allows a volunteer fire department to request inspection for compliance with voluntary standards pertaining to protective clothing, self-contained breathing apparatus, training facilities, and training records. New sec.445.203 provides for a report of the inspection. New sec.445.205 provides for administrative penalties only for intentional falsification of records. New sec.445.207 provides for a certificate of compliance upon successful completion of an inspection. Mr. Anthony C. Calagna, Fire Fighter Advisory Committee Chairman, has determined that for the first five year period the new sections are in effect there will be no fiscal implications for state or local government. Mr. Calagna has also determined that for each of the first five years the new sections are in effect the public benefit anticipated as a result of enforcing the new sections will be that consolidation of inspections procedures for paid and volunteer departments provides better access to the standards for the public. There are no additional costs of compliance for small or large businesses or individuals required to comply with the new chapter. The commission has determined that the proposed new sections relating to volunteer fire department inspections will have no impact on private real property interests and no takings impact assessment is required pursuant to the Government Code, sec.2007.043(b) and sec.2.18 of the Attorney General's Private Real Property Rights Preservation Act Guidelines. There is no local employment impact resulting from the change. Comments on the proposal may be submitted to: Gary L. Warren Sr., Executive Director, Texas Commission on Fire Protection, P.O. Box 2286, Austin, Texas 78768-2286 or e-mail to tcfp@mail.capnet.state.tx.us. The new sections are proposed under Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; Texas Government Code, sec.419.027, which provides the commission with authority to inspect each facility conducting training for fire protection personnel and recruits and fire departments for compliance with statutes and commission rules; Texas Government Code, sec.419.036, concerning disciplinary actions; and Texas Government Code, sec.419.906, which provides the commission with the authority to impose administrative penalties for violations of chapter 419 or commission rules. Texas Government Code, sec.sec.419.027, 419.036, and 419.906 are affected by the proposed new sections. sec.445.201. Request for Inspection. A participating volunteer fire department may request an administrative inspection in accordance with Subchapter A of this Chapter, for compliance with the requirements pertaining to protective clothing, self-contained breathing apparatus, training facilities, and training records. The commission shall conduct an inspection as soon as practical. If such inspection cannot be conducted within 60 days of such request, the commission shall notify the volunteer fire department of a proposed alternate inspection date. sec.445.203. Report of Inspection. The commission inspector shall furnish a report to the volunteer fire department indicating areas of compliance and noncompliance. The volunteer fire department may submit a schedule of corrective action to the commission. The participating volunteer fire department may request a follow-up inspection to determine compliance. sec.445.205. Administrative Penalties. A participating volunteer fire department or volunteer fire fighter will not be subject to an administrative penalty under this subchapter as a result of an inspection, except for: (1) intentionally falsifying training records indicating compliance with curriculum training requirements when in fact the requirements were not met; (2) intentionally falsifying self-contained breathing apparatus records or air quality records indicating compliance with commission requirements when in fact the requirements were not met; or (3) intentionally falsifying protective clothing records or air quality records indicating compliance with commission requirements when in fact the requirements were not met. sec.445.207. Certificate of Compliance. Upon successful completion of an inspection concerning protective clothing and self-contained breathing apparatus, a volunteer fire department may apply to the commission for a certificate of compliance with the commission requirements for fire fighter safety. After the initial and any follow-up inspections are completed, the commission may conduct at least biennial inspections of a participating volunteer fire department in accordance with Subchapter A of this chapter. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State on May 11, 1998. TRD-9807637 T.R. Thompson General Counsel Texas Commission on Fire Protection Earliest possible date of adoption: June 21, 1998 For further information, please call: (512) 918-7189 CHAPTER 447. Part-Time Fire Protection Employee 37 TAC sec.sec.447.1, 447.3, 447.5 (Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Commission on Fire Protection or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The Texas Commission on Fire Protection proposes the repeal of sec.sec.447.1, 447.3, and 447.5, concerning minimum standards for part-time fire protection employees. The subject matter of the repealed sections will be replaced by proposed new sections dealing with the same subject. Mr. Anthony C. Calagna, Fire Fighter Advisory Committee Chairman, has determined that for the first five year period the repeal is in effect there will be no fiscal implications for state and local governments. Mr. Calagna has also determined that for each of the first five years the repeal is in effect the public benefit anticipated as a result of enforcing the repeal will be that obsolete language will be replaced with new sections that implement legislative changes. There are no additional costs of compliance for small or large businesses and for individuals required to comply with the changes. There is no local employment impact resulting from the change. Comments on the proposal may be submitted to: Gary L. Warren Sr., Executive Director, Texas Commission on Fire Protection, P.O. Box 2286, Austin, Texas 78768-2286 or e-mail to tcfp@mail.capnet.state.tx.us. The repeals are proposed under Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and Texas Government Code, sec.419.0321, which provides that the commission shall create a separate certification class for part-time fire protection personnel. Texas Government Code, sec.419.0321 is affected by the proposed repeal. sec.447.1. Minimum Standards for Part-Time Fire Protection Employees. sec.447.3. Minimum Standards for Advanced Levels of Part-Time Certification. sec.447.5. Permissible Hours of Work for Part-Time Fire Protection Employees. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State on May 11, 1998. TRD-9807603 T.R. Thompson General Counsel Texas Commission on Fire Protection Earliest possible date of adoption: June 21, 1998 For further information, please call: (512) 918-7189 The Texas Commission on Fire Protection proposes new sec.sec.447.1, 447.3, and 447.5, concerning part-time fire protection employees. New sec.447.1 concerning standards for part-time fire protection employees removes the listing of difference categories of certifications and refers simply to disciplines that have a commission approved curricula. Part-time employees must meet the same training and certification requirements as full-time fire protection personnel. New sec.447.3 concerning standards for advanced levels of part-time certification apply the same education and experience requirements applicable to the same level of full-time certification. New sec.447.5 readopts the same statutory limits on the number of permissible hours of work for part-time fire protection employees. Mr. Anthony C. Calagna, Fire Fighter Advisory Committee Chairman, has determined that for the first five year period the new sections are in effect there will be no fiscal implications for state or local governments. Mr. Calagna has also determined that for each of the first five years the new sections are in effect the public benefit anticipated as a result of enforcing the new sections will be that the simplified and consolidated format will provide more consistency in application standards to full-time and part-time fire protection employees. There are no additional costs of compliance for small or large businesses or individuals required to comply with the new chapter. The commission has determined that the proposed new sections relating to part-time fire protection employees will have no impact on private real property interests and no takings impact assessment is required pursuant to the Government Code, sec.2007.043(b) and sec.2.18 of the Attorney General's Private Real Property Rights Preservation Act Guidelines. There is no local employment impact resulting from the change. Comments on the proposal may be submitted to: Gary L. Warren Sr., Executive Director, Texas Commission on Fire Protection, P. O. Box 2286, Austin, Texas 78768-2286 or e-mail to tcfp@mail.capnet.state.tx.us. The new sections are proposed under Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and Texas Government Code, sec.419.0321, which provides that the commission shall create a separate certification class for part-time fire protection employees. Texas Government Code, sec.419.0321 is affected by the proposed new sections. sec.447.1. Minimum Standards for Part-Time Fire Protection Employees. (a) All part-time employees of a fire department or a local government who perform the duties of fire protection personnel must be certified by the commission. In order to be certified, part-time fire protection employees must be employed by a fire department or a local government and complete the requirements for fire protection personnel certification in the assigned discipline. (b) A certified part-time fire protection employee may be certified in any discipline that has a commission approved curriculum. (c) Certified part-time fire protection employees are subject to the same commission rules that apply to certified fire protection personnel. (d) Fire departments or local governments that employ certified part-time fire protection employees are subject to the same commission rules that apply to fire departments and local governmental entities that employ fire protection personnel. (e) Prior to being assigned to fire suppression duties, an individual must have completed a commission-approved curriculum and successfully passed the commission examination as specified in Chapter 439 of this title (relating to Examinations for Certification). (f) A person who holds or is eligible to hold a certificate upon employment as fire protection personnel may be certified in the same discipline as a part-time fire protection employee as set forth in subsection (b) of this section without meeting the applicable examination requirements. (g) If a person holds a current certification as a full-time structural fire fighter, the Texas Department of Health ECA certification requirement may be satisfied by documentation of equivalent training or certification in lieu of certification by the Texas Department of Health. sec.447.3. Minimum Standards for Advanced Levels of Part-Time Certification. Applicants for advanced levels of part-time certification must complete the same requirements as fire protection personnel seeking higher levels of certification. Years of experience for advanced part-time certifications shall be calendar years. sec.447.5. Permissible Hours of Work for Part-Time Fire Protection Employees. (a) Part-time fire protection employees may not: (1) work more than 24 hours a week or average more than approximately 24 hours a week during a work cycle for any one fire department; or (2) work more than 500 hours in a calendar year in fire suppression duties for any one fire department. (b) Part-time fire protection employees may work on a temporary (fill-in) basis for a fire protection personnel who is absent from work due to vacation, illness, injury, or administrative leave. (1) The hours worked in a temporary position shall not be counted when computing the hours worked in subsection (a)(1) of this section. (2) If the hours worked in a temporary position are in fire suppression related duties, the hours worked shall be counted when computing the hours worked in subsection (a)(2) of this section. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State on May 11, 1998. TRD-9807638 T.R. Thompson General Counsel Texas Commission on Fire Protection Earliest possible date of adoption: June 21, 1998 For further information, please call: (512) 918-7189 CHAPTER 449. Head of a Fire Department 37 TAC sec.449.1 (Editor's note: The text of the following section proposed for repeal will not be published. The section may be examined in the offices of the Texas Commission on Fire Protection or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The Texas Commission on Fire Protection proposes the repeal of sec.449.1, concerning the head of a fire department. The subject matter of the repealed sections will be replaced by proposed new sections dealing with the same subject. Mr. Anthony C. Calagna, Fire Fighter Advisory Committee Chairman, has determined that for the first five year period the repeal is in effect there will be no fiscal implications for state and local governments. Mr. Calagna has also determined that for each of the first five years the repeal is in effect the public benefit anticipated as a result of enforcing the repeal will be that obsolete language will be replaced with new sections that implement legislative changes. There are no additional costs of compliance for small or large businesses and for individuals required to comply with the changes. There is no local employment impact resulting from the change. Comments on the proposal may be submitted to: Gary L. Warren Sr., Executive Director, Texas Commission on Fire Protection, P.O. Box 2286, Austin, Texas 78768-2286 or e-mail to tcfp@mail.capnet.state.tx.us. The repeal is proposed under Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and Texas Government Code, sec.419.032(f), which provides that the commission shall adopt rules for the purpose of this subsection relating to presentation of evidence regarding volunteer fire fighter experience. Texas Government Code, sec.419.032 is affected by the proposed repeal. sec.449.1. Minimum Standards for the Head of a Fire Department. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State on May 11, 1998. TRD-9807604 T.R. Thompson General Counsel Texas Commission on Fire Protection Earliest possible date of adoption: June 21, 1998 For further information, please call: (512) 918-7189 The Texas Commission on Fire Protection proposes new sec.449.1, concerning minimum standards for head of a fire department. New sec.449.1 clarifies and streamlines the requirements for certification as head of a fire department. Certification as head of a department requires completion of all requirements for certification as fire protection personnel in any discipline with an approved curriculum including testing and training. Alternatively, an individual with ten years of volunteer fire fighter experience may qualify for a basic certification examination. The only basic certification requirement in any discipline that is waived for the head of a fire department is the requirement of current emergency care attendant certification with documentation of equivalent training or certification in another jurisdiction. Disciplines such as aircraft fire protection personnel certification and marine fire protection personnel certification which also require eligibility for certification as structure fire protection require new applicants to document meeting testing and training requirements for structure fire protection personnel, in addition to the specialized training. Certification as head of the department in any one discipline does not authorize an individual to perform duties in any discipline other than the one in which certification is obtained. Mr. Anthony C. Calagna, Fire Fighter Advisory Committee Chairman, has determined that for the first five year period the new sections are in effect there will be no fiscal implications for state or local governments. Mr. Calagna has also determined that for each of the first five years the new sections are in effect the public benefit anticipated as a result of enforcing the new sections will be that the requirements for certification as head of a department are clarified and made consistent for all disciplines. There are no additional costs of compliance for small or large businesses or individuals required to comply with the new chapter. The commission has determined that the proposed new sections relating to head of a fire department will have no impact on private real property interests and no takings impact assessment is required pursuant to the Government Code, sec.2007.043(b) and sec.2.18 of the Attorney General's Private Real Property Rights Preservation Act Guidelines. There is no local employment impact resulting from the change. Comments on the proposal may be submitted to: Gary L. Warren Sr., Executive Director, Texas Commission on Fire Protection, P. O. Box 2286, Austin, Texas 78768-2286 or e-mail to tcfp@mail.capnet.state.tx.us. The new section is proposed under Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and Texas Government Code, sec.419.032(f), which provides that the commission shall adopt rules for the purpose of this subsection relating to presentation of evidence regarding volunteer fire fighter certification. Texas Government Code, sec.419.032 is affected by the proposed new section. sec.449.1. Minimum Standards for the Head of a Fire Department. (a) An individual who is employed as the head of a fire department, on or after September 1, 1993, must be certified by the commission, as a minimum, as a basic structural fire protection personnel, basic aircraft fire protection personnel, marine fire protection personnel, basic fire inspector, basic arson investigator, or fire investigator within one year from the date of appointment or within one year of September 1, 1993, whichever is later. In order to be certified the individual must: (1) complete the requirements for certification as fire protection personnel in any discipline that has a commission approved curriculum, or provide documentation in the form of a sworn affidavit of ten years experience as an active volunteer fire fighter in one or more volunteer fire departments that meet the requirements of subsection (b) of this section; and (2) successfully pass the commission examination as specified in Chapter 439 of this title (relating to Examinations for Certification); and (3) comply with the continuing education requirement specified in Chapter 441 of this title (relating to Continuing Education) during the period of temporary appointment. (b) The ten years of volunteer service must be with a volunteer fire department or departments that meet the following requirements during the relevant period: (1) an active membership of 20 or more members; and (2) a minimum of two drills (not meetings) each month, each lasting a minimum of two hours and each having been attended by a majority of all active members. (c) For disciplines requiring emergency care attendant certification from the Texas Department of Health, the requirement may be satisfied by documentation of equivalent training or certification in another jurisdiction in lieu of current certification by the Texas Department of Health. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State on May 11, 1998. TRD-9807639 T.R. Thompson General Counsel Texas Commission on Fire Protection Earliest possible date of adoption: June 21, 1998 For further information, please call: (512) 918-7189 CHAPTER 451. Fire Cause and Origin Investigator 37 TAC sec.451.1, sec.451.3 (Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Commission on Fire Protection or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The Texas Commission on Fire Protection proposes the repeal of sec.451.1 and sec.451.3, concerning minimum standards for fire cause and origin investigator certification. The subject matter of the repealed sections will be replaced by proposed new sections dealing with the same subject. Mr. Anthony C. Calagna, Fire Fighter Advisory Committee Chairman, has determined that for the first five year period the repeal is in effect there will be no fiscal implications for state and local governments. Mr. Calagna has also determined that for each of the first five years the repeal is in effect the public benefit anticipated as a result of enforcing the repeal will be that obsolete language will be replaced with new sections that implement legislative changes. There are no additional costs of compliance for small or large businesses and for individuals required to comply with the changes. There is no local employment impact resulting from the change. Comments on the proposal may be submitted to: Gary L. Warren Sr., Executive Director, Texas Commission on Fire Protection, P.O. Box 2286, Austin, Texas 78768-2286 or e-mail to tcfp@mail.capnet.state.tx.us. The repeals are proposed under Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administrative of its powers and duties; and Texas Government Code, sec.419.022, which provides the commission with authority to establish minimum training standards for fire protection personnel in advanced or specialized fire protection personnel positions. Texas Government Code, sec.419.022 is affected by the proposed repeal. sec.451.1. Minimum Standards for Fire Cause and Origin Investigation Personnel. sec.451.3. Minimum Standards Ffor Fire Cause and Origin Investigator Certification. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State on May 11, 1998. TRD-9807605 T.R. Thompson General Counsel Texas Commission on Fire Protection Earliest possible date of adoption: June 21, 1998 For further information, please call: (512) 918-7189 CHAPTER 471. Standards for Volunteer Certification 37 TAC sec.sec.471.1, 471.3, 471.5, 471.7 (Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Commission on Fire Protection or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The Texas Commission on Fire Protection proposes the repeal of sec.sec.471.1, 471.3, 471.5, and 471.7, concerning standards for volunteer certification. The subject matter of the repealed sections will be replaced by new sections dealing with the same subject. Mr. Anthony C. Calagna, Fire Fighter Advisory Committee Chairman, has determined that for the first five year period the repeal is in effect there will be no fiscal implications for state or local governments as a result of enforcing or administering the repeal. Mr. Calagna has also determined that for each of the first five years the repeal is in effect the public benefit anticipated as a result of enforcing the repeal will be replaced with new sections that comply with legislative changes. There are no additional costs of compliance for large or small businesses or individuals required to comply with the changes. There is no local employment impact resulting from the change. Comments on the proposal may be submitted to: Gary L. Warren Sr., Executive Director, Texas Commission on Fire Protection, P. O. Box 2286, Austin, Texas 78768-2286 or e-mail to tcfp@mail.capnet.state.tx.us. The repeals are proposed under Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and Texas Government Code, sec.419.071, which provides the commission with authority to establish voluntary certification standards for volunteer fire fighters. Texas Government Code, sec.419.071 is affected by the proposed repeal. sec.471.1. Procedures for Meetings. sec.471.3. Minimum Standards Set by the Commission. sec.471.5. Definitions. sec.471.7. Minimum Standards for Participation. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State on May 11, 1998. TRD-9807606 T.R. Thompson General Counsel Texas Commission on Fire Protection Earliest possible date of adoption: June 21, 1998 For further information, please call: (512) 918-7189 CHAPTER 472. Volunteer Certification Curriculum Manual 37 TAC sec.sec.472.1, 472.3, 472.5, 472.7, 472.9 (Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Commission on Fire Protection or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The Texas Commission on Fire Protection proposes the repeal of sec.sec.472.1, 472.3, 472.5, 472.7, and 472.9, concerning the volunteer certification curriculum manual. The subject matter of the repealed sections will be replaced by proposed new sections dealing with the same subject. Mr. Anthony C. Calagna, Fire Fighter Advisory Committee Chairman, has determined that for the first five year period the repeal is in effect there will be no fiscal implications for state or local governments as a result of enforcing or administering the repeal. Mr. Calagna has also determined that for each of the first five years the repeal is in effect the public benefit anticipated as a result of enforcing the repeal will be replaced with new sections that comply with legislative changes. There are no additional costs of compliance for small or large businesses or individuals required to comply with the changes. There is no local employment impact resulting from the change. Comments on the proposal may be submitted to: Gary L. Warren Sr., Executive Director, Texas Commission on Fire Protection, P.O. Box 2286, Austin, Texas 78768-2286 or e-mail to tcfp@mail.capnet.state.tx.us. The repeal is proposed under Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and Texas Government Code, sec.419.071, which provides the commission with authority to establish voluntary certification standards for volunteer fire fighters. Texas Government Code, sec.419.071 is affected by the proposed repeal. sec.472.1. Curriculum Approval by the Volunteer Fire Fighter Advisory Committee. sec.472.3. Curriculum Approval by the Texas Commission on Fire Protection. sec.472.5. Effective Date of New Curricula or Changes to Curricula Required By Law Or Rule. sec.472.7. Effective Date of New Curricula or Changes or Revisions to Existing Curricula which are Voluntary. sec.472.9. National Fire Protection Association Standard. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State on May 11, 1998. TRD-9807607 T.R. Thompson General Counsel Texas Commission on Fire Protection Earliest possible date of adoption: June 21, 1998 For further information, please call: (512) 918-7189 CHAPTER 473. Volunteer Fire Fighter 37 TAC sec.sec.473.1, 473.3, 473.5, 473.7, 473.9 (Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Commission on Fire Protection or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The Texas Commission on Fire Protection proposes the repeal of sec.sec.473.1, 473.3, 473.5, 473.7, and 473.9, concerning minimum standards for volunteer fire fighter. The subject matter of the repealed sections will be replaced by proposed new sections dealing with the same subject. Mr. Anthony C. Calagna, Fire Fighter Advisory Committee Chairman, has determined that for the first five year period the repeal is in effect there will be no fiscal implication for state or local governments as a result of enforcing or administering the repeal. Mr. Calagna has also determined that for each of the first five years the repeal is in effect the public benefit anticipated as a result of enforcing the repeal will be replaced with new sections that comply with legislative changes. There are no additional costs of compliance for small or large businesses or individuals required to comply with the changes. There is no local employment impact resulting from the change. Comments on the proposal may be submitted to: Gary L. Warren Sr., Executive Director, Texas Commission on Fire Protection, P.O. Box 2286, Austin, Texas 78768-2286 or e-mail to tcfp@mail.capnet.state.tx.us. The repeal is proposed under Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and Texas Government Code, sec.419.071, which provides the commission with authority to establish voluntary certification standards for volunteer fire fighters. Texas Government Code, sec.419.071 is affected by the proposed repeal. sec.473.1. Minimum Standards for Basic Volunteer Fire Fighter. sec.473.3. Minimum Standards for Intermediate Volunteer Fire Fighter. sec.473.5. Minimum Standards for Advanced Volunteer Fire Fighter Certification. sec.473.7. Minimum Standards for Master Volunteer Fire Fighter Certification. sec.473.9. Maintaining Certification. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State on May 11, 1998. TRD-9807608 T.R. Thompson General Counsel Texas Commission on Fire Protection Earliest possible date of adoption: June 21, 1998 For further information, please call: (512) 918-7189 CHAPTER 475. Volunteer Fire Fighter Instructor and Instructor Training 37 TAC sec.sec.475.1, 475.3, 475.5, 475.7, 475.9, 475.11 (Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Commission on Fire Protection or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The Texas Commission on Fire Protection proposes the repeal of sec.sec.475.1, 475.3, 475.5, 475.7, 475.9, and 475.11, concerning minimum standards for volunteer fire fighter instructor certification and training. The subject matter of the repealed sections will be replaced by proposed new sections dealing with the same subject. Mr. Anthony C. Calagna, Fire Fighter Advisory Committee Chairman, has determined that for the first five year period the repeal is in effect there will be no fiscal implications for state or local governments as a result of enforcing or administering the repeal. Mr. Calagna has also determined that for each of the first five years the repeal is in effect the public benefit anticipated as a result of enforcing the repeal will be replaced with new sections that comply with legislative changes. There are no additional costs of compliance for small or large businesses or individuals required to comply with the changes. There is no local employment impact resulting from the change. Comments on the proposal may be submitted to: Gary L. Warren Sr., Executive Director, Texas Commission on Fire Protection, P.O. Box 2286, Austin, Texas 78768-2286 or e-mail to tcfp@mail.capnet.state.tx.us. The repeal is proposed under Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and Texas Government Code, sec.419.071, which provides the commission with authority to establish voluntary certification standards for volunteer fire fighters. Texas Government Code, sec.419.071 is affected by the proposed repeal. sec.475.1. Minimum Standards for Basic Volunteer Fire Fighter Instructor Certification. sec.475.3. Minimum Standards for Intermediate Volunteer Fire Fighter Instructor Certification. sec.475.5. Minimum Standards for Advanced Volunteer Fire Fighter Instructor Certification. sec.475.9. Minimum Standards for Volunteer Associate Instructor Certification. sec.475.11. Instructor Training Courses. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State on May 11, 1998. TRD-9807609 T.R. Thompson General Counsel Texas Commission on Fire Protection Earliest possible date of adoption: June 21, 1998 For further information, please call: (512) 918-7189 CHAPTER 476. Volunteer Fire Investigator 37 TAC sec.sec.476.1, 476.3, 476.5, 476.7, 476.9 (Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Commission on Fire Protection or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The Texas Commission on Fire Protection proposes the repeal of sec.sec.476.1, 476.3, 476.5, 476.7, and 476.9, concerning minimum standards for volunteer fire investigator. The subject matter of the repealed sections will be replaced by proposed new sections dealing with the same subject. Mr. Anthony C. Calagna, Fire Fighter Advisory Committee Chairman, has determined that for the first five year period the repeal is in effect there will be no fiscal implications for state or local governments as a result of enforcing or administering the repeal. Mr. Calagna has also determined that for each of the first five years the repeal is in effect the public benefit anticipated as a result of enforcing the repeal will be replaced with new sections that comply with legislative changes. There are no additional costs of compliance for small or large businesses or individuals required to comply with the changes. There is no local employment impact resulting from the change. Comments on the proposal may be submitted to: Gary L. Warren Sr., Executive Director, Texas Commission on Fire Protection, P.O. Box 2286, Austin, Texas 78768-2286 or e-mail to tcfp@mail.capnet.state.tx.us. The repeal is proposed under Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and Texas Government Code, sec.419.071, which provides the commission with authority to establish voluntary certification standards for volunteer fire fighters. Texas Government Code, sec.419.071 is affected by the proposed repeal. sec.476.1. Minimum Standards for Volunteer Fire Investigator. sec.476.3. Minimum Standards for Basic Volunteer Fire Investigator. sec.476.5. Minimum Standards for Intermediate Volunteer Fire Investigator. sec.476.7. Minimum Standards for Advanced Volunteer Fire Investigator Certification. sec.476.9. Minimum Standards for Master Volunteer Fire Investigator Certification. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State on May 11, 1998. TRD-9807610 T.R. Thompson General Counsel Texas Commission on Fire Protection Earliest possible date of adoption: June 21, 1998 For further information, please call: (512) 918-7189 CHAPTER 477. Volunteer Fire Fighter Training Facilities 37 TAC sec.sec.477.1, 477.3, 477.5, 477.7, 477.9, 477.11, 477.13 (Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Commission on Fire Protection or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The Texas Commission on Fire Protection proposes the repeal of sec.sec.477.1, 477.3, 477.5, 477.7, 477.9, 477.11, and 477.13, concerning standards for volunteer fire fighter training facilities. The subject matter of the repealed sections will be replaced by proposed new sections dealing with the same subject. Mr. Anthony C. Calagna, Fire Fighter Advisory Committee Chairman, has determined that for the first five year period the repeal is in effect there will be no fiscal implications for state or local governments as a result of enforcing or administering the repeal. Mr. Calagna has also determined that for each of the first five years the repeal is in effect the public benefit anticipated as a result of enforcing the repeal will be replaced with new sections that comply with legislative changes. There are no additional costs of compliance for small or large businesses or individuals required to comply with the changes. There is no local employment impact resulting from the change. Comments on the proposal may be submitted to: Gary L. Warren Sr., Executive Director, Texas Commission on Fire Protection, P.O. Box 2286, Austin, Texas 78768-2286 or e-mail to tcfp@mail.capnet.state.tx.us. The repeal is proposed under Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and Texas Government Code, sec.419.071, which provides the commission with authority to establish voluntary certification standards for volunteer fire fighters. Texas Government Code, sec.419.071 is affected by the proposed repeal. sec.477.1. Minimum Standards for Volunteer Fire Fighter Training Facilities. sec.477.3. Apparatus-Training Facility. sec.477.5. Equipment-Training Facility. sec.477.7. Reference Material-Training Facility. sec.477.9. Testing and Records. sec.477.11. Staff-Training Facility. sec.477.13. General Information-Training Facility. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State on May 11, 1998. TRD-9807611 T.R. Thompson General Counsel Texas Commission on Fire Protection Earliest possible date of adoption: June 21, 1998 For further information, please call: (512) 918-7189 CHAPTER 478. Volunteer Fire Inspector 37 TAC sec.sec.478.1, 478.3, 478.5, 478.7, 478.9 (Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Commission on Fire Protection or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The Texas Commission on Fire Protection proposes the repeal of sec.sec.478.1, 478.3, 478.5, 478.7, and 478.9, concerning minimum standards for volunteer fire inspector. The subject matter of the repealed sections will be replaced by proposed new sections dealing with the same subject. Mr. Anthony C. Calagna, Fire Fighter Advisory Committee Chairman, has determined that for the first five year period the repeal is in effect there will be no fiscal implications for state or local governments as a result of enforcing or administering the repeal. Mr. Calagna has also determined that for each of the first five years the repeal is in effect the public benefit anticipated as a result of enforcing the repeal will be replaced with new sections that comply with legislative changes. There are no additional costs of compliance for small or large businesses or individuals required to comply with the changes. There is no local employment impact resulting from the change. Comments on the proposal may be submitted to: Gary L. Warren Sr., Executive Director, Texas Commission on Fire Protection, P.O. Box 2286, Austin, Texas 78768-2286 or e-mail to tcfp@mail.capnet.state.tx.us. The repeal is proposed under Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and Texas Government Code, sec.419.071, which provides the commission with authority to establish voluntary certification standards for volunteer fire fighters. Texas Government Code, sec.419.071 is affected by the proposed repeal. sec.478.1. Minimum Standards for Volunteer Fire Inspection Personnel. sec.478.3. Minimum Standards for Basic Volunteer Fire Inspector Certification. sec.478.5. Minimum Standards for Intermediate Volunteer Fire Inspector. sec.478.7. Minimum Standards for Advanced Volunteer Fire Inspector Certification. sec.478.9. Minimum Standards for Master Volunteer Fire Inspector Certification. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State on May 11, 1998. TRD-9807612 T.R. Thompson General Counsel Texas Commission on Fire Protection Earliest possible date of adoption: June 21, 1998 For further information, please call: (512) 918-7189 CHAPTER 479. Examinations for Volunteer Fire Fighter Certification 37 TAC sec.sec.479.1, 479.3, 479.5, 479.7, 479.9, 479.11, 479.13 (Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Commission on Fire Protection or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The Texas Commission on Fire Protection proposes the repeal of sec.sec.479.1, 479.3, 479.5, 479.7, 479.9, 479.11, and 479.13, concerning examinations for volunteer fire fighter certification. The subject matter of the repealed sections will be replaced by proposed new sections dealing with the same subject. Mr. Anthony C. Calagna, Fire Fighter Advisory Committee Chairman, has determined that for the first five year period the repeal is in effect there will be no fiscal implications for state or local governments as a result of enforcing or administering the repeal. Mr. Calagna has also determined that for each of the first five years the repeal is in effect the public benefit anticipated as a result of enforcing the repeal will be replaced with new sections that comply with legislative changes. There are no additional costs of compliance for small or large businesses or individuals required to comply with the changes. There is no local employment impact resulting from the change. Comments on the proposal may be submitted to: Gary L. Warren Sr., Executive Director, Texas Commission on Fire Protection, P.O. Box 2286, Austin, Texas 78768-2286 or e-mail to tcfp@mail.capnet.state.tx.us. The repeal is proposed under Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and Texas Government Code, sec.419.071, which provides the commission with authority to establish voluntary certification standards for volunteer fire fighters. Texas Government Code, sec.419.071 is affected by the proposed repeal. sec.479.1. Requirements-General. sec.479.3. Definitions. sec.479.5. Procedures. sec.479.7. Eligibility. sec.479.9. Grading. sec.479.11. Performance Skills. sec.479.13. Testing For Certification Status. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State on May 11, 1998. TRD-9807613 T.R. Thompson General Counsel Texas Commission on Fire Protection Earliest possible date of adoption: June 21, 1998 For further information, please call: (512) 918-7189 CHAPTER 481. Volunteer Fire Fighter Certification Fees 37 TAC sec.sec.481.1, 481.3, 481.5, 481.7, 481.9, 481.11 (Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Commission on Fire Protection or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The Texas Commission on Fire Protection proposes the repeal of sec.sec.481.1, 481.3, 481.5, 481.7, 481.9, and 481.11, concerning volunteer fire fighter certification fees. The subject matter of the repealed sections will be replaced by proposed new sections dealing with the same subject. Mr. Anthony C. Calagna, Fire Fighter Advisory Committee Chairman, has determined that for the first five year period the repeal is in effect there will be no fiscal implications for state or local governments as a result of enforcing or administering the repeal. Mr. Calagna has also determined that for each of the first five years the repeal is in effect the public benefit anticipated as a result of enforcing the repeal will be replaced with new sections that comply with legislative changes. There are no additional costs of compliance for small or large businesses or individuals required to comply with the changes. There is no local employment impact resulting from the change. Comments on the proposal may be submitted to: Gary L. Warren Sr., Executive Director, Texas Commission on Fire Protection, P. O. Box 2286, Austin, Texas 78768-2286 or e-mail to tcfp@mail.capnet.state.tx.us. The repeal is proposed under Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and Texas Government Code, sec.419.071, which provides the commission with authority to establish voluntary certification standards for volunteer fire fighters. Texas Government Code, sec.419.071 is affected by the proposed repeal. sec.481.1. Fees-Purpose and Scope. sec.481.3. Fees-Participation and Certification. sec.481.5. Fees-Standards Manual. sec.481.7. Fees-Volunteer Curriculum Manual. sec.481.9. Fees-Copying. sec.481.11. Fees-Examinations. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State on May 11, 1998. TRD-9807614 T.R. Thompson General Counsel Texas Commission on Fire Protection Earliest possible date of adoption: June 21, 1998 For further information, please call: (512) 918-7189 CHAPTER 483. Volunteer Fire Fighter Safety 37 TAC sec.sec.483.1, 483.3, 483.5 (Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Commission on Fire Protection or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The Texas Commission on Fire Protection proposes the repeal of sec.sec.483.1, 483.3, and 483.5, concerning volunteer fire fighter safety. The subject matter of the repealed sections will be replaced by proposed new sections dealing with the same subject. Mr. Anthony C. Calagna, Fire Fighter Advisory Committee Chairman, has determined that for the first five year period the repeal is in effect there will be no fiscal implications for state or local governments as a result of enforcing or administering the repeal. Mr. Calagna has also determined that for each of the first five years the repeal is in effect the public benefit anticipated as a result of enforcing the repeal will be replaced with new sections that comply with legislative changes. There are no additional costs of compliance for small or large businesses or individuals required to comply with the changes. There is no local employment impact resulting from the change. Comments on the proposal may be submitted to: Gary L. Warren Sr., Executive Director, Texas Commission on Fire Protection, P.O. Box 2286, Austin, Texas 78768-2286 or e-mail to tcfp@mail.capnet.state.tx.us. The repeal is proposed under Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and Texas Government Code, sec.419.071, which provides the commission with authority to establish voluntary certification standards for volunteer fire fighters. Texas Government Code, sec.419.071 is affected by the proposed repeal. sec.483.1. Protective Clothing for Volunteer Fire Fighters. sec.483.3. Self-Contained Breathing Apparatus for Volunteer Fire Fighters. sec.483.5. Commission Recommendations . This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State on May 11, 1998. TRD-9807615 T.R. Thompson General Counsel Texas Commission on Fire Protection Earliest possible date of adoption: June 21, 1998 For further information, please call: (512) 918-7189 CHAPTER 485. Volunteer Fire Fighter Continuing Education 37 TAC sec.sec.485.1, 485.3, 485.5, 485.7, 485.9, 485.11 (Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Commission on Fire Protection or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The Texas Commission on Fire Protection proposes the repeal of sec.sec.485.1, 485.3, 485.5, 485.7, 485.9, and 485.11, concerning volunteer fire fighter continuing education. The subject matter of the repealed sections will be replaced by proposed new sections dealing with the same subject. Mr. Anthony C. Calagna, Fire Fighter Advisory Committee Chairman, has determined that for the first five year period the repeal is in effect there will be no fiscal implications for state or local governments as a result of enforcing or administering the repeal. Mr. Calagna has also determined that for each of the first five years the repeal is in effect the public benefit anticipated as a result of enforcing the repeal will be replaced with new sections that comply with legislative changes. There are no additional costs of compliance for small or large businesses or individuals required to comply with the changes. There is no local employment impact resulting from the change. Comments on the proposal may be submitted to: Gary L. Warren Sr., Executive Director, Texas Commission on Fire Protection, P.O. Box 2286, Austin, Texas 78768-2286 or e-mail to tcfp@mail.capnet.state.tx.us. The repeal is proposed under Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and Texas Government Code, sec.419.071, which provides the commission with authority to establish voluntary certification standards for volunteer fire fighters. Texas Government Code, sec.419.071 is affected by the proposed repeal. sec.485.1. Objective. sec.485.3. Definitions. sec.485.5. Requirements. sec.485.7. Subject for Satisfying Fire Fighter Requirements. sec.485.9. Continuing Education for Volunteer Fire Inspection Personnel. sec.485.11. Continuing Education for Volunteer Fire Investigation Personnel. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State on May 11, 1998. TRD-9807616 T.R. Thompson General Counsel Texas Commission on Fire Protection Earliest possible date of adoption: June 21, 1998 For further information, please call: (512) 918-7189 CHAPTER 487. Eligibility for Volunteer Fire Fighter Certification as Fire Protection Personnel 37 TAC sec.487.1, sec.487.3 (Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Commission on Fire Protection or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The Texas Commission on Fire Protection proposes the repeal of sec.487.1 and sec.487.3, concerning eligibility for volunteer fire fighter certification as fire protection personnel. The subject matter of the repealed sections will be replaced by proposed new sections dealing with the same subject. Mr. Anthony C. Calagna, Fire Fighter Advisory Committee Chairman, has determined that for the first five year period the repeal is in effect there will be no fiscal implications for state or local governments as a result of enforcing or administering the repeal. Mr. Calagna has also determined that for each of the first five years the repeal is in effect the public benefit anticipated as a result of enforcing the repeal will be replaced with new sections that comply with legislative changes. There are no additional costs of compliance for small or large businesses or individuals required to comply with the changes. There is no local employment impact resulting from the change. Comments on the proposal may be submitted to: Gary L. Warren Sr., Executive Director, Texas Commission on Fire Protection, P.O. Box 2286, Austin, Texas 78768-2286 or e-mail to tcfp@mail.capnet.state.tx.us. The repeal is proposed under Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and Texas Government Code, sec.419.071, which provides the commission with authority to establish voluntary certification standards for volunteer fire fighters. Texas Government Code, sec.419.071 is affected by the proposed repeal. sec.487.1. Eligibility. sec.487.3. Employment Requirements. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State on May 11, 1998. TRD-9807617 T.R. Thompson General Counsel Texas Commission on Fire Protection Earliest possible date of adoption: June 21, 1998 For further information, please call: (512) 918-7189 CHAPTER 489. Volunteer Fire Department Inspections 37 TAC sec.sec.489.1, 489.3, 489.5, 489.7, 489.9 (Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Commission on Fire Protection or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The Texas Commission on Fire Protections proposes the repeal of sec.sec.489.1, 489.3, 489.5, 489.7, and 489.9, concerning volunteer fire department inspections. The subject matter of the repealed sections will be replaced by proposed new sections dealing with the same subject. Mr. Anthony C. Calagna, Fire Fighter Advisory Committee Chairman, has determined that for the first five year period the repeal is in effect there will be no fiscal implications for state or local governments as a result of enforcing or administering the repeal. Mr. Calagna has also determined that for each of the first five years the repeal is in effect the public benefit anticipated as a result of enforcing the repeal will be replaced with new sections that comply with legislative changes. There are no additional costs of compliance for small or large businesses or individuals required to comply with the changes. There is no local employment impact resulting from the change. Comments on the proposal may be submitted to: Gary L. Warren Sr., Executive Director, Texas Commission on Fire Protection, P.O. Box 2286, Austin, Texas 78768-2286 or e-mail to tcfp@mail.capnet.state.tx.us. The repeal is proposed under Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and Texas Government Code, sec.419.071, which provides the commission with authority to establish voluntary certification standards for volunteer fire fighters. Texas Government Code, sec.419.071 is affected by the proposed repeal. sec.489.1. Request for Inspection. sec.489.3. Report of Inspection. sec.489.5. Administrative Penalties. sec.489.7. Training Facilities. sec.489.9. Certificate of Compliance. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State on May 11, 1998. TRD-9807618 T.R. Thompson General Counsel Texas Commission on Fire Protection Earliest possible date of adoption: June 21, 1998 For further information, please call: (512) 918-7189 TITLE 40. SOCIAL SERVICES AND ASSISTANCE PART I. Texas Department of Human Services CHAPTER 3.Income Assistance Services The Texas Department of Human Services (DHS) proposes to amend sec.3.704, concerning types, sec.3.705, concerning selling of real property, and sec.3.902, concerning types of income, in its Income Assistance Services chapter. The purpose of the amendments is to comply with an agency initiative and the Program Simplification Workgroup on the simplification of certain income and resources in the Temporary Assistance for Needy Families (TANF) and Medical programs. In addition, the subsections have been renumbered and rule citings updated. Eric M. Bost, commissioner, has determined that for the first five- year period the proposed sections will be in effect there will be no fiscal implications for state or local governments as a result of enforcing or administering the sections. Mr. Bost also has determined that for each year of the first five years the sections are in effect they will have minimal impact on workload and benefit costs. Public benefit anticipated as a result of enforcing the sections will be that TANF policies will be made compatible with the current Food Stamp policies. It is not anticipated that these changes will affect small businesses. These changes are technical in nature and neither drastically increase or decrease client eligibility/benefits to the point that local businesses would be impacted. Data to analyze possible effects is very limited. TANF benefit costs may increase slightly because the Food Stamp policy is more lenient for the targeted income and resource criteria. A small percentage of the income and resource denials per month could be affected, but the associated benefits will be negligible. There is no anticipated economic cost to persons who are required to comply with the proposed sections. Questions about the content of this proposal may be directed to Rita King at (512) 438-4148 in DHS's Client Self-Support Services Department. Written comments on the proposal may be submitted to Supervisor, Rules and Handbooks Unit-261, Texas Department of Human Services E-205, P.O. Box 149030, Austin, Texas 78714-9030, within 30 days of publication in the Texas Register. SUBCHAPTER G.Resources 40 TAC sec.sec.3.704, 3.705 The amendments are proposed under the Human Resources Code, Title 2, Chapters 22 and 31, which provides the department with the authority to administer public and financial assistance programs. The amendments implement the Human Resources Code, sec.sec.22.001-22.030 and sec.sec.31.001-31.0325. sec.3.704. Types of Resources.
                                                                                                                                                                                                                                                                                                                                  (a) Temporary Assistance for Needy Families (TANF)-Countable Resources. The Texas Department of Human Service (DHS) counts the following resources in TANF
                                                                                                                                                                                                                                                                                                                                    [Aid to Families with Dependent Children (AFDC). The following are countable resources in AFDC]: [(1) Income-producing property. The Texas Department of Human Services (DHS) exempts personal possession retained for business purposes as an available resource.] (1)
                                                                                                                                                                                                                                                                                                                                      [(2)] Individual retirement accounts (IRAs). DHS counts IRAs as resources, even if there is a penalty for early withdrawal. DHS deducts the early withdrawal penalty and counts the remainder as a resource;
                                                                                                                                                                                                                                                                                                                                        [.] (2)
                                                                                                                                                                                                                                                                                                                                          [(3)] Keogh Plans. DHS counts Keogh Plans as resources, even if there is a penalty for early withdrawal, and counts the remainder as a resource. DHS does not count Keogh Plans as resources if there is a contractual withdrawal agreement among other people who are not household members who share the same fund. DHS considers this an inaccessible resource;
                                                                                                                                                                                                                                                                                                                                            [.] [(4) Life insurance. DHS counts the cash value of life insurance policies.] (3)
                                                                                                                                                                                                                                                                                                                                              [(5)] Liquid resources. DHS counts liquid resources which are readily negotiable unless they are excluded in subsection (b)(9)
                                                                                                                                                                                                                                                                                                                                                [(14)] of this section. Examples include cash, checking or savings accounts, savings certificates, stocks or bonds;
                                                                                                                                                                                                                                                                                                                                                  [.] (4)
                                                                                                                                                                                                                                                                                                                                                    [(6)] Nonliquid resources. DHS counts nonliquid resources such as personal property, licensed and unlicensed vehicles, buildings, land, and any other property not specifically exempt; and
                                                                                                                                                                                                                                                                                                                                                      [.] (5)
                                                                                                                                                                                                                                                                                                                                                        Real property. DHS counts the value of real property unless otherwise exempt.
                                                                                                                                                                                                                                                                                                                                                          (b) Temporary Assistance for Needy Families (TANF)-Excludable Resources. DHS excludes the following resources in TANF
                                                                                                                                                                                                                                                                                                                                                            [Aid to Families with Dependent Children. Exclusions from resources in AFDC are]: (1) Burial plot. DHS exempts all burial plots owned by
                                                                                                                                                                                                                                                                                                                                                              [one burial plot for each] household members
                                                                                                                                                                                                                                                                                                                                                                [member]. (2)
                                                                                                                                                                                                                                                                                                                                                                  Crime victim payments. DHS exempts payments received from crime victims compensation programs.
                                                                                                                                                                                                                                                                                                                                                                    (3)
                                                                                                                                                                                                                                                                                                                                                                      [(2)] Disability payments. DHS exempts disability payments resulting from Agent Orange Settlement Agreements or the Radiation Exposure Compensation Act. (4)
                                                                                                                                                                                                                                                                                                                                                                        Earned income tax credit (EITC). DHS exempts EITC payments as follows:
                                                                                                                                                                                                                                                                                                                                                                          (A)
                                                                                                                                                                                                                                                                                                                                                                            for applicants, EITC payments are exempt for the month the payment is received and for the following months; and
                                                                                                                                                                                                                                                                                                                                                                              (B)
                                                                                                                                                                                                                                                                                                                                                                                for ongoing recipients, EITC payments are exempt the month of receipt and the following 11 months.
                                                                                                                                                                                                                                                                                                                                                                                  [(4) Sale of a homestead. DHS counts the proceeds from the sale as an available resource.] (5)
                                                                                                                                                                                                                                                                                                                                                                                    [(3)] Homestead. DHS exempts the usual residence and surrounding property which is not separated by property owned by others. (A) The exemption remains in effect if the surrounding property is separated from the home by public right of way, such as roads. (B)
                                                                                                                                                                                                                                                                                                                                                                                      The homestead exemption applies to only one house on the property.
                                                                                                                                                                                                                                                                                                                                                                                        (C)
                                                                                                                                                                                                                                                                                                                                                                                          [(B)] The home and surrounding property remain exempt when temporarily unoccupied for reasons of employment, training for future employment, illness, casualty, or natural disaster and the household intends to return. (D)
                                                                                                                                                                                                                                                                                                                                                                                            DHS counts the proceeds from the sale of a homestead as an available resource.
                                                                                                                                                                                                                                                                                                                                                                                              (6)
                                                                                                                                                                                                                                                                                                                                                                                                [(5)] Inaccessible resources. DHS exempts cash values of resources that are not legally available to the household. (7)
                                                                                                                                                                                                                                                                                                                                                                                                  Income-producing property. DHS exempts personal possessions retained for business purposes and those necessary for the maintenance of vehicles exempted as income-producing property or necessary for transporting a physically disabled household member as an available resource.
                                                                                                                                                                                                                                                                                                                                                                                                    (8)
                                                                                                                                                                                                                                                                                                                                                                                                      Life insurance. DHS exempts the cash value of life insurance policies.
                                                                                                                                                                                                                                                                                                                                                                                                        (9)
                                                                                                                                                                                                                                                                                                                                                                                                          Liquid resources. DHS excludes liquid resources resulting from earned income of a child as specified in Human Resources Code sec.31.0031, for clients who are not members of the State Welfare Reform Control Group described in sec.3.6004 of this title (relating to Applicability of Aid to Families with Dependent Children (AFDC) Policies Resulting from Human Resources Code sec.31.0031, Dependent Child's Income; Human Resources Code sec.31.012, Mandatory Work or Participation in Employment Activities Through the Job Opportunities and Basic Skills Training Program; Human Resources Code sec.31.014, Two-Parent Families; and Human Resources Code sec.31.032, Investigation and Determination of Eligibility).
                                                                                                                                                                                                                                                                                                                                                                                                            (10)
                                                                                                                                                                                                                                                                                                                                                                                                              [(6)] Lump sum payments. DHS counts income tax refunds as resources as stipulated in 45 Code of Federal Regulations sec.233.20(a)(3)(iv)(E) effective on August 1, 1996, and the Social Security Act as amended by Title I of Public Law 104-193, the Personal Responsibility and Work Opportunity Reconciliation Act of 1996
                                                                                                                                                                                                                                                                                                                                                                                                                . [(7) Earned income credits (EIC). EIC payments are exempt for the month the payment is received and for the following month.] (11)
                                                                                                                                                                                                                                                                                                                                                                                                                  [(8)] Prepaid burial insurance. DHS exempts one prepaid burial insurance policy, prepaid funeral plan, or prepaid funeral agreement with a cash value of $1,500 or less for each member of the certified group. (12)
                                                                                                                                                                                                                                                                                                                                                                                                                    [(9)] Personal possessions. DHS exempts personal possessions such as clothing, jewelry, furniture, livestock, and farm equipment, if used to meet personal needs essential for daily living. (13) Reimbursements. DHS counts reimbursements as a resource in the month after receipt, but
                                                                                                                                                                                                                                                                                                                                                                                                                      exempts reimbursements for repairing or replacing a lost or damaged resource which would not otherwise affect eligibility [are exempt] if the applicant uses the reimbursement for the intended purpose. (14)
                                                                                                                                                                                                                                                                                                                                                                                                                        [(10)] Resources of an alien's sponsor. DHS determines the sponsor's countable resources in the same manner as the applicant's. DHS reduces the total value of the sponsor's resources by $1,500 and considers the remainder available to the alien. (15)
                                                                                                                                                                                                                                                                                                                                                                                                                          [(11)] Resources exempted by federal law. DHS exempts government payments by the Individual and Family Grant Program or the Small Business Administration provided to rebuild a home or replace personal possessions damaged in a disaster, if the household is subject to legal sanction if the funds are not used as intended. DHS exempts payments made under the following Acts: (A) Alaska Native Claims Settlement Act (Public Law 92-203, as amended by Public Law 100-241); (B) Sac and Fox Indian Claims Agreement; (C) Grand River Band of Ottawa Indians; (D) Passamaquoddy Tribe, the Penobscot Nation, and the Houlton Band of Maliseet Indians received according to the Maine Indian Claims Settlement Act of 1980; (E) Confederated Tribes and Bands of the Yakima Indian National and the Apache Tribe of the Mescalero Reservation received from the Indian Claims Commission; (F) Seneca Nation Settlement Act of 1990 (Public Law 101-503); (G) DHS exempts payments from Indian lands held jointly with the tribe or land that can be sold only with approval of the Bureau of Indian Affairs; (H) Navajo or Hopi Tribes (Public Law 93-531)
                                                                                                                                                                                                                                                                                                                                                                                                                            [DHS exempts funds distributed by the Secretary of the Interior, as stipulated in Public Law 98-64, sec.2 (relating to Tribal Trust Funds) and in Public Law 97-458, sec.4 (relating to Judgement Funds Granted due to a Claim Against the United States)]; (I) DHS exempts reimbursements from the Uniform Relocation Assistance and Real Properties Acquisition Policy Act of 1970; and
                                                                                                                                                                                                                                                                                                                                                                                                                              (J) DHS exempts payments or allowances made under any federal law for the purpose of energy assistance. (16)
                                                                                                                                                                                                                                                                                                                                                                                                                                Retirement accounts. DHS exempts money in retirement, vested retirements, and 401K accounts, even if it is accessible with a penalty.
                                                                                                                                                                                                                                                                                                                                                                                                                                  (17)
                                                                                                                                                                                                                                                                                                                                                                                                                                    [(12)] Vehicles used for transportation. (A) For clients who are members of the State Welfare Reform Control Group described in sec.3.6004 of this title, (relating to Applicability of Aid to Families with Dependent Children (AFDC) Policies Resulting from Human Resources Code sec.31.0031, Dependent Child's Income; Human Resources Code sec.31.012, Mandatory Work or Participation in Employment Activities Through the Job Opportunities and Basic Skills Training Program; Human Resources Code sec.31.014, Two-Parent Families; and Human Resources Code sec.31.032, Investigation and Determination of Eligibility), DHS exempts the value of one vehicle owned and used by the certified group for transportation if the equity is less than $1,500. If the equity exceeds $1,500, DHS counts the excess as a resource. DHS counts the equity of all other vehicles. (B) For all other TANF
                                                                                                                                                                                                                                                                                                                                                                                                                                      [AFDC] clients, DHS exempts licensed vehicles as specified in Human Resources Code sec.31.032(d)(2). [(14) Liquid resources. DHS excludes liquid resources resulting from earned income of a child as specified in Human Resources Code, sec. 31.0031, for clients who are not members of the State Welfare Reform Control Group described in sec. 3.6004 of this title (relating to Applicability of Aid to Families with Dependent Children (AFDC) Policies Resulting from Human Resources Code sec. 31.0031, Dependent Child's Income; Human Resources Code sec. 31.012, Mandatory Work or Participation in Employment Activities Through the Job Opportunities and Basic Skills Training Program; Human Resources Code sec. 31.014, Two-Parent Families; and Human Resources Code sec. 31.032, Investigation and Determination of Eligibility).] (c)-(d) (No change.) sec.3.705. Selling of Real Property. Temporary Assistance for Needy Families (TANF)
                                                                                                                                                                                                                                                                                                                                                                                                                                        [Aid to Families with Dependent Children] applicants who have real property which exceeds the resource limits can be certified for assistance [for up to six months] if they agree to make a good faith effort to sell the property [and sign an agreement to reimburse DHS for AFDC benefits received during the six-month period]. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State, on May 7, 1998. TRD-9807454 Glenn Scott General Counsel, Legal Services Texas Department of Human Services Earliest possible date of adoption: June 21, 1998 For further information, please call: (512) 438-3765 SUBCHAPTER I.Income 40 TAC sec.3.902 The amendment is proposed under the Human Resources Code, Title 2, Chapters 22 and 31, which provides the department with the authority to administer public and financial assistance programs. The amendment implements the Human Resources Code, sec.sec.22.001-22.030 and sec.sec.31.001-31.0325. sec.3.902.Types of Income. (a) Temporary Assistance for Needy Families (TANF)-Countable Income
                                                                                                                                                                                                                                                                                                                                                                                                                                          [Aid to Families with Dependent Children]. The Texas Department of Human Services (DHS) counts the following as income: (1) (No change.) (2) cash gifts and contributions. DHS counts these as income, unless they are made by a private, nonprofit organization on the basis of need and total $300 or less per household in a federal fiscal quarter
                                                                                                                                                                                                                                                                                                                                                                                                                                            [exempt as stipulated in 45 Code of Federal Regulations sec.233.20(a)(3)(iv)(F)]; (3)-(7) (No change.) (8)
                                                                                                                                                                                                                                                                                                                                                                                                                                              disqualified legal parent. DHS counts the income of a legal parent disqualified for noncompliance with social security number requirements, third party resource requirements, intentional program violations, child support requirements, employment services requirements or failure to report temporary absence of a child using regular budgeting policy and allowing an exclusion for diverted income only as specified in subsection (b)(2) of this section. DHS counts the income of a parent(s) disqualified because of alien status as specified in 45 Code of Federal Regulation (CFR) sec.233.50(c) effective on August 1, 1996, and the Social Security Act as amended by Title I of Public Law 104-193, the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, citizenship requirements as specified in sec.3.603(a) of this title (relating to Disqualification because Verification of Citizenship Is Pending), or exhaustion of time limits as specified in sec.3.501(b)(3) of this title (relating to Aid to Families with Dependent Children (AFDC) and Food Stamp Household Determination). The income of such a parent is counted as specified in 45 CFR sec.233.20(a)(3)(B)(vi) effective on August 1, 1996, and the Social Security Act as amended by Title I of Public Law 104-193, the Personal Responsibility and Work Opportunity Reconciliation Act of 1996;
                                                                                                                                                                                                                                                                                                                                                                                                                                                (9)
                                                                                                                                                                                                                                                                                                                                                                                                                                                  [(8)] dividends; (10)
                                                                                                                                                                                                                                                                                                                                                                                                                                                    [(9)] government-sponsored programs; (11)
                                                                                                                                                                                                                                                                                                                                                                                                                                                      [(10)] interest, dividends, royalties; [(11) job training payments that duplicate assistance provided under the AFDC needs standard;] (12) (No change.) (13) noneducational grants [as stipulated in 45 Code of Federal Regulations sec.233.20(a)(3)(iv)(B)]; (14) Nonrecurring Lump Sum Payments. DHS counts lump sum payments as income as stipulated in 45 Code of Federal Regulations sec.233.20(a)(3)(ii)(F) effective on August 1, 1996, and the Social Security Act as amended by Title I of Public Law 104-193, the Personal Responsibility and Work Opportunity Reconciliation Act of 1996,
                                                                                                                                                                                                                                                                                                                                                                                                                                                        except when shortening the period of ineligibility. For this procedure DHS shortens the ineligibility period only if: (A)-(B) (No change.) (15)-(16) (No change.) [(17) disqualified legal parent. DHS counts the income of a legal parent disqualified for noncompliance with social security number requirements, third party resource requirements, intentional program violations, child support requirements, employment services requirements or failure to report temporary absence of a child using regular budgeting policy and allowing an exclusion for diverted income only as specified in subsection (b)(1) of this section. DHS counts the income of a parent(s) disqualified because of alien status as specified in 45 Code of Federal Regulations (CFR) sec. 233.50(c), citizenship requirements as specified in sec. 3.603(a) of this title (relating to Disqualification because Verification of Citizenship Is Pending), or exhaustion of time limits as specified in sec. 3.501(b)(3) of this title (relating to Aid to Families with Dependent Children (AFDC) and Food Stamp Household Determination). The income of such a parent is counted as specified in 45 CFR sec. 233.20(a)(3)(B)(vi); ] (17)
                                                                                                                                                                                                                                                                                                                                                                                                                                                          [(18)] pensions; (18)
                                                                                                                                                                                                                                                                                                                                                                                                                                                            [(19)] retirement, survivors and disability income
                                                                                                                                                                                                                                                                                                                                                                                                                                                              [insurance] (RSDI); (19)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                [(20)] reimbursement. DHS counts reimbursements as income unless the reimbursement is irregular and unpredictable or the reimbursement is for a special item not included in DHS's standard of need; (20)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                  [(21)] retirement benefits; (21)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                    [(22)] royalties; (22)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                      [(23)] self-employment income. DHS counts self-employment income according to requirements in 45 Code of Federal Regulations sec.233.20(a)(6)(v)(B) effective on August 1, 1996, and the Social Security Act as amended by Title I of Public Law 104- 193, the Personal Responsibility and Work Opportunity Reconciliation Act of 1996
                                                                                                                                                                                                                                                                                                                                                                                                                                                                        ; (23)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                          [(24)] stepparents. DHS counts stepparents' income according to requirements in 45 Code of Federal Regulations sec.233.20(a)(3)(xiv) effective on August 1, 1996, and the Social Security Act as amended by Title I of Public Law 104-193, the Personal Responsibility and Work Opportunity Reconciliation Act of 1996,
                                                                                                                                                                                                                                                                                                                                                                                                                                                                            except for stepparent budgeting as stipulated in the Omnibus Budget Reconciliation Act of 1993; (24)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                              [(25)] trust funds. DHS counts as income trust withdrawals or dividends which could be received by the applicant; (25)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                [(26)] unemployment compensation; (26)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  [(27)] veterans' benefits. DHS counts veterans' benefits as income but exempts benefits that meet a special need not included in DHS's standard of need; (27)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    [(28)] wages, salaries, and commissions received in cash or in kind. DHS exempts wages, salaries, and commissions received under the work subsidy component of the Job Opportunities and Basic Skills Training (JOBS) program, as specified in sec.3.7102 of this title (relating to Income and Resources
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      from Work Subsidy); and
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        (28)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          [(29)] worker's compensation. DHS exempts any amount of the benefits that is for payment of medical expenses incurred before Medicaid eligibility began if the client uses the benefit to pay these expenses. (b) Temporary Assistance for Needy Families (TANF)-Excludable Income. DHS excludes the following as income
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            [Aid to families with dependent children. Exclusions from income for AFDC are]: (1)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              children's earned income. DHS exempts this income if the child is a full-time student as defined by the school or a part-time student working less than 30 hours a week. There is no limit on the number of hours a full-time student can work;
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                (2)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  [(1)] disability payments. DHS exempts disability payments resulting from Agent Orange Settlement Agreements or the Radiation Exposure Compensation Act; (3)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    [(2)] diverted income. DHS diverts income for all persons allowed in 45 Code of Federal Regulations sec.233.20(a)(3)(ii)(C) effective on August 1, 1996, and the Social Security Act as amended by Title I of Public Law 104- 193, the Personal Responsibility and Work Opportunity Reconciliation Act of 1996
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      ; (4)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        [(3)] Domestic Volunteer Service Act. DHS exempts payments received by volunteers for services performed in programs stipulated in the Domestic Volunteer Service Act of 1973, Title II (Public Law 93-113). DHS exempts payments made to applicants serving as VISTA volunteers under Title I; (5)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          [(4)] earned income tax
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            credits. DHS exempts this income in the 185%, 100%, and recognizable needs tests; (6)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              [(5)] educational assistance. DHS exempts general education assistance payments as stipulated in 45 Code of Federal Regulations sec.233.20(a)(3)(iv) and sec.233.20(a)(4)(ii)(d) effective on August 1, 1996, and the Social Security Act as amended by Title I of Public Law 104-193, the Personal Responsibility and Work Opportunity Reconciliation Act of 1996
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                . DHS also exempts remaining amounts of educational assistance pursuant to 45 Code of Federal Regulations sec.233.20(a)(3)(vii) effective on August 1, 1996, and the Social Security Act as amended by Title I of Public Law 104-193, the Personal Responsibility and Work Opportunity Reconciliation Act of 1996
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  ; (7)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    [(6)] energy assistance. DHS exempts home energy assistance as stipulated in 45 Code of Federal Regulations sec.233.53(a)-(c) effective on August 1, 1996, and the Social Security Act as amended by Title I of Public Law 104-193, the Personal Responsibility and Work Opportunity Reconciliation Act of 1996
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      ; (8)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        [(7)] food stamp value; (9)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          [(8)] foster care payments; (10)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            government housing assistance. DHS exempts government rent or housing subsidies as stipulated in 45 Code of Federal Regulations sec.233.20(a)(3)(xii) effective on August 1, 1996, and the Social Security Act as amended by Title I of Public Law 104-193, the Personal Responsibility and Work Opportunity Reconciliation Act of 1996;
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              (11)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                [(9)] in-kind income. DHS exempts the value of unearned in-kind assistance; (12)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  [(10)] job training allowances. DHS exempts payments from other agencies that do not duplicate assistance provided under the TANF
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    [AFDC] needs standard and all JTPA payments except on-the-job training (OJT) payments funded under Title II, Section 204 #5 of the JTPA. OJT payments funded under Title II, Section 204 of the JTPA are treated as earned income
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      [as stipulated in 45 Code of Federal Regulations sec.233.20(a)(3)(vii)(a)-(b). DHS also exempts unearned income payments from the Job Training Partnership Act (JTPA) of 1982 for AFDC children and JTPA payments of $500 or less per month for AFDC adults participating in the Work Experience Program, Limited Work Experience Program, or Summer Youth Program]; (13)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        job training payments. DHS exempts any portion that is earmarked as a reimbursement for training-related expenses;
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          (14)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            [(11)] native and Indian claims. DHS exempts payments made under the Alaska Native Claims Settlement Act (Public Law 92-203, as amended by Public Law 100-241), Seneca Nation Settlement Act of 1990 (Public Law 101-503), and funds distributed or held in trust by the Indian Claims Commission for members of Indian tribes under Public Laws 92-254; 94-540; 94-114, sec.6; 95-433; 96- 420; 98-64, sec.2; and 93-134, sec.7 (as amended by Public Law 97.458, sec.4); (15)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              [(12)] noneducational loans; (16)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                [(13)] nutrition program assistance. DHS exempts the value of supplemental food assistance under the Child Nutrition Act of 1966 and special food services programs for children under the National School Lunch Act. DHS exempts benefits received under the Older Americans Act of 1965, Title VII, Nutrition Program for the Elderly; (17)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  [(14)] relocation assistance benefits. DHS exempts benefits received under the Uniform Relocation Assistance and Real Property Acquisition Act, Title II; (18)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    [(15)] SSI as stipulated in 45 Code of Federal Regulations sec.233.20(a)(3)(x) effective on August 1, 1996, and the Social Security Act as amended by Title I of Public Law 104-193, the Personal Responsibility and Work Opportunity Reconciliation Act of 1996
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      ; (19)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        [(16)] third-party funds. DHS exempts money received and used for care and maintenance of a third-party beneficiary who is not a household member; and
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          (20)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            [(17)] vendor payments. DHS does not count payments made directly to the applicant's creditor or person providing the service if the person or organization making the payments is outside the household.
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              [;] [(18) children's earned income. DHS exempts this income if the child is a full- time student as defined by the school or a part-time student working less than 30 hours a week. There is no limit on the number of hours a full-time student can work;] [(19) government housing assistance. DHS exempts government rent or housing subsidies as stipulated in 45 Code of Federal Regulations sec. 233.20(a)(3)(xii);] [(20) crime victim compensation. DHS exempts payments received from crime victims compensation programs.] (c)-(d) (No change.) This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State, on May 7, 1998. TRD-9807455 Glenn Scott General Counsel, Legal Services Texas Department of Human Services Earliest possible date of adoption: June 21, 1998 For further information, please call: (512) 438-3765 CHAPTER 15.Medicaid Eligibility SUBCHAPTER F.Budgets and Payment Plans 40 TAC sec.15.503 The Texas Department of Human Services (DHS) proposes to amend sec.15.503, concerning protection of spousal income and resources, in its Medicaid Eligibility chapter. The purpose of the amendment is to correct the formula for determining the increased protected resource amount at appeal. Eric M. Bost, commissioner, has determined that for the first five- year period the proposed amendment will be in effect there will be no fiscal implications for state or local governments as a result of enforcing or administering the amendment. Mr. Bost also has determined that for each year of the first five years the amendment is in effect the public benefit anticipated as a result of enforcing the amendment will be that the formula will be applied correctly statewide. The rule correction clarifies existing policy and has no impact on small or large businesses or providers. There will be no effect on small businesses as a result of enforcing or administering the amendment. There is no anticipated economic cost to persons who are required to comply with the proposed amendment. Questions about the content of this proposal may be directed to Judy Coker at (512) 438-3227 in DHS's Long-Term Care section. Written comments on the proposal may be submitted to Supervisor, Rules and Handbooks Unit-234, Texas Department of Human Services E-205, P.O. Box 149030, Austin, Texas 78714-9030, within 30 days of publication in the Texas Register. The amendment is proposed under the Human Resources Code, Title 2, Chapters 22 and 32, which authorizes the department to administer public and medical assistance programs and under Texas Government Code sec.531.021, which provides the Health and Human Services Commission with the authority to administer federal medical assistance funds. The amendment implements sec.sec.22.001-22.030 and 32.001-32.042 of the Human Resources Code. sec.15.503.Protection of Spousal Income and Resources. (a)- (i) (No change.) (j) Formula for increased PRA at appeal. (1)- (3) (No change.) (4) The amount of resources to be protected is determined by using the formula specified in subparagraphs (A) through (D) of this paragraph
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                [: the sum of the annual income multiplied by 100 is divided by the interest on a one-year CD which equals the maximum dollar amount of resources to be protected.]. This formula is to be used to determine the maximum amount of resources to be protected regardless of the actual income a resource may or may not be producing at the time of the original PRA or at the time of the appeal hearing. (A)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  Subtract the community spouse's non-resource-producing income (including income diverted by the client, if any) from the monthly maintenance needs allowance (MMNA). The difference is additional monthly income needed by the community spouse.
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    (B)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      Multiply additional monthly income needed by the community spouse (from subparagraph (A) of this paragraph) by 12. The product equals annual income needed by the community spouse.
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        (C)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          Multiply annual income needed by the community spouse (from subparagraph (B) of this paragraph) by 100.
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            (D)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              Divide the product from subparagraph (C) of this paragraph by the interest rate for a one-year CD. Do not use a percentage.
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                (5) (No change.) (k) (No change.) This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State, on May 7, 1998. TRD-9807456 Glenn Scott General Counsel, Legal Services Texas Department of Human Services Earliest possible date of adoption: June 21, 1998 For further information, please call: (512) 438-3765 PART II. Texas Rehabilitation Commission CHAPTER 106. Contract Administration SUBCHAPTER A. Acquisition of Client Goods and Services 40 TAC sec.106.3 The Texas Rehabilitation Commission proposes an amendment to sec.106.3, concerning acquisition of client goods and services. In accordance with the Appropriations Act, sec.167, the Commission has reviewed the section and has determined that they should be readopted with changes. The section is being amended to delete language from subsection (c)(3) and to add a new paragraph (6). Charles E. Harrison, Jr., Deputy Commissioner for Financial Services, has determined that for the first five-year period the section is in effect, there will be no fiscal implications for state or local government. Mr. Harrison also has determined that for each year of the first five years the section is in effect the public benefit anticipated as a result of enforcing the section will be conformance with the language of the Rehabilitation Act Amendments of 1994. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the section as proposed. Comments on the proposal may be submitted to Roger Darley, Assistant General Counsel, Texas Rehabilitation Commission, 4900 North Lamar Boulevard, Suite 7300, Austin, Texas 78751. The amendment is proposed under the Texas Human Resources Code, Title 7, Chapter 111, sec.111.018 and sec.111.023, House Bill Number 1, Article IX, sec.167, which provides the Texas Rehabilitation Commission with the authority to promulgate rules consistent with Title 7, Texas Human Resources Code. No other statute, article, or code is affected by this proposal. sec.106.3. Criteria for Determining When a Contract Is Required. (a)-(b) (No change.) (c) If the business relationship with the other party involves purchase of client goods or services and one of the following conditions is met: (1)-(2) (No change.) (3) the goods or services are provided according to Commission designated standards and criteria [and fees which exceed a Commission policy-defined dollar volume threshold, or other defined risk factors]; (4) (No change.) (5) the need exists to clearly differentiate employee versus independent contractor status; then the appropriate instrument to establish the relationship with the other party is an express contract;
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  [ (6)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    defined high risk factors, or other conditions, exist that would make the establishment of an express contract in the best interests of the Commission. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State on May 11, 1998. TRD-9807651 Charles Schiesser Chief of Staff Texas Rehabilitation Commission Earliest possible date of adoption: June 21, 1998 For further information, please call: (512) 424-4050 PART XX. Texas Workforce Commission CHAPTER 800.General Administration SUBCHAPTER B.Allocation and Funding 40 TAC sec.800.51 The Texas Workforce Commission (Commission) proposes an amendment to sec.800.51, concerning the allocation of funds to local workforce development areas. The purpose of the amendment is to allow the Commission to locate other allocation and funding rules within Subchapter B that relate to allocations to various entities. Randy Townsend, Director of Finance, has determined that for the first five-year period the rule is in effect, there will be no fiscal impact to state or to local governments as a result of enforcing or administering the rule. There will be no foreseeable cost reductions to the state or to local governments, no net effect on revenues as a result of enforcing and administering the rule, and no foreseeable implications relating to costs or revenues to the state or to local governments associated with implementing the rule. There will be no effect on small businesses. There are no anticipated costs to persons who are required to comply with the rule as proposed. Alan Miller, Director of Workforce Development Division, has determined that for each year of the first five years the rule is in effect, the public benefit anticipated as a result of enforcing the rule will be clarification of the process by which funds are allocated for workforce services. Comments on the proposal may be submitted to Sandra Smith, Education and Special Services, Texas Workforce Commission Building, 101 East 15th Street, Room 526BT, Austin, Texas 78778, fax (512) 305-9182. Comments may also be submitted via e- mail to Ms. Smith at sandra.smith@twc.state.tx.us. The amendment is proposed under Texas Labor Code, sec.301.061, which provides the Texas Workforce Commission with the authority to adopt such rules as it deems necessary for the effective administration of the Act. Texas Labor Code, Chapter 301 and Chapter 302, will be affected by the amendment. sec.800.51.Scope and Purpose. (a)-(c) (No change) (d)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      Subsections (a)-(c) of this section shall apply to all sections contained in this subchapter unless a section specifically states otherwise.
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State, on May 11, 1998. TRD-9807564 J. Randel (Jerry) Hill General Counsel Texas Workforce Commission Earliest possible date of adoption: June 21, 1998 For further information, please call: (512) 463-8812 CHAPTER 807.Proprietary Schools The Texas Workforce Commission (Commission) proposes the review, pursuant to the Rule Review Plan, the repeal of 40 TAC Chapter 807, sec.sec.807.3, 807,101, 807.121-807.131 and new sec.sec.807.1-807.6, 807.11-807.17, 807.31-807.37, 807.51-807.53, 807.61- 807.65, 807.81-807.84, 807.91-807.104, 807.111-807.113, 807.121-807.126, 807.141-807.147, 807.161-807.164, 807.171-807.175, 807.191- 807.194, 807.211-807.214, 807.221, 807.222, 807.231-807.235, 807.251 and 807.252, concerning Proprietary Schools. The proposed rules interpret and implement the provisions of Texas Education Code, Chapter 132, Proprietary Schools (the Act). The new rules as proposed incorporate the requirements previously contained in 40 TAC Chapter 807, which is concurrently proposed for repeal. The new rules are a reorganization of the provisions of 40 TAC Chapter 807 with some changes to the requirements including simplification of the wording, removal of repetition of the statute, clarification of particular responsibilities, and changes to requirements as dictated by the review of the rules proposed for repeal. For a detailed comparison between the new rules as proposed and the rules proposed for repeal, please contact the Proprietary School Section at the address and phone number given below. Subchapter A of the proposed rules sets out the General Provisions. Specifically, sec.807.1 sets out the title and purpose of the rules, sec.807.2 sets out the definitions of terms, sec.807.3 sets out the information regarding the memorandum of understanding regarding improvement of quality of education and reduction of default rates, sec.807.4 sets out the waivers provisions, sec.807.5 sets out the exemptions provisions, and sec.807.6 sets out the processing periods. Subchapter B of the proposed rules interprets and clarifies statutory provisions relating to certificates of approval. Specifically, sec.807.11 sets out the provisions for original certificates of approval, sec.807.12 sets out the provisions for renewal of certificates of approval, sec.807.13 sets out the provisions for changes in ownership, sec.807.14 sets out the provisions for changes in locations, sec.807.15 sets out the provisions for notification of legal action, sec.807.16 sets out the provisions for approval to offer associate degrees, and sec.807.17 sets out penalties and sanctions. Subchapter C of the proposed rules interprets and clarifies statutory provisions relating to financial requirements. Specifically, sec.807.31 sets out definitions relating to financial stability, sec.807.32 sets out the standards for financial stability, sec.807.33 sets out the requirements for financial stability for an original certificate of approval, sec.807.34 sets out the requirements for financial stability for changes in ownership, sec.807.35 sets out the requirements for financial stability at renewal, sec.807.36 sets out the provisions for the submission of interim financial statements, and sec.807.37 sets out the provisions for audits required by the Commission. Subchapter D of the proposed rules sets out the provisions regarding representatives. Specifically, sec.807.51 sets out the representative requirements, sec.807.52 sets out the standards regarding representatives, and sec.807.53 sets out the limitations regarding representatives. Subchapter E of the proposed rules sets out the provisions regarding school directors and administrative staff. Specifically, sec.807.61 sets out the school director requirements, sec.807.62 sets out the school director qualifications and duties, sec.807.63 sets out the provisions for an acting school director, sec.807.64 sets out the requirements for a director of education, and sec.807.65 sets out the director of degree programs requirements. Subchapter F of the proposed rules sets out the provisions regarding instructors. Specifically, sec.807.81 sets out the instructor qualifications, sec.807.82 sets out the temporary instructor provisions, sec.807.83 sets out the instructor application provisions, and sec.807.84 sets out the schools' responsibilities regarding instructors. Subchapter G of the proposed rules sets out the provisions regarding courses of instruction. Specifically, sec.807.91 sets out the definitions relating to courses of instruction, sec.807.92 sets out the general information for programs, sec.807.93 sets out the additional program application provisions, sec.807.94 sets out the stated occupation provisions, sec.807.95 sets out the curriculum content, sec.807.96 sets out the curriculum length, sec.807.97 sets out the provisions regarding program title, sec.807.98 sets out the provisions regarding equipment, sec.807.99 sets out the provisions regarding facilities, sec.807.100 sets out admission requirements relating to programs, sec.807.101 sets out school responsibilities regarding programs, sec.807.102 sets out requirements regarding program revisions, sec.807.103 sets out program requirements for degree granting schools, and sec.807.104 sets out penalties relating to courses of instruction. Subchapter H of the proposed rules sets out the application fees and other charges. Specifically, sec.807.111 sets out the fee schedule, sec.807.112 sets out the fee schedule for renewal of a certificate of approval, and sec.807.113 sets out the provisions for installment payments of fees. Subchapter I of the proposed rules sets out the provisions regarding advertising. Specifically, sec.807.121 sets out general information regarding advertising, sec.807.122 sets out provisions regarding the methods of advertising, sec.807.123 sets out provisions regarding the content of advertising, sec.807.124 sets out provisions regarding advertising of financial incentives, sec.807.125 sets out standards for the school catalog, and sec.807.126 sets out the provisions for advertisement monitoring. Subchapter J of the proposed rules sets out the provisions regarding admissions. Specifically, sec.807.141 sets out general information regarding admission, sec.807.142 sets out admission requirements, sec.807.143 sets out requirements for receipt of enrollment policies, sec.807.144 sets out provisions for the enrollment agreement, sec.807.145 sets out provisions for the conduct policy, sec.807.146 sets out provisions regarding tuition and fees, and sec.807.147 sets out admission requirements for degree granting schools. Subchapter K of the proposed rules sets out provisions regarding progress standards. Specifically, sec.807.161 sets out general requirements for progress standards, sec.807.162 sets out progress standards for residence schools, sec.807.163 sets out progress requirements for correspondence schools, and sec.807.164 sets out progress requirements for degree granting schools. Subchapter L of the proposed rules sets out provisions regarding attendance standards. Specifically, sec.807.171 sets out general requirements for attendance, sec.807.172 sets out attendance requirements for degree granting schools, sec.807.173 sets out provisions for termination of enrollment, sec.807.174 sets out provisions for make up work in the case of an absence, and sec.807.175 sets out provisions for leaves of absence. Subchapter M of the proposed rules sets out provisions for cancellation and refund policies. Specifically, sec.807.191 sets out the provision for canceling after a tour, sec.807.192 sets out the standards for consummation of refunds, sec.807.193 sets out refund requirements for residence schools, and sec.807.194 sets out penalties relating to refunds. Subchapter N of the proposed rules sets out the provisions for records. Specifically, sec.807.211 sets out general information for records, sec.807.212 sets out the provisions for student records, sec.807.213 sets out the provisions for attendance record keeping, and sec.807.214 sets out the requirements for record keeping concerning employment of students. Subchapter O of the proposed rules sets out the provisions for complaints. Specifically, sec.807.221 sets out the provisions regarding school policies concerning complaints and sec.807.222 sets out the provision regarding complaints and investigations. Subchapter P of the proposed rules sets out the provisions for truck driver training. Specifically, sec.807.231 sets out general information relating to truck driver training, sec.807.232 sets out provisions regarding truck driver training qualifications and duties, sec.807.233 sets out provisions regarding truck driver training course requirements, sec.807.234 sets out provisions regarding motor vehicle insurance, and sec.807.235 sets out prohibited activities for truck driver schools, truck driver instructor trainers, and truck driver instructors. Subchapter Q of the proposed rules sets out the provisions for closed schools. Specifically, sec.807.251 sets out the provisions for school closures and sec.807.252 sets out the provisions of the tuition protection fund. The Commission's minimum, maximum, and median times for processing applications from the date the Commission received the initial applications to the date of the final decision using the Commission's performance in the past 12 months are respectively as follows: The Original Certificate of Approval processing period is a maximum of 152 days, a minimum of 2 days, and a median of 23 days. The Renewal Certificate of Approval processing period is a maximum of 102 days, a minimum of 2 days, and a median of 21 days. The Change of Owner processing period is a maximum of 90 days, a minimum of 2 days, and median of 14 days. The Representative processing period is a maximum of 74 days, a minimum of 2 days, and a median of 7 days. The Instructor processing period is a maximum of 190 days, a minimum of 2 days, and a median of 46 days. The Director processing period is a maximum of 61 days, a minimum of 2 days and a median of 13 days. The Director of Education processing period is a maximum of 47 days, a minimum of 4 days and a median of 17 days. The data used to compile the processing periods is based on a mail tracking system. Based on limitations of the mail tracking system, the following qualifiers are provided: processing periods of one day were excluded from the calculations; in an indeterminate number of cases, the data reflects total processing times irrespective of whether additional information was needed to complete the applications; and errors may exist due to processing and data base conversion complications. The processing periods provided in sec.807.6 were based on a decrease in department staffing and an increase in the number of applications needing to be processed. Randy Townsend, Director of Finance, has determined that for the first five-year period the rules are in effect, there will be no fiscal implications for state or local government as a result of enforcing or administering the rules. Randy Townsend, Director of Finance, and Michael De Long, Proprietary School Coordinator, have determined that there will be an effect on small businesses and anticipated economic costs to persons who are required to comply with the proposed rules. The Commission submitted drafts of the Proprietary School Rules to the proprietary schools and held two meetings with the Proprietary School Task Force, which included persons representing the interests of proprietary schools, to discuss issues pertaining to the drafts of the rules and any costs incurred by the schools with respect to the rules. A first draft and a subsequent draft were submitted to the Proprietary School Task Force and written and verbal responses were received on both drafts. The concerns of the proprietary schools were also discussed at the two Task Force meetings. The requests for feedback from the schools were made to assist the Commission in determining what, if any, adverse effect there would be on small businesses. During the drafting stage of the proposed rules, the Commission has worked with the proprietary schools to incorporate provisions to reduce the costs to small businesses. Furthermore, the Commission requested feedback from some proprietary schools to determine the costs of complying with the rules and to determine whether an adverse economic effect would be caused by the rules. The Commission estimates the cost of complying is approximately $10 per hour of labor for the amount of time it would take to meet the requirements of the rule. Factors will cause the estimates to vary, such as the resources available to the school, the wage rate of the person performing the task, the size of the school, and numerous other variables will bear upon the actual costs of compliance for a particular school. Incidental costs such as postage and telephone calls are not included because of their minimal nature. Based on the responses from the proprietary schools, the following are estimated costs for small businesses to comply with the rules. See the Figure. For responses where amounts varied, the first amount represents the lowest amount and the second amount represents the highest amount indicated as the estimated cost of complying with the rules. Figure: 40 TAC Chapter 807--Preamble For rules that do not add requirements on schools but merely detail how the proprietary schools should comply with the statute, there are no costs other than those required by the statute. Those costs are directly caused by the statute and not by any additional cost to small businesses caused by the rules. For example, the statute requires schools to obtain a bond, and the rules merely state that the bond shall be attached to the application for a certificate of approval. The Commission anticipates the rules that will present no costs other than those directly required by the statute are as follows: sec.sec.807.1, 807.2, 807.51(c), 807.53(c)(5), and 807.53(c)(8)-(10). The Commission anticipates the rules that will present no labor costs are as follows: sec.sec.807.3, 807.6, 807.12(c), 807.13(a), 807.31, 807.113(a), 807.121(a), 807.122, 807.123(b)-(e), 807.124(a)-(b), 807.124(d), and 807.126(c). The comparison between the costs estimated by the proprietary schools for small and large businesses is apparent from the chart. For the costs which could not be estimated, those costs for small businesses are estimated as equal to or more than those costs of large businesses, due to the various resources available to larger businesses. The majority of currently approved proprietary schools are small businesses; however, many of these proprietary schools are not defined as "small proprietary schools" pursuant to sec.132.054 of the Act relating to the Small School Exemption, which states that "The Commission may exempt small proprietary schools from any requirement of this chapter to reduce the cost to small schools of receiving a certificate of approval." To lessen the costs on small businesses the Commission has proposed sec.807.4 pertaining to waivers which would permit a school to request a waiver from all or part of these rules upon a showing of good cause due to undue economic hardship. The Commission intends to reduce the costs for small schools and small businesses in complying with the rules whenever feasible by applying sec.132.054 of the Act and sec.807.4 of the rules. Michael De Long, Proprietary School Coordinator, has determined that for each year of the first five years the rules are in effect, the public benefit anticipated as a result of enforcing the rules shall be to provide rules that are easier to understand and follow regarding proprietary schools and to make the process simpler for prospective proprietary school owners to obtain a certificate of approval to operate as a proprietary school. Comments on the proposed rules may be submitted to Michael De Long, Proprietary School Coordinator, Texas Workforce Commission, 101 East 15th Street, Austin, Texas, 78778-0001; telephone number (512) 936-3104; facsimile number (512) 936- 3111; e-mail address Michael.Delong@twc.state.tx.us. The Commission will hold a public hearing on the proposed rules to receive public comments from persons interested in the rules. Notice of this hearing will apppear in the Texas Register. SUBCHAPTER A.General Provisions 40 TAC sec.sec.807.1-807.6 The new rules are proposed under Texas Labor Code, Title 4, sec.302.002 and sec.302.021, which provides the Texas Workforce Commission with the authority to adopt, amend, or repeal such rules as it deems necessary for the effective administration of the Commission and compliance with Texas Education Code, Chapter 132, Proprietary Schools. The proposed new rules affect the Texas Labor Code, Title 4, sec.302.002 and sec.302.021, and Texas Education Code, Chapter 132, Proprietary Schools. sec.807.1.Title and Purpose. (a) These rules may be cited as the Proprietary School Rules. (b) The purpose of these rules is to implement and interpret the provisions of the Texas Education Code, Chapter 132, Proprietary Schools. The Commission shall evaluate each school according to the standards of practice set forth in the Act and this chapter. The Commission will provide assistance, whenever possible, in complying with this chapter. sec.807.2. Definitions. The following words and terms, when used in this chapter, shall have the following meanings unless the context clearly indicates otherwise. (1) Academic quarter--A period of instruction that includes at least ten weeks of instruction, unless otherwise approved by the Commission. (2) Academic semester--A period of instruction that includes at least 15 weeks of instruction, unless otherwise approved by the Commission. (3) Accountant--An independent certified public accountant properly registered with the appropriate state board of accountancy. (4) Act--Texas Education Code, Chapter 132, Proprietary Schools. (5) Advertising--Any affirmative act designed to call attention to a school or program for the purpose of encouraging enrollment. (6) Board--A local workforce development board as created under the Workforce and Economic Competitiveness Act. (7) Clock hour--Fifty minutes of instruction during a 60-minute period. (8) Commission--The Texas Workforce Commission. (9) Coordinating Board--The Texas Higher Education Coordinating Board. (10) Correspondence course--Distance education, either a seminar or a program, that is offered to non-residence school students via correspondence or other media from a remote site on a self-paced schedule, excluding programs using interactive instruction. (11) Correspondence school--A school that offers only correspondence courses. (12) Course of instruction--A program or seminar. (13) Employment--A graduating or graduate student's employment in the same or substantially similar occupation for which the student was trained. (14) Good reputation--A person is considered to be of good reputation if the person: (A) has never been convicted of a felony related to the operation of a school, and the person has been rehabilitated, including completion of parole or probation, from any other convictions that would constitute risk of harm to the school or students as determined by the Commission; (B) has never been successfully sued for fraud or deceptive trade practices within the last 10 years; (C) does not own a school currently in violation of legal requirements, has never owned a school with repeated violations, and has never owned a school that closed with violations including, but not limited to, unpaid refunds; and (D) has not knowingly falsified or withheld information from the Commission. (15) Job placement--An affirmative effort by the school to assist the student in obtaining employment in the same or substantially similar stated occupation for which the student was trained. (16) Master student registration list--A comprehensive list with an entry made for any person who signs an enrollment agreement, makes a payment to attend the school, or attends a class. The entry shall be made on the date the first of these events occurs. (17) Program--A sequence of approved subjects offered by a school that teaches skills and fundamental knowledge required for employment in the stated occupation. (18) Reimbursement contract basis--A school operating, or proposing to operate, under a contract with a state or federal entity in which the school receives payment upon completion of the training. (19) Residence school--A school that offers at least one program that includes classroom instruction. (20) School--A "proprietary school," as defined in the Act, that includes each location where courses of instruction shall be offered. (21) Secondary education--Successful completion of public, private, or home schooling at the high school level or obtainment of a recognized high school equivalency credential. (22) Seminar--A course of instruction that enhances a student's career, as opposed to a program that teaches skills and fundamental knowledge required for a stated occupation. A seminar may include a workshop, an introduction to an occupation or cluster of occupations, a short course that teaches part of the skills and knowledge for a particular occupation, language training, continuing professional education, and review for postsecondary examination. (23) Seminar school--A school that offers only seminars. (24) Small school—A "small school" as defined in the Act. (25) Stated occupation--An occupation for which a program is offered that: (A) is recognized by a state or federal law or by a state or federal agency as existing or emerging; (B) is in demand; and (C) requires training to achieve entry-level proficiencies. (26) Student--Any individual solicited, enrolled, or trained in Texas by a school. (27) Subject--A component of a program that includes specific content designed to advance the practical skills and knowledge necessary to prepare a student for employment in the stated occupation. A subject in a school is similar to a course at a community or technical college. (28) Suspension of enrollments--A Commission sanction that requires the school to suspend enrollments, re- enrollments, advertising, and solicitation, and to cease, in any way, advising prospective students, either directly or indirectly, of the available courses of instruction. (29) Tour--An inspection of the facilities and equipment pertaining to a course of instruction. (30) Week--Seven consecutive calendar days. sec.807.3.Memorandum of Understanding for Regulation of Schools. The Act requires the Commission to execute a memorandum of understanding with the Texas Guaranteed Student Loan Corporation and each state agency regulating schools to reduce default rates at the regulated schools and to improve the overall quality of the programs. Said memorandum of understanding is set out at 40 TAC sec.800.205. Copies are available at the Texas Workforce Commission, 101 East 15th Street, Room 614, Austin, Texas 78778. sec.807.4.Waivers. (a) Upon a showing of extreme extenuating circumstances, a school governed by this chapter may request a waiver from the requirements of this chapter. The Commission shall grant the waiver only upon a specific finding of good cause establishing that: (1) the imposition of the rule requirement from which the waiver is sought would cause undue economic hardship to the school and have a negative impact on the ability of the school to provide the students with the skills and knowledge required for employment; (2) the quality of education shall in no way be diminished or sacrificed by the granting of the waiver; and (3) the granting of the waiver will in no way limit the statutorily required application approval criteria contained in sec.132.055 of the Act. (b) The Commission may revoke a waiver in the same manner as a revocation of a certificate of approval, if the Commission determines that the criteria contained in this section for a waiver no longer exists. (c) A school may appeal a requested waiver denial or revocation in accordance with the provisions of Subchapter D of the Act. sec.807.5. Exemptions. (a) A school desiring exemption from regulation pursuant to the Act shall make application and provide information deemed necessary by the Commission. (b) The Commission may inspect a school or require such information to ensure continued operation in compliance with the exemption provisions. sec.807.6. Processing Periods. (a) The time periods for processing applications from schools, including small businesses, for certificates of approval, as well as approvals for representatives, school directors, and instructors, shall be in accordance with the following time periods. (1) The first period is the time from the receipt of an application to the date of the issuance of a written notice approving the application or outlining the reasons why the application is unacceptable. The time periods for each application are: (A) original certificate of approval - 40 days; (B) renewed certificate of approval - 40 days; (C) change in owner certificate of approval - 40 days; (D) original representatives - 21 days; (E) renewed representatives - 21 days; (F) school directors and instructors (approval contingent on issuance of school's approval) - 40 days; and (G) school directors and instructors (approval not contingent on issuance of school's approval) - 55 days. (2) The second period is the time from receipt of the last item necessary to complete the application to the date of issuance of written notice approving or denying approval of the application. The time periods for each application are: (A) original certificate of approval - 40 days; (B) renewed certificate of approval - 40 days; (C) change in owner certificate of approval - 40 days; (D) original representative - (approval contingent upon issuance of school's approval) - 21 days; (E) original representative - (approval not contingent upon issuance of school's approval) - 21 days; (F) renewed representative - (approval contingent upon issuance of school's approval) - 21 days; (G) school directors and instructors - (approval contingent on issuance of school's approval) - 40 days; and (H) school directors and instructors - (approval not contingent on issuance of school's approval) - 55 days. (b) In the event the application is not processed in the time periods as stated in this section, the applicant has the right to request of the Commission full reimbursement of all filing fees paid in that particular application process. If the Commission does not agree that the established time periods have been violated or finds that good cause existed for exceeding the established periods, the request will be denied. (1) Good cause for exceeding the period established is considered to exist if: (A) the number of applications for certificates of approval, representatives, school directors, or instructors as appropriate to be processed exceeds by 15% or more the number processed in the same calendar quarter of the preceding year; (B) another public or private entity utilized in the application process caused the delay; or (C) other conditions exist that give good cause for exceeding the established periods. (c) If the request for full reimbursement authorized in this section is denied, the applicant may then request a hearing by appealing to the Commission for a resolution of the dispute. The appeal will be processed in the same manner as other appeals involving schools pursuant to the Act. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State, on May 11, 1998. TRD-9807568 J. Randel (Jerry) Hill General Counsel Texas Workforce Commission Earliest possible date of adoption: June 21, 1998 For further information, please call: (512) 463-8812 SUBCHAPTER A.Proprietary School Advisory Commission 40 TAC sec.807.3 (Editor's note: The text of the following section proposed for repeal will not be published. The section may be examined in the offices of the Texas Workforce Commission or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The repeal is proposed under Texas Labor Code, Title 4, sec.302.002 and sec.302.021, which provides the Texas Workforce Commission with the authority to adopt, amend, or repeal such rules as it deems necessary for the effective administration of the Commission and compliance with Texas Education Code, Chapter 132, Proprietary Schools. The proposed repeal affects the Texas Labor Code, Title 4, sec.302.002 and sec.302.021, and Texas Education Code, Chapter 132, Proprietary Schools. sec.807.3.Memorandum of Understanding for Regulation of Proprietary Schools. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State, on May 11, 1998. TRD-9807565 J. Randel (Jerry) Hill General Counsel Texas Workforce Commission Earliest possible date of adoption: June 21, 1998 For further information, please call: (512) 463-8812 SUBCHAPTER B.Certificates of Approval 40 TAC sec.sec.807.11-807.17 The new rules are proposed under Texas Labor Code, Title 4, sec.302.002 and sec.302.021, which provides the Texas Workforce Commission with the authority to adopt, amend, or repeal such rules as it deems necessary for the effective administration of the Commission and compliance with Texas Education Code, Chapter 132, Proprietary Schools. The proposed new rules affect the Texas Labor Code, Title 4, sec.302.002 and sec.302.021, and Texas Education Code, Chapter 132, Proprietary Schools. sec.807.11.Original Approvals. A complete application for an original certificate of approval shall consist of the following: (1) a completed application form provided by the Commission; (2) a properly executed school bond; (3) complete and correct financial statements demonstrating the school is financially stable and capable of fulfilling its commitments for training; (4) the application fee as specified in this chapter; and (5) any other revisions or evidence necessary to bring the school's application for approval to a current and accurate status as requested by the Commission. sec.807.12. Renewal. (a) For small schools, the certificate of approval shall be renewed at least every three years, or more frequently as determined by the Commission. A complete application for renewal of a certificate of approval shall consist of the following: (1) a properly executed school bond continuation certificate; (2) complete and correct annual financial statements for the most recent fiscal year demonstrating the school is financially stable and capable of fulfilling its commitments for training; (3) the renewal fee and the fee for the tuition protection fund, if applicable, specified in this chapter; and (4) any other revisions or evidence necessary to bring the school's application for approval to a current and accurate status as requested by the Commission. (b) For all other schools, the certificate of approval shall be renewed annually. A complete application for renewal of a certificate of approval shall consist of the following: (1) a completed application for renewal form provided by the Commission; (2) a properly executed school bond; (3) complete and correct annual financial statements for the most recent fiscal year demonstrating the school is financially stable and capable of fulfilling its commitments for training; (4) the renewal fee and the fee for the tuition protection fund, if applicable, specified by this chapter; and (5) any other revisions or evidence necessary to bring the school's application for approval to a current and accurate status as requested by the Commission. (c) The effective, expiration, and issuance dates are indicated on the certificate of approval. The Commission may reflect the date of renewal as the date following the date of expiration of the prior certificate of approval, if the school submitted a timely request for renewal and met all of the requirements contained in this chapter for renewal. (d) The complete renewal application shall be postmarked on or before the due date as indicated in the Act. sec.807.13. Change in Ownership. (a) The Commission may consider the addition or deletion of any person defined as an owner under the Act as a change in school ownership. (b) The Commission may require submission of a full application for approval for a change in ownership if: (1) the Commission has a reasonable basis to believe the change in ownership of the school may significantly affect the school's continued ability to meet the criteria for approval; or (2) the new school owner fails to file an application for a change in ownership at least 30 days prior to the ownership transfer. (c) The Commission may require a partial application for approval for a change in ownership if the Commission reasonably believes the change in ownership will not significantly affect the school's continued ability to meet the criteria for approval. (d) The purchaser of a school shall accept responsibility for all refund liabilities. sec.807.14. Locations. (a) A school shall obtain a certificate of approval for each location where courses of instruction will be offered, unless the school has a certificate of approval and meets one of the exceptions in this section. (b) The Commission may approve the following as exempt from applying for approval for a new or additional location, if requested at least 30 days in advance: (1) review seminars, including preparation for licensing examinations, educational institution entrance examinations, and reading improvement; (2) classes in no more than one location at a time as an itinerant school; (3) classes at facilities used for additional classrooms for instructional services only, which are within a one- mile radius of the main campus and are dependent on the main campus for administration, supervision, fiscal control, and student services; or (4) short-term programs. Short term programs: (A) include 200 clock hours or less of instruction; and (B) are conducted with at least a 90-day interval between cessation of one program and the beginning of the next. (c) The school shall file an application for a certificate of approval to reflect a new or additional location, including all documents deemed necessary by the Commission, and the appropriate fee. The Commission may issue the certificate of approval after inspection of the new facilities. (d) If the Commission determines that a move of the school presents an unreasonable transportation hardship which would prevent a student from completing the training at the new location, the school shall provide a full refund of all monies paid and a release from all obligations to the student.
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          sec.807.15. Notification of Legal Action. (a) Unless otherwise instructed by the Commission, a school shall notify the Commission in writing of any legal action to which the school, any of its owners, representatives, or management employees is a party. (b) A school shall notify the Commission in writing of any legal action described in this section no later than five business days after the action is known to be filed or the school, owner, representative, or management employee is served. (c) A school shall include with the notice required in this section, a file- marked copy of the petition, complaint, or other legal instrument, including copies of any judgments. sec.807.16. Associate Degrees. (a) If a school desires authorization to grant associate degrees, the school shall make application to the Coordinating Board and have: (1) a current certificate of approval from the Commission; (2) an accreditation by an agency or association recognized by the United States Secretary of Education; (3) a history of conducting classes for the past two years in Texas and compliance with the Act as a non-degree- granting school; and (4) an ability to fully operate as a degree granting school in compliance with the Coordinating Board's requirements. (b) A certified and accredited branch campus of a fully and separately accredited school approved to grant a degree in Texas may apply to grant the same degree, provided that the branch campus is also in compliance with all other minimum standards, except for the history of conducting classes for the past two years. (c) The Commission may recognize the authorization to grant degrees upon receipt of a copy of the letter of authorization issued by the Coordinating Board. sec.807.17. Penalties and Sanctions Regarding Schools. The Commission may impose penalties or sanctions for violations of the Act or this chapter, including: (1) collecting a late renewal fee from the school; (2) denying the school's application for a certificate of approval; (3) revoking the school's certificate of approval; (4) placing restrictions on the school's certificate of approval; (5) denying, suspending, or revoking the registration of the school's representatives; (6) filing a claim against the school's surety bond; (7) collecting a late refund penalty from the school; (8) assessing an administrative penalty; (9) applying for an injunction against the school; (10) asking the Attorney General to collect a civil penalty from any person who violates the Act or this chapter; (11) ordering a peer review of the school; (12) revoking a program approval; (13) denying a program approval; (14) requiring full or partial refunds to students for program violations or deficiencies; (15) suspending the admission of students to the school; (16) charging the school an investigation fee to resolve a complaint against the school; and (17) charging the school interest and penalties on late payments of fee installments. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State, on May 11, 1998. TRD-9807569 J. Randel (Jerry) Hill General Counsel Texas Workforce Commission Earliest possible date of adoption: June 21, 1998 For further information, please call: (512) 463-8812 SUBCHAPTER C.Financial Requirements 40 TAC sec.sec.807.31-807.37 The new rules are proposed under Texas Labor Code, Title 4, sec.302.002 and sec.302.021, which provides the Texas Workforce Commission with the authority to adopt, amend, or repeal such rules as it deems necessary for the effective administration of the Commission and compliance with Texas Education Code, Chapter 132, Proprietary Schools. The proposed new rules affect the Texas Labor Code, Title 4, sec.302.002 and sec.302.021, and Texas Education Code, Chapter 132, Proprietary Schools. sec.807.31. Definitions Relating to Financial Requirements. The following words and terms, when used in this subchapter, shall have the following meanings unless the context clearly indicates otherwise. (1) Alternative bonding--A situation in which the school's bond amount exceeds the highest amount of unearned tuition as shown on the unearned tuition affidavit. (2) GAAP--Generally Accepted Accounting Principles. (3) GAAS--Generally Accepted Auditing Standards. (4) Sworn statement--A notarized statement including the following language: "I swear or affirm that the information in these statements is true and correct to the best of my knowledge." (5) Unearned tuition affidavit--A statement of the highest amount of unearned tuition at any time during the most recent fiscal year, the projected highest unearned tuition at any time during the next fiscal year, and the gross amount minus refunds of student tuition and fees earned during the fiscal year in all programs approved under the Act. sec.807.32. Financial Standards. (a) The balance sheet required in this subchapter shall reflect the following: (1) positive equity or net worth balance; (2) unearned tuition as a current liability; (3) a current ratio of at least one-to-one; and (4) stockholder's equity or net worth exceeding the amount shown for goodwill, if applicable, under assets in the balance sheet. (b) Compilations shall be accompanied by the owner's sworn statement. (c) All financial statements shall identify the name , license number, and licensing state of the accountant associated with the statements and be in accordance with GAAP. sec.807.33. Financial Requirements for Original Approvals. (a) The prospective owner shall furnish the Commission with the following, for: (1) a school owned by a sole proprietor, a reviewed personal balance sheet with notes that disclose the amount of payments for the next five years to meet debt agreements as required by GAAP; or (2) all other ownership structures, an audited balance sheet consistent with GAAP and GAAS and certified by an accountant. (b) The school shall submit a balance sheet, a list of the expected school- related expenses for the first three months of operation of the school, and a sworn statement signed by the owner affirming the availability of sufficient cash to cover projected expenses at the date of licensure. A school currently operating, or proposing to operate, on a reimbursement contract basis may request a waiver of this section from the Commission. Projected expenses may include the following: (1) employee salaries, listed by position title, including withholding, unemployment taxes, and any other related expenses; (2) lease payments for equipment listed by the name of the equipment; (3) lease payments for facilities; (4) accounting, legal, and other specifically identified professional fees; and (5) an estimate of other expenses such as advertising, travel, textbooks, office supplies, classroom supplies, printing, telephone, utilities, taxes, and sales commissions. (c) The prospective owner shall also furnish such other evidence as may be deemed appropriate by the Commission to establish financial stability. sec.807.34. Financial Requirements for Changes in Ownership. Prior to a change in ownership of a school, the purchaser shall furnish the Commission a balance sheet meeting the requirements outlined in this subchapter for original approvals, excluding the sufficient cash requirement for initial expenses. The purchaser shall furnish any other evidence deemed appropriate by the Commission to establish financial stability. sec.807.35. Financial Requirements for Renewal. (a) A school shall submit annual financial statements as set forth in this section that shall be: (1) audited by an accountant and consistent with GAAP; (2) reviewed by an accountant and consistent with GAAP (except for the first renewal, which must be audited or compiled); or (3) compiled by an accountant, containing an unearned tuition affidavit and at least one note disclosing the current and long-term liabilities. This note shall be similar to that required by GAAP for reviewed and audited statements. Compiled statements are acceptable under the following conditions: (A) the gross annual revenue from student tuition and fees is $50,000 or less; (B) the courses of instruction are less than one month in length; or (C) the school maintains alternative bonding. (b) Each school shall furnish financial statements in association with an accountant annually and not later than 180 days from the close of the school's fiscal year. These statements shall include the following: (1) balance sheet (calculation of unearned student tuition shall be based upon at least a quarterly pro rata basis or refund policy basis for the program, whichever would most accurately reflect recognition of income); (2) statement of results of operation, which includes a statement of income and retained earnings; (3) statement of cash flows; and (4) the gross amount minus refunds of annual student tuition and fees for each school, separated from other revenues unrelated to training. (c) An alternative bonded school may submit all of the following in lieu of the financial statements required in this section: (1) an unearned tuition affidavit; (2) a copy of the annual income tax form filed specifically for the business; and (3) an owner's sworn statement certifying that the unearned tuition affidavit and the copy of the annual income tax form are true and correct. (d) A school that is a subsidiary of a corporation may submit, in lieu of the statements required in this section, the annual audited financial statements of the parent corporation provided that: (1) said statements are accompanied by an audited list of any student tuition refunds payable by the subsidiary school at the close of its fiscal year. The statements shall also be accompanied by an owner's sworn statement reflecting the gross amount minus refunds of student tuition and fees earned during the fiscal year on all programs approved under the Act; and (2) the parent corporation ensures that each student enrolled in the subsidiary school receives either the training agreed upon or a refund as provided in the Act, and submits either a certified resolution of its board of directors to this effect or any other evidence as deemed appropriate by the Commission to establish financial responsibility by the parent corporation. sec.807.36. Interim Financial Statements. If a school chooses to submit interim financial statements in addition to the annual financial statements to establish financial stability, those interim statements shall meet the minimum requirements of this subchapter. sec.807.37. Commission Ordered Audits. If the Commission determines that reasonable cause exists to question the validity of any financial information submitted, or the financial stability of the school, the Commission may require at the school's expense: (1) an audit of a school that has been certified by an accountant; or (2) the owner to furnish any other evidence deemed appropriate by the Commission to establish financial stability. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State, on May 11, 1998. TRD-9807570 J. Randel (Jerry) Hill General Counsel Texas Workforce Commission Earliest possible date of adoption: June 21, 1998 For further information, please call: (512) 463-8812 SUBCHAPTER D.Representatives 40 TAC sec.sec.807.51-807.53 The new rules are proposed under Texas Labor Code, Title 4, sec.302.002 and sec.302.021, which provides the Texas Workforce Commission with the authority to adopt, amend, or repeal such rules as it deems necessary for the effective administration of the Commission and compliance with Texas Education Code, Chapter 132, Proprietary Schools. The proposed new rules affect the Texas Labor Code, Title 4, sec.302.002 and sec.302.021, and Texas Education Code, Chapter 132, Proprietary Schools. sec.807.51. Representative Requirements. (a) The school shall apply annually to register representatives on forms provided by the Commission and with the appropriate fee. (b) A representative shall be of good reputation and under the control of the school and is deemed to be the agent of the school. The school is responsible for any representations or misrepresentations, expressed or implied, made by a representative. (c) Any student solicited or enrolled by an unregistered representative is entitled to a refund of all monies paid and a release from all obligations. Any contract signed by a prospective student as a result of solicitation or enrollment by an unregistered representative is null and void and unenforceable. sec.807.52. Representative Standards. A representative shall: (1) have sufficient knowledge of the school to provide complete and accurate information regarding the school to prospective students; (2) refer questions about financial aid and entrance testing to the appropriate school officials; and (3) invite the student applicant to tour the school's facilities, inspect equipment, and speak with students. sec.807.53. Representative Limitations. (a) The representative shall not begin solicitation of students until the school receives notice of approval for the school and registration of the representative from the Commission. (b) Employees and other agents of recruiting firms shall not serve as representatives. (c) A representative shall not: (1) solicit in public places other than educational settings, job fairs, or organized meetings; (2) offer as an inducement or enticement any material consideration to a prospective student prior to enrollment, such as cash, food, housing, or gifts; (3) administer the entrance test; (4) advise students about financial aid, other than informing the student of the general availability of financial aid; (5) give false, misleading, or deceptive information about any aspect of the school's operation, programs, completion or employment rates, examination success rates, job placement, or salary potential; (6) concurrently solicit for or represent more than one school, unless the owner of each school being represented is informed that the representative is also soliciting for or representing other schools; (7) engage in acts or practices that have a tendency to intimidate, coerce, or mislead a prospective student into accepting an enrollment; (8) represent that a school or program has sponsorship, credentials, approval, characteristics, credit transferability, uses, benefits, or qualities that it does not have; (9) discredit another school or its programs by false or misleading representation of facts; (10) solicit enrollments in a program that has not been approved by the Commission; (11) solicit students for a school through an employment agency; or (12) violate any legal requirement or prohibition contained in the Act or this chapter. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State, on May 11, 1998. TRD-9807571 J. Randel (Jerry) Hill General Counsel Texas Workforce Commission Earliest possible date of adoption: June 21, 1998 For further information, please call: (512) 463-8812 SUBCHAPTER E.School Director and Administrative Staff 40 TAC sec.sec.807.61-807.65 The new rules are proposed under Texas Labor Code, Title 4, sec.302.002 and sec.302.021, which provides the Texas Workforce Commission with the authority to adopt, amend, or repeal such rules as it deems necessary for the effective administration of the Commission and compliance with Texas Education Code, Chapter 132, Proprietary Schools. The proposed new rules affect the Texas Labor Code, Title 4, sec.302.002 and sec.302.021, and Texas Education Code, Chapter 132, Proprietary Schools. sec.807.61. School Director Requirements. (a) Each school shall designate one person as the school director. (b) A person may not concurrently serve as a school director for more than one school. sec.807.62. School Director Qualifications and Duties. (a) A school director of a small school shall have administrative or management experience. A school director of a small school shall be of good reputation and is not required to attend a Commission-sponsored workshop prior to initial approval by the Commission. (b) A school director of other than a small school shall be of good reputation and have a total of five years of administrative or management experience. An equivalent duration of higher education, college or university, may be substituted for each year of experience. (c) The school shall obtain Commission approval for the school director before employment of the school director. (d) A school director shall attend a Commission-sponsored workshop and demonstrate a proficiency of the knowledge required to operate a school before final Commission approval may be granted. The Commission may require a school director to attend additional workshops scheduled by the Commission in order to maintain skills and continue as an approved school director. (e) The school director is responsible for the courses of instruction, organization of classes, designation of a liaison for Commission compliance visits, maintenance of the school facilities and proper administrative records, and all other matters related to the administration of the school, as determined by the Commission. (f) The school director shall sign and agree to the terms of the Director's Statement. (g) The Commission may require the school director to attend additional training to continue approved director status if a school has more than one substantiated complaint from students during a one-year period. If the school has repeat violations from a previous year under the same director, the Commission may revoke the approval of the school director. (h) The school director shall: (1) ensure that all facilities, including housing endorsed by the school, comply with local, city, county, municipal, state, and federal regulations such as, but not limited to, fire, building, and sanitation codes; and (2) inspect facilities, including housing, before endorsement. (i) The Commission shall grandfather the director of a school from meeting the requirements contained in this section, providing that the school has submitted the application for that school director to the Commission prior to the effective date of this section, and the application results in approval by the Commission. sec.807.63.Acting School Director. (a) The Commission may allow a school to designate an acting school director for a period not to exceed 90 days or as otherwise approved by the Commission, who is: (1) a currently approved school director at another location with the same owner to facilitate the approval process at a new location; (2) a new school director pending approval by the Commission; or (3) required by an emergency as determined by the Commission. (b) The school shall provide written notice to the Commission, delivered by the end of the first day following the appointment of the acting school director. sec.807.64. Director of Education Requirements. (a) A school may have a director of education. (b) If the school employs a director of education, the director shall meet the same qualifications as an instructor and, in addition, shall have: (1) one year of employment as a postsecondary instructor; (2) one year of employment as a supervisor; and (3) a bachelor's degree, appropriate for the skills required, as determined by the Commission. sec.807.65. Director of Degree Programs Requirements. (a) A school with a degree program shall have a director of the degree programs as required by the Coordinating Board. (b) A director of degree programs shall be of good reputation and have: (1) a master's degree with three years of work-related or administrative experience within the ten years immediately preceding employment by the school; or (2) a bachelor's degree with five years of work-related or administrative experience within the ten years immediately preceding employment by the school. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State, on May 11, 1998. TRD-9807572 J. Randel (Jerry) Hill General Counsel Texas Workforce Commission Earliest possible date of adoption: June 21, 1998 For further information, please call: (512) 463-8812 SUBCHAPTER F.Instructors 40 TAC sec.sec.807.81-807.84 The new rules are proposed under Texas Labor Code, Title 4, sec.302.002 and sec.302.021, which provides the Texas Workforce Commission with the authority to adopt, amend, or repeal such rules as it deems necessary for the effective administration of the Commission and compliance with Texas Education Code, Chapter 132, Proprietary Schools. The proposed new rules affect the Texas Labor Code, Title 4, sec.302.002 and sec.302.021, and Texas Education Code, Chapter 132, Proprietary Schools. sec.807.81. Instructor Qualifications. (a) The instructor shall be of good reputation and shall not be a current student in the same or similar program, as determined by the Commission, in which the instructor teaches. (b) Instructors shall possess and affirm on forms provided by the Commission one of the following qualifications that applies to the subject area to be taught. (1) A master's degree or higher shall suffice if it: (A) is in a technical field and includes satisfactory completion of six semester credit hours in the subject to be taught; (B) is in a technical field and includes, in the subject area to be taught, satisfactory completion of three semester credit hours and one year of practical experience within the ten years immediately preceding employment by the school; (C) is in a non-technical field and includes satisfactory completion of three semester credit hours in the subject area to be taught; or (D) is in a non-technical field and includes one year of practical experience in the subject to be taught within the ten years immediately preceding employment by the school. (2) A bachelor's degree shall suffice if it: (A) is in a non-technical field and includes, in the subject area to be taught, satisfactory completion of three semester credit hours and one year of related practical experience within the ten years immediately preceding employment by the school; (B) is in a non-technical field and includes, in the subject area to be taught, satisfactory completion of six semester credit hours and one year of related practical experience within the ten years immediately preceding employment by the school; (C) includes nine semester hours or 12 quarter hours related to the subject area to be taught; or (D) includes two years of practical experience related to the subject to be taught within the ten years immediately preceding employment by the school. (3) An associate's degree shall suffice if it: (A) includes, in the subject area to be taught, completion of nine semester hours or 12 quarter hours and a minimum of two years of practical experience within the ten years immediately preceding employment by the school; or (B) includes a minimum of three years of practical experience related to the subject area to be taught within the ten years immediately preceding employment by the school. (4) A secondary education shall suffice in the subject area to be taught if it is accompanied by: (A) a certificate of completion from a recognized postsecondary school for at least a 900 clock-hour program and a minimum of four years experience within the ten years immediately preceding employment by the school; or (B) proof of satisfactory completion of relevant subjects from a recognized postsecondary school and a minimum of five years experience within the ten years immediately preceding employment by the school. (c) In addition to the other applicable requirements for instructors, including the good reputation requirement, the following qualifications apply to the specific instructors listed in this subsection. (1) The Commission requires that a court reporting instructor of only machine shorthand theory and speedbuilding shall have: (A) an associate's degree or higher and certificate of completion of machine shorthand theory requirements in an accredited court reporting program; (B) an associate's degree in court reporting from any state-recognized school; (C) a Registered Professional Reporter or Certified Shorthand Reporter certification from any state; or (D) a certificate of completion of a court reporting program from a state- certified school. (2) The Commission requires that a court procedures and technology instructor shall have: (A) a Registered Professional Reporter or Certified Shorthand Reporter certification; and (B) one year of court reporting experience. (3) The Commission requires that a modeling instructor shall have, at a minimum: (A) a secondary education and certificate of completion from a modeling program of at least 45 clock hours from a state recognized school and at least five verifiable paid modeling jobs completed within the past five years; or (B) a secondary education and at least ten verifiable paid modeling jobs completed within the past five years. (4) The Commission requires that a truck driving instructor shall have, at a minimum: (A) a secondary education; (B) certified proof of successful completion of 40 clock hours in safety education and driver training as required by this chapter; and (C) three years of full-time tractor trailer driving experience within the ten years immediately preceding employment by the school. (5) The Commission requires that a bartending instructor shall be certified by the Texas Alcoholic Beverage Commission as a bartending instructor. (d) The director shall ensure that an instructor applicant demonstrates sufficient language and mathematical proficiency to teach the subject for which the instructor is applying to teach. (e) The Commission shall grandfather schools from meeting the instructor requirements contained in this section for a particular instructor provided that the school has submitted the application for approval of the instructor to the Commission prior to the effective date of this section and the application results in approval by the Commission. (f) For those instructors who return to the school prior to one full year of absence, and who will be teaching the same subjects as previously approved, the school shall document the leave and reinstatement dates in the instructor's personnel file. When an instructor begins teaching new subjects or the absence was more than one year, the school shall submit a new application to the Commission. sec.807.82. Temporary Instructors. (a) The Commission may allow a school to use a previously unapproved instructor to teach temporarily for a reasonable amount of time in the case of an emergency, as determined by the Commission. (b) In such circumstances, the school shall provide written notice to the Commission delivered no later than the first day the temporary instructor begins teaching. The notice shall include: (1) the subject to be taught; (2) the name of the approved instructor; (3) the name of the temporary instructor; and (4) the reason for the temporary instructor. (c) Failure to properly notify the Commission shall result in penalties for the use of an unapproved instructor. (d) The temporary instructor shall have practical experience or education in the subject area to be taught, and shall not have been previously disapproved to teach the subject. (e) There shall be no more than one temporary instructor per grading period in an individual subject, unless specifically approved in advance by the Commission. (f) Failure to comply with this section shall result in penalties, up to and including, a full refund to all students attending such classes. sec.807.83. Instructor Application. (a) The school shall file an application for approval of an instructor on forms provided by the Commission in accordance with the following criteria and ensure that the instructor is of good reputation. (1) The application shall be postmarked within five calendar days of employment as an instructor subject to the conditions outlined in this subchapter. A school may employ an instructor pending approval by the Commission. (2) Depending upon the qualifications indicated on the application, the application shall include one or more of the following: (A) a legible copy of the postsecondary certificate or degree, or a transcript indicating appropriate coursework completed, as applicable; (B) proof of a current occupational license; and (C) proof of secondary education. (b) A school with degree programs shall ensure that instructors are of good reputation and meet all the qualifications required by the Coordinating Board. (c) The Commission may consider current approvals of instructors by other Texas State agencies responsible for approval and regulation of the program, when submitted with the Commission's instructor application. (d) The Commission may require a school director to submit and receive approvals for instructor applications in advance of employing the instructors for a period of one year if the school has had three instructor applications finally disapproved within the previous two years. sec.807.84. School Responsibilities Regarding Instructors. (a) The school shall ensure that an appropriate number of instructors, as determined by the Commission, have proper licensure or certificates required for the stated occupation's objective. The holder of the license or certificate shall actively participate in program development and revisions. (b) The school shall ensure continuity of instruction through reasonable retention of instructors to provide students with a quality education. (c) The school shall implement, maintain, and update annually a written plan for staff development, which includes, at a minimum, continuing education, staff meetings, attendance at trade and professional conferences, and observation of, or participation in, on-the-job activities. (d) The school director or director of education shall formally evaluate each instructor in writing at least annually, subject to review by the Commission. (e) The school director or director of education shall ensure that students are allowed the opportunity to formally evaluate each instructor in writing at least annually and incorporate said evaluation in the instructor's overall evaluation. These student evaluations are subject to review by the Commission. (f) The school shall provide in-service training within the first three months of teaching to those instructors hired lacking teaching experience. Topics shall include competency-based training, instructional methods, adult learning styles, and student learning and skills assessment. (g) The school shall provide and document in-service training that provides updates on skills, knowledge, and technology required by business and industry for those instructors who have taught for two years, but have not gained relevant work experience during the two-year period. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State, on May 11, 1998. TRD-9807573 J. Randel (Jerry) Hill General Counsel Texas Workforce Commission Earliest possible date of adoption: June 21, 1998 For further information, please call: (512) 463-8812 SUBCHAPTER G.Courses of Instruction 40 TAC sec.sec.807.91-807.104 The new rules are proposed under Texas Labor Code, Title 4, sec.302.002 and sec.302.021, which provides the Texas Workforce Commission with the authority to adopt, amend, or repeal such rules as it deems necessary for the effective administration of the Commission and compliance with Texas Education Code, Chapter 132, Proprietary Schools. The proposed new rules affect the Texas Labor Code, Title 4, sec.302.002 and sec.302.021, and Texas Education Code, Chapter 132, Proprietary Schools. sec.807.91. Definitions Relating to Courses of Instruction. The following words and terms, when used in this subchapter, shall have the following meanings unless the context clearly indicates otherwise. (1) Externship--Practical, program-related, off-campus training under direct or indirect instructor supervision, with a preplanned outline of experiences and competencies. (2) Laboratory experience--A specific experience of observation, experimentation, practice, study, technical investigation, analysis, and practical application of theory or verbal instruction involving hands-on supervised study in a selected vocation or subject. (3) Lecture--A presentation of theories, concepts, procedures, or information about a particular subject. (4) New program--A program: (A) not previously offered; (B) previously offered and then discontinued; (C) with a revised objective such that the program provides preparation for different jobs than those for which the program was originally approved (examples: legal secretary to paralegal; dental technician to medical technician; computer operator to computer programmer); or (D) with a 25% or more change within a 12-month period to the total number of hours, content, or lessons (examples: from 1,000 clock hours to 750; 20 lessons to 30; 600 clock hours to 900, 60 semester credit hours to 80). (5) New seminar--A seminar: (A) not previously offered; (B) previously offered and then discontinued; (C) with a revised objective; or (D) with a 25% or more change in a 12-month period to the total number of hours of the approved seminar . (6) Revised program or seminar--Revisions include changes in admission requirements, title, subject title, objective description (but not the detailed objective), subject clock or credit hours, or subject hours of lecture, laboratory, or externship. Scheduling and price changes are catalog changes, not revisions. sec.807.92. General Information for Programs. (a) A school submitting applications for approval of seminars shall use abbreviated forms provided by the Commission. (b) No subject or program shall be approved by the Commission unless the school demonstrates that the program's quality, content, and length reasonably and adequately impart the job skills and knowledge necessary for the student to obtain employment in the stated occupation. (c) A school may not solicit students, otherwise advertise, or conduct classes for a program prior to the Commission's approval of the program. Any such activity by the school, prior to the Commission's approval of the program, shall constitute a misrepresentation by the school and shall entitle each student in the program to a full refund of all tuition and fees paid by the student and release from all obligations. (d) The school shall establish and maintain a formal advisory committee of at least five members, unless the Commission approves a lesser number of persons in advance, for each type of program in excess of 200 clock hours in length. At least annually, the committee shall evaluate the curriculum, instructional materials and media, equipment, and facilities to ensure they meet the needs of the job market. The school shall have written documentation of the evaluation available for review by the Commission. (e) If the applicant requests approval to measure programs in credit hours, the following conversion table shall be used. (1) One academic quarter credit hour equals a minimum of: (A) 10 clock hours of classroom lecture; (B) 20 clock hours of laboratory experience; or (C) 30 clock hours of externship. (2) One academic semester credit hour is equal to a minimum of: (A) 15 clock hours of classroom lecture; (B) 30 clock hours of laboratory experience; or (C) 45 clock hours of externship. (3) The school shall calculate lecture, laboratory, and externship credit hour conversions individually for each subject, rounding down to the nearest half credit hour. The school shall add the total for the credit hours for lecture, laboratory, and externship to determine the total credit hours for a subject. sec.807.93. Additional Program Applications. (a) A school applying for approval of an additional program, after receiving an original certificate of approval, shall submit a complete application that includes: (1) the appropriate fee; (2) a completed application for program approval on forms provided by the Commission; and (3) any other revisions or evidence as requested by the Commission. (b) The Commission may require an abbreviated program application if: (1) the school has the exact program approved at another location; (2) the program objective changes; (3) the program length changes 25% or more; or (4) the school's completion and employment rates are exemplary, as determined by the Commission. (c) The Commission may deny an application for approval of an additional program if the school is not in full compliance with the Act or this chapter. sec.807.94. Stated Occupation. (a) The school shall ensure that each program prepares the student for the stated occupation. (b) The school shall demonstrate that a student who successfully completes the program is more likely to be employed in the stated occupation than an individual who does not complete the program. (c) The school shall identify a demonstrable occupational demand for the stated occupation. The Commission may consider the following in evaluating the school's statement of occupational demand: (1) publications of established relevant occupational associations; (2) targeted occupation lists of boards, if approved by the Commission, or other local or state entities; (3) references to advertisements in media for employment; (4) occupation employment rate of students; (5) percentage of graduating students who have previously completed the same or substantially similar program and who have obtained employment in the same or substantially similar stated occupation for which they have been trained; (6) relative supply and demand for the stated occupation; and (7) reports or publications relating to the specific occupational demand. sec.807.95. Curriculum Content. (a) The school shall: (1) provide competency-based programs; (2) assess skills using primarily performance-based methods; (3) use instructional media, methods, and materials appropriate for the program content and students' knowledge and abilities; (4) offer programs in a logical sequence of knowledge and skills; and (5) provide an externship or a simulation of the workplace for the program, as deemed appropriate by the Commission. (b) Each subject in the program shall teach the practical skills and knowledge required for employment in the stated occupation. The proportion of lecture, laboratory, and externship hours for each subject and for the program shall be reasonable for the skills and knowledge to be learned for the stated occupation. (c) The Commission may use or validate existing skill standards or competencies, or develop statewide skill standards with the assistance of industry or schools. sec.807.96. Curriculum Length. (a) Each subject submitted for approval shall identify the clock or credit hours allocated to that subject. A subject or program that exceeds a length reasonable to prepare the student for the stated occupation shall not be approved. (b) The Commission may establish minimum and maximum program lengths for stated occupations consistent with the intent of the Act. sec.807.97. Program Title. (a) Each program submitted for approval shall be identified by a title. (b) The title shall clearly identify the stated occupation and shall be a title commonly used by business or industry. (c) The Commission shall not approve false, misleading, or deceptive program titles. sec.807.98. Equipment. (a) Equipment required for instruction shall be comparable to that commonly found in the stated occupation. (b) The school shall remove equipment not in working order from the instructional area, mark it as out-of-order, or properly identify it as awaiting repair. (c) The school shall provide equipment of sufficient quality and quantity to meet the maximum use requirements of the current students, as demanded by the activity patterns of the training program. sec.807.99. Facilities. (a) In determining adequate space for lecture and laboratory experiences, the Commission shall consider that the amount of lecture and laboratory space meets the use requirements of the maximum number of current students in class with appropriate seating facilities and/or workstations, as needed by the activity patterns of the program. (b) Enrollment shall not exceed the design characteristics of the available workstations. sec.807.100. Admission Requirements Relating to Programs. (a) The school shall submit, for approval by the Commission, its admission requirements for each program with justification for the requirements. (b) The school shall ensure that the student demonstrates to the school sufficient proficiency in the language of instruction to successfully complete the training program. sec.807.101. School Responsibilities Regarding Programs. (a) As a condition of program approval or renewal, the school shall identify any portion of instruction that is self- paced. (b) To maintain program approval, the school shall demonstrate the following: (1) a reasonable student retention rate for each program; and (2) a minimum employment rate for program graduates in jobs related to the stated occupation. (c) When a school is approved to offer a program, the school shall maintain sufficient instructors to teach all subjects for completing the program during the length of time stipulated in the school catalog, regardless of the size of the class. (d) The school shall schedule classes so that students will be able to complete the program during the length of time stipulated in the school catalog. (e) The school shall ensure that students receive the lecture and laboratory experience hours with sufficient instructors and scheduling. An instructor may not be simultaneously supervising a laboratory experience and a lecture even if they are in the same room. (f) A school shall provide course outlines to students at the beginning of each subject which lists students' performance objectives, references and resources, and a general content outline for the subject. (g) A school shall have and use lesson plans for all subjects. (h) A school may not use subjects from one or more approved programs to create a new program and award a certificate of completion without prior approval. (i) The student-to-instructor ratio shall be sufficient for students to learn, practice, and demonstrate the necessary knowledge and skills. These ratios may be varied at the discretion of the Commission to conform to conditions in an individual school. The following student-instructor ratios may be acceptable for single subject classes: (1) business lecture or laboratory--30 to one; (2) technical, vocational, or allied health lecture --30 to one; (3) technical lab (examples: computer programming, data processing, electronics)--20 to one; (4) vocational lab (examples: auto mechanics, air conditioning and refrigeration, drafting)--20 to one; and (5) intensive language instruction (beginning)--15 to one; (intermediate to advanced)--20 to one. sec.807.102. Program Revisions. (a) The school shall submit a revised program application for any proposed changes in the program that shall be reflected in the school catalog's program information. (b) The school shall receive approval of proposed program revisions in writing from the Commission before implementing the revisions. (c) The school shall work closely with employers in its job market to ensure that the program meets employers' needs. sec.807.103. Program Requirements for Degree Granting Schools. (a) The quality, content, and sequence of each subject or program shall be appropriate for the purpose of the school and shall be such that the school may reasonably and adequately achieve the stated objectives of the subject or program by providing graduates of these programs with marketable skills. (b) Prior to graduation students shall demonstrate the attainment of advanced skills as appropriate to the degree. (c) At least 95% of the subjects required for each degree shall be offered in organized classes. (d) A school may contract with another school for the instruction of general education or applied foundation courses if the Coordinating Board has approved that contract. sec.807.104. Penalties Relating to Courses of Instruction. (a) If an approved program is discontinued for any reason, the Commission shall be notified within 72 hours of discontinuance and furnished with the names and addresses of any students who were prevented from completion of the program due to discontinuance. Should the school fail to make arrangements satisfactory to the students and the Commission for the completion of the program, the full amount of all tuition and fees paid by the students are then due and refundable. Any program discontinued will be removed from the list of approved programs. (b) The Commission may suspend enrollments in a particular program at any time the Commission finds cause. For purposes of this subsection, cause includes, but is not limited to: (1) inadequate instruction; (2) unapproved or inadequate curriculum; (3) inadequate equipment; or (4) inadequate facilities. (c) If a school begins teaching a program or revised program that has not been approved by the Commission, the Commission may require the school to refund to the enrolled students all or a portion of the tuition fees. (d) If upon review and consideration of an original, renewal, or revised application for program approval, the Commission determines that the applicant fails to meet the requirements in the Act or this chapter, the Commission shall notify the school, setting forth in writing the reasons for the denial. This may include summaries of peer evaluations from both educators and employers offering similar programs. (e) The Commission may revoke approval of a school's program at any time the Commission finds cause. For purposes of this subsection, cause includes, but is not limited to: (1) any statement contained in the application for the program approval which is untrue; (2) the school's failure to maintain the instructors, facilities, equipment, or programs, or program outcomes on the basis of which approval was issued; (3) advertising made on behalf of the school which is false, misleading, or deceptive, including those that use the word "associate" to describe a degree other than those approved by the Coordinating Board; (4) programs without clearly stated limited transferability if there are no articulation agreements with other postsecondary institutions in the same geographic area; (5) programs for which financial aid is advertised but is not available; (6) repeated violations by the school that negatively impact the quality of a particular program; or (7) violations by the school of any applicable provision of the Act or this chapter. (f) A school whose program approval is denied or revoked shall have the right to appeal. The Commission will conduct hearings in accordance with Commission policies and procedures applicable to the appeal. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State, on May 11, 1998. TRD-9807574 J. Randel (Jerry) Hill General Counsel Texas Workforce Commission Earliest possible date of adoption: June 21, 1998 For further information, please call: (512) 463-8812 SUBCHAPTER D.Veterans Approval for Proprietary Schools 40 TAC sec.807.101 (Editor's note: The text of the following section proposed for repeal will not be published. The section may be examined in the offices of the Texas Workforce Commission or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The repeal is proposed under Texas Labor Code, Title 4, sec.302.002 and sec.302.021, which provides the Texas Workforce Commission with the authority to adopt, amend, or repeal such rules as it deems necessary for the effective administration of the Commission and compliance with Texas Education Code, Chapter 132, Proprietary Schools. The proposed repeal affects the Texas Labor Code, Title 4, sec.302.002 and sec.302.021, and Texas Education Code, Chapter 132, Proprietary Schools. sec.807.101.Accredited and Nonaccredited Programs. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State, on May 11, 1998. TRD-9807566 J. Randel (Jerry) Hill General Counsel Texas Workforce Commission Earliest possible date of adoption: June 21, 1998 For further information, please call: (512) 463-8812 SUBCHAPTER H.Application Fees and Other Charges 40 TAC sec.sec.807.111-807.113 The new rules are proposed under Texas Labor Code, Title 4, sec.302.002 and sec.302.021, which provides the Texas Workforce Commission with the authority to adopt, amend, or repeal such rules as it deems necessary for the effective administration of the Commission and compliance with Texas Education Code, Chapter 132, Proprietary Schools. The proposed new rules affect the Texas Labor Code, Title 4, sec.302.002 and sec.302.021, and Texas Education Code, Chapter 132, Proprietary Schools. sec.807.111. Fee Schedule. The Commission shall collect fees according to the following schedule. (1) The initial fee for a certificate of approval for a small school is $1,001. (2) The initial fee for any other school is $3,000. (3) In the event of a change in ownership of the school, the new owner shall pay the same fee as that charged for an initial fee for a school. (4) The initial registration fee for a representative is $90. (5) The annual renewal fee for a representative is $45. (6) The fee for a change of name of the school or owner is $150. (7) The fee for a change of address of a school is $270. (8) The fee for a change in the name or address of a representative or a change of the name or address of a school that causes the reissuance of the notice of permitted representative is $15. (9) The application fees for a course of instruction that is an additional program is $225. (10) The application fee for a course of instruction that is a seminar program is $35. (11) The application fee for a school director, administrative staff member, or instructor is $20. (12) The fee for an inspection of classroom facilities that are separate from the main campus is $375. (13) The fee for an investigation of a complaint against a school is $400, if assessed. sec.807.112. Renewal Fees. (a) For small schools, if a certificate of approval is issued for more than one year, the renewal fee is $1,001, which may be paid with $501 the first year and $250 on the anniversary date of the certificate for each subsequent year. (b) For all other schools, the renewal fee is based on the gross amount minus refunds of annual student tuition and fees. The renewal fee is the greater of: (1) 0.31% of the school's gross tuition and fees, excluding refunds as provided by the Act; or (2) $500. (c) For all schools, the Commission shall assess a penalty of 10% of the renewal fee, not less than $200 or more than $1,000, if the school fails to file a complete application for renewal at least 30 days before the expiration date of the certificate of approval. sec.807.113.Installment Payments. (a) With the exception of the renewal installment schedule for small schools, a school may elect to pay any single fee in excess of $1,000 by quarterly installment. A service charge of 10% of the fee shall be added, and the total divided into equal quarterly installment payments. The first payment shall be due on the date the fee is due. The successive payments shall be due in 90-day increments. (b) Failure to pay any installment by the due date may result in one or more of the following: (1) a penalty being assessed in the amount of 50% of the total amount of the fee; (2) full payment of the penalty and outstanding balance due within 30 days; or (3) suspension of participation in the installment payment plan for the next renewal period. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State, on May 11, 1998. TRD-9807575 J. Randel (Jerry) Hill General Counsel Texas Workforce Commission Earliest possible date of adoption: June 21, 1998 For further information, please call: (512) 463-8812 SUBCHAPTER E.Minimum Standards for Operation of Texas Proprietary Schools 40 TAC sec.sec.807.121-807.131 (Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Workforce Commission or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The repeals are proposed under Texas Labor Code, Title 4, sec.302.002 and sec.302.021, which provides the Texas Workforce Commission with the authority to adopt, amend, or repeal such rules as it deems necessary for the effective administration of the Commission and compliance with Texas Education Code, Chapter 132, Proprietary Schools. The proposed repeals affect the Texas Labor Code, Title 4, sec.302.002 and sec.302.021, and Texas Education Code, Chapter 132, Proprietary Schools. sec.807.121. General Information. sec.807.122. Definitions. sec.807.123. Exemptions. sec.807.124. Representatives. sec.807.125. Approvals. sec. 807.126. Applications from Small Businesses. sec.807.127. Minimum Standards for Operation of Proprietary Schools. sec.807.128. Application Fees and Other Charges. sec.807.129Minimum Standards for Operation of Proprietary Schools Which Grant Degrees. sec.807.130. Truck Driver Training. sec.807.131.Tuition Protection Fund. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State, on May 11, 1998. TRD-9807567 J. Randel (Jerry) Hill General Counsel Texas Workforce Commission Earliest possible date of adoption: June 21, 1998 For further information, please call: (512) 463-8812 SUBCHAPTER I.Advertising 40 TAC sec.sec.807.121-807.126 The new rules are proposed under Texas Labor Code, Title 4, sec.302.002 and sec.302.021, which provides the Texas Workforce Commission with the authority to adopt, amend, or repeal such rules as it deems necessary for the effective administration of the Commission and compliance with Texas Education Code, Chapter 132, Proprietary Schools. The proposed new rules affect the Texas Labor Code, Title 4, sec.302.002 and sec.302.021, and Texas Education Code, Chapter 132, Proprietary Schools. sec.807.121. General Information for Advertising. (a) A school shall not make deceptive statements in attempting to enroll students. (b) The Commission may require a school to furnish proof to the Commission of any of its advertising claims, when requested. sec.807.122. Advertisement Method. (a) A school may advertise for prospective students under "instruction," "education," "training," or a similarly titled classification. (b) A school shall not be advertised under any "help wanted," "employment," or similar classification. (c) No school advertisements shall use the word "wanted," "help wanted," or "trainee," either in the headline or the body of the advertisement, nor shall any advertisement indicate, in any manner, that the school has or knows of employment of any nature available to prospective students; only "placement assistance," if offered, may be advertised. (d) A degree granting school shall not use terms to describe the significance of the approval that specify or connote greater approval. Terms that schools may not use to connote greater approval by the Commission include, but are not limited to, "accredited," "supervised," "endorsed," and "recommended." (e) Any advertisement that includes a reference to awarding of credit hours shall include the statement, "limited transferability." Where a school has an arrangement with a college or university to accept transfer hours, such information may be advertised, but any limitations shall be included in the advertisement. sec.807.123.Advertisement Content. (a) Advertisement content shall include, and clearly indicate, the full and correct name of the school and its address, including city, as they appear on the certificate of approval. (b) Advertisements shall not include: (1) statements that the school or its programs are accredited unless the accreditation is that of an agency recognized by the United States Department of Education; (2) statements that the school or its courses of instruction have been approved unless the approval can be substantiated by an appropriate certificate of approval issued by an agency of the state or federal government; or (3) representation of the school as an employment agency under the same name, or a confusingly similar name, or at the same location of the school. (c) A school holding a franchise to offer specialized programs or subjects not available to other schools shall not advertise such programs in such a manner as to diminish the value and scope of programs offered by other schools not holding such a franchise. Advertising of special subjects or programs offered under a franchise shall be limited to the subject or programs offered. (d) A school shall not use endorsements, commendations, or recommendations by students in favor of a school except with the consent of the student and without any offer of financial or other material compensation. Endorsements shall bear the legal or professional name of the student. (e) A school shall not use a photograph, cut, engraving, or illustration in advertising in such a manner as to convey a false impression of size, importance, or location of the school, equipment, or facilities associated with the school. (f) Every advertisement must clearly indicate that training is being offered, and shall not, either by actual statement, omission, or intimation, imply that prospective employees are being sought. sec.807.124. Financial Incentives. (a) Advertisements shall not: (1) state that students shall be guaranteed employment while enrolled in the school; (2) state that employment shall be guaranteed for students after graduation; or (3) misrepresent opportunities for employment upon completion of any program. (b) Advertisements shall not contain dollar amounts as representative or indicative of the earning potential of graduates. This provision shall not be construed as prohibiting the school from providing earning potential to the student individually on the student's receipt of enrollment policies or other such Commission-approved document. (c) Advertisements for student tuition loans shall: (1) contain the language "student tuition loans available"; and (2) appear in type no larger than the font used for the name of the school and in similar color and style. (d) Advertising of student tuition loans as described in this section does not preclude disclosure of the school's eligibility under the various state and federal loan programs. sec.807.125. Catalog. (a) The catalog shall include the following: (1) table of contents or index; (2) name and complete street address of the school; (3) volume number, date of publication, and effective dates; (4) history of any accreditations or approvals, including statement of approval and regulation by the Commission; (5) description of space, facilities, and equipment; (6) list of all trustees, directors, officers of the corporation, and owners; (7) list of management staff and faculty, including education relating to the areas of instruction; (8) tuition, fees, other charges, and applicable scholarship terms; (9) school calendar; (10) school hours of operation and class schedule, including the amount of time allocated for breaks and mealtimes; (11) policies regarding enrollment, previous education credit, cancellation and refund, progress, attendance, leave of absence, and conduct; (12) veterans administration refund policy, if applicable; (13) description of courses of instruction; (14) description of each subject; (15) description of the grading policy, including requirements for graduation; (16) description of placement assistance, if available; (17) statement of polices regarding grievances; and (18) a statement signed by the owner or director indicating that all of the information contained in the catalog is true and correct. (b) Any subjects defined as self-paced shall be noted as such in the catalog. sec.807.126. Advertisement Monitoring. (a) The Commission may order corrective action to counteract the effect of improper advertising, including: (1) retraction by the school of such advertising claims published in the same manner as the claims themselves; and (2) cancellation of telephone numbers without an automatic forwarding message. (b) The Commission may require schools to submit all advertisements to the Commission for preapproval at least 30 days before proposed submission of the advertisements to the advertising medium. (c) Nothing in these guidelines shall prohibit release of information to students as required by a state or federal agency. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State, on May 11, 1998. TRD-9807576 J. Randel (Jerry) Hill General Counsel Texas Workforce Commission Earliest possible date of adoption: June 21, 1998 For further information, please call: (512) 463-8812 SUBCHAPTER J.Admission 40 TAC sec.sec.807.141-807.147 The new rules are proposed under Texas Labor Code, Title 4, sec.302.002 and sec.302.021, which provides the Texas Workforce Commission with the authority to adopt, amend, or repeal such rules as it deems necessary for the effective administration of the Commission and compliance with Texas Education Code, Chapter 132, Proprietary Schools. The proposed new rules affect the Texas Labor Code, Title 4, sec.302.002 and sec.302.021, and Texas Education Code, Chapter 132, Proprietary Schools. sec.807.141. General Information for Admission. (a) The Commission may approve specific admission requirements for seminars and small schools. (b) Small schools with programs of 40 clock hours or less, individual subject offerings, and seminars are not required to grant credit for previous education and training. (c) The school shall make appropriate adjustments to the program length and price based upon credit granted for previous education and training, where warranted. (d) For a school having specific term-beginning dates, a school may not start students after the third day of classes during any given term, except in those cases where appropriate credit for previous education and training has been given according to the Act and this chapter. sec.807.142. Admission Requirements. (a) The school shall require for admission into its programs proof of one of the following: (1) secondary education; (2) successful completion or the equivalent of one full-time academic semester (12 academic semester hours) or academic quarter (18 academic quarter hours) at an accredited college, university, or other postsecondary school; or (3) for certificate programs only, proven ability-to-benefit by obtaining a satisfactory score on the approved entrance test. (b) Entrance test requirements shall be in accordance with the following provisions. (1) Any entrance test shall be a nationally recognized standardized test or a nonstandardized test developed by the appropriate industry and approved by the Commission. A nonstandardized test shall be validated by a qualified third party, such as an expert in tests and measurements, for both appropriateness and the specific score level required for admission into the program. The name of the test and its publisher, any time limitations, a minimum acceptable score, and an explanation of score meanings, as referenced in the test material, shall be provided to the student with a copy of the test, if the test is not already on file with the Commission. (2) If multiple opportunities are allowed for retaking the same entrance test, such students shall wait a minimum of five calendar days prior to retaking the test. A student may take a second entrance test on the same day provided a substantially different test is administered. This shall be stated in the admissions policy published in the school catalog. (3) A representative is not allowed to administer the test, nor is anyone allowed to assist the student in answering the questions. (4) If the entrance test reveals the student to be ineligible as an ability-to- benefit student, the student may be enrolled as a remedial student. The school shall have an evaluation procedure approved by the Commission to determine remedial needs and to determine when the required level of remediation has been reached. The school shall also have a remediation plan for such students consisting of subjects approved by the Commission as a part of the program. The students may be charged for the remedial portion of the program on an hourly pro rata basis, but the student is not obligated for the tuition and fees of the program until the entrance requirements are met. (c) Evidence shall be maintained in each student's file to show the admissions requirements have been met. A full refund of all monies paid and a full release from all obligations shall be due, as determined by the Commission, to any student for whom the school cannot establish that the admission requirements were met. sec.807.143. Receipt of Enrollment Policies. (a) Seminars, individual subjects, and small schools with programs of 40 clock hours or less, shall use a form provided by the Commission to verify the student's receipt of the information required in this section. (b) Unless otherwise required in this chapter, prior to enrollment the school shall furnish the following to each prospective student: (1) a school catalog and program outline, unless the student enrolls in a seminar; (2) a schedule of tuition, fees, and other charges; (3) the cancellation and refund policy; (4) the attendance, progress, and grievance policies; (5) the rules of operation and conduct; (6) if available, the average starting salary per pay period and annually for the prospective student's stated occupation, and information regarding the number of job openings in the program objective field in a specified area within the last 12 months, including the name of the information source; (7) the regulations pertaining to incomplete grades; (8) written and verbal information regarding loans and grants and their differences, if the school participates in a loan or grant program; (9) the requirements, if any, for any state or national licensing, certifications, or registrations; (10) the exam passage rates for programs that prepare students for state licensing, certification, or registration exams; and (11) the job placement and employment data for the stated occupation as required in this chapter. (c) Any school that refers to the awarding of credit hours shall explain to each student during the enrollment process that transferability of such hours may be limited. Each student shall sign a statement indicating such an explanation has been provided. (d) Should a school have an articulation agreement with an accredited college or university, or other postsecondary school, such information shall be provided to the student, including any known agreement limitations. Such schools shall also provide a list of known Texas postsecondary schools that accept any or all of the credit hours so earned. (e) Students shall acknowledge receipt of each piece of information or documentation as set forth in this section by initialing each page and providing a complete signature at the end of the receipt of the enrollment policy form. (f) A copy of the receipt of the enrollment policies form shall be given to the student and a copy maintained as a part of the student's files. sec.807.144. Enrollment Agreement. (a) A school does not need an enrollment agreement to enroll a student in a seminar. (b) For correspondence schools, the enrollment agreement shall specify the amount of time allotted to the student to complete the program. (c) A school shall submit an enrollment agreement to the Commission for approval. (d) A school shall use only an approved enrollment agreement to enroll students. (e) The executed enrollment agreement shall include, but is not limited to, the following: (1) full and correct name and location of the school; (2) program title, tuition, fees, reasonable estimate cost of books and supplies, any other expenses, total cost of the program, items subject to cost change, method of payment and payment schedule, disclosure statement if interest is charged on more than three payments, and detachable buyer's right to cancel if enrollment is procured off campus; (3) date training is to begin and program length; (4) name, address, and signature of the student; (5) statement by the school that the student will received a copy of the school enrollment agreement and catalog at the time of signing by the student; (6) cancellation and refund policy; and (7) a Federal Trade Commission statement for holder in due course, unless no loans, grants, or installment payments are involved. (f) The school shall provide a notice of cancellation, attached to the enrollment agreement, for any student enrolled off the school premises. The notice shall: (1) be in duplicate; (2) be easily detachable; (3) be printed in boldface type, with a minimum font of 10 point; (4) contain the date of the enrollment agreement, name and address of school, the date on which the statutory 72-hour cancellation privilege will expire, and any other provisions as determined by the Commission; (5) be printed in the same language as used in the enrollment agreement; and (6) be in such a form that can be used by the student to notify the school of the student's desire to cancel by dating, signing, and mailing or otherwise delivering the form to the school's address shown. (g) A copy of the enrollment agreement form shall be given to the student and a copy maintained as a part of the student's file. (h) The Commission may permit a school to submit an abbreviated enrollment agreement for students enrolled on a reimbursement contract basis. sec.807.145. Conduct Policy. The school shall submit for approval a copy of the rules and regulations pertaining to conduct, which shall include statements regarding: (1) conditions for dismissal; and (2) conditions for reenrollment of those students dismissed for violating the conduct policy. sec.807.146. Tuition and Fees. (a) A school shall disclose to potential students all tuition, fees, and other charges, and state such information in the school's application for a certificate of approval. (b) A school shall provide to the Commission: (1) a description of the methods of payment that are available to enrolling students; (2) the names and addresses of lending institutions used by the school for student tuition loans; and (3) the true annual percentage rate and any other fees or charges associated with student tuition loans. (c) A school shall refund or forfeit any tuition, fees, or other charges not previously disclosed to the Commission. (d) A school may offer scholarships providing the terms of scholarships are disclosed to the Commission. (e) The school shall maintain, in a permanent format that is acceptable and readily accessible to the Commission, a record of any funds received from, or on behalf of, the student. A school shall clearly identify the payor, the type of funding, and the reason for the charges. These records shall be posted and kept current. (f) A school shall issue written receipts of any charges or payments to the student and maintain such records for review by the Commission. Each separately charged item shall have on file a student-signed receipt. sec.807.147. Admission Requirements for Degree Granting Schools. (a) Students who transfer from other postsecondary schools shall complete at least 20 academic semester hours or 30 academic quarter hours in residency at the school that will grant the degree. This does not apply to transfers within the same school system. (b) A school shall allow students attending at the time a school becomes a degree granting school to earn a degree, providing the student: (1) meets all the prerequisites for acceptance into the degree program; and (2) satisfactorily completes all courses or equivalent courses of the degree program. (c) Former students shall meet all the prerequisites for acceptance into the degree program and shall satisfactorily complete all courses or equivalent courses in the approved degree program to qualify for a degree. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State, on May 11, 1998. TRD-9807577 J. Randel (Jerry) Hill General Counsel Texas Workforce Commission Earliest possible date of adoption: June 21, 1998 For further information, please call: (512) 463-8812 SUBCHAPTER K.Progress Standards 40 TAC sec.sec.807.161-807.164 The new rules are proposed under Texas Labor Code, Title 4, sec.302.002 and sec.302.021, which provides the Texas Workforce Commission with the authority to adopt, amend, or repeal such rules as it deems necessary for the effective administration of the Commission and compliance with Texas Education Code, Chapter 132, Proprietary Schools. The proposed new rules affect the Texas Labor Code, Title 4, sec.302.002 and sec.302.021, and Texas Education Code, Chapter 132, Proprietary Schools. sec.807.161.General Requirements for Progress Standards. (a) The Commission may approve specific progress standards for self-paced, competency-based programs. (b) Seminars, because of their nature and duration, are not required to have progress standards. (c) The progress evaluation records shall be of the type and nature to reflect whether the student is making satisfactory progress to the point of being able to complete all subject matter within the allotted time provided in the course curriculum. (d) The school shall submit its policies pertaining to incomplete grades to the Commission for approval and publish those policies in the school's catalog. The policies shall address the possibility of the subjects being discontinued when the student returns and clarify options available to that student pursuant to the Act. sec.807.162. Progress Requirements for Residence Schools. (a) For programs of 40 clock hours or less, the school is only required to give a final exam at the end of the program to determine whether the student has sufficient knowledge to warrant a certificate of completion, in lieu of a progress evaluation. (b) For programs of 41 to 200 clock hours, the school shall record a student's grades at the midpoint and end of each progress evaluation period. A student not making satisfactory progress at the midpoint shall be placed on academic probation for the remainder of the progress evaluation period. If the student does not achieve satisfactory progress by the end of the probationary period, the student's enrollment shall be terminated. (c) For schools approved on a clock hour basis and offering programs in excess of 200 hours, the school shall evaluate progress at least every eight weeks. A school approved on a credit hour basis shall evaluate progress at the midpoint and end-of-term for academic semester or academic quarter or at least every eight weeks. For programs in excess of 200 clock hours, the following shall apply. (1) The school shall place a student making unsatisfactory progress for the program at the end of a progress evaluation period on academic probation for the next progress evaluation period. If the student on academic probation achieves satisfactory progress for the subsequent progress evaluation period, but does not achieve the required grades to meet overall satisfactory progress for the program, the student may be continued on academic probation for one more progress evaluation period. (2) If a student on academic probation fails to achieve satisfactory progress for the first probationary progress evaluation period, the student's enrollment shall be terminated. (3) The enrollment of a student who fails to achieve overall satisfactory progress for the program at the end of two successive probationary progress evaluation periods shall be terminated. (d) When a student is placed on academic probation, the school shall counsel the student prior to the student returning to class. The date, action taken, and terms of probation shall be clearly indicated in the student's permanent file. (e) The school may allow a student whose enrollment was terminated for unsatisfactory progress to reenroll after a minimum of one progress evaluation period. Such reenrollment does not circumvent the approved refund policy. (f) The school shall place a student who returns after their enrollment was terminated for unsatisfactory progress on academic probation for the next grading period. The school shall advise the student of this action and document the student's file accordingly. If the student does not demonstrate satisfactory progress at the end of this probationary period, that student's enrollment shall be terminated. sec.807.163. Progress Requirements for Correspondence Schools. (a) Correspondence schools shall evaluate progress as the school receives each lesson assignment. The school shall maintain the record of progress on forms approved by the Commission. Forms shall include: (1) the date course materials are mailed to the student; (2) the date the lesson assignment is received from the student; (3) the grade on a per-lesson basis; (4) the instructor's name; (5) the date graded assignments are returned to the student; and (6) the final grade for the program with completion date indicated. (b) If at the end of the time period specified in the enrollment agreement, the student has not completed the program, the student's enrollment shall be terminated. sec.807.164. Progress Requirements for Degree Granting Schools. For a school offering degree programs, the progress standards shall include the following: (1) a student progress evaluation every academic semester, academic quarter, or at least every eight weeks in block-time programs; (2) a minimum grade point average for graduation from all degree programs of 2.0 based on a 4.0 scale, and that a student achieve a passing grade in all required subjects; (3) a probationary period of one academic semester, academic quarter, or approved grading period following the end of the academic semester, academic quarter, or approved grading period in which the student's grades become unsatisfactory; and (4) provisions for termination at the end of not more than two consecutive probationary periods if the student's cumulative grade point average does not improve to the level required for graduation. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State, on May 11, 1998. TRD-9807578 J. Randel (Jerry) Hill General Counsel Texas Workforce Commission Earliest possible date of adoption: June 21, 1998 For further information, please call: (512) 463-8812 SUBCHAPTER L.Attendance Standards 40 TAC sec.sec.807.171-807.175 The new rules are proposed under Texas Labor Code, Title 4, sec.302.002 and sec.302.021, which provides the Texas Workforce Commission with the authority to adopt, amend, or repeal such rules as it deems necessary for the effective administration of the Commission and compliance with Texas Education Code, Chapter 132, Proprietary Schools. The proposed new rules affect the Texas Labor Code, Title 4, sec.302.002 and sec.302.021, and Texas Education Code, Chapter 132, Proprietary Schools. sec.807.171. General Requirements for Attendance. (a) Seminar programs that begin and end during one day are not required to maintain an attendance policy. (b) The Commission may approve specific attendance requirements for self-paced, competency-based programs. (c) No provision in this subchapter shall require a school to terminate the enrollment of a student for lack of attendance at a point at which a refund would not be due. (d) A school shall charge for a full day of absence when the student fails to attend all of the scheduled classes on that day. The school shall charge for a partial day of absence for any period of absence during the day. (e) A school shall not consider school holidays, such as summer vacation and Christmas holidays, etc., as days of absence. sec.807.172. Attendance Requirements for Degree Granting Schools. For a school offering degree programs, the attendance standards shall include the following: (1) provisions for termination or probation during the next academic quarter, academic semester, or approved term when a student is absent for more than 20% of the scheduled clock hours during an academic quarter, academic semester, or approved term; (2) provisions for termination when a student is absent for more than 20% of the scheduled clock hours during the probationary academic quarter, academic semester, or approved term; and (3) provisions for termination prior to the last quarter, when a student is absent in excess of 10 consecutive school days or 20% of the total clock hours in the course, whichever occurs first. sec.807.173. Termination of Enrollment. (a) A school shall terminate the enrollment of a student who accumulates the lesser of the following amounts of absences: (1) more than 10 consecutive school days; (2) more than 20% of the total clock hours in a program of more than 200 clock hours; (3) more than 25% of the total clock hours, if the program or individual subject is 41 to 200 clock hours in length; (4) more than 25% of the total clock hours for seminars, individual subjects, or programs of 40 clock hours or less; or (5) any number of days if the student fails to return as scheduled from an approved leave of absence (b) Students whose enrollments are terminated for violation of the attendance policy may not reenroll before the start of the next progress evaluation period. This provision does not circumvent the approved refund policy. sec.807.174. Make Up Work. (a) No more than 5.0% of the total clock hours for a program may be made up. (b) The school shall submit make up work policies to the Commission for approval. (c) Make up work shall: (1) be supervised by an instructor approved for the subject being made up; (2) require the student to demonstrate substantially the same level of knowledge or competence expected of a student who attended the scheduled class session; (3) be completed within two weeks of the end of the grading period during which the absence occurred; (4) be documented by the school as being completed, recording the date, time, duration of the make up session, and the name of the supervising instructor; and (5) be signed and dated by the student to acknowledge the make up session. sec.807.175. Leaves of Absence. (a) Seminars and small schools with programs of 40 clock hours or less shall not grant leaves of absence. (b) A school director may grant a leave of absence after determining that good cause is shown. A leave of absence may not exceed the lesser of 30 school days or 60 calendar days. (c) A school shall grant a student only one leave of absence per 12-month calendar period. (d) School attendance records shall clearly define the dates of the leave of absence. A written statement as to why the leave of absence was granted, signed by both the student and the school director indicating approval, shall be placed in the student's permanent file. (e) In addition to the requirements concerning leaves of absence in this subchapter, a school offering degree programs that schedule their courses on an academic quarter or academic semester basis may include in their attendance policies provisions for summer leaves of absence. These leaves of absence shall not exceed the lesser of 120 days or the interval between the end of the spring academic quarter or academic semester and the start of the fall academic quarter or academic semester. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State, on May 11, 1998. TRD-9807579 J. Randel (Jerry) Hill General Counsel Texas Workforce Commission Earliest possible date of adoption: June 21, 1998 For further information, please call: (512) 463-8812 SUBCHAPTER M.Cancellation and Refund Policy 40 TAC sec.sec.807.191-807.194 The new rules are proposed under Texas Labor Code, Title 4, sec.302.002 and sec.302.021, which provides the Texas Workforce Commission with the authority to adopt, amend, or repeal such rules as it deems necessary for the effective administration of the Commission and compliance with Texas Education Code, Chapter 132, Proprietary Schools. The proposed new rules affect the Texas Labor Code, Title 4, sec.302.002 and sec.302.021, and Texas Education Code, Chapter 132, Proprietary Schools. sec.807.191. Right to Cancel After Tour. (a) Correspondence, combination correspondence-residence, and seminars are not required to provide the student a tour. (b) Any potential student who has not been provided the opportunity to tour the school facilities and inspect the equipment before signing an enrollment contract has an additional three days, excluding Saturdays, Sundays, and legal holidays, following a tour and inspection to cancel enrollment and request a full refund of any money paid to the school and release from all obligations. The student shall sign and date an acknowledgement form certifying the completion of the tour. sec.807.192. Consummation of Refund. (a) A school shall document refunds by written record indicating the date of the refund transaction, the name of the student receiving the refund, the total amount refunded, and the specific reason for the refund. Proof of consummation shall be on file within 120 days of the effective date of termination and shall include: (1) copies of both sides of the cancelled check; (2) printed proof of completed transaction of electronic funds transfer or other similar electronic means; or (3) documentation of an awarded credit to a credit card or other similar account. (b) To ensure a school's good faith effort to timely consummate a refund owed directly to a student, the student's file shall contain evidence of the following proof of a certified mailing of the refund to the: (1) student's last known address; (2) student's permanent address, if different from the student's last known address; or (3) address of the student's parent or legal guardian, if different from the student's last known and permanent addresses. (c) If after making a good faith effort to timely consummate a refund, the school is unable to consummate the refund, the school shall forward to the Commission the appropriate refund amount and any pertinent student information to assist the Commission in locating the student. sec.807.193. Refund Requirements for Residence Schools. (a) Students are entitled to a full refund for classes attended if the school does not provide a class with: (1) an approved instructor; (2) an instructor for whom an application has been properly submitted to the Commission; or (3) a temporary instructor for whom the school submitted notice to the Commission. (b) If a class has no instructor for more than one class period, students are entitled to a full refund for each such class attended. (c) The length of a program, for purposes of calculating refunds owed, is the shortest scheduled time period in which the program may be completed by continuous attendance of a full-time student. (d) A school shall calculate refunds for students based upon scheduled hours of classes through the last date of attendance. A school shall not count leaves of absence, suspensions, school holidays, days when classes are not offered, and summer vacations for purposes of calculating a student's refund. (e) For all schools other than correspondence, combination correspondence- residence, and seminars, a student may cancel enrollment, request a full refund, and request a release from any obligations to the school within three days, excluding Saturdays, Sundays and legal holidays following: (1) the first day of the student's scheduled classes if the student is not provided an opportunity to tour the school facilities, which includes inspection of equipment, before signing an enrollment contract; or (2) the day the tour of the school facilities, including inspection of the equipment, is completed, when provided before the first day of the student's scheduled classes. sec.807.194. Penalties Relating to Refunds. (a) A penalty shall be paid on any refund not consummated in a timely manner as required by the Act. The penalty assessment shall begin on the first day following the expiration of the statutorily defined refund period and end on the day preceding the date the refund is consummated. (b) Penalties assessed on late refunds for grants shall be paid to the tuition protection fund if the amount is $15 or less. Any other penalty assessed on a school's late payment of student refunds shall be disbursed in the following order of priority: (1) to the student's account at a lending institution for the balance of principal and interest on the student loan; (2) to the student for tuition and fees paid directly by the student; and (3) to the tuition protection fund for any remaining balance of assessed penalty. (c) If the Commission determines that the method used by the school to calculate refunds is in error or the school does not routinely pay refunds within the time required by the Act, the school shall submit an audited report conducted by an accountant of the refunds due former students that includes any penalty due as specified in the Act. An audit opinion letter shall accompany a schedule of student refunds due, which discloses the following information for the four years prior to the date of the Commission's request: (1) student information, including name, address, and social security number; (2) pertinent dates, including last date of attendance and date of termination; and (3) refund information, including amount of refund with principal, penalty, and any balance due separately stated, payee, and date and check number of payment if payment has been made. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State, on May 11, 1998. TRD-9807580 J. Randel (Jerry) Hill General Counsel Texas Workforce Commission Earliest possible date of adoption: June 21, 1998 For further information, please call: (512) 463-8812 SUBCHAPTER N.Records 40 TAC sec.sec.807.211-807.214 The new rules are proposed under Texas Labor Code, Title 4, sec.302.002 and sec.302.021, which provides the Texas Workforce Commission with the authority to adopt, amend, or repeal such rules as it deems necessary for the effective administration of the Commission and compliance with Texas Education Code, Chapter 132, Proprietary Schools. The proposed new rules affect the Texas Labor Code, Title 4, sec.302.002 and sec.302.021, and Texas Education Code, Chapter 132, Proprietary Schools. sec.807.211. General Information for Records. (a) A school shall permanently maintain a master student registration list indicating the following: (1) date of applicable entry; (2) name of student; (3) address of student including city, state, and zip code; (4) telephone number; (5) social security number; (6) date of birth; and (7) name of program. (b) A school shall maintain current records and necessary data for each student required to be on the master student registration list to show compliance with the Act and this chapter. These records shall be: (1) maintained on-site; and (2) made available to the Commission for inspection. (c) If applicable, the school shall maintain and ensure that copies of the accreditation authorization and letter of eligibility from the United States Department of Education are available for Commission review. (d) Degree granting schools shall maintain a copy of the certificate of authorization from the Coordinating Board for each authorized degree program. (e) The Commission may conduct unannounced compliance inspections. (f) A school shall maintain complete records of all advertising, sales, and enrollment materials used by or on behalf of the school for a five-year period. Materials maintained shall include, but not be limited to, direct mail pieces, brochures, printed literature, films, leaflets, handbills, fliers, video and audio tapes disseminated through the broadcast media, materials disseminated through the print media or Internet, and sales and recruitment manuals used to instruct sales personnel. sec.807.212. Student Records. (a) A school shall permanently maintain student transcripts of academic records. A school shall provide such transcripts to students and prospective employers at a reasonable charge if the student has fulfilled the financial obligation to the school and is neither in default nor owes a refund to any federal or state student financial aid program. (b) A school shall retain financial records in accordance with federal retention requirements. (c) A school shall retain all student records for at least a five-year period and these records shall include: (1) a written record of previous education and training on a form provided by the Commission; and (2) official transcripts from all previous postsecondary schools attended by the student. sec.807.213. Attendance Record Keeping. (a) A school offering seminars or other programs where students do not change instructors during the school day, are not required to maintain a separate master record of attendance. (b) A school shall maintain a master record of attendance on each student that clearly indicates the number of scheduled hours each day and the hours of absence. (c) Each instructor shall maintain roll books. The roll books shall indicate a positive record of each student's attendance. Entries in the roll books shall be made in ink or other permanent medium and shall not be changed in a manner that precludes reading the original entry. sec.807.214. Employment Records. (a) A school offering programs approved for an occupational objective shall complete the labor market information survey on forms provided by the Commission and submit them on or before the date provided in the survey packet as requested by the Commission. (b) A school shall report program completion, job placement, and employment data on an annual basis in each program approved for an occupational objective. (1) The school shall provide the data in a form acceptable to the Commission. (2) Verifiable documentation shall be made available for review to support data reported. The documentation shall include the names of graduates and the names, addresses, and telephone numbers of their employers. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State, on May 11, 1998. TRD-9807581 J. Randel (Jerry) Hill General Counsel Texas Workforce Commission Earliest possible date of adoption: June 21, 1998 For further information, please call: (512) 463-8812 SUBCHAPTER O.Complaints 40 TAC sec.807.221, sec.807.222 The new rules are proposed under Texas Labor Code, Title 4, sec.302.002 and sec.302.021, which provides the Texas Workforce Commission with the authority to adopt, amend, or repeal such rules as it deems necessary for the effective administration of the Commission and compliance with Texas Education Code, Chapter 132, Proprietary Schools. The proposed new rules affect the Texas Labor Code, Title 4, sec.302.002 and sec.302.021, and Texas Education Code, Chapter 132, Proprietary Schools. sec.807.221. School Policy Regarding Complaints. The school shall: (1) submit a written grievance procedure designed to resolve disputes between current and former students and the school for Commission approval; (2) provide a copy of the grievance procedure to each student and maintain proof of such delivery; (3) maintain records regarding grievance filings and resolutions; and (4) diligently work to resolve all complaints at the local school level. sec.807.222. Complaints and Investigations. (a) The Commission may investigate a complaint about a school and may determine the extent of investigation needed by considering various factors, such as: (1) the seriousness of the alleged violation; (2) the source of the complaint; (3) the school's history of compliance and complaints; (4) the timeliness of the complaint; and (5) any other reasonable matter deemed appropriate. (b) The Commission may require documentation or other evidence of the violation before initiating a complaint investigation. (c) The investigation fee authorized by the Act is based on a per site visit. The school director shall be notified that an on-site visit was conducted when the investigation results in assessment of a fee. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State, on May 11, 1998. TRD-9807582 J. Randel (Jerry) Hill General Counsel Texas Workforce Commission Earliest possible date of adoption: June 21, 1998 For further information, please call: (512) 463-8812 SUBCHAPTER P.Truck Driver Training Programs 40 TAC sec.sec.807.231-807.235 The new rules are proposed under Texas Labor Code, Title 4, sec.sec.302.002 and 302.021, which provides the Texas Workforce Commission with the authority to adopt, amend, or repeal such rules as it deems necessary for the effective administration of the Commission and compliance with Texas Education Code, Chapter 132, Proprietary Schools. The proposed new rules affect the Texas Labor Code, Title 4, sec.sec.302.002 and 302.021, and Texas Education Code, Chapter 132, Proprietary Schools. sec.807.231. General Information Relating to Truck Driver Training. A school providing truck driver training shall ensure that the truck driver instructors: (1) complete an approved 40 clock hour truck driver instructor development course; and (2) provide behind-the-wheel instruction that meets the Texas Department of Transportation's minimum standards for drivers. sec.807.232.Truck Driver Instructor Development Course. (a) A school shall apply to the Commission for approval to provide a truck driver instructor development course. (b) The instructor development course shall consist of 40 clock hours, which includes at least the following topics. (1) Five hours shall cover techniques of instruction including: qualities of a competent instructor, the learning process, methods of teaching, development of efficient teaching habits, demonstration teaching, the use of instruction material and training aids, course preparation, lesson plans, testing and evaluation, and the duration and frequency of lessons. (2) Two hours shall cover personality factors affecting the driver and pedestrian including: natural abilities; senses; mind and nerves; bones and muscle; knowledge of vehicle, road, traffic, and self; attitudes and emotions; reaction time; and reactions to alcohol, carbon monoxide, over-the-counter drugs, prescription drugs, illegal drugs, heart ailments, epilepsy, diabetes, insanity, exhaustion, tension, and monotony. (3) Six hours shall cover state laws as located in the Texas Motor Vehicle Law book relating to the operation of motor vehicles including: driver's license, vehicle registration, certificate of title, operation of vehicles, uniform act, miscellaneous offenses, and safety responsibility. (4) Eight hours shall cover driving procedures including: handling--city, rural, night, mountain, and freeway driving; fog, rain, sandstorms, and other hazardous weather conditions; road hazards and recovery procedures for slick roads; blowout hazards and running off the road; traffic signs, markings, and signals; use of rearview mirrors; vehicle braking and stopping distances; following distances; right-of-way, when and how to yield it; vehicle acceleration and deceleration; yielding right-of-way to emergency vehicles; driver signals; proper passing procedures; procedures and problems for passing on two and three- lane roadways; and super-size motorized equipment. (5) Three hours shall cover physical forces affecting the motor vehicle in motion including: forces of gravity; friction; acceleration, mass, and force; inertia and centrifugal force; kinetic energy and momentum; kinetic energy and braking; and horsepower and acceleration. (6) Two hours shall cover highway characteristics including: primary, secondary, expressway, freeway, farm or ranch road, two-way two-lane, two-way three-lane, two-way multilane, two-way multilane divided, one-way multilane, parking, traffic controls. Traffic control topics consisting of following: (A) sign topics include shape, color, location and importance; (B) traffic marking topics include center and lane lines, no passing zone, transition markings, turn lane marking, stop lines, crosswalk lines, etc.; and (C) signals topics include classification, location, type, timing. (7) Two hours shall cover automobile systems and maintenance including: electrical system--generator, alternator, battery, lighting, and electric- powered equipment; cooling system--lubrication and fuel systems; power train-- engine, transmission, and differential; brake system--wheels and tires, caster, camber, toe-in, balance, inflation, tire condition, and care; exhaust system; instruments and gauges; compartment adjustments--seat, ventilation, mirrors, headrests, seat belts, and shoulder harness; starting the engine and warm-up procedures; safety devices--door locks, headrests; and miscellaneous features-- windshield wipers, heater, and defroster. (8) Two hours shall cover behind-the-wheel elementary lessons with demonstration in an appropriate vehicle and practice to be performed in the presence of the instructor including: starting; steering; stopping; shifting gears; backing; turning--right and left; and parking and starting on grade. (9) Six hours shall cover behind-the-wheel driving safety lessons with demonstration in an appropriate vehicle and practice to be performed in the presence of the instructor including: developing good seeing habits; speed control; safe following; lane driving and lane changing; intersections and right-of-way; proper signaling; correct turn procedures; detecting of and handling problems--vehicle, cycle, pedestrian; freeway driving--ramp use, entering, exiting, lane use, emergency stopping; parking procedures; entering traffic from parked position; and night driving. (10) Two hours shall cover school and instructor approval requirements including the following: school approval requirements, instructor approval requirements, classroom and automotive equipment requirements, required student records, contract requirements, and deportment of instructors. (11) Two hours shall cover specialized training regarding the following: students with physical, mental, or emotional handicaps; illiterate students; non-English-speaking students; and habitual violators and problem drivers. sec.807.233. Behind-the-Wheel Instruction. A school providing behind-the-wheel instruction shall ensure that the instruction includes: (1) actual driving practice while the motor vehicle is in motion; (2) no more than four persons, excluding the instructor, occupying any motor vehicle during the behind-the- wheel instruction; (3) notice in all contracts and advertisements of behind-the-wheel instruction being conducted with groups of students, if applicable; and (4) credit toward satisfying minimum standards for behind-the-wheel instruction for only actual time spent behind the wheel in vehicle operation. sec.807.234. Motor Vehicle Insurance. A school providing truck driver training shall ensure that: (1) a current list of vehicles used in truck driver training is filed with the Commission on a form provided by the Commission; (2) an insurance certificate accompanies each motor vehicle used in training and is filed with the Commission on or before the date the school files an original or renewal application for approval of the program with the Commission; (3) an insuring company or carrier issues an insurance certificate on a form furnished by the Commission directly to the Commission, which states the insurance company or carrier has issued a policy or policies of insurance, and the amounts of insurance for each vehicle listed on the list of vehicles used in truck driver training; (4) a written notice is provided to the Commission by registered or certified mail at least 10 days prior to the expiration date of insurance coverage of a listed vehicle; and (5) a copy of the written notice of cancellation of insurance on any listed vehicle is provided to the Commission by registered or certified mail immediately upon receipt of notice by the school. sec.807.235. Prohibited Activities Regarding Truck Driver Training. (a) A school, a trainer of truck driver instructors, or a truck driver instructor shall not: (1) allow an instructor to give instruction or allow a student to secure instruction in the classroom or in a motor vehicle if that instructor or student is using or exhibits any evidence or effect of an alcoholic beverage, controlled substance, or other such impairment; (2) permit a student to operate a motor vehicle without a valid driver's license or instruction permit in the student's possession during behind-the-wheel instruction; (3) permit more than a ratio of four students per vehicle and three vehicles per instructor on truck driving ranges; (4) permit more than four students per vehicle per instructor during street instruction for truck driver training; or (5) advertise or otherwise state or imply that a driver's license or permit is guaranteed or assured to any student or individual who may take or complete any instruction or course of instruction, enroll, or otherwise receive instruction in any truck driver training school. (b) The Commission may suspend, revoke, or refuse to renew approval of a truck driver instructor or a trainer of truck driver instructors, upon determining that the applicant or instructor has been: (1) convicted under the laws of this state, another state, or the United States of any felony; an offense of criminally negligent homicide committed as a result of the person's operation of a motor vehicle; an offense involving driving while intoxicated or under the influence; or an offense involving tampering with a governmental record. (2) found incompetent or is incompetent to: (A) safely operate a motor vehicle; or (B) properly conduct classroom or behind-the-wheel instruction. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State, on May 11, 1998. TRD-9807583 J. Randel (Jerry) Hill General Counsel Texas Workforce Commission Earliest possible date of adoption: June 21, 1998 For further information, please call: (512) 463-8812 SUBCHAPTER Q.Closed Schools 40 TAC sec.807.251, sec.807.252 The new rules are proposed under Texas Labor Code, Title 4, sec.302.002 and sec.302.021, which provides the Texas Workforce Commission with the authority to adopt, amend, or repeal such rules as it deems necessary for the effective administration of the Commission and compliance with Texas Education Code, Chapter 132, Proprietary Schools. The proposed new rules affect the Texas Labor Code, Title 4, sec.302.002 and sec.302.021, and Texas Education Code, Chapter 132, Proprietary Schools. sec.807.251. School Closures. (a) The Commission may declare a school to be closed when: (1) written notification is received by the Commission from the school owner stating the school will close; (2) Commission staff determines that the school facility has been vacated without prior notification of a change of address given to the Commission; (3) an owner with multiple school locations transfers all students from one school location to another school location; (4) the school dismisses all students, contrary to the school's class schedule as printed in the school catalog; or (5) the school fails to maintain the faculty, facilities, equipment, or programs on the basis for which approval was issued. (b) After the Commission determines that a school will close or has closed, the Commission will attempt to notify students concerning their options to accept a teach-out program or to receive a proportional tuition refund based on available funds. Notification to students may include constructive notice in news media, student meetings, or mailings to students. sec.807.252. Tuition Protection Fund. (a) Each school shall make a payment to the tuition protection fund at the time the school renewal fee is paid if the accrued balance of the tuition protection fund is less than $200,000. The accrued balance is the remaining balance of the tuition protection fund less the sum of the amount of unpaid student refunds and teach-out claims not yet disbursed from the tuition protection fund. The amount in the tuition protection fund, as provided in the Act, is the accrued balance as described herein. (b) Disbursements shall be made from the tuition protection fund for student refunds and reimbursable teach-out expenses incurred during each 12-month period ending August 31, and shall be: (1) made first for student refunds on a proportional basis; (2) disbursed for reimbursable teach-out expenses based upon remaining funds; and (3) calculated after anticipated bond funds and other funding sources have been determined. (c) Each teach-out program requires approval of the Commission to determine whether the program is available, reasonable, and comparable with the program of the closed school. The teach-out program is subject to the following conditions: (1) Transfers of students from a closed school to another school under the same ownership shall not constitute a teach-out program. (2) In order to be eligible for a teach-out program, students shall submit a signed statement of acceptance to the teach-out school by the deadline as established by the Commission. (3) The teach-out school shall give credit for all comparable training received at the closed school, as determined by the Commission. (d) Following the graduation or termination of the students from the teach-out school, the teach-out school shall determine actual expenses and submit a claim for reimbursement to the Commission on or before the date provided in the application packet. The teach-out school shall: (1) not claim expenses for facilities, equipment, utilities, or other items which were owned, rented, used, or otherwise obligated by the school prior to the Commission's approval of the teach-out program, even though such items may be used for the teach-out program; (2) be limited to expenses for tuition and fees that are non-recoverable from all financial resources, including grants and loans; and (3) ensure that the sum of the tuition and fees paid to the student's account at the closed school and the teach-out school is the lesser amount the student would have been charged for the complete program at the closed school or the teach-out school. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State, on May 11, 1998. TRD-9807584 J. Randel (Jerry) Hill General Counsel Texas Workforce Commission Earliest possible date of adoption: June 21, 1998 For further information, please call: (512) 463-8812 TITLE 43. TRANSPORTATION PART I. Texas Department of Transportation CHAPTER 7.Bridge Division The Texas Department of Transportation proposes the repeal of sec.sec.7.41, 7.61, and 7.71, concerning railroad crossings. EXPLANATION OF PROPOSED REPEALS Title 43 of the Texas Administrative Code contains rules concerning railroad grade crossings under both Chapter 7, Bridge Division, and Chapter 25, Traffic Operations. The Bridge Division of the Texas Department of Transportation was merged into another division in a 1993 reorganization of the department. The railroad function of that division was transferred into the Traffic Operations Division. Repeal of these sections is necessary because the subject matter of these sections more appropriately falls within Chapter 25. Sections 7.41, 7.61, and 7.71 will be re-enacted as new sec.sec.25.74-25.76 to incorporate the repealed language and consolidate department rules on railway crossings in one chapter. FISCAL NOTE Frank J. Smith, Director, Finance Division, has determined that for the first five-year period the repeals are in effect, there will be no fiscal implications for state or local governments as a result of enforcing or administering the repeals. There are no anticipated costs for persons required to comply with the sections as proposed. David T. Newbern, P.E., Director, Traffic Operations Division, has certified that there will be no significant impact on local economies or overall employment as a result of enforcing or administering the repeals. PUBLIC BENEFIT Mr. Newbern has also determined that for each year of the first five years the sections are in effect the public benefit anticipated as a result of enforcing or administering the repeals will be to consolidate in one chapter existing department rules on railroad crossings. There will be no effect on small businesses. SUBMITTAL OF COMMENTS Written comments on the proposed repeals may be submitted to David T. Newbern, P.E., Traffic Operations Division, 125 East 11th Street, Austin, Texas 78701- 2483. The deadline for receipt of comments will be 5:00 p.m. on June 23, 1998. SUBCHAPTER D.Railroad Underpasses 43 TAC sec.7.41 (Editor's note: The text of the following section proposed for repeal will not be published. The section may be examined in the offices of the Texas Department of Transportation or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) STATUTORY AUTHORITY The repeals are proposed under Transportation Code, sec.2001.101, which provides the Texas Transportation Commission with the authority to establish rules for the conduct of the work of the Texas Department of Transportation. No statutes, articles, or codes are affected by the proposed repeals. sec.7.41.Maintenance of Railroad Underpasses. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State, on May 11, 1998. TRD-9807662 Bob Jackson Acting General Counsel Texas Department of Transportation Earliest possible date of adoption: June 21, 1998 For further information, please call: (512) 463-8630 SUBCHAPTER E.Railroad Spur Tracks 43 TAC sec.7.61 (Editor's note: The text of the following section proposed for repeal will not be published. The section may be examined in the offices of the Texas Department of Transportation or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) STATUTORY AUTHORITY The repeals are proposed under Transportation Code, sec.2001.101, which provides the Texas Transportation Commission with the authority to establish rules for the conduct of the work of the Texas Department of Transportation. No statutes, articles, or codes are affected by the proposed repeals. sec.7.61. Spur Tracks Crossing Existing Highways. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State, on May 11, 1998. TRD-9807663 Bob Jackson Acting General Counsel Texas Department of Transportation Earliest possible date of adoption: June 21, 1998 For further information, please call: (512) 463-8630 SUBCHAPTER F.Railroad Grade Crossings 43 TAC sec.7.71 (Editor's note: The text of the following section proposed for repeal will not be published. The section may be examined in the offices of the Texas Department of Transportation or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) STATUTORY AUTHORITY The repeals are proposed under Transportation Code, sec.2001.101, which provides the Texas Transportation Commission with the authority to establish rules for the conduct of the work of the Texas Department of Transportation. No statutes, articles, or codes are affected by the proposed repeals. sec.7.71.Construction and Maintenance of Highway-Railway Grade Crossings. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State, on May 11, 1998. TRD-9807664 Bob Jackson Acting General Counsel Texas Department of Transportation Earliest possible date of adoption: June 21, 1998 For further information, please call: (512) 463-8630 CHAPTER 25.Traffic Operations SUBCHAPTER E. Railroad [Grade] Crossings 43 TAC sec.sec.25.70-25.72, 25.74-25.76 The Texas Department of Transportation proposes amendments to sec.sec.25.70- 25.72, and new sec.sec.25.74-25.76, concerning railroad crossings. EXPLANATION OF PROPOSED AMENDMENTS AND NEW SECTIONS Title 43 of the Texas Administrative Code contains rules concerning railroad crossings under both Chapter 7, Bridge Division, and Chapter 25, Traffic Operations. The Bridge Division of the Texas Department of Transportation was merged into another division in a 1993 reorganization of the department. The railroad function of that division was transferred into the Traffic Operations Division. Proposed adoption of the new sections are necessary to replace the provisions of sec.sec.7.41, 7.61, and 7.71, concerning railroad crossings, which are being contemporaneously proposed for repeal. The subject matter of the repealed sections more appropriately falls within Chapter 25. Sections 25.70- 25.72 are being amended to make minor and non-substantive corrections Amended sec.25.70 revises the existing purpose and scope of this subchapter to allow for incorporation of new sec.sec.25.74-25.76 concerning maintenance of railroad underpasses, spur track crossings, and the crossing and maintenance of highway-railway crossings. Previously, this subchapter dealt only with warning signs and signals at railroad crossings. Amended sec.25.71 changes the reference from the Interstate Commerce Commission to the United States Department of Transportation. This change is proposed to reflect the current organization of the United States Department of Transportation. Also added are definitions for railroad overpasses and underpasses. The definitions have been numbered in accordance with Texas Register requirements. Amended sec.25.72 changes the term "accident" to "crash" to reflect current use of that term among transportation planners and professionals. New sec.25.74 outlines the responsibility of the railroad companies and the state as they relate to maintenance and damage costs. New sec.25.75 clarifies that an interstate highway includes the frontage roads where technically feasible. This change is to clarify that any spur track crossing an interstate highway through an initial separation of grades will also include consideration of the frontage roads. New sec.25.76 clarifies that a railroad is responsible for maintaining a highway-railway crossing from end to end of the railroad ties, as opposed to the existing language which states "between the rails and in the proximity of the same". This change reflects current practice between the department and railroad companies. FISCAL NOTE Frank J. Smith, Director, Finance Division, has determined that for the first five-year period the amendments and new sections are in effect, there will be no fiscal implications for state or local governments as a result of enforcing or administering the amendments and new sections. There are no anticipated costs for persons required to comply with the sections as proposed. David T. Newbern, P.E., Director, Traffic Operations Division, has certified that there will be no significant impact on local economies or overall employment as a result of enforcing or administering the amendments and new sections. PUBLIC BENEFIT Mr. Newbern has also determined that for each year of the first five years the sections are in effect the public benefit anticipated as a result of enforcing or administering the amendments and new sections will be to consolidate in one chapter existing department rules on railroad crossings. There will be no effect on small businesses. SUBMITTAL OF COMMENTS Written comments on the proposed amendments and new sections may be submitted to David T. Newbern, P.E., Traffic Operations Division, 125 East 11th Street, Austin, Texas 78701-2483. The deadline for receipt of comments will be 5:00 p.m. on June 23, 1998. STATUTORY AUTHORITY The amendments and new sections are proposed under Transportation Code, sec.2001.101, which provides the Texas Transportation Commission with the authority to establish rules for the conduct of the work of the Texas Department of Transportation. No statutes, articles, or codes are affected by the proposed amendments and new sections. sec.25.70. Purpose and Scope. The sections under this subchapter
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            [undesignated head] describe the policies and procedures governing the department's projects and
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              statutory responsibilities [concerning warning signs and signals] at railroad [grade] crossings. sec.25.71.Definitions. The following words and terms, when used in this subchapter
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                [undesignated head], shall have the following meanings, unless the context clearly indicates otherwise. (1)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  Active rail line - Any railroad tracks that are classified by the United States Department of Transportation
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    [Interstate Commerce Commission] to carry freight or passenger trains, and are currently being operated and maintained by a railroad company or railroad carrier. (2)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      Active warning device - A bell, flashing light, gate, wigwag, or other automatically activated warning device. (3)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Applicant - A person applying to the department for a permit issued under sec.25.72 of this title (relating to Dismantling Warning Signals at Railroad Grade Crossings). (4)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          Crossbuck - A standard railroad/highway crossing sign design as Number R 15-1, and described in the Manual of Uniform Traffic Control Devices (MUTCD), issued by the United States Department of Transportation, Federal Highway Administration. (5)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            Department - The Texas Department of Transportation. (6)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              Director - The director of the department's Traffic Operations Division. (7)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                District - One of the 25 geographical areas, managed by a district engineer, in which the department conducts its primary work activities. (8)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  Grade crossing - The intersection of a railroad and a public roadway at grade. (9)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    Local jurisdiction - A city or county government responsible for the building and maintenance of public roadways. (10)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      Nonsignalized crossing - A grade crossing not protected by active warning devices. (11)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        On-system - A public roadway designated as part of the state highway system. (12)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          Off-system - A public roadway not designated as part of the state highway system. (13)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            Person - An individual, corporation, organization, government or governmental subdivision or agency, business trust, estate, trust, partnership, association, or any other legal entity. (14)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              Public roadway - A roadway built and maintained with public funds. (15)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Railroad company - A business operating and maintaining rail transportation of freight and passengers. (16)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  Railroad Overpass - A grade separated structure where a roadway crosses over a railroad track or tracks. (17)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    Railroad Underpass - A grade separated structure where a roadway crosses under a railroad track or tracks. (18)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      Retroreflectorized material - Material that reflects light so that the paths of the reflected light rays are parallel to those of the incident rays. (19)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Salvage value - Any monetary value that may be derived from signal equipment being retired or removed or any material necessary for its operation, including but not limited to the following: (A) the depreciated value of reusable electrical equipment, such as signal controllers, relays, rectifiers, batteries, etc.; (B) signal equipment, such as signal heads, lenses, signal hoods and backgrounds, light bulbs, crossbuck signs, gate arm mechanisms, gate arms, lights, counterweights, etc.; (C) track circuit equipment, such as termination shunts, capacitors, chokes, tuned joint couplers, insulated joints, etc.; and/or (D) the scrap value of all of the above, including all material or aluminum components, such as signal masts or cantilevers, gate mechanisms, counterweights, signal cabins or signal cases. (20)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          Warning device - An active warning device, crossbuck, or other traffic control sign, the purpose of which is to alert motorists of a grade crossing. (21)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            Warning signal - A traffic control device that is activated by the approach or presence of a train, including a flashing light signal, automatic gate, or similar device that warns motorists of the approach or presence of a train. sec.25.72.Dismantling Warning Signals at Railroad Grade Crossings. (a)-(b) (No Change.) (c) Conditional approval. (1) (No Change.) (2) The district engineer will consider the following factors in determining if removal of the warning signal would adversely affect public safety: (A)-(E) (No Change.) (F) train-involved and non-train-involved crash
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              [accident] history at the grade crossing. (d)-(e) (No Change.) (f) Appeal process. An applicant may appeal the denial of a permit or the assessment of salvage value to the director. An applicant may appeal an adverse decision of the director by filing a petition for an administrative hearing pursuant to sec.sec.1.21-1.61
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                [sec.sec.1.21-1.63] of this title (relating to Contested Case Procedure). (g) (No Change.) (h) Exempt railroads. The provisions of this section shall not apply to Class I or Class II railroads as defined by United States Department of Transportation
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  [Interstate Commerce Commission] rules and regulations. sec.25.74.Maintenance of Railroad Underpasses. (a) The department assumes the maintenance of railroad underpass substructure units, consisting of the piers, abutments and wingwalls but excluding any existing timber substructure for approach spans. Except as provided in subsection (b) of this section, the railroad companies have the maintenance responsibility for the underpass superstructure, including the beams, shoes, deck, waterproofing, and track structure. (b) In the event of damage to underpass superstructure, beams and/or deck, by highway traffic, the state will assume the cost of repairs. In such cases it will be necessary for the railroad representative and the department's district engineer to agree on the extent of repairs. Upon notification by the railroad company, an agreement will be prepared for execution and a job set up based on the estimated cost of repairs. This work will be performed by railroad forces or contract as may be agreed upon by the railroad representative and the district engineer of the department. Work of an extreme emergency nature may be undertaken by the railroad company upon approval of the district engineer of the department prior to execution of a formal state-railroad agreement to cover the proposed repairs. However, no work will be paid for by the state which is undertaken by the railroad company prior to issuance of a work order by the district engineer of the department. (c) These provisions for maintenance of underpass substructure units and assumption of costs for repair of damage to superstructure spans caused by highway traffic, as noted in subsection (b) of this section, apply only to underpass structures constructed or reconstructed after October 28, 1960. sec.25.75 Spur Tracks Crossing Existing Highways. (a) Grade crossing of any highway or road by a railroad spur track is discouraged. On interstate highways and other major routes a crossing will be allowed only with initial separation of grades. The total cost of constructing and maintaining such a grade separation will be borne by others. (b) On other than interstate highway facilities (including frontage roads when technically feasible), a spur track grade crossing may be allowed if, in the opinion of the department, the anticipated volumes of train and vehicular traffic and other pertinent factors indicate that the crossing will not be unduly hazardous to the traveling public. If a crossing is allowed, all costs of crossing pavement, highway adjustment and warning protection will be borne by others. Also, conditions may be specified whereby a change in traffic or train conditions or volumes will require a future separation of grades, all at no expense to the state. sec.25.76. Crossing and Maintenance of Highway-Railway Grade Crossings. (a) The department, in the expansion, construction, reconstruction, and maintenance of the State Highway System, finds it necessary from time to time to cross the tracks of a railroad at grade or to improve existing highway-railway grade crossings. (b) The railway companies will furnish to the department, free of cost, the necessary right-of-way, easement, or license for such grade crossings. In recognition of these rights, the department will pay, from available revenues, the cost of construction and reconstruction of all highways and farm-to-market roads at their grade crossings with existing railroads. The obligation of maintenance is to remain with the railway company on that portion from end to end of the railroad ties. On new farm-to-market road projects the clearing of the right-of-way, including utility line adjustments, cattle guard adjustments, etc., is the responsibility of the county involved. (c) On existing highway-railway grade crossings, the department will pay, from available funds, for renewing the crossing pavement to provide a satisfactory riding surface for highway traffic. Asphalt or asphaltic concrete crossings are generally not acceptable. As a minimum standard, full depth timber pavement extending to the ends of railroad ties for the full crown width of the highway will be used. Other more durable materials will be used if mutually agreed to by the railroad company and the department. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State, on May 11, 1998. TRD-9807665 Bob Jackson Acting General Counsel Texas Department of Transportation Earliest possible date of adoption: June 21, 1998 For further information, please call: (512) 463-8630