ADOPTED RULES An agency may take final action on a section 30 days after a proposal has been published in the Texas Register. The section becomes effective 20 days after the agency files the correct document with the Texas Register, unless a later date is specified or unless a federal statute or regulation requires implementation of the action on shorter notice. If an agency adopts the section without any changes to the proposed text, only the preamble of the notice and statement of legal authority will be published. If an agency adopts the section with changes to the proposed text, the proposal will be republished with the changes. TITLE 1. ADMINISTRATION PART IV. Office of the Secretary of State CHAPTER 81. Elections SUBCHAPTER E. Miscellaneous 1 TAC sec.81.74 The Office of the Secretary of State, Elections Division, adopts new sec.81.74, concerning procedures providing for the security of voted early voting ballots, without changes to the proposed text as published in the February 27, 1998, issue of the Texas Register (22 TexReg 1755). The new rule is being adopted to prescribe procedures for ballot security from the last day of early voting by personal appearance until the day the ballots are counted, in accordance with section 85.032(f) of the Texas Election Code (the "Code"). No comments were received regarding adoption of the new rule. The new section is necessary for the administration of sec.sec.67.003(2), 86.007(d)(3)(B), and 172.116(b) of the Code. The rule is adopted under the Code, Chapter 31, Subchapter A, sec. 31.003, which provides the Secretary of State with authority to promulgate rules to obtain uniformity in the interpretation and application of the Code. The Code, Chapter 85, Subchapter B, sec.85.032(f) is affected by this proposed rule. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 14, 1998. TRD-9807940 Clark Kent Ervin Assistant Secretary of State Office of the Secretary of State Effective date: June 3, 1998 Proposal publication date: February 27, 1998 For further information, please call: (512) 463-5650 1 TAC sec.81.84, sec.81.85 The Office of the Secretary of State, Elections Division, adopts two new rules, sec.81.84 and sec.81.85, concerning challenge affidavit and stub procedures as published in the November 14, 1997, issue of Texas Register (22 TexReg 11039). The new rules are being adopted to provide procedures for voting by affidavit of challenged voter with a ballot stub, and to provide additional procedures for polling places using voting (lever) machines and direct recording devices, in accordance with new section 64.001(b) and other related sections of the Texas Election Code (the "Code"). No comments were received regarding adoption of the new rules. The new section is necessary for the administration of sections 62.0081, 62.009, 64.001(b), 64.001(c), 65.005(d), 65.010(a) with the purposes of: (1) applying the ballot stub procedures to challenged voters in all polling places; (2) applying the ballot stub procedures where voting (lever) machines and direct recording devices are used; (3) protecting the secrecy of the ballot; and (4) providing a confidential record of the voter's ballot for possible later use by a civil or criminal court. The new section is adopted under the Code, Chapter 31, Subchapter A, sec. 31.003, which provides the Secretary of State with authority to promulgate rules to obtain uniformity in the interpretation and application of the Code. The Code, Chapter 62 and Chapter 64, Subchapter A, is affected by this adopted rule. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 14, 1998. TRD-9807910 Clark Kent Ervin Assistant Secretary of State Office of the Secretary of State Effective date: June 3, 1998 Proposal publication date: November 14, 1998 For further information, please call: (512) 463-5650 TITLE 4. AGRICULTURE PART I. Texas Department of Agriculture CHAPTER 3.Boll Weevil Eradication Program SUBCHAPTER E.Creation of Eradication Zones 4 TAC sec.3.112 The Texas Department of Agriculture (the department) adopts new sec.3.112, concerning the creation of a nonstatutory boll weevil eradication zone, without changes to the proposal published in the January 30, 1998, issue of the Texas Register (23 Tex Reg 690). The new section is adopted to establish a new nonstatutory boll weevil eradication zone consisting of counties not currently located in a statutory zone created under the Texas Agriculture Code, Chapter 74, Subchapter D, in order to allow cotton producers in the proposed area an opportunity to establish a manageable, efficient eradication program that best meets the local needs of producers. New sec.3.112 establishes the Northern Rolling Plains Boll Weevil Eradication Zone consisting of all of Gray, Wheeler, Donley, Childress, Collingsworth, Cottle, Hall, King, Hardeman, Wilbarger, Wichita, Clay and Foard counties, and portions of Archer County. A grower referendum must be conducted at a future date to determine whether a boll weevil eradication program and assessment will be approved for the zone. Proposed rule sec.3.112 was published in the January 30, 1998 issue of the Texas Register (23 Tex Reg 690). The department conducted a public hearing on the proposed rule on February 25, 1998, in Childress, Texas. The initial comment period was open through March 2, 1998, but by notice published in the April 10, 1998 issue of the Texas Register (23 Tex Reg 3749), the department extended the comment period through May 11, 1998. The department held additional public meetings on May 4, 5 and 6, 1998, at five locations in Cottle, Hall and Childress counties to answer questions about the proposed rule and to secure any additional comments that might be submitted. Notice of the comment period extension and the public meetings was also mailed to all persons who had previously submitted oral or written comments. Extensive written and oral comments were received by the department concerning the establishment of the proposed new boll weevil eradication zone and the geographic boundaries of the zone that would be established by the rule. These comments were received from numerous cotton producers, landowners and cotton gin owners in the affected areas; several bankers from the area; a Texas Agricultural Experiment Station entomologist who is also an affected landowner; Oklahoma growers, entomologists and state agriculture officials; the currently appointed Texas Boll Weevil Eradication Foundation director for the Northern Rolling Plains cotton-growing area; members of the Commissioner's Northern Rolling Plains Boll Weevil Eradication Zone Interim Advisory Committee; and, from the Texas Boll Weevil Eradication Foundation. In addition to the written comments received during the total comment period, oral comments were also received at the February 25, 1998 public hearing and the May 4, 5 and 6, 1998 public meetings. A total of 138 individuals attended the February 25, 1998 public hearing, with 17 providing oral comments. A total of 67 individuals attended the May 4, 5 and 6, 1998 public meetings, with 32 providing comments or registering in support of the proposed rule, and 16 providing comments or registering in opposition to the proposed rule. Every comment submitted by cotton producers and landowners from counties other than Hall and Childress strongly supported establishing the zone, with the geographic boundaries remaining as originally proposed. In addition to numerous comments from individual growers and landowners across the proposed zone, 93 cotton producers in Collingsworth County filed a petition supporting the zone boundaries as proposed. Some individual Hall and Childress county farmers also commented in favor of leaving the zone's boundaries as initially drawn, and a petition signed by 45 growers and landowners from northern Childress County was also filed in support of the proposed rule. Also, of the growers and landowners attending the May 4, 5 and 6, 1998 public meetings in Hall and Childress counties, 19 growers and landowners from Hall County provided comments or registered in support of the proposed rule and 4 from Childress County did the same. Comments in favor of creation of the proposed new zone expressed a dire need for a comprehensive program in the Northern Rolling Plains area to ensure the effective eradication of the boll weevil. A number of growers cited increasing physical and economic damage experienced as a result of the boll weevil. Cottle County cotton growers cited a 50% reduction in cotton acres in the county since 1995 because of boll weevil damage. Comments also noted the urgency of the situation due to the high population of overwintering weevils and passage of a mild winter that will allow weevils to thrive in the Northern Rolling Plains cotton growing areas. Much concern was expressed regarding the potential overall success an eradication program would have in the zone if there was the constant influx of boll weevils originating in areas not participating in an eradication program. State agriculture and boll weevil eradication program officials from Oklahoma expressed serious concerns that omitting Hall and Childress counties from the proposed boll weevil eradication zone would have a significant detrimental impact on Oklahoma's boll weevil eradication program slated to begin in the Fall of 1998. Dennis Howard, Oklahoma Commissioner of Agriculture, Jerry Coakley, Executive Director of the Oklahoma Boll Weevil Eradication Organization, and Miles Karner, Oklahoma Cooperative Extension Service entomologist and Chair of the Oklahoma Boll Weevil Eradication Organization Technical Advisory Committee, all requested that the zone be left intact to protect Oklahoma cotton producers from a potential source of reinfestation of migrating boll weevils. Mr. Karner also testified that as a private crop consultant in Hall, Childress and Collingsworth counties since 1989, he has seen a significant increase in boll weevil numbers and in the resulting devastation in the Northern Rolling Plains area. Based on his experience and expertise, he believes a diapause program in the two counties will not reduce the boll weevil numbers such that a summer build-up will be prevented. Thus, he submits that given their migratory behavior and the prevailing southwesterly winds, weevils from Hall and Childress counties will be blown into adjoining counties in Texas and Oklahoma, resulting in reinfestation of those areas. While there were comments from some Hall and Childress county farmers in favor of leaving the zone's boundaries as initially drawn, there were also numerous comments from growers in these counties opposing the rule with the zone boundaries it proposed. The vast majority of these comments came in the form of petitions requesting these two counties be completely removed from the proposed Northern Rolling Plains zone, and a separate zone governed by a local cotton grower board be created to conduct a Fall diapause program only in these two counties. One petition was filed by 188 cotton growers predominantly from Hall and Childress counties and the other petition was filed by 19 cotton growers from Hall County alone. Also, of the growers and landowners attending the May 4, 5 and 6, 1998 public meetings in Hall and Childress counties, 10 growers and landowners from Hall County provided comments or registered in opposition to the proposed rule and 2 from Childress County did the same. The primary reasons generally given for the requested removal of these two counties were claims that the cotton producers in these counties: (1) are generally dry-land, skip-row farmers who cannot afford to pay the costs of an eradication program; and, (2) have not encountered boll weevil pressures to the same extent as the farmers in the other counties in the proposed zone. They instead proposed establishing their own program, likely a diapause control program, under independent, local control of the producers in these two counties. They did suggest that parts of Briscoe and Motley counties contiguous to Hall County should be included in their requested two-county zone. On the other hand, comments in opposition to the removal of Childress and Hall counties generally stated the need for a comprehensive, unified program in order for eradication efforts to succeed. The concerns were that the removal of these counties would allow for the continuous influx of weevils from these counties to areas where eradication efforts are ongoing, resulting in reinfestation; that the removal of these counties would create an increase in program costs to remaining producers because of re-infestation problems, and in particular, financial hardship to producers in counties adjacent to the counties seeking removal; that having a diapause program in these counties would not be sufficient to make eradication efforts work; and that there must be simultaneous eradication efforts in the entire Rolling Plains area of Texas and adjacent counties in Oklahoma to achieve eradication and prevent weevil migration from areas that are not part of the program. Dr. D. R. Rummel, an entomologist with the Texas Agriculture Experiment Station, stated that the proposed boundaries establish a good tie with the active Rolling Plains Central Eradication Zone in Texas and the upcoming eradication program in southwestern Oklahoma, and strongly recommended keeping the zone's boundaries as delineated in the proposed rule. He stated that in his 35 years of experience with the boll weevil, both as an entomologist and dry-land cotton farmer in Collingsworth County, he has watched the steady progression of the boll weevil throughout the High Plains and Northern Rolling Plains. He has found the weevil to now be a very well-adapted and well- established pest. In fact, a county extension agent report from Collingsworth County confirms this, indicating boll weevil levels in the county almost nine times greater in 1997 than in 1996. Based on his experience and expertise, and citing the heavy weevil infestations now being experienced and the recent mild winters, Dr. Rummel testified that any proposed diapause program alone will not have sufficiently effective results. He believes such a program will require at least five treatment applications to be effective at all, and predicts resulting costs up to $17 per acre. He suggested that any decision to designate a separate, smaller zone be delayed until all parties involved could be educated about budgetary issues relating to diapause and eradication programs. However, his basic conclusion was that removing Hall and Childress counties from the zone would jeopardize the whole eradication effort in the Rolling Plains areas of Texas and Oklahoma. Immediately following the February 25, 1998 public hearing, the Commissioner's interim advisory committee members attending discussed the oral comments submitted and then voted to recommend to the Commissioner that the zone's boundaries remain unchanged from that published. Their collective sentiment was that it was best for the zone to stay intact, as proposed; but if a program was not subsequently approved at the required grower referendum, that would be the time to look at possibly dividing the area. Later, at a telephone conference on March 24, 1998, the interim advisory committee recommended to the Commissioner that the comment period on the proposed rule be extended to allow additional comments to be submitted from anyone wishing to do so. Finally, the Texas Boll Weevil Eradication Foundation offered the opinion that the most prudent zone would have geographic boundaries as originally proposed. If, however, there were areas to be left out, they opined that it would be important that those areas be put into another designated zone that would initiate an eradication program simultaneously with the Northern Rolling Plains Zone. In addition, they stressed the need to address cotton in contiguous counties such as Dickens, Motley and Briscoe for future inclusion with the efforts of the area. The Foundation also stressed the view that any zone established must be an official part of the Texas Boll Weevil Eradication Foundation and not independent of it. At its March 26, 1998 meeting, the Foundation's Board for Directors voted to support the interim advisory committee's recommendation that the comment period be extended. In order to help answer questions about the eradication program and the proposed zone, Foundation staff held a number of informational meetings in the affected area in April. Based on all the information and comments received on the proposed rule, the department finds that significant grower support and justification have been demonstrated to adopt the designation of a Northern Rolling Plains Boll Weevil Eradication Zone. Such zone designation will then lead to an opportunity for cotton growers and landowners in the zone to express their positions on establishment of an eradication program in the zone in a future referendum vote. Since the boll weevil first entered the United States via Texas in the early 1890s, it has caused an estimated $13 billion in losses to the nation's economy, and continues to cost U. S. cotton producers approximately $300 million annually in yield losses and control costs. Continuing crop losses from the boll weevil and the resultant high annual control costs are major contributors to the high cost of producing cotton in Texas and the United States. The boll weevil causes annual losses in excess of $25 million to cotton production in Texas. Given this, the Texas Legislature has expressly declared the boll weevil as a "public nuisance" and "a menace to the cotton industry", and determined that its "eradication is a public necessity". Texas Agriculture Code Section 74.101 (a)(1). The boll weevil likewise has become one of the most destructive cotton pests in the Northern Rolling Plains of Texas and Oklahoma. According to the Texas Agricultural Extension Service, successive mild winters in recent years have enabled the boll weevil to survive in extremely high numbers, increase and expand across the entire cotton-growing areas of the Rolling Plains and West Texas. The Texas Boll Weevil Eradication Foundation indicates that a recent survey conducted by its personnel revealed widespread, high levels of damage caused by the boll weevil in the Northern Rolling Plains cotton growing region. Comments received from cotton growers and the Foundation indicated that in spite of adequate rainfall and favorable temperatures during the 1997 growing season, a number of dry-land cotton growers were forced to shred their cotton crops without harvesting due to the increasingly devastating level of weevil damage. A number of growers stated that they were individually spending approximately $12 - $15 per acre on boll weevil treatment costs, and some spent as much as $30 per acre where infestation was extensive. County extension agents in the area reported that boll weevil damage has resulted in decreased cotton production ranging from 175 to 700 pounds per acre (300 pounds per acre average), as well as significant decreases in total acreage in cotton production - with many reporting at least a 50% decrease since 1995 and some up to almost an 80% decrease. Furthermore, the decline in cotton production in the area is also having significant adverse impacts on related businesses dependent on cotton production. For example, citing the devastating impact the boll weevil has had on cotton production in the area, the White City gin is being closed after 90 years of operation in Wilbarger County. Also, the Wellington Coop Gin in Collingsworth County reported that it ginned only 10,000 bales in 1997, a 50% reduction in the number of bales it ginned on average the previous year. This significant reduction was attributed almost totally to boll weevil devastation, and caused the gin to suffer an operating loss for the first time in 30 years of operation. Where the boll weevil has been basically eradicated through organized control programs, such as in North and South Carolina, it is no longer an economic pest. To date, the boll weevil has been successfully eradicated in Arizona, California, Florida, Georgia, North Carolina, South Carolina, South Alabama and Virginia. In Texas, cotton growers in the Southern Rolling Plains and Rolling Plains Central Zones have realized substantial crop yield increases since the initiation of the boll weevil eradication program in their zones in 1994 and 1996, respectively. According to the United States Department of Agriculture Animal and Plant Health Inspection Service [APHIS], successful eradication efforts have led to significant, positive economic impacts, such as yield increases up by an average of 69 pounds per acre; cotton acreage up 300%; farm income up an average of $75 per acre; and increases in start-ups of new cotton- related industries such as gins. It is reasonably expected that cotton growers in the Northern Rolling Plains will experience comparable results if given the opportunity to participate in an eradication program that would allow them to produce their cotton crops without the devastation from boll weevils now being experienced. Two Texas Agricultural Extension Service Result Demonstration Reports in 1997 clearly demonstrated the difference eradication has on weevil counts in program areas versus non- program areas. The report "Overwintered Boll Weevil Activity in the Central and Northern Rolling Plains" presented data showing 3.2 times more boll weevils per trap day were captured from Wilbarger/Foard traplines (in the proposed Northern Rolling Plains Zone) than from the average of the traplines in the Rolling Plains Central Eradication Zone. The report "Boll Weevil Activity July through September in the Rolling Plains Central Eradication Zone and Lockett/Rayland Area of Wilbarger and Foard Counties" likewise shows boll weevil counts in the Rolling Plains Central Eradication Zone traplines up to almost 20 times less than in Wilbarger and Foard county traplines. No one, through either written or oral comments, objected to efforts to eradicate the boll weevil. However, there were significantly differing opinions as to the appropriate strategies that should be implemented in such an effort, as reflected in the extensive comments submitted relating to the geographic boundaries of the zone that the proposed rule would designate. To summarize simply, the basic prevailing views on the boundary designation issue were to adopt the rule as originally proposed with all 14 counties included in the designated Northern Rolling Plains Zone, or to remove all or part of Hall and Childress counties and designate the remaining area as the Northern Rolling Plains Zone. Based on all the information and comments submitted, the department finds that significant justification has been demonstrated to adopt the rule with the zone boundaries delineated as originally proposed. The department finds that, given the entomological, agronomic, operational and economic aspects that must be considered, the request to remove Hall and Childless counties from the proposed Northern Rolling Plains Zone and to create a separate, independently operated zone for these two counties, cannot be justified. Removing all or parts of Hall and Childress counties will significantly and adversely impact necessary or appropriate eradication efforts carried out in the other cotton growing areas in the zone and in neighboring growing areas in Texas and Oklahoma. First, due simply to the physical location of Hall and Childress counties in the very heart of the proposed Northern Rolling Plains Zone and the Northern Rolling Plains cotton- growing areas of Texas and Oklahoma, removal of these counties from the zone is highly problematic. According to United States Department of Agriculture Farm Service Agency and Texas Agricultural Extension Service county extension agent reports, there were approximately 288,900 total acres of cotton production in the proposed 14-county Northern Rolling Plains Zone in 1997, approximately 86,760 acres of which were in Hall County and 41,960 acres in Childress County. The 128,720 total acres in these two counties are situated geographically in the center of the other 160,180 cotton acres in the Northern Rolling Plains Zone. Their removal would literally bisect the zone, with approximately 68,430 total cotton acres lying to their north in Collingsworth, Donley, Gray and Wheeler counties, and approximately 91,750 total cotton acres lying south and east in Hardeman, Cottle, King, Foard, Wilbarger, Wichita, Archer and Clay counties. Their removal would destroy the areal continuity of the zone, which is reasonably necessary to facilitate manageable, efficient and effective eradication operations. Their exclusion would profoundly hinder any eradication efforts in the remaining cotton-growing areas, especially without implementation of other areawide control measures. Removal of Hall and Childress counties would leave no effective buffer area between their cotton-growing areas and those in adjoining Briscoe, Cottle, Motley, Donley, Hardeman and Collingsworth counties and in the State of Oklahoma. Accordingly, it is reasonable to expect a continuous influx of weevils, aided by prevailing southwesterly winds, migrating from Hall and Childress counties into the adjoining cotton-growing areas in and adjoining the proposed zone and in Oklahoma, leading to further weevil infestation or reinfestation within these areas. One cotton grower who farms in Childress and Hardeman counties in Texas and Harmon County in Oklahoma related personal experiences with intense weevil migration from adjoining areas. He stated that in late August, when the cotton in dry-land areas to the southwest matures and sheds the squares that weevils feed on, weevil migration is "hard to imagine" - "with counts jumping from less than 10 percent infestation to 50 - 60 percent almost overnight." The migratory nature of the boll weevil necessitates areawide and even interstate cooperation for control programs to succeed. Although some individual growers have successfully controlled boll weevils in their fields, neighboring areas will almost always contribute to reinfestations. The boll weevil's movement is largely dependent on wind direction and speed, but it has been known to travel up to 160 miles. Therefore, reinfestations often cross political subdivision boundaries, such as county lines and state lines. Since the early 1900s, U. S. cotton growers, growers' associations and States have proposed and experimented with a variety of control methods. However, since the early 1970s, there has been general acceptance of the need for a beltwide strategy for the control of the boll weevil. The Texas and Oklahoma eradication programs are integral parts of the National Boll Weevil Cooperative Control Program, the effort to implement that strategy across the Cotton Belt of the United States. According to the Oklahoma Boll Weevil Eradication Organization, the 16-county area in southwestern Oklahoma adjoining the proposed Northern Rolling Plains Zone in Texas produces about 90% of all cotton raised in Oklahoma. It is predicted that Oklahoma cotton acreage in these 16 counties will be approximately 165,000 - 190,000 acres in 1998. Thus, almost the entire cotton production in the State of Oklahoma lies adjoining or in close proximity to the proposed Northern Rolling Plains Zone. The rule as adopted will give the eradication efforts in Oklahoma a reasonable measure of protection from weevil migration and thus additional confidence in its program's future effectiveness. Removal of Hall and Childress counties would disrupt the operational cohesiveness of the zone, creating logistical and program management problems. As discussed above, removal of these two counties would literally bisect the zone, thus making effective and efficient operations extremely difficult. According to the Texas Boll Weevil Eradication Foundation, which will operate any program implemented in the zone, costs of eradication efforts would be greater for cotton producers in the remaining areas of the zone due to continuous and/or additional treatments required by potential reinfestations from any cotton-growing areas excluded, and to the loss of some economies of scale resulting from removal of the two counties. According to the United States Department of Agriculture, although most growers - even those outside organized eradication programs -- judiciously apply control measures to boll weevil- infested acreage, in almost all such areas, 5 to 20 percent of the infested acreage may receive inadequate or no control treatments. This untreated acreage would continue to harbor weevil populations capable of reinfesting neighboring areas. Models developed on this aspect demonstrate that if only 10 percent of a population remains untreated, that small portion of the population can develop normally, propagate and redistribute throughout the entire area after only four generations --- all in less than one cotton growing season. According to the National Boll Weevil Cooperative Control Program's Final Environmental Impact Statement, most pest management professionals agree that successful boll weevil control programs require participation by 100 percent of the growers. While the department finds that the soundest approach from entomological, agronomic, operational and economic standpoints is to leave Hall and Childress counties in the zone, it is important to consider seriously the recommendationsand opinions of the cotton growers who either oppose the eradication program, or who desire implementation of different strategies. The Texas boll weevil eradication program is designed to be a grower-driven program and input from all growers involved must be seriously considered in decisions such as this. For an eradication effort to be successful, it must have the consensus support of the cotton growers involved. However, under the processes established by the Legislature, that consensus will be appropriately determined through the statutorily required referendum on the establishment of any eradication program in the zone. If a majority of the cotton growers in the zone do not want an eradication program established, they can vote accordingly in the referendum and no program can be forced upon them. Furthermore, grower concerns about costs of eradication efforts can be adequately addressed in the program budget planning process that will ensue once the zone has been designated. This process will result in a proposed grower assessment to fund program costs, and it is here that issues such as crop yield differences between dry-land, skip row farming and irrigated farming can be addressed. Once this is done, all growers and landowners in the zone will then have an opportunity in the required program establishment referendum to approve or reject the proposed eradication program and the grower assessment to be levied upon them. However, the department must adopt the rule designating the zone and its boundaries based on entomological, agronomic, operational and economic aspects, and not on any possible threat of the program establishment failing in a referendum or of litigation obstacles or delays. Therefore, after reviewing all the comments and information received during the entire comment period and at the public hearing and public meetings held, the department hereby adopts the rule designating the Northern Rolling Plains Zone boundaries as initially proposed. The new section is adopted under the Texas Agriculture Code, sec.74.120, which provides the commissioner of agriculture with the authority to adopt rules to carry out the purposes of Chapter 74; sec.74.1042, which provides the commissioner of agriculture with the authority, by rule, to designate an area of the state as a proposed boll weevil eradication zone as long as the area is not within a statutory zone that has approved an eradication program by referendum; and Senate Bill 1814, 75th Legislature, 1997. The area being designated as the Northern Rolling Plains Zone is not within a statutory zone that has approved an eradication program by referendum. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 13, 1998. TRD-9807901 Dolores Alvarado Hibbs Deputy General Counsel Texas Department of Agriculture Effective date: June 2, 1998 Proposal publication date: January 30, 1998 For further information, please call: (512) 463-7541 SUBCHAPTER G.Transfer or Addition of Areas from One Eradication Zone to Another Zone 4 TAC sec.3.300 The Texas Department of Agriculture (the department) adopts new sec.3.300, concerning modification of boll weevil eradication zones, without changes to the proposal published in the April 10, 1998, issue of the Texas Register (23 TexReg 3643). A minor change was made only to correct a reference in subsection (b). The new section is adopted to transfer a portion of Glasscock County from the St. Lawrence Boll Weevil Eradication Zone to the Permian Basin Boll Weevil Eradication Zone, in accordance with the Texas Agriculture Code, sec.74.108(b). Comments in support of the proposed transfer were submitted by the St. Lawrence Cotton Growers Association and by the Texas Boll Weevil Eradication Foundation. The Association noted that the area proposed to be transferred from the St. Lawrence Eradication Zone has been in cotton production for more than 50 years and is adjacent to the Permian Basin Eradication Zone; that the area described has similar soil types, farming practices and boll weevil habitat as the Permian Basin Zone; that most of the producers in the area proposed to be transferred also farm in the Permian Basin Zone, while few farm in the rest of the St. Lawrence Zone; and that the proposed transfer would result in a natural break in cotton production ranging from 3-15 miles wide. The Foundation concurred with the proposed transfer citing more similarity of farming practices in the subject part of Glassock County with the Permian Basin Zone than with the St. Lawrence Zone; and, the absence of geographical separation between the northern part of Glassock County and the Permian Basin Zone. The Texas Agriculture Code, sec.74.108(b) provides that the Commissioner of Agriculture may by rule transfer an area from one statutory zone to another if cotton production has begun in the area and the area is adjacent to an eradication zone or is in an area with biological characteristics similar to the eradication zone. Section 74.108 further provides that such a transfer must be approved in a referendum held in the area. The department believes that the proposed transfer meets the requirements of sec.74.108(b) in that, as established by comments submitted, cotton production has occurred in the proposed area and the proposed area is adjacent to the zone to which the transfer is being made. Further, comments submitted establish that the area to be transferred has similar geographic and biological characteristics as the zone to which the transfer is being made. The proposed rule also does provide that the transfer will not occur until approved by a grower referendum. The department also believes that the transfer is appropriate because the geographical and biological similarities between the area to be transferred and the zone to which the area is being transferred will allow for more efficient, responsive eradication programs for both of the affected zones. The new section is adopted under the Texas Agriculture Code, sec.74.108(b), which provides the commissioner of agriculture with the authority, by rule, to add an area to an eradication zone or transfer an area or county from one statutory zone to another. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 13, 1998. TRD-9807766 Dolores Alvarado Hibbs Deputy General Counsel Texas Department of Agriculture Effective date: June 1, 1998 Proposal publication date: April 10, 1998 For further information, please call: (512) 463-7541 CHAPTER 15.Egg Law 4 TAC sec.15.12 The Texas Department of Agriculture (the department) adopts an amendment to sec.15.12, concerning the Texas Egg Law, without changes to the proposed text as published in the March 20, 1998, issue of the Texas Register (23 TexReg 2926). The amendment is adopted to delete unnecessary language regarding violations of false or deceptive labeling on egg cartons and to clarify the standard now used for determination of whether or not an egg container label is to be considered false or deceptive. The amendment deletes unnecessary descriptive words. The Texas Poultry Federation commented generally in favor of the amendment. The amendment is adopted under the Texas Agriculture Code, sec.132.003, which provides the Texas Department of Agriculture with the authority to adopt rules as necessary to administer the Texas Agriculture Code, Chapter 132. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 13, 1998. TRD-9807767 Dolores Alvarado Hibbs Deputy General Counsel Texas Department of Agriculture Effective date: June 1, 1998 Proposal publication date: March 20, 1998 For further information, please call: (512) 463-7541 TITLE 16. ECONOMIC REGULATION PART I. Railroad Commission of Texas CHAPTER 3. Oil and Gas Division Conservation Rules and Regulations 16 TAC sec.3.57, sec.3.76 The Railroad Commission of Texas adopts amendments to sec.3.57, concerning reclaiming tank bottoms, other hydrocarbon wastes, and other waste materials, without changes and sec.3.76, concerning fees, performance bonds and alternate forms of financial security required to be filed, with changes to the proposed text as published in the January 2, 1998, issue of the Texas Register (23 TexReg 33). The commission deletes sec.3.57(c)(7) and renumbers the subsequent paragraphs of subsection (c) because the requirements of paragraph (c)(7) are replaced by the changes proposed in amendments to sec.3.76. The commission adds sec.3.57(c)(10) to provide a cross-reference to sec.3.76(r) to indicate that financial responsibility requirements for reclamation plants will be governed by sec.3.76(r). The commission adopts amendments to sec.3.76(a) to change paragraph (3) which defines the term "an acceptable record of compliance" to allow one violation of commission rules provided that the violation was settled through an agreed order with the commission. The commission adopts amendments to sec.3.76(a) to add a new paragraph (4) which defines the term "commercial facility" as any facility whose owner or operator receives compensation from others for the storage, reclamation, treatment, or disposal of oil field fluids or oil and gas wastes that are wholly or partially trucked or hauled to the facility and whose primary business purpose is to provide these services for compensation if: (1) the facility is permitted under sec.3.8 of this title; (2) the facility is permitted under sec.3.57 of this title; (3) the facility is permitted under sec.3.9 of this title and a collecting pit permitted under sec.3.8 is located at the facility; or (4) the facility is permitted under sec.3.46 of this title and a collecting pit permitted under sec.3.8 is located at the facility. The commission has further revised this definition by adding the phrase "for compensation," based on one of the comments received on the proposed amendments. The commission adopts amendments to sec.3.76 by adding a new subsection (r) which would require commercial facilities to provide financial security. New subsection (r) describes requirements for submission of financial security information to the commission for review for both new and existing commercial facilities and provides for notice and hearing in certain situations. New subsection (r) also requires that a bond or letter of credit, in an amount approved by the commission or its delegate and meeting the requirements of the subsection as to form and issuer, be filed with the commission prior to receipt of waste at a new facility. After one year from the effective date of the subsection, an existing facility may not continue to receive waste unless financial security has been filed with the commission. An extension of the time for filing financial security may be granted upon written request and for good cause shown. In addition, the time period for filing financial security is automatically extended pending final commission action on review of proposed financial security. New subsection (r) specifies that the amount of financial security be estimated by or under supervision of a licensed professional engineer. An owner or operator of a reclamation plant (permitted under sec.3.57) that does not utilize on-site waste storage or disposal that requires a permit under sec.3.8 may estimate the amount of financial security without a licensed professional engineer. The amount of financial security must be equal to or greater than the maximum amount necessary to close the facility at any time during the permit term, exclusive of plugging costs, but no less than $10,000. The amount of financial security required may be reduced by $25,000, an amount equivalent to the minimum commission form P-5 financial assurance amount. Subsection (r) also provides that proceeds from financial security provided under the subsection may be used to plug a well or wells at the facility if the P-5 financial assurance provided by the operator for plugging wells is insufficient to cover the costs of plugging such well or wells. New subsection (r) also specifies that bonds and letters of credit must be issued by a corporate surety or bank, respectively, authorized to do business in the State of Texas. Two comments, one from Texas Oil and Gas Association, an industry association, and one from MoVac Service Company ("MoVac"), a member of the regulated industry, were received on the proposed amendments. The association comments generally favored the proposed changes and recommended the clarification of the definition for "commercial facilities" at paragraph (a)(4) by adding "for compensation" after the term ". . . and whose primary business purpose is to provide these services . . . ." The recommended change is incorporated in this adoption order. MoVac's comments generally did not favor the proposed changes. MoVac stated that financial security placed with the commission to cover closure of pits will place an unnecessary and undue hardship on small companies like MoVac and that requiring a company to bear the annual cost of maintaining a letter of credit or bond for the number of years the facility is in operation serves no purpose. The commission disagrees with this comment. The commission believes that specific financial security requirements are necessary for this industry segment because the cost to clean up reclamation plants and disposal facilities can be significantly higher than costs to clean up other sites that may otherwise be covered under the Oilfield Cleanup Fund. To this point, operators of reclamation plants and commercial disposal facilities pay only the P-5 financial assurance fees of $100 (or $750) annually. If the operator of such a plant or facility inadequately closed the plant or facility and subsequently could not be found to require adequate cleanup, the site would be placed on the Oilfield Cleanup Fund list. The commission currently has a number of abandoned sites on the Oilfield Cleanup Fund list that were commercial reclamation plants or disposal facilities. The proportion of these plants and facilities, compared to the total number of active plants and facilities, far exceeds the proportion of oil and gas wells that are on the Oilfield Cleanup Fund list compared to the total number of existing oil and gas wells. In addition, estimates for the cleanup of these sites range from approximately $10,000 to $500,000 per site. In contrast, estimates of the cost to clean up various production sites on the Oilfield Cleanup Fund list vary from $1,100 to $24,000. Therefore, the commission believes that separate financial security requirements for these commercial facilities is necessary. MoVac commented that the use of certified engineers was not necessary. MoVac believes that pit owners can produce verifiable estimates from licensed businesses that will carry out the procedures for closure. The commission agrees with this comment in part. The commission agrees that the use of licensed professional engineers is not necessary to estimate closure costs for certain types of commercial facilities. The use of a licensed professional engineer to estimate closure costs is not necessary for reclamation plants that do not utilize on-site waste storage or disposal requiring a Rule 8 permit. The commission anticipates that closing these facilities will require merely an assessment of the volume of fluids, semi-solids, and solids, that will be disposed; the removal costs for such fluids, semi-solids, and solids; and the cost to dispose of the containment vessels. The owners or operators of such reclamation plants should be able to submit a written cost estimate that is reasonably accurate. In addition, the cost estimates for these closure activities can be adequately confirmed by commission staff without the aid of a separate engineering estimate. This is in contrast to other facilities that are typically large in scale of operation, more likely to require complicated closure activities due to the potential for materials left in situ to cause pollution, and involve substantial surface disturbance associated with creation and closure of the facilities. Closure of these facilities may require evaluations of soils, hydrologic conditions, development and installation of clay or synthetic covers, and revegetation, among other things. Therefore, the commission has revised sec.3.76(r)(4)(D), added sec.3.76(r)(4)(E), and renumbered proposed sec.3.76(r)(4)(E) to sec.3.76(r)(4)(F), to exempt by rule the commercial facilities that the commission believes do not require a written estimate prepared by or supervised by and submitted under the seal of a licensed professional engineer. For all other commercial facilities subject to this rule, it is necessary to receive estimates from professional engineers to assure that the commission receives objective and accurate estimates of the costs to close commercial facilities. Engineers, by education and experience, are familiar with the varying site-specific factors that are most likely to influence closure costs and professional engineers are under a professional and regulatory obligation to provide objective, competent engineering services. Finally, MoVac commented that, should the commission see the need for financial security for closure of pits or disposal, it should establish rules that differentiate between large operations versus small operations; high pollution risks versus low pollution risks; pits and operators with a bad history versus pits and operators with a good history; and disposal pits that are near being full versus those with many years of active life left. The commission believes that requiring bonds and letters of credit based on estimates of worst-case closure costs on a site-by-site basis will account for site-specific differences between commercial facilities. Smaller commercial facilities will likely have lower closure costs compared to larger commercial facilities. The written estimate of the maximum amount necessary to close a commercial facility may be periodically re-submitted to allow for periodic adjustment of the amount of the bond or letter of credit. Therefore, the commission makes no other changes to the rule based on this comment. The commission adopts the amendments to sec.3.57 and sec.3.76 under Texas Water Code, sec.27.001 et seq., which authorizes the commission to adopt and enforce rules relating to oil and gas waste disposal wells; Texas Natural Resources Code, sec.91.101, which authorizes the commission to adopt rules for the prevention of pollution of surface or subsurface water associated with the management of oil field fluids in oil and gas waste; and Texas Natural Resources Code, sec.91.109, which authorizes the commission to require performance bonds or other forms of financial security from a person permitted to manage oil and gas waste. The following are the statutes, articles, or codes affected by the adopted amendments: sec.sec.3.57 and 3.76-Texas Water Code, sec.27.001 et seq.; Texas Natural Resources Code, sec.sec.91.101 and 91.109. sec.3.76. Fees, Performance Bonds and Alternate Forms of Financial Security Required to be Filed. (a) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise: (1)-(2) (No change.) (3) An acceptable record of compliance: (A) A record of compliance showing: (i) No referrals to the commission's enforcement section relating to a violation; (ii) No pending legal enforcement action relating to a violation; and (iii) No outstanding violations; or (B) A record of compliance showing: (i) Only one enforcement order, provided the order specifies that it shall not be considered to meet the elements of subparagraph (A) of this definition and provided the requirements of the order are met; (ii) No referrals to enforcement other than those that are resolved in the order referenced in clause (i) of this subparagraph; (iii) No pending enforcement actions other than those resolved in the order referenced in clause (i) of this subparagraph; and (iv) No outstanding violations other than those resolved in the order referenced in clause (i) of this subparagraph. (4) Commercial facility - A facility whose owner or operator receives compensation from others for the storage, reclamation, treatment, or disposal of oil field fluids or oil and gas wastes that are wholly or partially trucked or hauled to the facility and whose primary business purpose is to provide these services for compensation if: (A) the facility is permitted under sec.3.8 of this title (relating to water protection); (B) the facility is permitted under sec.3.57 of this title (relating to reclaiming tank bottoms, other hydrocarbon wastes, and other waste materials); (C) the facility is permitted under sec.3.9 of this title (relating to disposal wells) and a collecting pit permitted under sec.3.8 is located at the facility; or (D) the facility is permitted under sec.3.46 of this title (relating to fluid injection into productive reservoirs) and a collecting pit permitted under sec.3.8 is located at the facility. (b)-(q) (No change.) (r) Financial security for commercial facilities. The provisions of this subsection shall apply to the holder of any permit for a commercial facility. (1) Application. (A) New permits. Any application for a new or amended commercial facility permit filed after the effective date of this subsection shall include: (i) a written estimate of the maximum dollar amount necessary to close the facility prepared in accordance with the provisions of paragraph (4) of this subsection that shows all assumptions and calculations used to develop the estimate; (ii) a copy of the form of the bond or letter of credit that will be filed with the commission; and (iii) information concerning the issuer of the bond or letter of credit as required under paragraph (5) of this subsection including the issuer's name and address and evidence of authority to issue bonds or letters of credit in Texas. (B) Existing permits. Within 180 days of the effective date of this subsection, the holder of any commercial facility permit issued on or before the effective date of this subsection shall file with the commission the information specified in subparagraph (A)(i)-(iii) of this paragraph. (2) Notice and hearing. (A) New permits. For commercial facility permits issued after the effective date of this subsection, the provisions of sec.3.8 or sec.3.57 of this title (relating to water protection; and reclaiming tank bottoms, other hydrocarbons wastes, and other waste materials), as applicable, regarding notice and opportunity for hearing, shall apply to review and approval of financial security proposed to be filed to meet the requirements of this subsection. (B) Existing permits. Notice of filing of information required under paragraph (1)(B) of this subsection shall not be required. In the event approval of the financial security proposed to be filed for a commercial facility operating under a permit in effect as of the effective date of this subsection is denied administratively, the applicant shall have the right to a hearing upon written request. After hearing, the examiner shall recommend a final action by the commission. (3) Filing of instrument. (A) New permits. A commercial facility permitted after the effective date of this subsection may not receive oil field fluids or oil and gas waste until a bond or letter of credit in an amount approved by the commission or its delegate under this subsection and meeting the requirements of this subsection as to form and issuer has been filed with the commission. (B) Existing permits. Except as otherwise provided in this subsection, after one year from the effective date of this section, a commercial facility permitted on or before the effective date of this subsection may not continue to receive oil field fluids or oil and gas waste unless a bond or letter of credit in an amount approved by the commission or its delegate under this subsection and meeting the requirements of this subsection as to form and issuer has been filed with and approved by the commission or its delegate. (C) Extensions for existing permits. On written request and for good cause shown, the commission or its delegate may authorize a commercial facility permitted before the effective date of this subsection to continue to receive oil field fluids or oil and gas waste after one year after the effective date of this section even though financial security required under this subsection has not been filed. In the event the commission or its delegate has not taken final action to approve or disapprove the amount of financial security proposed to be filed by the owner or operator under this subsection one year after the effective date of the section, the period for filing financial security under this subsection is automatically extended to a date 45 days after such final commission action. (4) Amount. (A) Except as provided in subparagraphs (B) or (C) of this paragraph, the amount of financial security required to be filed under this subsection shall be an amount based on a written estimate approved by the commission or its delegate as being equal to or greater than the maximum amount necessary to close the commercial facility, exclusive of plugging costs for any well or wells at the facility, at any time during the permit term in accordance with all applicable state laws, commission rules and orders, and the permit, but shall in no event be less than $10,000. (B) The owner or operator of a commercial facility may reduce the amount of financial security required under this subsection by $25,000 if the owner or operator holds only one commercial facility permit. (C) The owner or operator of more than one commercial facility may reduce the amount of financial security required under this subsection for one such facility by $25,000. The full amount of financial security required under subparagraph (A) of this paragraph shall be required for the remaining commercial facilities. (D) Except for the facilities specifically exempted under subparagraph (E), a qualified professional engineer licensed by the State of Texas shall prepare or supervise the preparation of a written estimate of the maximum amount necessary to close the commercial facility as provided in subparagraph (A) of this paragraph. The owner or operator of a commercial facility shall submit the written estimate under seal of a qualified licensed professional engineer to the commission as required under paragraph (1) of this subsection. (E) A facility permitted under sec.3.57 of this title (relating to reclaiming tank bottoms, other hydrocarbon wastes, and other waste materials) that does not utilize on-site waste storage or disposal that requires a permit under sec.3.8 of this title (relating to water protection) is exempt from subparagraph (D) of this paragraph. (F) Notwithstanding the fact that the maximum amount necessary to close the commercial facility as determined under this paragraph is exclusive of plugging costs, the proceeds of financial security filed under this subsection may be used by the commission to pay the costs of plugging any well or wells at the facility if the financial security for plugging costs filed with the commission under subsection (c) of this section is insufficient to pay for the plugging of such well or wells. (5) Issuer and form. (A) Bond. The issuer of any commercial facility bond filed in satisfaction of the requirements of this subsection shall be a corporate surety authorized to do business in Texas. The form of bond filed under this subsection shall provide that the bond be renewed and continued in effect until the conditions of the bond have been met or its release is authorized by the commission or its delegate. (B) Letter of credit. Any letter of credit filed in satisfaction of the requirements of this subsection shall be issued by and drawn on a bank authorized under state or federal law to operate in Texas. The letter of credit shall be an irrevocable, standby letter of credit subject to the requirements of Texas Business and Commerce Code, sec.sec.5.101 - 5.117. The letter of credit shall provide that it will be renewed and continued in effect until the conditions of the letter of credit have been met or its release is authorized by the commission or its delegate. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 12, 1998. TRD-9807722 Mary Ross McDonald Deputy General Counsel Railroad Commission of Texas Effective date: June 1, 1998 Proposal publication date: January 2, 1998 Issued in Austin, Texas on May 12, 1998. For further information, please call: (512) 463-7008 PART II. Public Utility Commission of Texas CHAPTER 22.Practice and Procedure SUBCHAPTER A.General Provisions and Definitions 16 TAC sec.22.2, sec.22.3 The Public Utility Commission of Texas adopts amendments to sec.22.2 relating to Definitions; and sec.22.3 relating to Standards of Conduct. Section 22.2 is adopted with changes to the proposed text as published in the February 27, 1998, Texas Register (23 TexReg 1766). Section 22.3 is adopted without changes and will not be republished. The amendments are necessary to conform the rules to the commission's current organization and practices, and to delete unnecessary definitions. These amendments are adopted under Project Number 17709. The commission received written comments on the proposed amendments from Southwestern Bell Telephone Company (SWBT). SWB's comments concerned the proposed deletion of the term "tariff filing". SWB recommended maintaining the definition in the commission's Procedural Rules, as sec.22.33 relating to Tariff Filings is devoted entirely to this process, and the term is also mentioned in sec.22.72(b)(1) relating to Formal Requisites of Pleadings to be Filed with the Commission and sec.22.74(a) relating to Service of Pleadings. The commission declines to adopt SWB's recommendation to maintain the definition of "tariff filing". The term, as used in sec.sec.22.33, 22.72(b)(1) and 22.74(a), does not require definition for the requirements of those sections to be clear. Definition of the term is therefore unnecessary. No comments were received concerning the amendments to sec.22.3 of this title. The Appropriations 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 Government Code, Chapter 2001. 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 commission invited specific comments regarding the Section 167 requirement, as to whether the reason for adopting the rules continues to exist, in the comments on these amendments. No parties commented on the Section 167 requirement. The commission finds that the reason for adopting these sections continues to exist. The change the commission makes to sec.22.2 of this title is to number the definitions pursuant to the Texas Register's new required procedures, effective February 17, 1998. No changes are made to the proposed amendments for sec.22.3 of this title. These amendments are adopted under the Public Utility Regulatory Act, Texas Utilities Code Annotated sec.14.002 and sec.14.052 (Vernon 1998) which provides the commission with the authority to make and enforce rules reasonably required in the exercise of its powers and jurisdiction, including rules of practice and procedure. Cross Reference to Statutes: Public Utility Regulatory Act sec.14.002 and sec.14.052. sec.22.2.Definitions. The following terms, when used in this chapter, shall have the following meanings, unless the context or specific language of a section clearly indicates otherwise: (1) Administrative law judge - The person designated to preside over a hearing. (2) APA - The Administrative Procedure Act, Chapter 2001, Government Code, as it may be amended from time to time. (3) Administrative review - Process under which an application may be approved without a formal hearing. (4) Affected person - The definition of affected person is that definition given in the Public Utility Regulatory Act, sec.11.003(1). (5) Applicant - A person, including the Office of Regulatory Affairs, who seeks action from the commission by written application, petition, complaint, notice of intent, appeal, or other pleading that initiates a proceeding. (6) Application - A written application, petition, complaint, notice of intent, appeal, or other pleading that initiates a proceeding. (7) Authorized representative - A person who enters an appearance on behalf of a party, or on behalf of a person seeking to be a party or otherwise to participate, in a proceeding. The appearance may be entered in person or by subscribing the representative's name upon any pleading filed on behalf of the party or person seeking to be a party or otherwise to participate in the proceeding. The authorized representative shall be considered to remain a representative of record unless a statement or pleading to the contrary is filed or stated in the record. (8) Chairman - The commissioner designated by the Governor to serve as chairman. (9) Commission - The Public Utility Commission of Texas. (10) Commissioner - One of the members of the Public Utility Commission of Texas. (11) Complainant - A person, including the Office of Regulatory Affairs, who files a complaint intended to initiate a proceeding with the commission regarding any act or omission by the commission or any person subject to the commission's jurisdiction. (12) Contested case - A proceeding, including a ratemaking or licensing proceeding, in which the legal rights, duties, or privileges of a party are to be determined by a state agency after an opportunity for adjudicative hearing. (13) Control number - Number assigned by the commission's Central Records to a docket, project, or tariff. (14) Days - Calendar days, not working days, unless otherwise specified by this chapter or the commission's substantive rules. (15) Docket - A proceeding handled as a contested case under APA. (16) Final order - The whole or part of the final disposition by the commission of the issues before the commission in a proceeding, rendered in compliance with sec.22.263 of this title (relating to Final Orders). (17) Financial interest - Any legal or equitable interest, or any relationship as officer, director, trustee, advisor, or other active participant in the affairs of a party. An interest as a taxpayer, utility ratepayer, or cooperative member is not a financial interest. An interest a person holds indirectly by ownership of an interest in a retirement system, institution, or fund which in the normal course of business invests in diverse securities independently of that person's control is not a financial interest. (18) General counsel - The individual employed by the commission and charged with the duties of the general counsel under PURA. The general counsel duties may be delegated as necessary. (19) Hearing - Any proceeding at which evidence is taken on the merits of the matters at issue, not including prehearing conferences. (20) Hearing day - A day of hearing when the merits of a proceeding are considered at the hearing on the merits, a final order meeting, or a regional hearing. (21) Intervenor - A person, other than the applicant, respondent, or the general counsel, who is permitted by this chapter or by ruling of the presiding officer, to become a party to a proceeding. (22) Licensing proceeding - Any proceeding respecting the granting, denial, renewal, revocation, suspension, annulment, withdrawal, or amendment of a license, including a proceeding regarding a notice of intent to build a new electric generating unit. (23) Major rate proceeding - Any proceeding filed pursuant to PURA, sec.sec.36.101 - 36.111, 36.201-36.203 and 36.205 or sec.sec.51.009, 53.101 - 53.113, 53.201. and 53.202 involving an increase in rates which would increase the aggregate revenues of the applicant more than the greater of $100,000 or 2.5%. In addition, a major rate proceeding is any rate proceeding initiated pursuant to PURA, sec.sec.36.151 - 36.156 or sec.53.151 and sec.53.152 in which the respondent utility is directed to file a rate filing package. (24) Municipality - A city, incorporated village, or town, existing, created, or organized under the general, home-rule, or special laws of Texas. A municipality is a "person" as defined in this section. (25) Party - A party under sec.22.72 or sec.22.73 of this title (relating to Formal Requisites of Pleadings To Be Filed with the Commission; General Requirements for Applications). (26) Person - An individual, partnership, corporation, association, governmental subdivision, entity, or public or private organization. (27) Pleading - A written document submitted by a party, or a person seeking to participate in a proceeding, setting forth allegations of fact, claims, requests for relief, legal argument, and/or other matters relating to a proceeding. (28) Prehearing conference - Any conference or meeting of the parties, prior to the hearing on the merits, on the record and presided over by the presiding officer. (29) Presiding officer - The commission, any commissioner, or any administrative law judge presiding over a proceeding or any portion thereof. (30) Proceeding - Any hearing, investigation, inquiry or other fact-finding or decision- making procedure, including the denial of relief or the dismissal of a complaint, conducted by the commission or the utility division of SOAH. (31) Project - A rulemaking or other proceeding that is not a docket or a tariff. (32) Protestant - A person who is not a party to the case who submits oral or written comments. A person classified as a protestant does not have rights to participate in a proceeding other than by providing oral or written comments. (33) PURA - The Public Utility Regulatory Act, Texas Utilities Code, sec.sec.11.001 - 63.063, as it may be amended from time to time. (34) Relative - An individual (or spouse of an individual) who is related to the individual in issue (or the spouse of the individual in issue) within the second degree of consanguinity or relationship according to the civil law system. (35) Respondent - A person under the commission's jurisdiction against whom any complaint or appeal has been filed or who is under formal investigation by the commission. (36) Rulemaking - A proceeding pursuant to APA, sec.sec.2001.021 - sec.2001.037 conducted to adopt, amend, or repeal a commission rule. (37) SOAH - The State Office of Administrative Hearings. (38) Unprotested case - A contested case in which a hearing is not necessary. (39) Working day - A day on which the commission is open for the conduct of business. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 15, 1998. TRD-9808023 Rhonda Dempsey Rules Coordinator Public Utility Commission of Texas Effective date: June 4, 1998 Proposal publication date: February 27, 1998 For further information, please call: (512) 936-7308 TITLE 19. EDUCATION PART I. Texas Higher Education Coordinating Board CHAPTER 5.Program Development SUBCHAPTER A.General Provisions 19 TAC sec.5.10 The Texas Higher Education Coordinating Board adopts new sec.5.10, concerning General Provisions (Student Transcripts) without changes to the proposed text as published in the March 13, 1998, issue of the Texas Register (23 TexReg 2657). The proposed rules are being made to implement provisions of the Texas Education Code related to tuition rebates and the TASP, some additional information must be included on student transcripts. The proposed rules would accomplish three things: they would require that transcripts from public institutions contain a record of all courses attempted at that institution; they would require that transcripts indicate when and how students had satisfied TASP requirements; and they would require that institutions maintain transcripts in a compatible electronic format by fall 2000. There were no comments received regarding the proposed rule. The new rule is adopted under Texas Education Code, sec.54.0065, which provides the Texas Higher Education Coordinating Board with the authority to adopt rules concerning General Provisions (Student Transcripts). This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 13, 1998. TRD-9807812 James McWhorter Assistant Commissioner for Administration Texas Higher Education Coordinating Board Effective date: June 2, 1998 Proposal publication date: March 13, 1998 For further information, please call: (512) 483-6162 SUBCHAPTER P.Testing and Developmental Education 19 TAC sec.5.311, sec.5.312, sec.5.314 - sec.5.318 The Texas Higher Education Coordinating Board adopts amendments to sec.5.311, sec.5.312, sec.sec.5.314 - 5.318, concerning Testing and Developmental Education. Section 5.312, and sec.sec.5.314-5.318 are adopted with changes to the proposed text as published in the March 13, 1998, issue of the Texas Register (23 TexReg 2658). Section 5.311 is adopted without changes and will not be republished. The proposed changes would implement provisions of legislation contained in Senate Bill 148 passed by the 75th Legislature. Comments were received from several colleges and universities regarding the proposed rules. They are as follows: The University of Texas Medical Branch- Galveston; The University of Texas-Arlington; The University of Houston; University of North Texas; The University of Texas-Pan American; Southwest Texas State University; The University of Texas-Brownsville; Tarrant County Junior College; Kilgore College; DelMar College; Tarleton State University; Texas State Technical College-Waco; Southwest Texas Junior College; and Grayson College. The comments received from Kilgore College were that institutions should be allowed to use English as a Second Language (ESL) classes for TASP purposes if they choose to, but if they do they must include these hours as part of the 27/18 hour cap. Our agency agreed with these comments and changes were made accordingly. The remainder of the comments were mostly questions and concerns, which there were no suggested changes to the rules. The summary of those comments is as follows: Concern about students arriving on campus without having tested, especially out-of-state and foreign students. Rescind the use of alternative tests and adopt universal use of the Quick TASP. Alternative tests were not deemed valid for TASP purposes by statewide committees and fee inequities will exist across the state if TASP is not used. Be sure to set high standards for alternative tests to be sure they would have passed the TASP Test. Writing samples will take too much time to score. Requirement to report all developmental hours a student has taken since summer 1996 is unfair, retroactive in nature and burdensome. Specify limited audit items and make all the rest of TASP non-auditable. Concern about students not having to be in developmental education in semesters following completion of developmental ed. requirements. Reasons for allowing students into school who have not tested are ambiguous. Software should be made available to institutions to help them track "B" or better students. Rules should include language which requires students to retake the TASP when they finish remediation otherwise, institution may miss out on performance funding. There will likely be TASP problems associated with distance learning tracking, reporting, remediation, etc. Include the Pre-TASP Test as one of the alternative tests. There should be no "B" or better option - stick to having students pass the TASP Test. Develop a Spanish version of the TASP Test. ACT, SAT and TAAS exemption scores should be good forever, not just five and three years and the standards are too high. Reinstate the nine hour rule for one more year. Not enough time to implement all of the changes - defer till fall 1999. Why should there be a five year life for high school student TASP scores? Appeals process has been eliminated, want it restored. Requirement to encourage high school students to take TASP might be difficult and costly to implement. Requirement for all students to test before taking any collegiate-level classes will be a great burden on institutions - especially where high school students are concerned. Allowing students to use courses to obtain a grade of "B" in fulfillment of TASP requirements will likely drive grade inflation. Change rules to allow institutions to bear the cost of alternative tests if they choose to. Allow alternative tests to be used for retests. Treat all international students the same - no special treatment for non-degree seekers. The amendments to the rules are adopted under Texas Education Code, sec.51.307, which provides the Texas Higher Education Coordinating Board with the authority to adopt rules concerning Testing and Developmental Education. sec.5.312.Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise. (1) Alternative Test A test instrument approved by the Board for use by an institution to initially test a student. (2) Blind student and Deaf student -- Students who are blind or deaf persons as defined by the Texas Education Code, sec.54.205(a). (3) Developmental Education -- Courses, tutorials, laboratories, or other efforts to bring student skill levels in reading, writing and mathematics to entering college level. English as a Second Language (ESL) courses may be considered developmental education, but only when they are used to bring student skill levels in reading or writing to entering college level. The term does not include courses in study skills or thinking skills. (4) Freshman -- A matriculated student who has accumulated fewer than thirty college-level semester credit hours or the equivalent. (5) Minimum Passing Standard -- Statewide testing standard each undergraduate student who enters a public institution of higher education, unless exempt, must meet or exceed on measures of reading, writing and mathematics skills in order to fulfill requirements specified in Texas Education Code, sec.51.306. (6) Non-Degree Credit Course -- A course which may not be counted toward a degree or certificate. The term includes developmental, pre-collegiate and continuing education courses. (7) Testing irregularity -- Any occurrence in the course of administering the TASP Test or detected after administration of the test that violates rules of test participation, standards of test security and/or academic honesty. (8) Texas Academic Skills Program (TASP) Test -- The test required by Texas Education Code, sec.51.306 which shall be uniformly administered statewide on days prescribed by the Board and shall be scored by the testing contractor. The test measures college readiness in reading, writing and mathematics and includes a written essay. It is administered under secure conditions and each student is provided with diagnostic information regarding test performance. (9) Upper-division course -- Any degree credit course beyond the sophomore level as defined by a four-year senior university, and any degree credit course offered by an upper-level institution. sec.5.314.Administration. (a) Testing procedures for the TASP Test are prescribed by the Board. Testing procedures for the approved alternative tests are the purview of each institution and must include reasonable and appropriate accommodations for students with disabilities and internal policies for testing irregularities and academic dishonesty. (b) (No change.) (c) Once a student has passed any section of the TASP Test or an approved alternative test, his or her score shall remain active. Test sections passed while a student is in high school are valid for a period of five years per Section 5.313(a)(4)(D) of this title (relating to Eligibility and Exemptions). (d) (No change.) (e) Policies relating to these rules must be followed as they are described and further extended in the TASP Policy Manual. (f) Each institution of higher education shall provide information in the institution's catalog relating to the testing and developmental education requirements of TASP and of the rules adopted by the Board. (g) TASP Test scores may be withheld and/or canceled for any student who is suspected of committing a testing irregularity during the TASP Test administration. A student whose TASP Test scores have been withheld shall receive prompt notification of the reasons why the scores have been withheld and shall be entitled to due process of law prior to any cancellation of scores. Institutions may be notified in the event the student is found to have committed a testing irregularity. sec.5.315.Standards. (a) Effective 9/16/95 and until amended by the Board, minimum passing scaled score standards for the TASP Test are set at: Reading - 230; Mathematics - 230; Writing - 220. (b) Minimum passing standards for approved alternative tests shall not exceed a 95 percent probability of passing appropriate sections of the TASP Test. Until amended by the Board, minimum passing standards (in scaled scores) for the approved alternative tests are: (1) ASSET: Reading Skills - 41; Elementary Algebra - 38; Writing Skills (objective) - 40; and Written Essay - 6. (2) COMPASS: Reading Skills - 81; Algebra - 39; Writing Skills (objective) - 59; and Written Essay - 6. (3) MAPS: Reading Comprehension - 114; Elementary Algebra Skills - 613; Conventions of Written English - 310; and Written Essay - 6. (4) ACCUPLACER: Reading Comprehension - 78; Elementary Algebra - 63; Sentence Skills - 80; and Written Essay - 6. (c) Institutions may require higher performance standards. (d) The passing standard for the written essay portion of all alternative tests is a score of 6. However, borderline essays of 5 will pass if the objective writing test standard is also met. Institutions should require students to take lower level subtests, especially in mathematics, in order to obtain a broader diagnostic picture of a student's skills (e.g., arithmetic skills, pre- algebra, elementary algebra). sec.5.316.Developmental Education and Advisement. (a) A student whose performance is below the minimum passing standard set by the Board for a tested skill area on the TASP Test or approved alternative test must participate continuously in a developmental education program. Continuously means that until the institution certifies that a student has successfully completed developmental education, a student, during each enrolled term, must participate and be enrolled in a developmental course or other developmental program prescribed by the institution. (b) Alternative tests are to be used only for initial testing; the TASP Test must be used for all retakes. If the initial TASP Test or alternative test results indicate that developmental education is necessary in any area tested, the institution shall refer the student to developmental courses or other types of developmental programs made available by the institution. Developmental education must begin upon enrollment for any collegiate-level work. On successful completion of the developmental coursework or program prescribed by the institution, the student shall retake those portions of the TASP Test for which developmental education was required. (c) Each institution shall make available those courses and programs on the same campus or center at which the student would otherwise attend classes. Where there are multiple centers or sites for classes, an institution may designate a principal site or sites where developmental education will be conducted. (d) An institution may elect to provide developmental programs or courses on its campus by contracting with a second institution to deliver the instruction. If such an arrangement is made, the host institution will be responsible for the quality and effectiveness of developmental education. (e) An upper level institution or health science center that admits a student who has not passed a test approved for TASP purposes is responsible for providing developmental instruction on campus either through the provision of non-degree credit developmental programs or by contracting with another institution, as provided in subsection (d) of this section. (f) Developmental courses and programs may not be considered as credit toward completion of degree or certificate requirements. (g) Each institution shall establish an advising program to advise students at every level of undergraduate courses and degree options that are appropriate for the individual student. (h) Each institution shall formulate policies to require and monitor students' participation in appropriate developmental courses and/or other types of programs until such students have fulfilled the requirements specified in Texas Education Code, sec.51.306. A student who has successfully completed an institution's developmental requirements during any term does not have to be in developmental education during the next enrolled term as long as the student retakes the TASP Test or attempts one of the approved courses in an effort to earn a grade of "B" or better. Should the student fail to retake the TASP Test, complete the "B" course or earn a "B" or better, institutions must evaluate the student to determine subsequent action keeping in mind that the overall goal is to help the student complete the TASP requirements as soon as possible. Failure to meet all TASP requirements will bar students from graduation at a community or technical college and upper-division work at a university. (i) The faculty of each institution may review its degree credit and certificate courses, and may identify those courses for which students must demonstrate prior successful performance on one or more parts of the TASP examination or an approved alternative test. In the absence of such prerequisites, students would be eligible to enroll concurrently in developmental programs and college level courses, subject to appropriate advisement and institutional approval. (j) When students are concurrently enrolled in multiple Texas public institutions of higher education, the institution where the student first registers and pays full tuition charges (Texas Education Code, sec.54.062) takes precedence for the provision of developmental education in accordance with subsections (c) and (d) of this section. sec.5.317.Reporting and Funding. (a) Institutional Reporting (1) (No change.) (2) Each institution of higher education shall report to the Board (in accordance with Texas Education Code, sec.51.403e) the following information on student performance during the first year enrolled after graduation from high school: TASP Test scores, alternative test scores, developmental education courses required, and grade point average. (b) (No change.) (c) Funding. (1) A general academic teaching institution (university) may not receive funding for developmental courses taken by a student in excess of 18 semester credit hours; a public community college district or technical college may not receive funding for developmental courses taken by a student in excess of 27 semester credit hours or the equivalent. (2) All developmental hours funded by the state must be counted toward each student's total number of developmental hours at a given institution. Institutions must include all developmental hours funded during and after the summer 1996 term. (3) English as a Second Language (ESL) hours may be used for developmental education purposes when a student is placed in such courses as a result of failing the reading or writing portion of the TASP Test or an approved alternative test. However, when used for such purposes, ESL hours must be counted toward the 18/27 hour cap. (d) Audits. (1) Each institution is responsible for full compliance with Texas Education Code, sec.51.306 and the rules adopted by the Board. Failure to comply with the TASP statute and rules by admitting students to take semester credit hours or the equivalent who have not taken or passed the TASP Test (when applicable), or any other act or omission that results in the accumulation of semester credit hours or the equivalent in violation of the TASP statute and rules shall be a basis for disallowing those credits by audit exceptions, resulting in an adjustment of the dollar amounts of institutional funds. The funding adjustment will be based on credit hours used in the contact hours base period that have been disallowed as a result of audit. (2) (No change.) sec.5.318.Students Who Earn a "B" or Better in Freshmen-level Credit Courses. (a) A student who initially fails one or more sections of the TASP Test, or an approved alternative test, must successfully complete the developmental program(s) prescribed by the institution and must retake the appropriate sections of the TASP Test. Students are not to be permitted to take courses approved by the Board in subsection (b) of this section for these purposes until successful completion of the developmental education program prescribed by the institution. Following successful completion of the developmental program, institutions may either bar students from enrolling in courses approved by the Board until the TASP Test has been retaken or they may permit students to enroll in such courses during the same term in which the student intends to retake the TASP Test. In no case may a student apply a grade of "B" or better for TASP purposes until the TASP Test has been retaken. Students attempting such courses are not required to be concurrently enrolled in a developmental activity related to that portion of the test. A student who earns a grade of "B" (3.0 on a 4.0 scale) or better in such a course in the skill area in which a deficit was assessed shall not be required to achieve the minimum passing standard on the TASP Test and shall not be prohibited from graduating or continuing with his/her program of study. Institutions shall clearly indicate on an official transcript how a student has met the TASP requirement. (b) (No change.) (c) Institutions may choose from the authorized course list and are not required to offer all of the approved courses. However, an institution must offer at least one course from the list in each subject area for these purposes. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 15, 1998. TRD-9808007 James McWhorter Assistant Commissioner for Administration Texas Higher Education Coordinating Board Effective date: June 4, 1998 Proposal publication date: March 13, 1998 For further information, please call: (512) 483-6162 19 TAC sec.5.313 The Texas Higher Education Coordinating Board adopts the repeal of sec.5.313, concerning Testing and Developmental Education (Eligibility and Exemptions) without changes to the proposed text as published in the March 13, 1998, issue of the Texas Register (23 TexReg 2658). The repeal of the rules would implement provisions of legislation contained in Senate Bill 148 passed by the 75th Legislature. Comments were received from several colleges and universities regarding the proposed rules. They are as follows: The University of Texas Medical Branch- Galveston; The University of Texas-Arlington; The University of Houston; University of North Texas; The University of Texas-Pan American; Southwest Texas State University; The University of Texas-Brownsville; Tarrant County Junior College; Kilgore College; DelMar College; Tarleton State University; Texas State Technical College-Waco; Southwest Texas Junior College; and Grayson College. The comments received from Kilgore College were that institutions should be allowed to use English as a Second Language (ESL) classes for TASP purposes if they choose to, but if they do they must include these hours as part of the 27/18 hour cap. Our agency agreed with these comments and changes were made accordingly. The remainder of the comments were mostly questions and concerns, which there were no suggested changes to the rules. The summary of those comments is as follows: Concern about students arriving on campus without having tested, especially out-of-state and foreign students. Rescind the use of alternative tests and adopt universal use of the Quick TASP. Alternative tests were not deemed valid for TASP purposes by statewide committees and fee inequities will exist across the state if TASP is not used. Be sure to set high standards for alternative tests to be sure they would have passed the TASP Test. Writing samples will take too much time to score. Requirement to report all developmental hours a student has taken since summer 1996 is unfair, retroactive in nature and burdensome. Specify limited audit items and make all the rest of TASP non-auditable. Concern about students not having to be in developmental education in semesters following completion of developmental ed. requirements. Reasons for allowing students into school who have not tested are ambiguous. Software should be made available to institutions to help them track "B" or better students. Rules should include language which requires students to retake the TASP when they finish remediation otherwise, institution may miss out on performance funding. There will likely be TASP problems associated with distance learning tracking, reporting, remediation, etc. Include the Pre-TASP Test as one of the alternative tests. There should be no "B" or better option - stick to having students pass the TASP Test. Develop a Spanish version of the TASP Test. ACT, SAT and TAAS exemption scores should be good forever, not just five and three years and the standards are too high. Reinstate the nine hour rule for one more year. Not enough time to implement all of the changes - defer till fall 1999. Why should there be a five year life for high school student TASP scores? Appeals process has been eliminated, want it restored. Requirement to encourage high school students to take TASP might be difficult and costly to implement. Requirement for all students to test before taking any collegiate-level classes will be a great burden on institutions - especially where high school students are concerned. Allowing students to use courses to obtain a grade of "B" in fulfillment of TASP requirements will likely drive grade inflation. Change rules to allow institutions to bear the cost of alternative tests if they choose to. Allow alternative tests to be used for retests. Treat all international students the same - no special treatment for non-degree seekers. The repeal of the rule is adopted under Texas Education Code, sec.51.307, which provides the Texas Higher Education Coordinating Board with the authority to adopt rules concerning Testing and Developmental Education. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 15, 1998. TRD-9808009 James McWhorter Assistant Commissioner for Administration Texas Higher Education Coordinating Board Effective date: June 4, 1998 Proposal publication date: March 13, 1998 For further information, please call: (512) 483-6162 19 TAC sec.5.313 The Texas Higher Education Coordinating Board adopts new sec.5.313, concerning Testing and Developmental Education (Eligibility and Exemptions) with changes to the proposed text as published in the March 13, 1998, issue of the Texas Register (23 TexReg 2658). The proposed changes would implement provisions of legislation contained in Senate Bill 148 passed by the 75th Legislature. The changes to the proposed text were made to sec.5.313(a) and sec.5.313(b). Comments were received from several colleges and universities regarding the proposed rules. They are as follows: The University of Texas Medical Branch- Galveston; The University of Texas-Arlington; The University of Houston; University of North Texas; The University of Texas-Pan American; Southwest Texas State University; The University of Texas-Brownsville; Tarrant County Junior College; Kilgore College; DelMar College; Tarleton State University; Texas State Technical College-Waco; Southwest Texas Junior College; and Grayson College. The comments received from Kilgore College were that institutions should be allowed to use English as a Second Language (ESL) classes for TASP purposes if they choose to, but if they do they must include these hours as part of the 27/18 hour cap. Our agency agreed with these comments and changes were made accordingly. The remainder of the comments were mostly questions and concerns, which there were no suggested changes to the rules. The summary of those comments is as follows: Concern about students arriving on campus without having tested, especially out-of-state and foreign students. Rescind the use of alternative tests and adopt universal use of the Quick TASP. Alternative tests were not deemed valid for TASP purposes by statewide committees and fee inequities will exist across the state if TASP is not used. Be sure to set high standards for alternative tests to be sure they would have passed the TASP Test. Writing samples will take too much time to score. Requirement to report all developmental hours a student has taken since summer 1996 is unfair, retroactive in nature and burdensome. Specify limited audit items and make all the rest of TASP non-auditable. Concern about students not having to be in developmental education in semesters following completion of developmental ed. requirements. Reasons for allowing students into school who have not tested are ambiguous. Software should be made available to institutions to help them track "B" or better students. Rules should include language which requires students to retake the TASP when they finish remediation otherwise, institution may miss out on performance funding. There will likely be TASP problems associated with distance learning tracking, reporting, remediation, etc. Include the Pre-TASP Test as one of the alternative tests. There should be no "B" or better option - stick to having students pass the TASP Test. Develop a Spanish version of the TASP Test. ACT, SAT and TAAS exemption scores should be good forever, not just five and three years and the standards are too high. Reinstate the nine hour rule for one more year. Not enough time to implement all of the changes - defer till fall 1999. Why should there be a five year life for high school student TASP scores? Appeals process has been eliminated, want it restored. Requirement to encourage high school students to take TASP might be difficult and costly to implement. Requirement for all students to test before taking any collegiate-level classes will be a great burden on institutions - especially where high school students are concerned. Allowing students to use courses to obtain a grade of "B" in fulfillment of TASP requirements will likely drive grade inflation. Change rules to allow institutions to bear the cost of alternative tests if they choose to. Allow alternative tests to be used for retests. Treat all international students the same - no special treatment for non-degree seekers. The new rule is adopted under Texas Education Code, sec.51.307, which provides the Texas Higher Education Coordinating Board with the authority to adopt rules concerning Testing and Developmental Education. sec.5.313.Eligibility and Exemptions. (a) Eligibility (1) Beginning in the fall semester of 1998, each undergraduate student, unless otherwise exempt, who enters a public institution of higher education must be tested for reading, writing and mathematics skills prior to enrolling in any collegiate-level coursework. The unit cost of each test shall be borne by the student. A student who has accumulated at least one but fewer than nine semester credit hours or the equivalent of collegiate-level work must be tested prior to the end of the enrollment period of the fall 1998 term. A student who has not been tested may be permitted to enroll in coursework only under the circumstances provided in paragraph (2) of this subsection, but must take a test approved for TASP purposes not later than the end of the first semester of enrollment. If any student under this section fails to test during the designated semester, the student will not be permitted to re-enroll or to enroll in any Texas public higher education institution in any courses other than non- degree credit courses until he or she has taken the examination. Students may retake courses for which credit has already been granted (for no additional credit), and may also audit courses. (2) Circumstances under which a student who has not been tested may enroll in college-level coursework are as follows: (A) Documented illness, injury or other bonafide emergency which prevents a student from testing; (B) Diagnosed and documented disability for which reasonable and appropriate accommodations could not be provided by the institution in a timely manner. (C) Deaf students who arrive on campus without having taken the Stanford Achievement Test prior to enrollment may be allowed to enter school but are required to take the Stanford at the next regularly scheduled offering. (3) The Board has approved alternative test instruments that an institution may use as it chooses to initially test students. Sections of those tests which are passed will count as passing the TASP Test and those sections failed or not attempted will result in required enrollment in developmental education. (A) Each alternative test instrument shall be correlated with the TASP Test in that it must be of a diagnostic nature and be designed to provide a comparison of the skill level of the individual student with the skill level necessary for a student to perform effectively in an undergraduate degree program. (B) Alternative tests must include sections measuring reading, mathematics and writing skills and a multiple-paragraph written essay of about 300 to 600 words on an assigned topic. A student shall be permitted at least one hour to complete the essay portion of the test. The writing prompt shall be academic in nature where the assignment, audience and purpose of the essay shall be provided and the student required to choose and support a position with logical arguments and appropriate examples. The objective portion of the writing test may be used for placement and developmental education purposes, but the essay shall be the primary criterion for passing the writing section. Essays must be scored by the appropriate testing company and may not be scored locally. (C) Alternative tests are to be used only for initial testing; the TASP Test must be used for all retakes. Therefore, on completion of the developmental coursework or program, the student shall take that portion of the TASP Test for which developmental education was required. (D) Institutions may or may not choose to offer an alternative test; however, students may not enroll in any collegiate-level coursework until they have been tested unless they meet one of the circumstances listed in paragraph (2) of this subsection. Institutions which choose not to offer an alternative test must make every effort to ensure that students take the TASP Test prior to beginning collegiate coursework. Students who do not meet the requirements of Texas Education Code, sec.51.306(b) must be limited to developmental or non-credit coursework only. (E) The alternative tests approved by the Board are: (i) ASSET offered by ACT (ii) COMPASS offered by ACT (iii) Multiple Assessment Programs and Services (MAPS) offered by The College Board (iv) ACCUPLACER offered by The College Board (F) The unit costs of each alternative test shall be borne by the student. (4) A high school student who has passed the exit-level assessment required under Texas Education Code, sec.39.023 (TAAS) shall be encouraged to take the TASP Test while enrolled in high school unless otherwise exempt. The Board shall work with the Texas Education Agency to encourage eligible students to take the test; however, taking the test shall be voluntary. (A) Each eligible high school student shall pay for the cost of taking the test unless funds are appropriated for that purpose. If funds are appropriated for that purpose, the Board and the Texas Education Agency shall develop a mechanism for the payment of the cost of the test. (B) The test shall be offered to high school students outside of regularly scheduled school days and at locations throughout the state. (C) A high school student who fails to achieve the minimum passing standard set by the Board may not be required to take developmental classes while in high school and may not take collegiate level classes related to portions of the test that have not been passed. However, after graduation from high school, a student who enters a public institution of higher education must comply with the provisions in Texas Education Code, sec.51.306. (D) A high school student who achieves the minimum passing standard set by the Board shall be deemed to have met the requirements of Texas Education Code, sec.51.306 when enrolling at a public institution of higher education, provided that the student enrolls in the institution not later than five years from the date the test is taken and the set score level is achieved. A student enrolling for the first time in a public institution of higher education after the five- year period has elapsed must comply with all provisions of Texas Education Code, sec.51.306. The five-year period will begin on the date when the minimum passing standard is achieved on each test section. (E) The Board shall work with the Texas Education Agency to provide high school students, their parents, and their schools with information about the TASP and assist them in interpreting the results of the test. (F) Institutions of higher education shall actively encourage eligible students from area high schools to take the TASP Test while still in high school and shall provide TASP information to those high schools. (G) A high school student who enrolls in dual credit (or is concurrently enrolled in college-level coursework) must take the TASP Test or, under the circumstances specified in paragraph (3) of this subsection, an alternative test prior to enrolling in coursework. (5) No student may graduate from a Level-Two certificate program (43-59 semester credit hours or the equivalent), an associate degree program or baccalaureate degree program or enroll in any upper-division course completion of which would give the student 60 or more college-level semester credit hours or the equivalent (the student may continue to enroll in lower-division or non-degree credit courses only) without having: (A) passed all sections of the TASP Test (or an alternative test on initial attempt only) unless the student is exempted under subsection (b) of this section; or (B) earned a grade of "B" or better in a freshman-level credit course in the skill area of the assessed deficit in accordance with Section 5.318 of this title (relating to Students Who Earn a "B" or Better in Freshman-Level Credit Courses). (6) After successful completion of an appropriate developmental program, a student must retake appropriate sections of the TASP Test. (7) An institution which by law may not offer lower-division courses may use performance on a test approved for TASP purposes as a condition of admission. (8) A health science center may use performance on a test approved for TASP purposes as a condition of admission only to upper-level programs. (9) Blind students will take a test approved for TASP purposes with appropriate accommodations and deaf students will take the Stanford Achievement Test nationally normed on the hearing impaired population by Gallaudet University. Deaf students who fail portions of the Stanford Achievement Test must enroll in developmental education and may not graduate from a two-year institution or enroll in upper-division course work beyond 60 semester credit hours until the requirements of Texas Education Code, sec.51.306 are met. Until amended by the Board, minimum passing standards on the Stanford Achievement Test to be used in lieu of the TASP Test are: (A) Reading Comprehension - 652 scaled score, 29 raw score; (B) Mathematics Total - 682 scaled score, 66 raw score; (C) Language Total - 662 scaled score, 37 raw score; and (D) Study Skills - 663 scaled score, 19 raw score. (10) Texas public institutions of higher education offering collegiate-level credit to students via Multi-Institution Teaching Centers (MITCs) or to in-state students by distance learning delivery systems must meet all TASP requirements specified in Texas Education Code, sec.51.306. (b) Exemptions (1) Any student with at least three college-level semester credit hours or the equivalent from an accredited institution accumulated prior to the fall of 1989 shall not be required to take the TASP Test regardless of any election of academic fresh start (Texas Education Code, sec.51.931). Such credit hours must be certified as college-level by the granting institution and need not be applicable toward a degree or certificate. (2) Students who perform at or above a level set by the Coordinating Board on the ACT, Scholastic Assessment Test (SAT) or exit-level Texas Assessment of Academic Skills (TAAS) shall be exempt from the TASP Test requirement. This exemption will be in effect for five years from the date the ACT or SAT was taken and for three years from the date the TAAS Test was taken. While tests may be retaken, ACT or SAT scores meeting or exceeding the standard set by the Board must be achieved on a single test administration. TAAS scores must meet or exceed exemption standards on the first attempt for each section. The standard set by the Board may not exceed a level that is equivalent to a 95 percent probability of passing the TASP Test. Effective fall 1997 and until amended by the Board, standards for exemption from the TASP are: (A) ACT: composite score of 23 with a minimum of 19 on both the English and the mathematics tests; or (B) SAT: combined verbal and mathematics score of 1070 with a minimum of 500 on both the verbal and the mathematics tests (recentered scale for tests taken April 1995 and thereafter); or (C) SAT: for tests taken prior to April 1995, a combined verbal and mathematics score of 970, with a minimum of 420 on the verbal test and 470 on the mathematics test; or (D) TAAS: a minimum scale score of 1770 on the writing test, a Texas Learning Index (TLI) of 86 on the mathematics test and 89 on the reading test. (3) An institution may exempt a non-degree-seeking or non-certificate-seeking student who will be 55 years of age or older on the first class day of a term or semester from the testing requirements imposed by this section as a condition for enrollment during that term or semester in a course. (4) Students who enroll on a temporary basis in a Texas public institution of higher education, and are not seeking a degree or Level-Two certificate, and are also enrolled in a private or independent institution of higher education or an out-of-state institution of higher education or have graduated from an institution of higher education, a private or independent institution of higher education, or an out-of-state institution of higher education may be exempt from the requirements of Texas Education Code, sec.51.306. (5) TASP requirements do not apply to students enrolled in certificate programs of one year or less (Level-One, 42 or fewer semester credit hours or the equivalent). (6) Texas Education Code, sec.51.306(u) specifies that a student who has been diagnosed as having dyslexia or a related disorder, as those terms are defined by Texas Education Code, sec.38.003, or a specific learning disability in mathematics by a qualified professional whose license or credentials are appropriate to diagnose the disorder or disability as determined by the board, who takes a test approved for TASP purposes and completes the developmental program prescribed by the institution may be required to retake the TASP Test once but may not be referred to an additional developmental course or other developmental program or precluded from enrolling in an upper-division course or graduating because of the student's performance on the test. (7) A student who is a citizen of a country other than the United States and is not seeking a degree is exempt from the requirements of Texas Education Code, sec.51.306. (8) A student who has graduated with a baccalaureate degree from an accredited institution of higher education is exempt from the requirements of Texas Education Code, sec.51.306. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 15, 1998. TRD-9808008 James McWhorter Assistant Commissioner for Administration Texas Higher Education Coordinating Board Effective date: June 4, 1998 Proposal publication date: March 13, 1998 For further information, please call: (512) 483-6162 CHAPTER 8.Creation, Expansion, Dissolution, or Conservatorship of Public Community/Junior College Districts SUBCHAPTER A.Definitions 19 TAC sec.8.1 The Texas Higher Education Coordinating Board adopts new sec.8.1, concerning Creation, Expansion, Dissolution, or Conservatorship of Public Community/Junior College Districts (Definitions) with changes to the proposed text as published in the March 13, 1998, issue of the Texas Register (23 TexReg 2664). The new proposed rules are as a result of a complete review, rewriting, and restructuring of current Board rules affecting public two-year degree granting institutions. The changes will replace repealed rules to improve readability, consistency, and uniformity, and will add new rules to address legislation not previously included in Board rules. There were no comments received regarding the proposed rule. The new rule is adopted under Texas Education Code, sec.sec.61.061, 61.062, 130.001, and 130.087, which provides the Texas Higher Education Coordinating Board with the authority to adopt rules concerning Creation, Expansion, Dissolution, or Conservatorship of Public Community/Junior College Districts (Definitions). sec.8.1.Definitions. The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise: (1) Appropriate Authorities (for the purposes of certification of the petition) - The independent school district board of trustees, county school board or boards, or commissioners' court or courts as outlined under Section 8.30 of this title (relating to Legality of the Petition). (2) Board or Coordinating Board - The Texas Higher Education Coordinating Board. (3) Branch Campuses of Community/Junior College Districts - Operate as out-of- district units of existing community/junior college districts and provide programs as defined in Texas Education Code, Chapter 130 and set out in Section 8.25 of this title (relating to Provisions Applicable to Each Type of District) on an on-going and permanent basis. (4) Certificate Programs Workforce programs designed for entry-level employment or for upgrading skills and knowledge within an occupation. Certificate programs serve as building blocks and exit points for associate of applied science degree programs. (5) Commissioner of Higher Education or Commissioner - The chief executive officer of the Texas Higher Education Coordinating Board. (6) Continuing Education Unit or CEU Ten (10) contact hours of participation in an organized continuing education experience under responsible sponsorship, capable direction, and qualified instruction, as outlined in the Guidelines for Instructional Programs in Workforce Education. (7) Extension Center or Extension Facility - Any single or multiple location other than the main campus of a community/junior college district and outside the boundaries of the taxing authority of a community/junior college district. Extension centers and extension facilities are subject to Chapter 5, Subchapter H of this title (relating to Approval of Distance Learning for Public Colleges and Universities). (8) Full-time Equivalent Students (FTE) - The total number of semester credit hours reported by an institution for a long term divided by 15 semester credit hours, or total reported annually divided by 30; and for continuing education courses, the total number of contact hours reported quarterly by an institution divided by 300, or total reported annually divided by 900. (9) Governing Board - The body charged with policy direction of any public community/junior college district, the technical college system, public lower- division institutions, public senior college or university, or other educational agency, including but not limited to boards of directors, boards of regents, boards of trustees, and independent school district boards. (10) Gross Fiscal Mismanagement - Includes: (A) failure to keep adequate fiscal records, (B) failure to maintain proper control over assets, (C) failure to discharge fiscal obligations in a timely manner, and (D) misuse of state funds. (11) Inactive Public Community/Junior College - A public community/junior college district that has failed to establish and maintain a community/junior college within three years from the date of its authorization. (12) Scholastic Population of a Proposed Community/Junior College District - All students enrolled in K-12 for the area to be included in the district. (13) State Conservatorship Board - Appointed by the Governor with the consent of the Senate and has the authority, when appointed as conservator of an agency, to: (A) terminate the employment of any employee whose conduct the board determines contributed to the condition that caused the conservatorship, (B) employ personnel for the agency, (C) change the agency's organization or structure as necessary to alleviate the conditions that caused the conservatorship, and (D) contract with persons for management or administrative services necessary to effect the conservatorship. (14) Technical Courses or Programs - Workforce education courses or programs for which semester/quarter credit hours are awarded. (15) Vocational Courses or Programs - Workforce education courses or programs for which continuing education units (CEUs) are awarded. (16) Workforce Continuing Education Course - A course offered for continuing education units (CEUs) with an occupationally specific objective and supported by state funding. A workforce continuing education course differs from a community service course offered for recreational or avocational purposes and is not supported by state funding. (17) Workforce Education - Technical courses and programs for which semester/quarter credit hours are awarded, and vocational courses and programs for which continuing education units are awarded. Technical and vocational courses and programs prepare students for immediate employment or job upgrade within specific occupational categories. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 13, 1998. TRD-9807817 James McWhorter Assistant Commissioner for Administration Texas Higher Education Coordinating Board Effective date: June 2, 1998 Proposal publication date: March 13, 1998 For further information, please call: (512) 483-6162 SUBCHAPTER B.Creation of a Public Community/Junior College District 19 TAC sec.sec.8.21-8.36 The Texas Higher Education Coordinating Board adopts new sec.sec.8.21 - 8.36, concerning Creation, Expansion, Dissolution, or Conservatorship of Public Community/Junior College Districts (Creation of a Public Community/Junior College District) without changes to the proposed text as published in the March 13, 1998, issue of the Texas Register (23 TexReg 2664). The new proposed rules are as a result of a complete review, rewriting, and restructuring of current Board rules affecting public two-year degree granting institutions. The changes will replace repealed rules to improve readability, consistency, and uniformity, and will add new rules to address legislation not previously included in Board rules. There were no comments received regarding the proposed rules. The new rules are adopted under Texas Education Code, sec.sec.61.061, 61.062, 130.001, and 130.087, which provides the Texas Higher Education Coordinating Board with the authority to adopt rules concerning Creation, Expansion, Dissolution, or Conservatorship of Public Community/Junior College Districts (Creation of a Public Community/Junior College District). This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 13, 1998. TRD-9807818 James McWhorter Assistant Commissioner for Administration Texas Higher Education Coordinating Board Effective date: June 2, 1998 Proposal publication date: March 13, 1998 For further information, please call: (512) 483-6162 SUBCHAPTER C.Dissolution of an Inactive Public Community/Junior College District 19 TAC sec.sec.8.51-8.56 The Texas Higher Education Coordinating Board adopts new sec.sec.8.51 - 8.56, concerning Creation, Expansion, Dissolution, or Conservatorship of Public Community/Junior College Districts (Dissolution of an Inactive Public Community/Junior College District) without changes to the proposed text as published in the March 13, 1998, issue of the Texas Register (23 TexReg 2664). The new proposed rules are as a result of a complete review, rewriting, and restructuring of current Board rules affecting public two-year degree granting institutions. The changes will replace repealed rules to improve readability, consistency, and uniformity, and will add new rules to address legislation not previously included in Board rules. There were no comments received regarding the proposed rules. The new rules are adopted under Texas Education Code, sec.sec.61.061, 61.062, 130.001, and 130.087, which provides the Texas Higher Education Coordinating Board with the authority to adopt rules concerning Creation, Expansion, Dissolution, or Conservatorship of Public Community/Junior College Districts (Dissolution of an Inactive Public Community/Junior College District). This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 13, 1998. TRD-9807819 James McWhorter Assistant Commissioner for Administration Texas Higher Education Coordinating Board Effective date: June 2, 1998 Proposal publication date: March 13, 1998 For further information, please call: (512) 483-6162 SUBCHAPTER E.Branch Campus Maintenance Tax 19 TAC sec.sec.8.91-8.103 The Texas Higher Education Coordinating Board adopts new sec.sec.8.91 - 8.103, concerning Creation, Expansion, Dissolution, or Conservatorship of Public Community/Junior College Districts (Branch Campus Maintenance Tax) without changes to the proposed text as published in the March 13, 1998, issue of the Texas Register (23 TexReg 2664). The new proposed rules are as a result of a complete review, rewriting, and restructuring of current Board rules affecting public two-year degree granting institutions. The changes will replace repealed rules to improve readability, consistency, and uniformity, and will add new rules to address legislation not previously included in Board rules. There were no comments received regarding the proposed rules. The new rules are adopted under Texas Education Code, sec.sec.61.061, 61.062, 130.001, and 130.087, which provides the Texas Higher Education Coordinating Board with the authority to adopt rules concerning Creation, Expansion, Dissolution, or Conservatorship of Public Community/Junior College Districts (Branch Campus Maintenance Tax). This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 13, 1998. TRD-9807820 James McWhorter Assistant Commissioner for Administration Texas Higher Education Coordinating Board Effective date: June 2, 1998 Proposal publication date: March 13, 1998 For further information, please call: (512) 483-6162 SUBCHAPTER F.Conservatorship of a Public Community/Junior College District 19 TAC sec.sec.8.121 - 8.123 The Texas Higher Education Coordinating Board adopts new sec.sec.8.121 - 8.123, concerning Creation, Expansion, Dissolution, or Conservatorship of Public Community/Junior College Districts (Conservatorship of a Public Community/Junior College District) without changes to the proposed text as published in the March 13, 1998, issue of the Texas Register (23 TexReg 2664). The new proposed rules are as a result of a complete review, rewriting, and restructuring of current Board rules affecting public two-year degree granting institutions. The changes will replace repealed rules to improve readability, consistency, and uniformity, and will add new rules to address legislation not previously included in Board rules. There were no comments received regarding the proposed rules. The new rules are adopted under Texas Education Code, sec.sec.61.061, 61.062, 130.001, and 130.087, which provides the Texas Higher Education Coordinating Board with the authority to adopt rules concerning Creation, Expansion, Dissolution, or Conservatorship of Public Community/Junior College Districts (Conservatorship of a Public Community/Junior College District). This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 13, 1998. TRD-9807821 James McWhorter Assistant Commissioner for Administration Texas Higher Education Coordinating Board Effective date: June 2, 1998 Proposal publication date: March 13, 1998 For further information, please call: (512) 483-6162 CHAPTER 9.Public Junior Colleges SUBCHAPTER A.Criteria to be Met in the Creation of Public Junior Colleges 19 TAC sec.sec.9.1-9.4 The Texas Higher Education Coordinating Board adopts the repeal of sec.sec.9.1 - sec.9.4, concerning Criteria to be Met in the Creation of Public Junior Colleges without changes to the proposed text as published in the March 13, 1998, issue of the Texas Register (23 TexReg 2675). The repeal of the rules are as a result of a complete review, rewriting, and restructuring of current Board rules affecting public two-year degree granting institutions. The changes will replace repealed rules to improve readability, consistency, and uniformity, and will add rules to address legislation not previously included in Board rules. There were no comments received regarding the proposed rules. The repeal of the rules is adopted under Texas Education Code, sec.sec.61.061, 61.062, 130.001, and 130.087, which provides the Texas Higher Education Coordinating Board with the authority to adopt rules concerning Criteria to be Met in the Creation of Public Junior Colleges. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 13, 1998. TRD-9807813 James McWhorter Assistant Commissioner for Administration Texas Higher Education Coordinating Board Effective date: June 2, 1998 Proposal publication date: March 13, 1998 For further information, please call: (512) 483-6162 SUBCHAPTER B.Procedures to be Followed in the Creation of Public Junior Colleges 19 TAC sec.sec.9.21-9.31 The Texas Higher Education Coordinating Board adopts the repeal of sec.sec.9.21 - 9.31, concerning Procedures to be Followed in the Creation of Public Junior Colleges without changes to the proposed text as published in the March 13, 1998, issue of the Texas Register (23 TexReg 2676). The repeal of the rules are as a result of a complete review, rewriting, and restructuring of current Board rules affecting public two-year degree granting institutions. The changes will replace repealed rules to improve readability, consistency, and uniformity, and will add rules to address legislation not previously included in Board rules. There were no comments received regarding the proposed rules. The repeal of the rules is adopted under Texas Education Code, sec.sec.61.061, 61.062, 130.001, and 130.087, which provides the Texas Higher Education Coordinating Board with the authority to adopt rules concerning Procedures to be Followed in the Creation of Public Junior Colleges. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 13, 1998. TRD-9807814 James McWhorter Assistant Commissioner for Administration Texas Higher Education Coordinating Board Effective date: June 2, 1998 Proposal publication date: March 13, 1998 For further information, please call: (512) 483-6162 SUBCHAPTER C.Procedures for the Dissolution of Dormant Junior College Districts 19 TAC sec.sec.9.41 - 9.48 The Texas Higher Education Coordinating Board adopts the repeal of sec.sec.9.41 - 9.48, concerning Procedures for the Dissolution of Dormant Junior College Districts without changes to the proposed text as published in the March 13, 1998, issue of the Texas Register (23 TexReg 2675). The repeal of the rules are as a result of a complete review, rewriting, and restructuring of current Board rules affecting public two-year degree granting institutions. The changes will replace repealed rules to improve readability, consistency, and uniformity, and will add rules to address legislation not previously included in Board rules. There were no comments received regarding the proposed rules. The repeal of the rules is adopted under Texas Education Code, sec.sec.61.061, 61.062, 130.001, and 130.087, which provides the Texas Higher Education Coordinating Board with the authority to adopt rules concerning Procedures for the Dissolution of Dormant Junior College Districts. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 13, 1998. TRD-9807815 James McWhorter Assistant Commissioner for Administration Texas Higher Education Coordinating Board Effective date: June 2, 1998 Proposal publication date: March 13, 1998 For further information, please call: (512) 483-6162 SUBCHAPTER K.Guidelines to be Followed in Seeking Authorization to Hold a Public Community/Junior College Branch Campus Maintenance Tax Election 19 TAC sec.sec.9.231 - 9.238 The Texas Higher Education Coordinating Board adopts the repeal of sec.sec.9.231 - 9.238, concerning Guidelines to be Followed in Seeking Authorization to Hold a Public Community/Junior College Branch Campus Maintenance Tax Election without changes to the proposed text as published in the March 13, 1998, issue of the Texas Register (23 TexReg 2675). The repeal of the rules are as a result of a complete review, rewriting, and restructuring of current Board rules affecting public two-year degree granting institutions. The changes will replace repealed rules to improve readability, consistency, and uniformity, and will add rules to address legislation not previously included in Board rules. There were no comments received regarding the proposed rules. The repeal of the rules is adopted under Texas Education Code, sec.sec.61.061, 61.062, 130.001, and 130.087, which provides the Texas Higher Education Coordinating Board with the authority to adopt rules concerning Guidelines to be Followed in Seeking Authorization to Hold a Public Community/Junior College Branch Campus Maintenance Tax Election. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 13, 1998. TRD-9807816 James McWhorter Assistant Commissioner for Administration Texas Higher Education Coordinating Board Effective date: June 2, 1998 Proposal publication date: March 13, 1998 For further information, please call: (512) 483-6162 CHAPTER 10.Institutional Effectiveness in Public Community/Junior College Districts and Technical Colleges SUBCHAPTER A.Purpose, Authority, and Definitions 19 TAC sec.sec.10.1 - 10.3 The Texas Higher Education Coordinating Board adopts new sec.sec.10.1 - sec.10.3, concerning Institutional Effectiveness in Public Community/Junior College Districts and Technical Colleges (Purpose, Authority, and Definitions) without changes to the proposed text as published in the March 13, 1998, issue of the Texas Register (23 TexReg 2678). The new proposed rules are as a result of a complete review, rewriting, and restructuring of current Board rules affecting public two-year degree granting institutions. The changes will replace repealed rules to improve readability, consistency, and uniformity, and will add new rules to address legislation not previously included in Board rules. There were no comments received regarding the proposed rules. The new rules are adopted under Texas Education Code, Sections 61.061, 61.062, and 130.001, which provides the Texas Higher Education Coordinating Board with the authority to adopt rules concerning Creation, Expansion, Dissolution, or Conservatorship of Public Community/Junior College Districts (Purpose, Authority, and Definitions). This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 13, 1998. TRD-9807822 James McWhorter Assistant Commissioner for Administration Texas Higher Education Coordinating Board Effective date: June 2, 1998 Proposal publication date: March 13, 1998 For further information, please call: (512) 483-6162 SUBCHAPTER B.General Provisions 19 TAC sec.sec.10.21 - 10.24 The Texas Higher Education Coordinating Board adopts new sec.sec.10.21 - 10.24, concerning Institutional Effectiveness in Public Community/Junior College Districts and Technical Colleges (General Provisions) without changes to the proposed text as published in the March 13, 1998, issue of the Texas Register (23 TexReg 2679). The new proposed rules are as a result of a complete review, rewriting, and restructuring of current Board rules affecting public two-year degree granting institutions. The changes will replace repealed rules to improve readability, consistency, and uniformity, and will add new rules to address legislation not previously included in Board rules. There were no comments received regarding the proposed rules. The new rules are adopted under Texas Education Code, sec.sec.61.061, 61.062, and 130.001, which provides the Texas Higher Education Coordinating Board with the authority to adopt rules concerning Institutional Effectiveness in Public Community/Junior College Districts and Technical Colleges (General Provisions). This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 13, 1998. TRD-9807823 James McWhorter Assistant Commissioner for Administration Texas Higher Education Coordinating Board Effective date: June 2, 1998 Proposal publication date: March 13, 1998 For further information, please call: (512) 483-6162 CHAPTER 21.Student Services SUBCHAPTER A.General Provisions 19 TAC sec.21.6 The Texas Higher Education Coordinating Board adopts new sec.21.6, concerning General Provisions (Student Compliance with Selective Service Registration) without changes to the proposed text as published in the March 13, 1998, issue of the Texas Register (23 TexReg 2681). The new rule is being proposed to comply with House Bill 2061, passed by the 75th Legislature. The bill requires students to register with the Selective Service before they can receive a loan, grant, scholarship or other financial assistance funded by state revenue. Currently over 90 percent of students receiving financial assistance complete the Federal Application for Federal Student Aid. The federal government already has rules and guidelines in place to ensure that students receiving financial aid have complied with Selective Service requirements. There were no comments received regarding the proposed rule. The new rule is adopted under Texas Education Code, sec.51.9095, which provides the Texas Higher Education Coordinating Board with the authority to adopt rules concerning General Provisions (Student Compliance with Selective Service Registration). This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 13, 1998. TRD-9807824 James McWhorter Assistant Commissioner for Administration Texas Higher Education Coordinating Board Effective date: June 2, 1998 Proposal publication date: March 13, 1998 For further information, please call: (512) 483-6162 SUBCHAPTER J.The Physician Education Loan Repayment Program 19 TAC sec.sec.21.251 -- 21.265 The Texas Higher Education Coordinating Board adopts the repeal of sec.sec.21.251 - 21.265, concerning The Physician Education Loan Repayment Program without changes to the proposed text as published in the March 13, 1998, issue of the Texas Register (23 TexReg 2682). The rules are being repealed to eliminate the repetition of requirements and definitions shared by the three parts of the program and present the rules in a more logical order and in a manner that clearly distinguishes the requirements for one part of the program from the requirements for the other parts of the program. The proposed changes will include the elimination of a specific annual repayment amount. Comments were received from the Texas Osteopathic Medical Association requesting that the name "Advisory Board for Osteopathic Specialists" be changed to "Bureau of Osteopathic Specialists". The repeal of the rules is adopted under Texas Education Code, sec.61.537, which provides the Texas Higher Education Coordinating Board with the authority to adopt rules concerning The Physician Education Loan Repayment Program. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 13, 1998. TRD-9807826 James McWhorter Assistant Commissioner for Administration Texas Higher Education Coordinating Board Effective date: June 2, 1998 Proposal publication date: March 13, 1998 For further information, please call: (512) 483-6162 19 TAC sec.sec.21.251- 21.263 The Texas Higher Education Coordinating Board adopts new sec.sec.21.251 - 21.263, concerning, The Physician Education Loan Repayment Program. Section 21.261 is adopted with changes to the proposed text as published in the March 13, 1998, issue of the Texas Register (23 TexReg 2682). Sections 21.251-21.260, 21.262 and 21.263 are adopted without changes and will not be republished. The new rules are being proposed to eliminate the repetition of requirements and definitions shared by the three parts of the program and present the rules in a more logical order and in a manner that clearly distinguishes the requirements for one part of the program from the requirements for the other parts of the program. The proposed changes will include the elimination of a specific annual repayment amount. Comments were received from the Texas Osteopathic Medical Association requesting that the name "Advisory Board for Osteopathic Specialists" be changed to "Bureau of Osteopathic Specialists". The agency agreed with the comments and made the appropriate changes. The new rules are adopted under Texas Education Code, sec.61.537, which provides the Texas Higher Education Coordinating Board with the authority to adopt rules concerning The Physician Education Loan Repayment Program. sec.21.261.State-Funded Portion for Post-Residency Practice. (a) An eligible physician is one who: (1) has a current unrestricted license, or, in the case of a faculty member, a current unrestricted or institutional license to practice medicine in Texas from the Texas State Board of Medical Examiners; (2) except in the case of general practitioners, has satisfactorily completed a postgraduate program approved by the Texas State Board of Medical Examiners and accredited by the Accreditation Council on Graduate Medical Education or the American Osteopathic Association or has earned and maintained certification from an American Specialty Board that is a member of the American Board of Medical Specialties or the Bureau of Osteopathic Specialists in one of the following specialties: family practice, osteopathic general practice, obstetrics/gynecology, general internal medicine, general pediatrics, emergency medicine, general surgery, and psychiatry; (3) has submitted the appropriate application to the Board; and (4) has completed at least one year of medical practice in: (A) an economically depressed or rural medically underserved area of the state; (B) the Texas Department of Health, the Texas Department of Mental Health and Mental Retardation, the Texas Department of Criminal Justice, or the Texas Youth Commission; or (C) a Community Health Center in Texas. (b) The Commissioner will determine the award amounts providing incentives for continuous service and service in the most underserved areas. Repayments shall be made after each year of eligible service has been completed. Education loan repayment may be renewed annually upon successful completion of the application process, but for no more than a total of five years, including any awards under sec.21.263 of this title (relating to Family Practice Resident and Faculty Participation). This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 13, 1998. TRD-9807825 James McWhorter Assistant Commissioner for Administration Texas Higher Education Coordinating Board Effective date: June 2, 1998 Proposal publication date: March 13, 1998 For further information, please call: (512) 483-6162 SUBCHAPTER K.The Good Neighbor Scholarship Program 19 TAC sec.21.285, sec.21.288 The Texas Higher Education Coordinating Board adopts amendments to sec.21.285 and sec.21.288, concerning The Good Neighbor Scholarship Program without changes to the proposed text as published in the March 13, 1998, issue of the Texas Register (23 TexReg 2685). The amendments to the rules are being proposed to limit the number of scholarship recipients to 235 per year; to eliminate the requirement for the schools to process individual affirmations; and establish a deadline of October 15 for reallocating unused scholarships. The current rules allow 235 students per semester or term to receive the scholarship. This has resulted in exceeding the limit of 235 students per year established by Texas Education Code, Section 54.207. The amendments to the rules will bring the rules into compliance with the statute and limit the awards to a total of 235 students a year. The change will reduce the number of waivers granted by approximately 100 per year, which will result in a reduction to tuition waivers of approximately $420,600. There were no comments received regarding the proposed rules. The amendments to the rules are adopted under Texas Education Code, sec.sec.54.207 and 61.027, which provides the Texas Higher Education Coordinating Board with the authority to adopt rules concerning The Good Neighbor Scholarship Program. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 13, 1998. TRD-9807827 James McWhorter Assistant Commissioner for Administration Texas Higher Education Coordinating Board Effective date: June 2, 1998 Proposal publication date: March 13, 1998 For further information, please call: (512) 483-6162 19 TAC sec.21.289 The Texas Higher Education Coordinating Board adopts the repeal of sec.21.289, concerning The Good Neighbor Scholarship Program (Affirmation of Receipt of Scholarship) without changes to the proposed text as published in the March 13, 1998, issue of the Texas Register (23 TexReg 2685). The repeal of the rule is being proposed to limit the number of scholarship recipients to 235 per year; to eliminate the requirement for the schools to process individual affirmations; and establish a deadline of October 15 for reallocating unused scholarships. There were no comments received regarding the proposed rule. The repeal of the rule is adopted under Texas Education Code, sec.54.207 and sec.61.027, which provides the Texas Higher Education Coordinating Board with the authority to adopt rules concerning The Good Neighbor Scholarship Program. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 13, 1998. TRD-9807828 James McWhorter Assistant Commissioner for Administration Texas Higher Education Coordinating Board Effective date: June 2, 1998 Proposal publication date: March 13, 1998 For further information, please call: (512) 483-6162 SUBCHAPTER CC.Early High School Graduation Scholarship Program 19 TAC sec.21.958 The Texas Higher Education Coordinating Board adopts amendments to sec.21.958, concerning Early High School Graduation Scholarship Program (Refunds) without changes to the proposed text as published in the March 13, 1998, issue of the Texas Register (23 TexReg 2686). The amendments to the rules are being proposed to establish the same refund policy for this program as is used by the institutions for tuition, fees and other financial aid programs. The change will eliminate the need for the institutions to maintain two different refund processes. There were no comments received regarding the proposed rules. The amendment is adopted under Texas Education Code, sec.56.209 which provides the Texas Higher Education Coordinating Board with the authority to adopt rules concerning Early High School Graduation Scholarship Program (Refunds). This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 13, 1998. TRD-9807829 James McWhorter Assistant Commissioner for Administration Texas Higher Education Coordinating Board Effective date: June 2, 1998 Proposal publication date: March 13, 1998 For further information, please call: (512) 483-6162 SUBCHAPTER DD.Minority Doctoral Incentive Program of Texas 19 TAC sec.21.982 The Texas Higher Education Coordinating Board adopts new sec.21.982, concerning Minority Doctoral Incentive Program of Texas (Appeals for Exceptions) without changes to the proposed text as published in the March 13, 1998, issue of the Texas Register (23 TexReg 2687). The new rule adds an appeal process for students in case they have unusual circumstances or hardships and are unable to meet all of the program requirements. The appeal process will allow the General Counsel and Director of Access and Equity and the Assistant Commissioner for Student Services to review the circumstances presented by the student and grant exceptions. There were no comments received regarding the proposed rule. The new rule is adopted under Texas Education Code, sec.56.162 which provides the Texas Higher Education Coordinating Board with the authority to adopt rules concerning Minority Doctoral Incentive Program of Texas (Appeals for Exceptions). This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 13, 1998. TRD-9807830 James McWhorter Assistant Commissioner for Administration Texas Higher Education Coordinating Board Effective date: June 2, 1998 Proposal publication date: March 13, 1998 For further information, please call: (512) 483-6162 SUBCHAPTER HH.Exemption Program for Texas Air and Army National Guard/ROTC Students 19 TAC sec.21.1070 The Texas Higher Education Coordinating Board adopts new sec.21.1070, concerning Exemption Program for Texas Air and Army National Guard/ROTC Students (Program Reviews) with changes to the proposed text as published in the March 13, 1998, issue of the Texas Register (23 TexReg 2691). The section is being adopted to clarify the responsibilities of the Coordinating Board, the Adjutant General's Department and the recruiters; specify the amount to be included in the award for room and board; clarify repayment requirements if the student does not fulfill his/her contract; clarify requirements for eligibility to participate in the program; and clarify the application process and contract terms. Comments were received from the Adjutant General's Office regarding active duty in the United States military by graduates of the program; and the specific duties to be carried out by the Board and the Adjutant General's Office, respectively. The agency agreed with the comments and changes were made accordingly. The new rule is adopted under Texas Education Code, sec.54.212 and sec.61.027, which provides the Texas Higher Education Coordinating Board with the authority to adopt rules concerning Exemption Program for Texas Air and Army National Guard/ROTC Students. sec.21.1070.Program Reviews. Any institution whose students receive exemptions through this program will be subject to an annual program review. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 13, 1998. TRD-9807832 James McWhorter Assistant Commissioner for Administration Texas Higher Education Coordinating Board Effective date: June 2, 1998 Proposal publication date: March 13, 1998 For further information, please call: (512) 483-6162 SUBCHAPTER JJ.The Kenneth H. Ashworth Fellowship Program 19 TAC sec.sec.21.2001 - 21.2008 The Texas Higher Education Coordinating Board adopts new sec.sec.21.2001 - 21.2008, concerning The Kenneth H. Ashworth Fellowship Program without changes to the proposed rules as published in the March 13, 1998, issue of the Texas Register (23 TexReg 2691). The new rules are being proposed to allow awards to be made to students enrolled in graduate degree programs in the areas of public affairs, public service or public administration who intend to work in Texas after completing their graduate studies. There were no comments received regarding the proposed new rules. The new rules are adopted under Texas Education Code, sec.61.068 and sec.61.027 which provides the Texas Higher Education Coordinating Board with the authority to adopt rules concerning The Kenneth H. Ashworth Fellowship Program. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 13, 1998. TRD-9807833 James McWhorter Assistant Commissioner for Administration Texas Higher Education Coordinating Board Effective date: June 2, 1998 Proposal publication date: March 13, 1998 For further information, please call: (512) 483-6162 PART II. Texas Education Agency CHAPTER 74. Curriculum Requirements The Texas Education Agency (TEA) adopts amendments to sec.sec.74.1-74.3, 74.11- 74.13, 74.22-74.27, and 74.30, concerning curriculum requirements. Sections 74.11-74.13 are being adopted with changes to the proposed text as published in the March 27, 1998, issue of the Texas Register (23 TexReg 3155). Sections 74.1- 74.3, 74.22-74.27, and 74.30 are being adopted without changes to the proposed text. The amendments would bring the curriculum rules into agreement with the Texas essential knowledge and skills (TEKS). The amendments also contain technical changes to clarify meaning. The TEKS have been adopted and are scheduled to go into effect on September 1, 1998. Since there are a number of changes in courses and in course titles, the rules relating to curriculum requirements are being revised to provide this information to school districts in time for them to plan for the 1998-1999 school year. House Bill 1, General Appropriations Act, 75th Texas Legislature, Article IX, Rider 167, establishes a four-year sunset review cycle for all state agency rules. The TEA is also conducting a review of 19 TAC Chapter 74, Curriculum Requirements, in accordance with Rider 167. The TEA does find sufficient reason for the rules to continue to exist and intends to amend the rules as indicated. The following changes have been made to the rules since they were published as proposed. Lanuguage in sec.sec.74.11(d)(1)(A), 74.12(b)(1), and 74.13(a)(1)(A) was amended to clarify that the provision for English for Speakers of Other Languages would only apply to immigrant students with limited English proficiency. Language in sec.74.12(b)(3) and sec.74.13(a)(1)(C) was amended to encourage students to take Biology, Chemistry, and Physics. Language in sec.74.13(a)(3) was amended to limit original research/projects to not more than two of the advanced measures. Language in sec.74.11(h), 74.12(e), and 74.13(c) has been added to provide an implementation date of the proposed changes that would apply to 1998-1999 ninth graders and thereafter. The following public comments have been received regarding adoption of the new section. sec.Issue. Social studies. Comment. An individual commented that amending "United States History" to "United States History Since Reconstruction" would mean that after Grade 8, students would not study history prior to Reconstruction. Agency Response. The State Board of Education (SBOE) approved the name of the course previously when the TEKS were adopted. The title simply indicates that this is the second part of a two-year study of United States history that begins in Grade 8. Comment. An individual commented that changing "United States Government" to "Government" appears to mean that students would focus on less successful forms of government than the United States. Agency Response. The name of the course "Government" was changed to "United States Government" at the March 1998 SBOE meeting for first reading and filing authorization. Issue. Science. Comment. An individual questioned changes in high school science requirements. Agency Response. The recommendation was based on the adoption of the new TEKS in science, which are in sufficient depth and rigor to satisfy high school graduation requirements. Comment. An individual commented that students should have the opportunity to take geology as one of the three required science courses. Agency Response. In the minimum program, only one of two science courses is prescribed. The second course could be geology. Similarly in the Recommended and Distinguished Achievement Programs, both Option I and III would allow Geology as a science course. Comment. Two individuals recommended the following change in the recommended program and in the Distinguished Achievement Program: Science - three credits. Two credits must be selected from Integrated Physics and Chemistry, Biology, Chemistry, or Physics. One credit must be selected from any of the SBOE approved Science courses in 19 TAC Chapter 112 of the title (relating to Texas Essential Knowledge and Skills for Science), Chapter 121 of this title (relating to Texas Essential Knowledge and Skills for Health Science Technology Education), or Chapter 123 of this title (relating to Texas Essential Knowledge and Skills for Technology Education / Industrial Technology Education). Agency Response. This issue was addressed at a February 13, 1998, meeting at which time proposed new language was agreed upon. Comment. The Science Teachers of Texas recommended several changes to the high school graduation programs. Agency Response. This issue was addressed at a February 13, 1998, meeting at which time proposed new language was agreed upon. Comment. Six individuals commented favorably on the science requirements in the recommended and distinguished achievement programs as presented for second reading and filing adoption. Comment. Three individuals commented that students should be able to take additional science courses for the required part of the recommended and distinguished achievement programs. Agency Response. Board members voted to maintain the language as proposed, with the understanding that students have several opportunities to take additional science courses in the recommended and distinguished achievement programs. Comment. An individual expressed concern about the proposed science requirements in the recommended and distinguished achievement programs, mainly because students might avoid taking biology. Agency Response. This concern was addressed by amending the proposed language in the recommended and distinguished achievement programs: "all students who wish to complete (the recommended or the distinguished achievement) program are encouraged to take Biology, Chemistry, and Physics to fulfill the requirements of this section. Issue. Proposed change may discourage students from enrolling in advanced science courses. Comment. Several individuals commented that the proposed language for the academic core components in science in the Recommended High School Program and the Distinguished Achievement Program that requires students to choose not more than one credit from each of four areas may discourage students from taking Advanced Placement and other advanced high school science courses. Agency Response. Students who graduate under the Recommended High School Program and the Distinguished Achievement Program should have a strong foundation in Physics. This amendment will make the area of Science more parallel with other foundation areas that prescribe specific courses in the Recommended High School Program and Distinguished Achievement Program. Issue. Lack of flexibility in science requirements. Comment. Several individuals commented that students should be allowed more flexibility in choosing one of the three required science credits in the Recommended High School Program and Distinguished Achievement Program. Agency Response. Flexibility may be found in the minimum high school program. The advanced degrees are more prescriptive in their requirements in the academic core components. The proposed amendments provide more flexibility in the additional components portion of the Recommended High School Program and Distinguished Achievement Program. Students may select any science course to complete the requirements for the science elective in Option I. Issue. Elimination of Biology II, Chemistry II, and Physics II in the graduation plans. Comment. Several individuals commented that the elimination of Biology II, Chemistry II, and Physics II might not serve all students. Some students may want to take an advanced level course, but are not prepared for the rigor of an Advanced Placement course. Agency Response. The Science writing team for the TEKS made a deliberate effort to raise the standards for the advanced level courses. The Advanced Placement and International Baccalaureate programs were chosen as the advanced level programs in science. As more students participate in the more rigorous elementary and middle level science courses, a greater number of students will be able to participate in these advanced courses. Issue. Communications Applications for speech requirement. Comment. Two individuals expressed support for "Communications Applications" as the speech requirement for all three high school programs. Agency Response. The new Communications Applications course is being adopted as one of five courses that would be acceptable as the required speech course. This change was made in January 1998 based on a discussion of the fact that textbooks would not be available for the new course for several years. Issue. The Distinguished Achievement Program. Comment. Two individuals commented in support of the Distinguished Achievement Program and, in particular, the independent research and mentorship component. Agency Response. The agency agrees with this response. Issue. The requirement of a license in the Distinguished Achievement Program. Comment. An individual commented that a new requirement for the Distinguished Achievement Program would require every Distinguished Achievement Program student to earn a license. Agency Response. The agency disagrees with this comment. The license provision has been one of the optional advanced measures since the inception of the Distinguished Achievement Program. Comment. An individual commented in support of keeping as an advanced measure a "license awarded by a professional board or association. Specifically named were Certified Nursing Assistant, Cosmetology, and Automotive Service Excellent Certification. Comment. An individual questioned the deletion of "very demanding" Microsoft certifications. Agency Response. The licensure advanced measure was deleted at first reading of the proposed revised graduation requirements based on concerns expressed by a number of board members about the appropriateness of licenses as an advanced measure for high school students. Issue. Deletion of licensure as an advanced measure in the Distinguished Achievement Program. Comment. Three individuals requested that the SBOE keep licenses as one of the advanced measures in the Distinguished Achievement Program. Agency Response. SBOE members approved the removal of licenses; however, requested that that this issue be brought back for further consideration in the future. Issue. Honors Courses. Comment. The Texas Eagle Forum commented that locally selected honors courses will no longer qualify for the Distinguished Achievement Program. Agency Response. Honors programs have never been a part of the Distinguished Achievement Program that was adopted by the SBOE in 1995. Comment. The Texas Eagle Forum commented that the Distinguished Achievement Program will eliminate honors. Agency Response. School districts are free to offer locally adopted honors courses and to weight grade point average for students who complete them. Based on discussions with school districts since the Distinguished Achievement Program was adopted in 1995, there is no indication that "honors" courses will be eliminated at the local level. Issue. Local control. Comment. The Texas Eagle Forum commented that the Distinguished Achievement Program would strip schools of current choices and would strengthen the grip of the state on local schools. Agency Response. Schools can, and do, structure their curriculum to meet local needs. For example, schools could decide not to offer the Distinguished Achievement Program, but to provide many opportunities and incentives for students to take advanced academic courses. The students' transcripts will clearly communicate a student's accomplishments. Issue. The Distinguished Achievement Program plan is experimental. Comment. The Texas Eagle Forum questions the basis for adopting the Distinguished Achievement Program. Agency Response. The Distinguished Achievement Program was adopted by the SBOE three years ago. No other comment of this nature has been received. Issue. Fees. Comment. The Texas Eagle Forum commented about students having to pay fees to take AP exams and college courses. Agency Response. The statement is correct. It is, however, one of the reasons why additional advanced measures were adopted as part of the Distinguished Achievement Program in 1995. In particular, the original research projects were seen as a way for students to graduate from the Distinguished Achievement Program without having to pay any fees. Issue. School-to-Work and Academic Standards. Comment. The Texas Eagle Forum commented that the rationale behind this action (the Distinguished Achievement Program) is the implementation of School-to-Work programs. In addition, Eagle Forum states that the plan (Distinguished Achievement Program) lowers academic standards. Agency Response. The rationale behind the Distinguished Achievement Program was very different from what the Eagle Forum asserts. The rationale was based on the adoption in 1993 of the SBOE Recommended High School Program. That program set a higher standard (24 credits) than the old Advanced High School Program (22 credits) or the old Advanced with Honors Program (22 credits, including 5 credits in state-approved honors programs). The Distinguished Achievement Program adopted in 1995, was based on the high academic standards in the Recommended Program, but required, in addition, four advanced measures. Those measures were designed to focus on demonstrated student performance at the college or professional level, with student performance to be assessed through an external review process to assure a level of consistency in the advanced measures across the state. At the time the Distinguished Achievement Program was adopted, the old advanced and advanced with honors programs were scheduled to be phased out at the end of the 1998-1999 school year. Issue. Revisions to sec.74.28. Comment. A representative of The International Dyslexia Association commented as follows: while more districts are beginning to comply with the law, the lack of response by many districts indicates either ignorance of the existence of the law and how to implement a dyslexia program or resistance to complying due to specific non-appropriation of funds to implement the law. While several individuals are doing their best to cover the state, the demands of their positions limit them from being able to serve the entire state. Designated dyslexia coordinators to Region Service Centers has typically been an adjunct title placed upon already busy staff whose knowledge of dyslexia and how to consult with districts to educate these children is lacking. Beyond the commitment of the state dyslexia coordinators, little action has been witnessed in the form of directives and support from the commissioner of education or the TEA to school districts in regard to the importance of implementing or planning a state-wide effort to serve students with dyslexia and related disorders in accordance with the law. According to the Accountability and School Accreditation Office of the TEA, this is the first year Special Education Monitoring will include compliance with the dyslexia law, but only to determine if the districts have a dyslexia coordinator. Confirmation whether there will be any monitoring of the other phases, including Phase III (Section 504 students) was not received. The following revision was proposed by the representative of the International Dyslexia Association. The rules should specify who will be monitoring districts, when, and monitor for compliance with each guideline, i.e., identifying students with dyslexia and related disorders, early intervention, teacher credentials administering services, ratio of students to teachers to insure effectiveness of delivery, communication of state and federal regulations to all parents or students, and in all phases of a dyslexia program. A method should be developed to determine whether the budget process of the district considered the dyslexia program as a priority in their budget appropriations. The representative questioned whether consideration has been given for utilizing existing staff and teacher, providing them with professional development and materials (e.g., Reading Recovery teachers, SAIL teachers, Content Mastery teachers). The representative also asked about what efforts did the district take in finding new-hires who are trained, knowledgeable teachers in the methods meeting the state criteria. The representative asked about what the method will be for reporting results of non-compliance to districts, and how will they influence their willingness or ability to comply. The representative asked about how will these reports bring recognition to districts who are succeeding at providing appropriate and effective services to their students with dyslexia and related disorders. Agency Response. The agency disagrees with this testimony. The commissioner of education directed the Executive Directors of the ESCS to insure that the primary responsibility of the dyslexia contacts would be to serve districts and campuses in the regions. On-going training has been provided for the dyslexia contacts through the Region X education service center. On February 16-17, the ESC dyslexia contacts participated in the first session of a training series on dyslexia. The TEA has monitored for dyslexia through its Results Based Monitoring System that has now been replaced with the District Effectiveness and Compliance monitoring system. Comment. The State Dyslexia Coordinators and many districts have developed strategies for screening students for dyslexia to determine qualification for placement in a Phase III/504 (non-Special Education setting). Educational diagnosticians administering qualifying assessments for special education placement have not typically been trained to identify students with dyslexia as simply learning disabled. The preponderance of students with dyslexia are in Special Education, yet continue to be unidentified as dyslexic or having a related disorder, and are not receiving instruction from the districts' trained dyslexia specialists. The State Dyslexia Coordinators proposed the following revision to the rules. Individual diagnostic assessments of students identified as learning disabled, whether administered privately or by the public schools, shall be reviewed by the districts' dyslexia coordinator or his/her appointed specialist in determining whether a child exhibits characteristics for dyslexia requiring Phase IV (Special Education) of the dyslexia program. Agency Response. The agency disagrees with the testimony. According to federal guidelines, a committee of knowledgeable persons who identify and place students in specialized instructional programs must be knowledgeable about the assessments used, knowledgeable about the instructional program that the student will be placed in, and knowledgeable about the student and his/her handicapping condition. Dyslexia is listed as one of many handicapping conditions under the term learning disability in Individuals with Disabilities Education Act (IDEA) (formerly PL.94.142). Comment. The State Dyslexia Coordinators commented that districts continue to provide ineffective reading instruction to identified dyslexic students which is not multi-sensory (sic), intensive, individualized, etc. Parents commonly complain that the teacher delivering services has not been trained in a method meeting state criteria. The State Dyslexia Coordinators proposed the following revision to the rules. Districts shall match credentials of teachers delivering services with criteria of qualification as developed by the state dyslexia coordinators. Documentation of teacher credentials shall be on file with each district's dyslexia coordinator and special education director (respective of their supervisor) for availability of review. Agency Response. The agency disagrees with the testimony. Texas does not have a professional teaching certificate for dyslexia. A professional teaching certificate is available in the areas of Reading Specialist and Special Education. Section 74.28 of 19 TAC does require certified teachers (elementary certification for those teaching children in Grades 1-8 or secondary certification for those teaching children in Grades 7-12), who have been trained in dyslexia and related disorders, to provide services to dyslexia students. These services must be provided at the campus where the student attends school. The rule requires districts to follow the Procedures Concerning Dyslexia and Related Disorders which outline the ten components (descriptors) of a Phase III program. These descriptors state that the programs implemented for dyslexic students must provide individualized multisensory, systematic, sequential meaningful instruction with a focus on phonics and linguistics. Comment. The State Dyslexia Coordinators commented that parents continue to be uninformed by school districts. The State Dyslexia Coordinators proposed the following revision to the proposed rules. All district handbooks should reference availability of the "Green Book" (State and Federal Guidelines for Services to Students with Dyslexia and Related Disorders) as being available through their local campus upon request. All parents with students referred for services under Section 504 of the law or who are referred for Special Education must be given a "Green Book" prior to their attending their first 504 or Admission, Review, and Dismissal committee (ARD) meeting on that campus. Agency Response. The agency disagrees with the testimony. Section 74.28(h) of 19 TAC states that districts may provide a parent education program. Once a student is suspected of having dyslexia or a related disorder and is tested individually, the parent should be notified. The 504 and the ARD committees are required to inform the parents of the instructional program in which the child will be placed. Comment. The State Dyslexia Coordinators commented that they continue to hear glowing reports from parents, teachers, and administrators of many districts who now have students progressing significantly in their reading abilities who had previously been failing before the intervention through the dyslexia program. While districts have begun to hire qualified, trained teachers, administrators responsible for budgetary and hiring recommendation to the school boards continue to place the dyslexia program as a low priority. Because they are meeting the letter of the law, by providing "access" to students (often only 20- 30 minutes twice per week) to these trained teachers, they believe they have met their obligation to the law and to these students. The State Dyslexia Coordinators proposed the following revision to the proposed rules. Each school campus must provide two full-time trained teachers (with credentials as specified in sec.74.28(c)) serving students identified as having dyslexia and/or related disorders under both Section 504 and IDEA of the law. Campuses should also provide inservice training to all other teachers on their campuses regarding effective instructional techniques in math and other core curriculum courses, and effective strategies in working with the ADD/ADHD student. This is a logical combination of services due to the frequent co- morbidity of the two disorders. Additionally, students with ADD often have unidentified subtle language disorders, and typically benefit from the structured approach to language instruction that teachers receive in their training meeting state criteria. Agency Response. The agency disagrees with the testimony. The state does not have specified time requirements for any subject or student. The board is prohibited by Texas Education Code, sec.28.002, from establishing time requirements for students in specific subject areas. Section 74.28(c) of 19 TAC does not specify the number of trained teachers that should be on the campus. However, the rule does state that services must be provided by a teacher trained in dyslexia on the campus. Districts may have a teacher that travels between buildings to serve students. Comment. The State Dyslexia Coordinators commented that districts continue to lack early intervention programs outside of Reading Recovery. Reading Recovery is not an effective early intervention for dyslexic students, nor is it a complete and sufficient early intervention in reading instruction for "at risk" students. The State Dyslexia Coordinators recommended that the TEA look closely at the number of total dollars spend by state and federal governments on Reading Recovery relative to the number of children receiving effective intervention. The comment quoted an expert as reporting that 30% of all children need an explicitly phonetic reading program, which is explicitly phonetic. While many children may not manifest symptoms of dyslexia as a constitutional (sic) disorder, if they do not receive explicit phonetic instruction in their early school years, their chances for later school success are greatly hindered. (Site incidence of private tutoring among school-aged children. What happens to those who do not have parents, who cannot provide private intervention?) The State Dyslexia Coordinators proposed the following revision to the proposed rules. Each district will insure through supplemental guidelines from the State Dyslexia Coordinators, sufficient assessment measures to be administered to all Kindergarten students that will determine those children exhibiting characteristics of dyslexia or related disorders. Children exhibiting dyslexic characteristics will receive reading programs with the delivery of phonemic awareness training and explicit phonics instruction within their regular education program unless the 504 committees or ARD committees determine that more intensive instruction is needed. (Students determined "at risk" for dyslexic characteristics do not have to be identified as 504 or Special Ed. to be entitled to a program of phonemic awareness training and explicit phonics instruction. This sub-section revision is simply specification to what was intended by the establishment of Phase II of the original dyslexia law guidelines authored by the State Board.) Agency Response. The agency disagrees with the testimony. The state does not specify or require Reading Recovery as an early intervention program for students encountering difficulty in reading. The Procedures Concerning Dyslexia direct districts to collect data on students beginning with Grade 1 and continue monitoring student's individual progress as readers and screen students suspected of having dyslexia or a related disorder. The ten descriptors found in Phase III of the Procedures Concerning Dyslexia describe the program of instruction for students with dyslexia or a related disorder. The essential elements did require instruction in sound-symbol relationships (phonics) as do the TEKS. Beginning with the 1998- 1999 school year, all districts will be required to administer a reading assessment instrument for students in K-2. This assessment must be designed to diagnose potential reading difficulties and assess comprehension. Districts currently may use the Texas Primary Reading Inventory or their own assessments to monitor progress in literacy at these early grades. Legal Issues. Comment. The Texas Eagle Forum and the Texas Justice Foundation questioned the board's rulemaking authority in a number of areas. These areas include the ability of the SBOE to require particular subjects in the enrichment curriculum to be offered at a particular type of campus, such as high school or elementary campus. Another issue was whether the SBOE could state course requirements in the alternative, such as a requirement to take (or to offer) two of five possible courses. Agency Response. The agency agrees with some of the comments to the effect that Texas Education Code (TEC), sec.7.102, does not expand the authority granted in TEC, Chapter 28. TEC, sec.7.102, was intended to be a summary of the SBOE's duties and is not an independent source of rulemaking authority, although the phrasing used may indicate the legislature's understanding of the authority summarized. However, the SBOE has general rulemaking authority in sec.28.002(I) "for the implementation" of this subchapter. That general grant of authority creates a strong presumption of authority in rules adopted under that subchapter. There are three aspects of the state's curriculum to consider: curriculum, subjects and TEKS. As the statute is read, "curriculum" includes the broad field of study listed in sec.28.002(a) (e.g., mathematics or fine arts), "subject" includes the individual courses of study adopted by the board for which textbooks may be adopted under TEC, Chapter 31, (e.g., Algebra I or Theatre Arts I), and the TEKS are the individual items of knowledge and skill that further define the subject. The SBOE may require school districts to teach each subject to comply with the requirement to offer the curriculum, although districts do not have to follow the TEKS in the enrichment curriculum when offering the subject. This conclusion is reinforced by the phrasing of TEC, sec.28.002(d), which allows TEKS to be used "as guidelines in providing instruction in the enrichment curriculum" but does not imply that any part of that curriculum and the subjects that make it up may be omitted. The "instruction" is still required even though TEKS may be used as guidelines. Following our example, school districts may be required to offer Theater Arts I but need not include in the instruction each of the essential knowledge and skills. The agency agrees that the TEKS, which set grade levels for particular courses in the enrichment curriculum need not be followed. However, the SBOE's authority under other provisions in TEC, Chapter 28, does not support such a requirement. As to high schools, the SBOE's authority to establish high school graduation requirements under sec.28.025 enables it to require that districts teach courses sufficient to meet those requirements. It should be noted that a graduation requirement need not be specific to a particular course and would not in that instance require a particular course to be taught. For example, a requirement for a credit in "fine arts" would not require a high school to offer Theater Arts I so long as a course which allows the student to meet the requirement was offered. The SBOE could also under its general grant of rulemaking authority in TEC, sec.28.002(i), require a high school to offer specific courses as defining the "balanced curriculum" required in TEC, sec.28.002(g). As to campuses below high school, the board is required to "designate subjects constituting a well- balanced curriculum" for school districts that do not have high schools under TEC, sec.28.002(b). This clearly authorizes individual course requirements for elementary or middle schools within those districts. All school districts are required to offer a "balanced curriculum" under TEC, sec.28.002(g). While the terminology is not exact, the TEA believes the legislature intended uniform curriculum requirements within the state and that these provisions, coupled with the general grant of rulemaking ability in TEC, sec.28.002(i), does authorize the SBOE to require particular subjects to be offered at a middle or elementary school. The SBOE can define a "curriculum" by defining subjects as alternatives. There is nothing in TEC, Chapter 28 that implies that a student must take all subjects in a curriculum. The SBOE has the flexibility under its general grant of rulemaking in TEC, sec.28.002(i), to define curricula in terms of alternative subjects and in terms of general grade levels for courses. Having placed grade levels in the TEKS for some subjects, however, the SBOE has up to this point implicitly left to the discretion of school districts what grades in which to teach the enrichment. The agency believes it is important to stress that the legal ability of the SBOE to require that certain subjects be taught in the enrichment curriculum, or that certain subjects be taught at particular grades, does not require the SBOE to do so. As discussed previously, the grade requirements currently found in the enrichment TEKS are not binding and the SBOE could continue to allow districts that type of flexibility should it so choose. SUBCHAPTER A. Required Curriculum 19 TAC sec.sec.74.1-74.3 The amendments are adopted under the Texas Education Code, sec.sec.7.102, 28.002, 28.023, 28.025, 28.054, and 38.003, which authorize the State Board of Education to establish curriculum graduation requirements, and House Bill 1, General Appropriations Act, 75th Texas Legislature, Article IX, Rider 167, which establishes a four-year sunset review cycle for all state agency rules. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 18, 1998. TRD-9808084 Criss Cloudt Associate Commissioner, Policy Planning and Research Texas Education Agency Effective date: September 1, 1998 Proposal publication date: March 27, 1998 For further information, please call: (512) 463-9701 SUBCHAPTER B. Graduation Requirements 19 TAC sec.sec.74.11-74.13 The amendments are adopted under the Texas Education Code, sec.sec.7.102, 28.002, 28.023, 28.025, 28.054, and 38.003, which authorize the State Board of Education to establish curriculum graduation requirements, and House Bill 1, General Appropriations Act, 75th Texas Legislature, Article IX, Rider 167, which establishes a four-year sunset review cycle for all state agency rules. sec.74.11. High School Graduation Requirements. (a) Graduates of each high school are awarded the same type of diploma. The academic achievement record (transcript), rather than the diploma, records individual accomplishments, achievements, and courses completed. (b) All credit for graduation must be earned no later than Grade 12. (c) Beginning in 1997-1998, to receive a high school diploma, a student must complete the requirements of the minimum high school program, as specified in subsection (d) of this section; the recommended high school program, as specified in sec.74.12 of this title (relating to Recommended High School Program); or the distinguished achievement program, as specified in sec.74.13 of this title (relating to Distinguished Achievement Program -- Advanced High School Program); as well as the testing requirements for graduation, as specified in Chapter 101 of this title (relating to Assessment). (d) A student must complete at least 22 credits to receive a minimum high school program diploma. Credit may be awarded without prior instruction under Texas Education Code, sec.28.023 (Credit by Examination). College Board Advanced Placement and International Baccalaureate courses may be substituted for requirements in appropriate areas. A student must demonstrate proficiency in the following. (1) English language arts - four credits. The credits must consist of: (A) English I, II, and III (English I for Speakers of Other Languages and English II for Speakers of Other Languages may be substituted for English I and II for immigrant students with limited English proficiency only); and (B) a fourth credit of English, which may be satisfied by English IV, Research/Technical Writing, Creative/Imaginative Writing, Practical Writing Skills, Literary Genres, Business Communication, Journalism, or concurrent enrollment in a college English course. (2) Mathematics - three credits to include Algebra I. (3) Science - two credits to include one from Biology, Chemistry, or Physics. (4) Social studies - two and one-half credits. The credits must consist of World History Studies (one credit) or World Geography Studies (one credit), United States History Studies Since Reconstruction (one credit), and United States Government (one-half credit). (5) Academic elective - one credit. The credit must be selected from World History Studies, World Geography Studies, or any science course approved by the State Board of Education (SBOE). (6) Economics with emphasis on the free enterprise system and its benefits - one-half credit. (7) Physical education - one and one-half credits to include one-half credit in Foundations of Personal Fitness. (A) The school district board of trustees may allow a student to substitute certain physical activities for the one and one-half required credits of physical education, including the one-half credit of Foundations of Personal Fitness. The substitutions must be based on the physical activity involved in drill team, marching band, and cheerleading during the fall semester; Reserve Officer Training Corps (ROTC); athletics; Dance I-IV; and two- or three-credit career and technology work-based training courses. (B) A student may not earn more than two credits in physical education toward state graduation requirements. (C) For physical education, a district must classify each student, on the basis of health, into one of the following categories. (i) Unrestricted (not limited in activities). (ii) Restricted (excludes the more vigorous activities). (I) Permanent. A member of the healing arts licensed to practice in Texas must provide the school written documentation concerning the nature of the impairment and the expectations for physical activity for the student. (II) Temporary. The student may be restricted from physical activity of the physical education class. A member of the healing arts licensed to practice in Texas must provide the school written documentation concerning the nature of the temporary impairment and the expected amount of time for recovery. During recovery time, the student must continue to learn the concepts of the lessons but may not actively participate in the skill demonstration. (iii) Adapted and remedial (specific activities prescribed or prohibited, as directed by a member of the healing arts licensed to practice in Texas). (D) In accordance with local district policy, a school district may award up to two credits for physical education for appropriate private or commercially- sponsored physical activity programs conducted on or off campus. The district must apply to the commissioner of education for approval of such programs, which may be substituted for state graduation credit in physical education. Such approval may be granted under the following conditions. (i) Olympic-level participation and/or competition includes a minimum of 15 hours per week of highly intense, professional, supervised training. The training facility, instructors, and the activities involved in the program must be certified by the superintendent to be of exceptional quality. Students qualifying and participating at this level may be dismissed from school one hour per day. Students dismissed may not miss any class other than physical education. (ii) Private or commercially-sponsored physical activities include those certified by the superintendent to be of high quality and well supervised by appropriately trained instructors. Student participation of at least five hours per week must be required. Students certified to participate at this level may not be dismissed from any part of the regular school day. (8) Health education - one-half credit, or Health Science Technology - one credit. (9) Speech - one-half credit in Communication Applications, Speech Communication, Public Speaking, Debate, or Oral Interpretation. (10) Technology applications - one credit, which may be satisfied by: (A) all courses in Chapter 126 of this title (relating to Texas Essential Knowledge and Skills for Technology Applications); (B) the following courses in Chapter 120 of this title (relating to Texas Essential Knowledge and Skills for Business Education): Business Computer Information Systems I or II, Business Computer Programming, Telecommunications and Networking, or Business Image Management and Multimedia; or (C) the following courses in Chapter 123 of this title (relating to Texas Essential Knowledge and Skills for Technology Education/Industrial Technology Education): Computer Applications, Technology Systems (modular computer laboratory-based), Communication Graphics (modular computer laboratory-based), or Computer Multimedia and Animation Technology. (11) Electives - five and one-half credits. The credits must be selected from: (A) the list of courses approved by the SBOE for Grades 9-12 as specified in sec.74.1 of this title (relating to Essential Knowledge and Skills); (B) Reserve Officer Training Corps (ROTC) (one to four credits); or (C) Driver Education (one-half credit). (e) A maximum of three credits of reading may be offered by districts for state graduation credit for identified students under the following conditions. The school district board of trustees shall adopt policies to identify students in need of additional reading instruction, and district procedures shall include assessment of individual student needs, ongoing evaluation of each student's progress, and monitoring of instructional activities to ensure that student needs are addressed. Reading credits may be selected from Reading I, II, or III. (f) An out-of-state or out-of-country transfer student (including foreign exchange students) or a transfer student from a Texas nonpublic school must complete all requirements of this section to be eligible to satisfy state graduation requirements. Any course credit required in this section that is not completed by the student before he or she enrolls in a Texas school district may be satisfied through the provisions of sec.74.23 of this title (relating to Correspondence Courses) and sec.74.24 of this title (relating to Credit by Examination) or by completing the course or courses according to the provisions of sec.74.26 of this title (relating to the Award of Credit). (g) Notwithstanding the repeal of sec.75.151 of this title (relating to High School Graduation Requirements), the requirements for high school graduation for students who enrolled in a high school program on or before the 1997-1998 school year remain in effect as adopted by the State Board of Education (SBOE) to be effective June 21, 1984, and last amended to be effective August 8, 1989. (h) The provisions of this section will apply to students entering Grade 9 in the 1998-1999 school year and thereafter. sec.74.12. Recommended High School Program. (a) General requirements. A student who wishes to complete the recommended high school program and have the accomplishment recognized on the academic achievement record must complete the following requirements. (b) Academic core components. College Board advanced placement and International Baccalaureate courses may be substituted for requirements in appropriate areas. Credit may be awarded without prior instruction under Texas Education Code, sec.28.023 (Credit by Examination). The student must demonstrate proficiency in the following. (1) English - four credits. The credits must consist of English I, English II, English III, and English IV (English I for Speakers of Other Languages and English II for Speakers of Other Languages may be substituted for English I and II for immigrant students with limited English proficiency only). (2) Mathematics - three credits. The credits must consist of Algebra I, Algebra II, and Geometry. (3) Science - three credits. Students may choose three credits from the following four areas. Not more than one credit may be chosen from each of the four areas. All students who wish to complete the recommended high school program are encouraged to take Biology, Chemistry, and Physics to fulfill the requirements of this section. (A) Integrated Physics and Chemistry; (B) Biology, AP Biology, or IB Biology; (C) Chemistry, AP Chemistry, or IB Chemistry; and (D) Physics, Principles of Technology I, AP Physics, or IB Physics. (4) Social studies - three and one-half credits. The credits must consist of World History Studies (one credit), World Geography Studies (one credit), United States History Studies Since Reconstruction (one credit), and United States Government (one-half credit). (5) Economics with emphasis on the free enterprise system and its benefits - one-half credit. (6) Languages other than English - two credits. The credits must consist of Level I and Level II in the same language. (7) Health - one-half credit, or Health Science Technology - one credit. (8) Fine arts - one credit, which may be satisfied by any course in Chapter 117 of this title (relating to Texas Essential Knowledge and Skills in Fine Arts). (9) Physical education - one and one-half credits to include one-half credit in Foundations of Personal Fitness. (A) A school district board of trustees may allow a student to substitute certain physical activities for the one and one-half required credits of physical education, including the one-half credit of Foundations of Personal Fitness. The substitutions must be based on the physical activity involved in drill team, marching band, and cheerleading during the fall semester; Reserve Officer Training Corps (ROTC); athletics; Dance I-IV; and two- or three-credit career and technology work-based training courses. (B) In accordance with local district policy, a school district may also apply to the commissioner of education for a waiver to allow credit for appropriate private or commercially-sponsored physical activity programs conducted on or off campus. Such approval may be granted under the following conditions. (i) Olympic-level participation and/or competition includes a minimum of 15 hours per week of highly intense, professional, supervised training. The training facility, instructors, and the activities involved in the program must be certified by the superintendent to be of exceptional quality. Students qualifying and participating at this level may be dismissed from school one hour per day. Students dismissed may not miss any class other than physical education. (ii) Private or commercially-sponsored physical activities include those certified by the superintendent to be of high quality and well supervised by appropriately trained instructors. Student participation of at least five hours per week must be required. Students certified to participate at this level may not be dismissed from any part of the regular school day. (10) Technology applications - one credit, which may be satisfied by: (A) all courses in Chapter 126 of this title (relating to Texas Essential Knowledge and Skills for Technology Applications); (B) the following courses in Chapter 120 of this title (relating to Texas Essential Knowledge and Skills for Business Education): Business Computer Information Systems I or II, Business Computer Programming, Telecommunications and Networking, or Business Image Management and Multimedia; or (C) the following courses in Chapter 123 of this title (relating to Texas Essential Knowledge and Skills for Technology Education/Industrial Technology Education): Computer Applications, Technology Systems (modular computer laboratory-based), Communication Graphics (modular computer laboratory-based), or Computer Multimedia and Animation Technology. (11) Speech - one-half credit in Communication Applications, Speech Communication, Public Speaking, Debate, or Oral Interpretation. (c) Additional components. All students who wish to complete the recommended high school program are encouraged to study each of the foundation curriculum areas (English language arts, mathematics, science and social studies) every year in high school as provided in Option I. Options II and III are provided for students who want to focus on a particular career exploration or the development of an academic interest or artistic talent. College Board advanced placement and International Baccalaureate courses may be substituted for requirements in appropriate areas. The student must choose one of the following options for additional components. Credit may be awarded without prior instruction under Texas Education Code, sec.28.023 (Credit by Examination), or sec.39.023(i) (end- of-course tests). (1) Option I: mathematics, science, elective. The student must demonstrate proficiency in the following. (A) Mathematics - one credit. The credit must consist of Precalculus. (B) Science - one credit. Students may select any Science course including Integrated Physics and Chemistry; Biology; Environmental Systems; Chemistry; Aquatic Science; Physics; Astronomy; Geology; Meteorology; Oceanography; AP Biology; AP Chemistry; AP Physics; AP Environmental Science; IB Biology; IB Chemistry; IB Physics; IB Environmental Systems; Scientific Research and Design; Anatomy and Physiology of Human Systems; Medical Microbiology; Pathophysiology; Principles of Technology I; and Principles of Technology II. (C) Elective - one and one-half credits. (2) Option II: career and technology. The student must demonstrate proficiency equivalent to three and one-half credits in a coherent sequence of courses for career and technology preparation. To be included in the recommended high school program, a technology preparation program approved by the Texas Education Agency (TEA) must meet recommended high school program criteria in English language arts, mathematics, science, social studies, languages other than English, health, fine arts, and technology applications. (3) Option III: academic. The student must demonstrate proficiency equivalent to three and one-half credits consisting of state-approved courses from language arts, science, social studies, mathematics, languages other than English, fine arts, or technology applications. Students may choose all three and one-half credits from one of the disciplines, or they may select courses among the listed disciplines. (d) Substitutions. No substitutions are allowed in the Recommended High School Program. (e) The provisions of this section will apply to students entering Grade 9 in the 1998-1999 school year and thereafter. sec.74.13. Distinguished Achievement Program -- Advanced High School Program. (a) Beginning in the 1999-2000 school year, a student who wishes to complete an advanced high school program (called the distinguished achievement program) and have the accomplishment recognized and distinguished on the academic achievement record (transcript) must complete the following requirements. (1) Academic core components. College Board advanced placement and International Baccalaureate courses may be substituted for requirements in appropriate areas. The student must demonstrate proficiency in the following. (A) English - four credits. The credits must consist of English I, English II, English III, and English IV ( English I for Speakers of Other Languages and English II for Speakers of Other Languages may be substituted for English I and II for immigrant students with limited English proficiency only); (B) Mathematics - three credits. The credits must consist of Algebra I, Algebra II, and Geometry. (C) Science - three credits. Students may choose three credits from the following four areas. Not more than one credit may be chosen from each of the four areas. All students who wish to complete the distinguished achievement program are encouraged to take Biology, Chemistry, and Physics to fulfill the requirements of this section. (i) Integrated Physics and Chemistry; (ii) Biology, AP Biology, or IB Biology; (iii) Chemistry, AP Chemistry, or IB Chemistry; and (iv) Physics, Principles of Technology I, AP Physics, or IB Physics. (D) Social studies - three and one-half credits. The credits must consist of World History Studies (one credit), World Geography Studies (one credit), United States History Studies Since Reconstruction (one credit), and United States Government (one-half credit). (E) Economics with emphasis on the free enterprise system and its benefits - one- half credit. (F) Languages other than English - three credits. The credits must consist of Level I, Level II, and Level III in the same language. (G) Health - one-half credit, or Health Science Technology - one credit. (H) Fine arts - one credit, which may be satisfied by any course in Chapter 117 of this title (relating to Texas Essential Knowledge and Skills in Fine Arts). (I) Physical education - one and one-half credits to include one-half credit in Foundations of Personal Fitness. (i) A school district board of trustees may allow a student to substitute certain physical activities for the one and one-half required credits of physical education, including the one-half credit of Foundations of Personal Fitness. The substitutions must be based on the physical activity involved in drill team, marching band, and cheerleading during the fall semester; Reserve Officer Training Corps (ROTC); athletics; Dance I-IV; and two- or three-credit career and technology work-based training courses. (ii) In accordance with local district policy, a school district may also apply to the commissioner of education for a waiver to allow credit for appropriate private or commercially-sponsored physical activity programs conducted on or off campus. Such approval may be granted under the following conditions. (I) Olympic-level participation and/or competition includes a minimum of 15 hours per week of highly intense, professional, supervised training. The training facility, instructors, and the activities involved in the program must be certified by the superintendent to be of exceptional quality. Students qualifying and participating at this level may be dismissed from school one hour per day. Students dismissed may not miss any class other than physical education. (II) Private or commercially-sponsored physical activities include those certified by the superintendent to be of high quality and well supervised by appropriately trained instructors. Student participation of at least five hours per week must be required. Students certified to participate at this level may not be dismissed from any part of the regular school day. (J) Technology applications - one credit, which may be satisfied by: (i) all courses in Chapter 126 of this title (relating to Texas Essential Knowledge and Skills for Technology Applications); (ii) the following courses in Chapter 120 of this title (relating to Texas Essential Knowledge and Skills for Business Education): Business Computer Information Systems I or II, Business Computer Programming, Telecommunications and Networking, or Business Image Management and Multimedia; or (iii) the following courses in Chapter 123 of this title (relating to Texas Essential Knowledge and Skills for Technology Education/Industrial Technology Education): Computer Applications, Technology Systems (modular computer laboratory-based), Communication Graphics (modular computer laboratory-based), or Computer Multimedia and Animation Technology. (K) Speech - one-half credit in Communication Applications, Speech Communication, Public Speaking, Debate, or Oral Interpretation. (2) Additional components. All students who wish to complete the distinguished achievement program are encouraged to study each of the foundation curriculum areas (English language arts, mathematics, science and social studies) every year in high school as provided in Option I. Options II and III are provided for students who want to focus on a particular career exploration or the development of an academic interest or artistic talent. College Board advanced placement and International Baccalaureate courses may be substituted for requirements in appropriate academic areas. The student must choose one of the following options for additional components. Credit may be awarded without prior instruction under Texas Education Code, sec.28.023 (Credit by Examination),. (A) Option I: mathematics, science, elective. The student must demonstrate proficiency in the following. (i) Mathematics - one credit. The credit must consist of Precalculus. (ii) Science - one credit. Students may select any Science course including Integrated Physics and Chemistry, Biology, Environmental Systems, Chemistry, Aquatic Science, Physics, Astronomy, Geology, Meteorology, Oceanography, AP Biology, AP Chemistry, AP Physics, AP Environmental Science, IB Biology, IB Chemistry, IB Physics, IB Environmental Systems, Scientific Research and Design, Anatomy and Physiology of Human Systems, Medical Microbiology, Pathophysiology, Principles of Technology I, and Principles of Technology II. (iii) Elective - one-half credit. (B) Option II: career and technology. The student must demonstrate proficiency equivalent to two and one-half credits in a coherent sequence of courses for career and technology preparation. To be included in the distinguished achievement program, a technology preparation program approved by the Texas Education Agency (TEA) must meet distinguished achievement program criteria in English language arts, mathematics, science, social studies, languages other than English, health, fine arts, and technology applications. (C) Option III: academic. The student must demonstrate proficiency equivalent to two and one-half credits consisting of state-approved, courses from language arts, science, social studies, mathematics, languages other than English, fine arts, or technology applications. Students may choose all two and one-half credits from one of the disciplines, or they may select courses among the listed disciplines. (3) Advanced measures. A student also must achieve any combination of four of the following advanced measures. Original research/projects may not be used for more than two of the four advanced measures. The measures must focus on demonstrated student performance at the college or professional level. Student performance on advanced measures must be assessed through an external review process. (A) original research/project that is: (i) judged by a panel of professionals in the field that is the focus of the project; or (ii) conducted under the direction of mentor(s) and reported to an appropriate audience; and (iii) related to the required curriculum set forth in sec.74.1 of this title (relating to Essential Knowledge and Skills); (B) test data where a student receives: (i) a score of three or above on The College Board Advanced Placement examination; (ii) a score of four or above on an International Baccalaureate examination; or (iii) a score on the Preliminary Scholastic Assessment Test (PSAT) that qualifies a student for recognition as a Commended Scholar or higher by the National Merit Scholarship Corporation; as part of the National Hispanic Scholar Program of the College Board; or as part of the National Achievement Scholarship Program for Outstanding Negro Students of the National Merit Scholarship Corporation. The PSAT score may count as only one advanced measure regardless of the number of honors received by the student; or (C) college courses with a grade of 3.0 or higher on courses that count for college credit, including tech-prep programs. (4) Substitutions. No substitutions are allowed in the Distinguished Achievement Program. (b) Notwithstanding the repeal of subsections (c)-(g) of this section, the requirements for high school graduation in the advanced high school program and the advanced high school honors program remain in effect until the end of the school year 1998-1999. This subsection expires August 31, 1999. (c) The provisions of this section will apply to students entering Grade 9 in the 1998-1999 school year and thereafter. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 18, 1998. TRD-9808085 Criss Cloudt Associate Commissioner, Policy Planning and Research Texas Education Agency Effective date: September 1, 1998 Proposal publication date: March 27, 1998 For further information, please call: (512) 463-9701 SUBCHAPTER C. Other Provisions 19 TAC sec.sec.74.22-74.27, 74.30 The amendments are adopted under the Texas Education Code, sec.sec.7.102, 28.002, 28.023, 28.025, 28.054, and 38.003, which authorize the State Board of Education to establish curriculum graduation requirements, and House Bill 1, General Appropriations Act, 75th Texas Legislature, Article IX, Rider 167, which establishes a four-year sunset review cycle for all state agency rules. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 18, 1998. TRD-9808086 Criss Cloudt Associate Commissioner, Policy Planning and Research Texas Education Agency Effective date: September 1, 1998 Proposal publication date: March 27, 1998 For further information, please call: (512) 463-9701 TITLE 22. EXAMINING BOARDS PART XII. Board of Vocational Nurse Examiners CHAPTER 239. Contested Case Procedure SUBCHAPTER B. Enforcement 22 TAC sec.239.19 The Board of Vocational Nurse Examiners adopts the amendment to sec.239.19, relative to Schedule of Fines, without changes to the proposed text as published in the April 10, 1998, issue of the Texas Register (23 TexReg 3647). This amended is adopted to allow the Board to establish payment of fines over a period of time instead of individuals having to pay large sums all at once. No comments were received relative to the adoption of this rule. The amendment is adopted under Texas Civil Statutes, Article 4528c, Section 5(f), which provides the Board of Vocational Nurse Examiners with the authority to make such rules and regulations as may be necessary to carry in effect the purposes of the law. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 11, 1998. TRD-9807677 Marjorie A. Bronk Executive Director Board of Vocational Nurse Examiners Effective date: May 31, 1998 Proposal publication date: April 10, 1998 For further information, please call: (512) 305-8100 PART XXI. Texas State Board of Examiners of Psychologists CHAPTER 463.Applications 22 TAC sec.463.25 The Texas State Board of Examiners of Psychologists adopts the repeal of sec.463.25, concerning Criteria for Oral Examiners, without changes to the proposed text published in the March 20, 1998, issue of the Texas Register (23 TexReg 2939). This rule is being repealed in order to reflect the current process of the Board in selecting consultants to work on its examination programs. The repeal of this rule will better inform the public about the Board's examination process. No comments were received regarding repeal of the rule. The repeal is adopted under Texas Revised Civil Statutes, 4512c, which provide the Texas State Board of Examiners of Psychologists with the authority to promulgate rules consistent with the Statute. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 12, 1998. TRD-9807751 Sherry L. Lee Executive Director Texas State Board of Examiners of Psychologists Effective date: June 1, 1998 Proposal publication date: March 20, 1998 For further information, please call: (512) 305-7700 22 TAC sec.463.25 The Texas State Board of Examiners of Psychologists adopts a new sec.463.25, concerning Criteria for Examination Consultants, without changes to the proposed text as published in the March 20, 1998, issue of the Texas Register (23 TexReg 2940). The rule is being amended to reflect the current process of the Board in selecting consultants to work on its examination programs. The new rule will better inform the public about the Board's examination process. The following comment received regarding adoption of the amendment. Comment: A licensee proposed additional changes that the licensee felt would "unequivocally" establish that consultants are employees and agents of the Board. Response: The Board's response is that the rule as proposed adequately sets forth the role of the consultants vis a vis the Board. The new rule is adopted under Texas Civil Statutes, 4512c, which provide the Texas State Board of Examiners of Psychologists with the authority to promulgate rules consistent with the Statute. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 12, 1998. TRD-9807752 Sherry L. Lee Executive Director Texas State Board of Examiners of Psychologists Effective date: June 1, 1998 Proposal publication date: March 20, 1998 For further information, please call: (512) 305-7700 22 TAC sec.463.26 The Texas State Board of Examiners of Psychologists adopts the repeal of sec.463.26, concerning Disclosure of Oral Exam Information, without changes to the proposed text published in the March 20, 1998, issue of the Texas Register (23 TexReg 2940). This rule is being repealed in order to allow the Board to clarify the confidentiality requirements for licensees involved in the Board's examination programs and better ensure that the Board's examination programs produce qualified and competent licensees. The repeal of this rule will permit adoption of a more inclusive rule that will safeguard the confidentiality and quality of the Board's examination programs. No comments were received regarding repeal of the rule. The repeal is adopted under Texas Revised Civil Statutes, 4512c, which provide the Texas State Board of Examiners of Psychologists with the authority to promulgate rules consistent with the Statute. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 12, 1998. TRD-9807753 Sherry L. Lee Executive Director Texas State Board of Examiners of Psychologists Effective date: June 1, 1998 Proposal publication date: March 20, 1998 For further information, please call: (512) 305-7700 22 TAC sec.463.26 The Texas State Board of Examiners of Psychologists adopts a new sec.463.26, concerning Disclosure of Examination Information, without changes to the proposed text as published in the March 20, 1998, issue of the Texas Register (23 TexReg 2940). The rule is being amended to clarify the confidentiality requirements for licensees involved in the Board's examination programs and better ensure that the Board's examination programs produce qualified and competent licensees. The new rule will allow the Board to better ensure the validity and confidentiality of the Board's examinations, thus ensuring the examination programs result in qualified and competent licensees. No comments were received regarding adoption of the amendment. The new rule is adopted under Texas Civil Statutes, 4512c, which provide the Texas State Board of Examiners of Psychologists with the authority to promulgate rules consistent with the Statute. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 12, 1998. TRD-9807754 Sherry L. Lee Executive Director Texas State Board of Examiners of Psychologists Effective date: June 1, 1998 Proposal publication date: March 20, 1998 For further information, please call: (512) 305-7700 CHAPTER 465. Rules of Practice 22 TAC sec.465.38 The Texas State Board of Examiners of Psychologists adopts an amendment to Board Rule sec.465.38, concerning Psychological Services in the Schools, without changes to the proposed text as published in the March 20, 1998, issue of the Texas Register (23 TexReg 2941). The rule is being amended to clarify that only qualified applicants should submit applications for licensure as a licensed specialist in school psychology, bringing the application process in line with that of the other licensing programs administered by the Board. The amended rule will ensure that the Board will not waste staff time and resources on processing applications for individuals who do not meet the threshold requirements for the licensed specialist in school psychology. No comments were received regarding adoption of the amendment. The new rule is adopted under Texas Civil Statutes, 4512c, which provide the Texas State Board of Examiners of Psychologists with the authority to promulgate rules consistent with the Statute. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 12, 1998. TRD-9807755 Sherry L. Lee Executive Director Texas State Board of Examiners of Psychologists Effective date: June 1, 1998 Proposal publication date: March 20, 1998 For further information, please call: (512) 305-7700 CHAPTER 466.Procedure 22 TAC sec.466.14 The Texas State Board of Examiners of Psychologists adopts an amendment to sec.466.14, concerning Informal Settlement Conference, without changes to the proposed text as published in the March 20, 1998, issue of the Texas Register (23 TexReg 2942). The rule is being amended to make the rules more accessible and easily understood by licensees and the public. The amendment will make the rules more accessible and easily understood by licensees and the general public. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, 4512c, which provide the Texas State Board of Examiners of Psychologists with the authority to promulgate rules consistent with the Statute. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 12, 1998. TRD-9807756 Sherry L. Lee Executive Director Texas State Board of Examiners of Psychologists Effective date: June 1, 1998 Proposal publication date: March 20, 1998 For further information, please call: (512) 305-7700 22 TAC sec.466.15 The Texas State Board of Examiners of Psychologists adopts an amendment to sec.466.15, concerning Informal Disposition, without changes to the proposed text as published in the March 20, 1998, issue of the Texas Register (23 TexReg 2942). The rule is being amended to identify the steps taken by the Agency in disposing of complaints in compliance with sec.25B of the Psychologists' Licensing Act. The amendment will expedite the complaint process, make more efficient use of the Board's resources and keep the public and licensees informed of the complaint process. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, 4512c, which provide the Texas State Board of Examiners of Psychologists with the authority to promulgate rules consistent with the Statute. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 12, 1998. TRD-9807757 Sherry L. Lee Executive Director Texas State Board of Examiners of Psychologists Effective date: June 1, 1998 Proposal publication date: March 20, 1998 For further information, please call: (512) 305-7700 TITLE 25. HEALTH SERVICES PART I. Texas Department of Health CHAPTER 101.Tobacco 25 TAC sec.sec.101.1-101.6, 101.10 The Texas Department of Health (department), by majority vote of the Texas Board of Health (board) on May 15, 1998, adopts new sec.sec.101.1-101.6 and 101.10, concerning the reporting of ingredients and nicotine content of cigarettes and tobacco products. Sections 101.2-101.6 and 101.10 are adopted with changes to the proposed text as published in the December 5, 1997, issue of the Texas Register (22 Tex Reg 11939). Section 101.1 is adopted without changes and therefore, will not be republished. These rules are to implement Chapter 1216 (House Bill 119) 75th Legislature (1997), which added Health and Safety Code, Chapter 161, Subchapter N, "Disclosure of Ingredients in Cigarettes and Tobacco Products." This legislation and implementing rules requires manufacturers of these products to report certain information to the department so that it might be available to the public. The availability of this information will allow individuals to make more informed and health conscious choices in decisions relating to the use of tobacco products. Specifically, these sections cover the purpose of the rules, definitions, general requirements, ingredient reporting, nicotine yield reporting for cigarettes, nicotine yield reporting for tobacco products, and public information. The department is making the following minor changes due to staff comments to clarify the intent and improve the accuracy of the section. Change: Concerning sec.101.2 the department deleted the words "added to" and inserted "present in" in the definition of "ingredient". Change: Concerning sec.101.4(2) the department added the phrase ". . . and person responsible for the accuracy of the report" so that an individual has the duty to verify the information in the report. Change: Concerning sec.101.5(a)(1) the reference to the standard published by the federal government has been changed to reflect a reference to any future updates of that standard. Change: Concerning sec.101.5(c) the department adjusted the numbers of packages of cigarettes purchased for testing to be internally consistent. Change: Concerning sec.101.3(a) the department added a final sentence to clarify which rules applied to cigars. The following comments were received concerning the proposed sections. Following each comment is the department's response and any resulting changes. Comment: Concerning sec.101.2, three commenters requested that the department define "ingredient" more narrowly. The commenters believed that the legislature "intended to put tobacco products on an equal footing with foods with respect to ingredient disclosure," and that the department should only require disclosure of "substances deliberately added to the products by the manufacturer" in conformance with federal ingredient disclosure law for food products. Response: The department disagrees with the commenters. The legislature deliberately amended Chapter 161 of the Health and Safety Code ("Public Health Provisions") instead of Chapter 431 ("Food and Drug Act"). The dictionary definition of "ingredient" is "an element in a mixture or compound; a constituent." The American Heritage Dictionary of the English Language, 3rd ed., 1992) There is no indication in the text of the law that the legislature meant to limit the disclosure of ingredients in the manner suggested. The rule limits disclosure to those ingredients of which the manufacturer has knowledge. If the department strayed from the statute, its language has the effect of limiting rather than increasing the information to be disclosed, because under the statute the manufacturer is required to divulge "each ingredient" regardless of how it got into the product. No changes were made in the proposed rule as a result of this comment. Comment: Concerning sec.101.10, two commenters requested clarification of the term, "risk to public health" and to ". . . provide a meaningful standard to govern the department's disclosure determinations . . ." The commenter suggested disclosure only " . . . where a particular ingredient has been determined by the department on the basis of reliable scientific evidence to pose a significant risk to public health at the level at which it is actually present in the finished product . . ." One of the commenters stated that the federal District Court of Massachusetts has ruled that an identical standard in that state's law provided no safeguard at all to prevent disclosure. Response: The department disagrees with the commenter. The legislature did not ask the department to judge whether the ingredient is or is not harmful to public health. It asks the department to determine the impact of the information itself, and withhold information that would have no impact on public health. The statute provides the criteria for this determination: " . . . there is no reasonable scientific basis for concluding that the availability of the information could reduce risks to public health." (Health and Safety Code sec.161.254(c)). The department believes the "reasonable scientific basis" standard is practically and legally sufficient. The commenter's request for more specific criteria on what is considered a risk to public health would be difficult to comply with because the department does not know what ingredients are in the products and the public and scientific understandings of tobacco and its interactions with added components are evolving. The decision by the federal District Court of Massachussetts was made in response to a motion to enjoin enforcement of the law and not based on a full presentation of all evidence on the legality of the law. It is not binding on any Texas court. No changes were made in the proposed rule as a result of this comment. Comment: Concerning sec.101.10, one commenter requested greater protection of trade secrets and other proprietary information. "The proposed regulations do not provide procedures for maintaining the security and confidentiality of trade secrets or other proprietary information submitted by the manufacturers to the department, or for determining, in the event of a dispute, whether particular information is a trade secret or is otherwise proprietary." Response: The department agrees in part and disagrees in part with the commenter, and has made changes in sec.101.10 in response to the comment. The statute provides that the department will not disclose any information until the attorney general has determined that the disclosure would not constitute an unconstitutional taking of property or disclosure of a trade secret under state or federal law (Health and Safety Code sec.161.254 (b) & (d)). Chapter 552 of the Government Code (the Texas Open Records Act) is specifically referenced in this section. This act provides specific guidance on determining issues of trade secrets and other commercial information (see Government Code sec.552.110 and the Attorney general's 1998 Open Records Handbook). This law allows persons or entities whose interests are involved to submit in writing to the attorney general the person's reasons why the information would be withheld (sec.552.305). The department has added language to the rules to specifically cite these provisions in sec.101.10 of the rules. The issue of the physical security of information in the possession of the department is separate and is dealt with in response to another comment. Comment: Concerning sec.101.1, one commenter stated that "the proposed definition of nicotine yield rating' is overly broad and exceeds the authority conferred by Subchapter N" of Health and Safety Code, Chapter 161, which only requires the department to develop a "form" for reporting the ingredients and nicotine yield rating. Response: The department disagrees with the commenter. The legislature mandated that the department adopt standards that establish the nicotine yield ratings. The Texas Administrative Procedure Act (Government Code, Chapter 2001) defines such a statement as a "rule" and requires the department to promulgate it as a rule (Government Code 2001.003(6)). No changes were made in the proposed rule as a result of this comment. Comment: Concerning sec.101.5, one commenter stated that "The proposed tests cannot and will not produce a nicotine yield rating that reflects, as accurately as possible, nicotine intake for an average consumer'" (quoting Health and Safety Code sec.161.253(b)), because ". . . the use of a vent blocking' parameter in the testing regimen (proposed sec.101.5(a)(4)(D)) would particularly exacerbate consumer confusion in view of the extremely limited and inconclusive evidence concerning vent-blocking by smokers." Response: The department disagrees with the commenter. The department feels that the phenomenon of vent blocking is sufficiently well established in the observational literature to require it to be taken into account in an effort to determine the amount of nicotine obtained by the smoker (The FTC Cigarette Test Method for Determining Tar, Nicotine, and Carbon Mononxide Yields of U.S Cigarettes:NCI Monograph 7, 1996). It's retention is also a necessity if the department's rules are to be consistent with those adopted by Massachusetts, which has been requested by this same commenter. No changes were made in the proposed rule as a result of this comment. Comment: Concerning sec.101.5, one commenter stated that, in view of current negotiations between the tobacco industry and the Federal Trade Commission (Commission) on the issue of revising the way nicotine intake is measured, the department should wait for the Commission's adoption of a new test method before adopting potentially inconsistent standards. Response: The department disagrees with the commenter. The comment is not so much a critique of any particular aspect of the proposed rules as a plea for consistency with emergent federal standards. While the department will remain open to improving these rules we cannot delay their issue based upon a standard whose substance and effective date are unknown. No changes were made in the proposed rule as a result of this comment. Comment: Concerning sec.101.5, one commenter stated that, in view of a similar law and testing standards in the state of Massachusetts, the department should avoid requiring the companies subjected to these rules to "double test" their product, by requiring that information be derived from product actually purchased in Texas in sec.101.5(d). Response: The department agrees with the commenter. The final version of these rules allow product obtained from other sources, or tested for other purposes to be used to comply with this law, provided that the product tested be identical to that distributed in Texas. The department has amended sec.101.5(d) of the final rules. Comment: Concerning sec.101.3, one commenter stated that June 1, 1998, is too soon, as a practical matter, for the affected companies to comply with these regulations. Response: The department agrees with the commenter. The final version of these rules change the date of the first report required from June 1 to December 1, 1998. The department has amended sec.101.3(a). Comment: Concerning sec.101.5, one commenter stated that ". . . given the wide variation in human smoking behavior, . . . Extensive research would be required in order to develop and validate a test that could predict human intake on a standardized basis, if it is even possible to do so." Response: The department disagrees with the commenter. The legislature did not require standards that reflect nicotine intake with perfect accuracy. Only that the standard " . . . reflects, as accurately as possible, nicotine intake . . ." The department welcomes suggestions on how to make the standard more accurate. No changes were made in the proposed rule as a result of this comment. Comment: Concerning sec.101.5, one commenter stated that the statute authorizes the department to prescribe only the time and "form" of the reports required by the statute, and the standards by which to assign a nicotine yield rating, and that any "additional disclosures with respect to ingredients" are unauthorized. Response: The department disagrees with the commenter. The rules are those necessary for the proper implementation of the law and the department has explicit or implied authority to adopt them.No changes were made in the proposed rule as a result of this comment. Comment: Concerning sec.sec.101.2-101.5, one commenter stated that the department has offered no facts or data to support the requirements imposed by the proposed rules. Response: The department disagrees with the commenter. The basic policy assumptions behind these rules were imposed by the legislation, which was only enacted after hearings and debate in the legislature. The department's assumptions and factual data specific to the rules were adequately disclosed in the rule, its preamble, and the documents incorporated by reference into those documents. The department believes it complied fully with the requirements of the Administrative Procedure Act in proposing the rule. No changes were made in the proposed rule as a result of this comment. Comment: Concerning sec.sec.101.2-101.5, one commenter stated that the adoption preamble incorrectly estimated the fiscal impact of the proposed rules: specifically, the statement that there is no costs to "persons" is incorrect. The tobacco companies experience in complying with similar rules in Massachusetts shows a very high cost of compliance, and the costs of having trade secrets or other proprietary information disclosed is not reflected in the estimate. Response: The department disagrees with the commenter. The costs were made in substantial compliance with the Texas Administrative Procedure Act. The cost estimate and the basis for it were fully disclosed. It was clear from the context that the cost estimate would be applicable to manufacturers of all sizes. Many of the expenses attendant to compliance with the rule have been mitigated or reduced by changes reflected in the final rule. Because the final rules are similar to existing rules in Massachusetts, the marginal investment in equipment and time to comply with Texas' rules is reduced. The cost of disclosure of trade secrets and other proprietary information was not calculated because the law and rules do not permit such disclosure. No changes were made in the proposed rule as a result of this comment. Comment: Concerning sec.sec.101.1-101.5, one commenter stated that the department impermissibly exceeded the scope of its statutory authority which authorized the department to devise a nicotine yield standard, the form, and the time of reporting only. Response: The department disagrees with the commenter. The proposed rules restate implement, or clarify the statute only. Many related aspects to this comment are dealt with in the responses to other comments here. No changes were made in the proposed rule as a result of this comment. Comment: Concerning sec.sec.101.5-101.6, two commenters stated that the reporting of the pH of tobacco and unionized or so-called "free" nicotine does not fall within the statutory category of "nicotine yield." Response: The department disagrees with the commenters. The requirement for the reporting of pH of tobacco and the percent of unionized (free) nicotine does not exceed the department's statutory authority, because it is documented in the scientific literature that it does affect the nicotine intake for the consumer of the tobacco product. ("Conversion of Nicotine in Tobacco Smoke to Its Volatile and Available Free-Base Form through the Action of Gaseous Ammonia", Environmental Science & Technology, 1997, 31, 2248-2433, "Review of the Evidence that pH is a Determinant of Nicotine Dosage from Oral Use of Smokeless Tobacco," Tobacco Control 1997;6:219-225, also RJR memo from Alan Rodgman to Dr. Roy E. Morse, September 8, 1980) Specifically, the increased alkalinity promotes the absorption of nicotine and increases its physiological effects. No changes were made in the proposed rule as a result of this comment. Comment: Concerning sec.sec.101.1-.101.6, and 101.10, one commenter stated that the proposed regulations are unfair and ambiguous in that the statute and rules require reporting for any manufacturer whose product is "distributed" (Health and Safety Code sec.161.252(a)) or "sold" (proposed 25 Texas Administrative Code sec.101.3(a)) to report. This creates the possibility that, though the manufacturer makes no effort to sell or distribute the product within the state, it may become subject to the law through the actions of third parties. Response: The department agrees in part and disagrees in part with the commenter. To the extent that the rule uses a term different from the statute for the same activity it may create confusion. To the extent the language is still ambiguous, or unfair it must be attributed to the language of the statute, not the rule. The department has amended sec.101.3(a) by changing "sold" to "distributed" as in the statute. Comment: Concerning sec.101.5(d), one commenter stated that the use of the phrase "at a minimum" is misleading and could lead to the impression that the manufacturer is required to report more than the listed information. Response: The department agrees with the commenter and has deleted the phrase "at a minimum" from sec.101.4. Comment: Concerning sec.101.10, one commenter stated that there is no guidance in the rule to the interpretation the department will place on the phrase "no reasonable scientific basis" in sec.101.10(c). Response: The department disagrees with the commenter. The standard is imposed by the legislature, and the complaint relates to the statute rather than the rule. The issue will arise only after the attorney general has determined that the disclosure of particular information would not constitute an unconstitutional taking of property, and that the information is not a trade secret. The possibility of another ground for not releasing the information assigns more rather than less confidentiality to the material, that would otherwise become an open record under the open records act. No changes were made in the proposed rule as a result of this comment. Comment: Concerning sec.101.2, one commenter stated that the department's definition of "risks to public health" is inadequate, tautological, and inflammatory. Response: The department disagrees with the commenter. The department's definition reflects what it considers well established in both law and medicine: that there are adverse health effects associated with tobacco use, nicotine addiction, and environmental tobacco smoke. The department assumes that a greater public knowledge of risk was one of the legislative purposes in enacting this law. The commenter's request for more specific criteria on what is considered a risk to public health would be difficult to comply with because the department does not know what ingredients are in the products and the scientific understanding of tobacco smoke and its components are evolving. No changes were made in the proposed rule as a result of this comment. Comment: Concerning sec.101.10, one commenter stated that the regulations should acknowledge that certain ingredients are "generally recognized as safe" (GRAS) by the United States Food and Drug Administration (FDA) when ingested, and exempt them from public disclosure when they are ingredients in smokeless tobacco products. Health and Safety Code sec.161.252(b) exempts from the reporting requirement " . . . any ingredient in a cigarette or tobacco product if that ingredient has been approved as safe when burned and inhaled by the United States Food and Drug Administration or a successor entity." (sec.161.252(b)). The department should by rule acknowledge that for such ingredients "there is no reasonable scientific basis for concluding that the availability of the information could reduce the risks to public health". Response: The department disagrees with the commenter. Although "GRAS" ingredients will usually be harmless when ingested, not enough is known to indulge the presumption that they are always safe when absorbed in a smokeless tobacco product, but this will be taken into consideration when the department makes the determination called for by sec.101.10(c). Furthermore, the ultimate statutory criteria is not safety but public perception of safety. No changes were made in the proposed rule as a result of this comment. Comment: Concerning sec.101.5, one commenter stated that the absence of consistent analytical standards renders the collective data useless for any comparative purpose, and thus categorically unsuited to public disclosure. The commenter suggested the department adopt the uniform analytical standards of the Association of Official Analytical Chemists, as is done by other federal and state regulatory agencies. Response: The department disagrees with the commenter. The department has referenced in the rules, appropriate and well known analytical standards for use in testing, and similar tests have already been conducted to comply with Massachusetts law. No changes were made in the proposed rule as a result of this comment. Comment: Concerning sec.101.10, two commenters stated that the administrative procedures for the department's determination to disclose ingredient information are inadequate and unfair. Insufficient protection of trade secrets is provided. The legal and financial value of these secrets to the regulated companies is large, and the protection accorded them is nothing beyond what is given by the Health and Safety Code sec.161.254. Response: The department agrees in part and disagrees in part with the commenters. Over and above the protection afforded by Health and Safety Code sec.161.254, Texas law treats trade secrets seriously and the final rule has been modified to reflect this. First, the department will allow the attorney general to determine whether the information is confidential as a trade secret or under any other law. The Texas Open Records Act (Texas Government Code, Chapter 552) prohibits disclosure of information that is " . . . considered confidential by law, either constitutional, statutory, or by judicial decision." (sec.552.101) The law specifically lists several specific grounds for exempting the information from disclosure including that it is "[a] trade secret or commercial . . . information obtained from a person and privileged or confidential by statute or judicial decision . . ." (sec.552.110). The determination of the attorney general under this law is by established procedure (sec.sec.552.301-.308). Any member of the public may submit comments (sec.552.304) and those whose property interests are at stake have a special statutory right to participate in the process (sec.552.305). Any member of the department who releases information in violation of these statutes has committed a criminal offense (sec.552.352(a)). The final rule will delay any release allowed by the attorney general for 30 days to (1) allow the department to make the determination called for in Health and Safety Code sec.161.254(c), and (2) allow the reporter of the information opportunity to obtain judicial review of the attorney general's opinion. The department has amended sec.101.10 by adding subsection (e). Comment: Concerning sec.101.10, one commenter stated that the administrative procedures for the department's determination to disclose ingredient information are inadequate and unfair. The determination of whether information is to be deemed a trade secret for purposes of confidentiality must be determined in a contested case procedure. This comment further recites the legal grounds which lead the commenter to conclude the ingredients are trade secrets. The department has failed to institute policies to protect intellectual property as required by Health and Safety Code, sec.12.020(e)(1). Response: The department disagrees with the commenter. The department has no authority to create a contested case procedure for this determination, and in view of the legal provisions in the Texas Open Records Act, (Texas Government Code, Chapter 552) sees no need to do so. The determination of whether specific information is confidential is for the attorney general to make under the statute. Health and Safety Code, sec.12.020(e)(1), cited in the comment relating to protection and use of intellectual property applies to intellectual property owned by the department and has no application to these rules. No changes were made in the proposed rule as a result of this comment. Comment: Concerning sec.101.10, one commenter stated that the proposed rules create no procedural protections to accompany the "takings" consultation with the attorney general. The proposed regulations should provide an explicit mechanism for providing notice to the manufacturers of the request to the attorney general, along with at least 60 days to submit comments. Some of these comments themselves may be confidential by law, and should be so regarded in the final rules. Response: The department agrees in part and disagrees in part with the commenter. The Texas Open Records Act (Texas Government Code, Chapter 552) affords the procedural safeguards outlined in the response to a previous question. The normal practice of the attorney general's office is to both give public notice to all affected parties and to notify the public through publication in the Texas Register (see e.g. 22 TexReg 12639, December 26, 1997). However the department will add to the final rule a provision that assures notice to the affected company when it submits a request to the attorney general concerning information submitted by that manufacturer. The provision of time for the manufacturer to prepare submissions to the attorney general, the issue of whether such submissions are regarded as themselves confidential, and other questions raised about the procedures used by the attorney general are not within the statutory authority of the department. The department has amended sec.101.10 by adding subsection (e). Comment: Concerning sec.sec.101.1-101.6, and 101.10, two commenters stated that the rules made no provision for the security of the valuable and sensitive information submitted to the department in response to the law. Response: The department agrees in part and disagrees in part with the commenters. The statute does not authorize the department to address such issues in rules, and as indicated above Texas law criminalizes improper disclosure of this material. Furthermore, the department and its employees are by experience, professional training, and indoctrination experienced and qualified in dealing with confidential information. However, as the commenters have indicated this is an issue of particular concern to them, the department will amend their rules in a future rulemaking, before December 1, 1998, to specify the security policies to be observed with the information submitted under this law. No changes were made in the proposed rule as a result of this comment. Comment: Concerning sec.101.2, one commenter stated that the rules definition of "cigar" is inconsistent with other regulatory definitions and does not adequately distinguish cigars from other tobacco products. Response: The department agrees with the commenter, and in the final rule adopts the definition of "cigar" found in the rules of the Federal Bureau of Alcohol Tobacco and Firearms (BATF) as the commenter suggested. The department has deleted the proposed definition of "cigar" in sec.101.2 and added language to adopt the federal definition. Comment: Concerning sec.sec.101.1-101.6 and 101.10, one commenter stated that the " . . . rules should adopt a de minimis exemption for small manufacturers or small sales that would eliminate or significantly reduce reporting requirements for cigar manufacturers whose sales in the State of Texas in any year of any particular brand or sub-brand fall below an appropriate threshold." Response: The department agrees in part and disagrees in part with the commenters. While the department is sympathetic to the plight of small manufacturers, the department knows of no way to verify the market share of particular cigars in Texas, and the commenter suggested none, thus cannot modify the rules in the manner suggested. We would welcome additional suggestions on how the rule might be modified by future amendment. No changes were made in the proposed rule as a result of this comment. Comment: Concerning sec.sec.101.1-101.6 and 101.10, one commenter stated that the rules might have a strong negative effect on the importation of foreign cigars which is governed by treaty and federal law. Enforcement of these rules could violate the primacy clause of the United States Constitution. Response: The department disagrees with the commenter. Partial suspension of enforcement based on these grounds is possible, but it is the immediate task of the department to implement the law in the manner the legislature directed. No changes were made in the proposed rule as a result of this comment. Comment: Concerning sec.sec.101.1-101.6 and 101.10, one commenter stated that the rules fail to take into account the various ways that pipe tobacco and roll- your-own tobacco might be consumed. The determination of nicotine content for these products is inappropriate and has no relationship to "the actual nicotine intake for an average consumer" required by the statute. Response: The department disagrees with the commenter. While this tobacco is smoked in a variety of different ways, the department feels the law requires that the consumer be given at least some information on the nicotine content of the product. While the amount of nicotine by weight may be less than perfectly and consistently reflective of the amount consumed by the theoretical "average" consumer, it will give consumers some basis on which to compare the nicotine in competing products. No changes were made in the proposed rule as a result of this comment. Comment: Concerning sec.101.10, one commenter stated that the rules should accord information submitted by pipe tobacco and roll-your own tobacco manufacturers the same ingredient confidentiality as that given to cigarette and smokeless tobacco product manufacturers. Response: The department disagrees with the commenter. The determination on the status of the information as a trade secret or taking of property is for the attorney general to make under Health and Safety Code sec.161.254, and it would be inappropriate for the department to alter this by rule. No changes were made in the proposed rule as a result of this comment. The comments on the proposed rules were submitted by four groups. The law firm of Covington and Burling submitted comments on behalf of Philip Morris Incorporated; R.J. Reynolds Tobacco Company; Brown & Williamson Tobacco Corporation; and Lorillard Tobacco Company. The law firm of Patton Boggs submitted comments on behalf of United States Tobacco Company; Brown & Williamson Tobacco Corp.; Conwood Co., L.P.; Swedish Match North America; and Swisher International. The law firm of McKenna & Cuneo submitted comments on behalf of the Cigar Association of America. A comment was also submitted by the Pipe Tobacco Council. The commenters were generally not in favor of the proposed rules. Comments were also submitted by, and minor errors corrected by the department's staff. The sections are adopted under Health and Safety Code sec.161.251 which requires the department by rule to establish the time and form for reports of ingredients, sec.161.253 which requires the department to develop standards for assigning a nicotine yield rating, and sec.12.001 which provides the board with the authority to adopt rules for the performance of every duty imposed by law on the board, the department, and the commissioner of health. sec.101.2. Definitions. The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise. Annual report- A tobacco manufacturer's annual report to the department, which provides the ingredient information and nicotine yield ratings. Chewing or snuff tobacco nicotine yield rating- A composite of information intended to show the range of nicotine that each chewing or snuff tobacco product can be expected to provide the average consumer, based on the amount of nicotine in the brand, the pH of the tobacco, and the amount of unionized (free) nicotine in the product. Cigar- A tobacco product with the definition assigned by the Bureau of Alcohol Tobacco and Firearms in the Code of Federal Regulations, Title 27, sec.270.11. Cigarette-A roll for smoking, made of tobacco or tobacco mixed with another ingredient and wrapped or covered with a material other than tobacco and that is not a cigar. Cigarette nicotine yield rating-A composite of information to show the range of nicotine that each cigarette brand can be expected to deliver to the average consumer based on the expected range of nicotine delivery under average smoking conditions based on machine testing parameters that reflect actual smoking behavior as accurately as possible, and the potential for increased nicotine delivery or increase rate of nicotine delivery based on cigarette design features such as filter ventilation and pH. Department- The Texas Department of Health. Ingredient- Any ingredient, substance, chemical or compound other than tobacco, water or reconstituted tobacco sheet made wholly from tobacco, which is present in the product including but not limited to, flavorants, processing aides, casing sauces, contaminants, combustion modifiers, and packing materials, to the full extent the manufacturer is aware of the presence of any such ingredient. Manufacturer- A person who manufactures or produces tobacco products and sells tobacco products to a distributor. Risks to public health- The possibility or actuality of adverse health effects associated with tobacco use, including but not limited to nicotine addiction and adverse health effects associated with exposure to environmental tobacco smoke. Tobacco product- Smoking tobacco, including granulated, plug-cut, crimp-cut, ready rubbed, and any form of tobacco suitable for smoking in a pipe or as a cigarette; chewing tobacco, including cavendish, twist, plug, scrap, and any kind of tobacco suitable for chewing; snuff or other preparations of pulverized tobacco; or an article or product that is made of tobacco or a tobacco substitute and that is not a cigarette. sec.101.3. General Requirements for Annual Reports by Manufacturers. (a) On or after December 1, 1998, and every December 1 thereafter, the manufacturer of any cigarettes or tobacco product, excluding cigars, distributed in the state of Texas shall report to the department, in accordance with these regulations, the ingredients and nicotine yield rating of any such cigarette or tobacco product, excluding cigars. Manufacturers of cigars shall report in accordance with sec.101.04. (b) Nothing in this section shall prohibit a manufacturer or distributor of cigarettes or tobacco products from selling such products to an in-state merchant for sale or distribution outside the state. sec.101.4 Ingredient Reporting Requirements In each annual report, a manufacturer shall provide, the following for each brand, sub-brand, and generic unbranded cigarette or tobacco product, including cigars, distributed in the State of Texas. (1) A list of all ingredients in the cigarette or tobacco product listed in descending order according to weight, measure, or numerical count, other than tobacco, water, or a reconstituted tobacco sheet made wholly from tobacco. Each ingredient shall be reported by its chemical name and chemical abstract service registry number, if available, on the following ingredient reporting form. Figure: 25 TAC sec.101.4(1) (2) The name, job title, address, and telephone number of the individual designated by the manufacturer as the department's contact person concerning these regulations and person responsible for the accuracy of the report submitted. sec.101.5. Cigarette Nicotine Yield Rating Reporting Requirements. (a) Cigarette manufacturers shall include in their annual report a rating for nicotine yield for each brand, sub-brand and generic unbranded cigarettes sold in the State of Texas, which shall include: (1) total nicotine content of the cigarette, reported in milligrams of nicotine. The protocol for measuring nicotine content in cigarettes is described in "Protocol for Analysis of Nicotine, Total Moisture, and pH in Smokeless Tobacco Products," as announced in the Federal Register of May 2, 1997, Volume 62, number 85, pages 24115-24116, or the latest version of this protocol published by the federal government; (2) percent filter tip ventilation; that is, the amount of air dilution in the whole smoke provided by the perforations in the cigarette filter, described in percent. This shall be measured using the Filter Dilution (Ventilation) Testing Instrument (FDT) from Fidus Instrument Corporation, product no. FDT 232; or FIAL Tip and Envelope Ventilation/Pressure Drop QTM5U machine; or equivalent approved by the department, and shall be used in accordance with manufacturer instructions. Two cigarettes shall be randomly selected from each sampled pack, conditioned, and tested for percent filter ventilation. The average percent filter ventilation shall be computed for the 100 cigarettes tested; (3) pH of cigarette smoke as determined under the method described in Harris, J.L., Hayes, L.E., "A method for measuring the pH of whole smoke", Tobacco Science, 1977: 60: 81-83, or equal method approved by the department with the puff volume and interval adjusted as described in subsection (a)(4) of this section; and (4) nicotine delivery under average smoking conditions, reported in milligrams of nicotine per cigarette. Nicotine delivery under average smoking conditions shall be evaluated using the Cambridge Method, which has been approved by the Federal Trade Commission as the standard for nicotine testing since 1966 and adopted for international purposes by the International Organization for Standardization (ISO). See Federal Register of August 1, 1967, Volume 32, number 147, page 11178, as modified in Federal Register of July 10, 1980, Volume 45, number 134, pages 46483-46487; and ISO 10315, 91-08-01 entitled Cigarettes- Determination of Nicotine in Smoke Condensates-Gas-Chromatographic Method, ISO 3308, third edition, 1991-10-15, Routine Analytical cigarette-Smoking Machine- Definition of Standard Conditions and ISO 7201, second edition, 1997-01-15, Routine Analytical Smoking Machine Additional Test Methods. Two cigarettes shall be randomly selected from each pack for a sample of 100 cigarettes. The following changes shall be made to the method described in the publications cited: (A) puff volume adjusted to 45 milliliters; (B) puff interval adjusted to 30 seconds; (C) puff duration shall remain 2 seconds; and (D) 50% of the ventilation holes must be blocked by placing a strip of mylar adhesive tape, Scotch brand product no. 600 transparent tape (acetate) or other method approved by the department. The tape shall be cut so that it covers 50% of the circumference and is tightly secured from the end of the filter to the tipping overwrap seam. (b) Manufacturers shall classify each brand, sub-brand, or generic unbranded cigarette for nicotine yield according to the following standards: (1) "High Nicotine." Cigarettes yielding more than 1.2 milligrams per cigarette (mg/cigarette); (2) "Moderate Nicotine." Cigarettes yielding greater than .2 and less than or equal to 1.2 mg/cigarette; (3) "Low Nicotine." Cigarettes yielding greater than or equal to .01 and less than or equal to .2 mg/cigarette; or (4) "Nicotine Free." Cigarettes yielding less than .01 mg/cigarette. (c) The cigarette nicotine index shall be reported to the department as specified in the following "Cigarette Nicotine Yield Rating Form". Figure: 25 TAC sec.101.5(c) (d) Sampling and conditioning of Cigarettes. Conditioning for testing of cigarettes shall be done in accordance with the ISO, 3402, third edition, 1991- 07-01 entitled Tobacco and Tobacco Products-Atmosphere for Conditioning and Testing. Cigarettes shall be sampled using international standard ISO 8243:98 (E) entitled Cigarette-Sampling, with samples collected at point of sale and at a single point in time. At a minimum, for each brand sampled, two packages each of cigarettes should be purchased from five retailers located in five separate counties in Texas, for a total of 50 packages purchased. If some varieties are not available in certain locations, additional packages will be purchased where they are available. In the alternative, other samples may be used for testing, provided the submitter certifies that the product sampled is identical to the product uniformly distributed in the State of Texas. In measuring nicotine content, the cigarette manufacturer shall use the following sampling method: two cigarettes shall be randomly selected from each pack and conditioned, the tobacco rod split open, and the cigarette tobacco mixed thoroughly before weighing. The minimum sample size shall be 100 grams of tobacco. If the weight of the tobacco is less than 100 grams, additional cigarettes shall be randomly selected from each pack.Requirements sec.101.6. Tobacco Products - Excluding Cigars, Nicotine Reporting. (a) Manufacturers of tobacco products excluding cigars shall include in their annual report a rating for nicotine yield for each brand, sub-brand, or generic unbranded chewing and/or snuff tobacco product sold in the state of Texas, which shall include: (1) pH of tobacco; (2) moisture content as percent of weight of tobacco; (3) nicotine in milligrams per gram of tobacco; (4) nicotine as a percent of dry weight of tobacco; (5) percent of unionized (free) nicotine; and (6) total unionized (free) nicotine in milligrams per gram of tobacco. (b) Manufacturers of chewing and/or snuff tobacco products shall classify each brand, sub-brand and generic unbranded chewing and/or snuff tobacco product for nicotine delivery, according to the following standard: (1) "High Nicotine." Smokeless tobacco yielding more than 2.0 milligrams of total free nicotine per gram; (2) "Moderate Nicotine." Smokeless tobacco yielding greater than 0.5 and less than or equal to 2.0 milligrams of total free nicotine per gram; (3) "Low Nicotine." Smokeless tobacco yielding greater than or equal to .01 and less than or equal to 0.5 milligrams of total free nicotine per gram; or (4) "Nicotine Free." Smokeless tobacco yielding less than 0.01 milligrams of total free nicotine per gram. (c) The chewing and/or snuff tobacco nicotine yield shall be reported to the department as specified in the "Cigarette Nicotine Yield Rating Form" in sec.101.5(c) of this title (relating to Cigarette Nicotine Yield Rating Reporting Requirements). sec.101.10. Public Information. (a) Except as provided in subsections (b) - (d) of this section, information included in a report filed under this chapter is public information and is not confidential unless it is determinded to be confidential under this section. (b) The department may not disclose information under subsection (a) of this section until the department has obtained the advice of the attorney general under this section with respect to the particular information disclosed. If the attorney general determines that the disclosure of particular information would constitute an unconstitutional taking of property, the information is confidential and the department shall exclude that information from disclosure. (c) Information included in a report filed under this subchapter is confidential if the department determines that there is no reasonable scientific basis for concluding that the availability of the information could reduce risks to public health. (d) Information included in a report filed under this subchapter is confidential under Government Code, Chapter 552, if the information would be excepted from public disclosure as a trade secret under state or federal law. (e) Before releasing any information, the department shall: (1) submit the information to the attorney general with a request that he/she make the determinations called for under subsections (b) and (d) of this section, and Government Code sec.552.110; (2) submit the information to the attorney general in accordance with procedures set out in the Government Code, Chapter 552, and the attorney general's Open Records Handbook; (3) contemporaneous with each submission under this subsection, notify the person who submitted the information, so they may exercise their rights under Government Code sec.552.305; and (4) following an opinion from the attorney general under this subsection which would allow release of any information, the submitter shall be immediately notified, and the department shall delay release for 30 days to allow: (A) the department to make the determination called for in subsection (c) of this section; and (B) the submitter of the information opportunity to obtain judicial review of the attorney general's opinion. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 15, 1998. TRD-9808029 Susan K. Steeg General Counsel Texas Department of Health Effective date: June 4, 1998 Proposal publication date: December 5, 1997 For further information, please call: (512) 458-7236 CHAPTER 115.Home and Community Support Services Agencies SUBCHAPTER A.General Provisions 25 TAC sec.115.2, sec.115.3 The Texas Department of Health (department) adopts amendments to sec.115.2 and sec.115.3, concerning the licensing of home and community support services agencies (HCSSAs) without changes to the proposed text as published in the February 27, 1998, issue of the Texas Register (23 TexReg 1783). The sections will not be republished. Section 115.2 provides definitions of words and terms as they are used in the chapter. Section 115.3 sets the schedule of fees for HCSSAs. The amendment to sec.115.2 clarifies the definition of "affiliate" by changing the percentage of ownership interest from 10% to 5.0% to be consistent with the rule language in sec.115.11(g)(2)(E), (F), and (J). The amendment to sec.115.3 is adopted pursuant to the General Appropriations Act, Rider 35, 75th Legislature, 1997, which requires the department to assess "fees sufficient to generate, during the biennium, $1,415,762 in excess of the estimate for account 5018, contained in the Comptroller of Public Accounts' Biennial Revenue Estimate for fiscal years 1998 and 1999." The Comptroller's biennial revenue estimate for account 5018 is $6,757,000. Based on actual revenue from fiscal year 1997, the department estimates the biennial revenue (fiscal years 1998 and 1999) will be $7,469,486, which is $712,486 in excess of the revenue estimate reported in the Comptroller's Biennial Revenue Estimate for account 5018. Therefore, an additional $703,276 must be generated by the end of the biennium to comply with the Rider 35 requirement to generate an excess of $1,415,762. Specifically, the amendment to sec.115.3 increases the initial licensing fee for a branch office from $500 to $875, and the renewal licensing fee for a branch office from $300 to $875. As stated in the proposed preamble, the department anticipates that there will be no additional branch office growth. Since the proposal was published, a decrease in the number of new branch offices coupled with a decrease in the number of renewing branches has occurred. This reduction has exceeded the rate of decrease originally projected. By the end of the biennium (August 31, 1999), the department projects that the branch office fee increase may not be sufficient to generate the amount necessary to comply with Rider 35. Therefore, the department may not be able to use the revenue generated from the fee increase as originally stated in the proposed preamble. The fee increases have been set by the Texas Board of Health (board) and are necessary to cover costs incurred by the department to continue to administer the home and community support services agency licensing program. If the number of parents and branch offices continues to decrease at the present rate or if the rate of decrease intensifies, the department may consider further amendments to the fee schedule to cover its costs. Publication of these rules provides the required notification of fee increase required by Texas Civil Statutes, Article IX, sec.77. The department received the following comments on the proposal. Comment: Concerning sec.115.3, one commenter expressed support for the department's commitment to conduct on-site surveys of branch offices, but stated the degree of the fee increase is unwarranted. The commenter questioned the need to survey all branch offices of a particular agency. The commenter stated that the department has always had the authority and the ability to survey a branch office rather than a parent office or to extend the survey if problems were identified, that the department probably would not survey both the parent and the branch office every year, and that recent federal changes should alleviate some concerns regarding services delivered from a branch office. The commenter added that the definition or purpose of branch sites as extensions of parents, does not warrant the same fee as a parent, that the fee increase will cause increased costs in operating branch offices, that it will discourage HCSSAs from establishing branch offices, and that it will decrease access to home and community support services in small rural communities. Response: While the department agrees that it has always had the authority to survey branch offices, it is obligated to comply with the requirement in Rider 35 of the General Appropriations Act. The department disagrees that the fee increase is unwarranted and will reduce access to services in rural communities. The department believes that routine surveys of branch offices are a necessary activity in assuring compliance with the licensing rules concerning home and community support services agencies (including branch offices). No change was made. Comment: Concerning sec.115.3, one commenter opposed the amount of the branch office fee increase. The commenter suggested that a more gradual schedule in fee increases would be more affordable for home health providers and "would avoid placing unduly burdensome financial costs" to home health providers in addition to new federal requirements for surety bonding and changes in reimbursement rates. Response: The department understands the commenter's concerns regarding the effect of the fee increase, but is obligated to comply with the requirements in Rider 35 of the General Appropriations Act. No change was made. Comment: Concerning sec.115.3, one commenter stated that the branch office fee increase is "another attemp(t) to close agencies, especially free standing and especially minority based agencies." The commenter added that "whatever decision (we'll) come up with the money if its approved." Response: The department disagrees that the fee increase is an attempt to close free standing or minority-based HCSSAs. The purpose of the fee increase is to comply with the requirements in Rider 35 of the General Appropriations Act. No change was made. The comments were received from the Texas Association for Home Care; Y Medical Associates, Inc.; and an anonymous provider of home and community support services. In general, the commenters were not opposed to a branch office fee increase; however, they were opposed to the amount of the increase. The amendments are adopted under the Health and Safety Code, sec.142.010 which provides the board with the authority to set license fees for HCSSAs in amounts that are reasonable to meet the costs of administering the Health and Safety Code, Chapter 142, and under sec.12.001 which provides the board with the authority to adopt rules for the performance of every duty imposed by law upon the board, the department, and the commissioner of health. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 15, 1998. TRD-9808057 Susan K. Steeg General Counsel Texas Department of Health Effective date: June 7, 1998 Proposal publication date: February 27, 1998 For further information, please call: (512) 458-7236 PART II. Texas Department of Mental Health and Mental Retardation CHAPTER 404. Protection of Clients and Staff SUBCHAPTER A. Abuse, Neglect, and Exploitation in TDMHMR Facilites 25 TAC sec.sec.404.1-404.17 The Texas Department of Mental Health and Mental Retardation (TDMHMR) adopts the repeals of sec.sec.404.1 - 404.17 of Chapter 404, Subchapter A, concerning abuse, neglect, and exploitation in TDMHMR facilities, without changes to the text as published in the March 13, 1998, issue of the Texas Register (23 TexReg 2700). New sec.sec.417.501 - 417.518, concerning the same, which replace the repealed sections, are contemporaneously adopted in this issue of the Texas Register. The repeals allow for the adoption of new sections. No public comment was received on the proposed repeals. The sections are adopted under the Texas Health and Safety Code, Title 7, sec.532.015, which provides the Texas Mental Health and Mental Retardation Board with rulemaking powers; sec.161.132, which requires the board to adopt rules that prescribe procedures for the investigation and referral of reports of abuse and neglect or illegal, unprofessional, or unethical conduct toward a person served in a health care facility; Texas Human Resources Code, Chapter 48, which requires the reporting and investigations of abuse, neglect, and exploitation of elderly and disabled persons; Texas Family Code, Chapter 261, which requires the reporting and investigations of abuse or neglect of a child; and Civil Practice and Remedies Code, sec.81.006, which requires the reporting of alleged sexual exploitation by a mental health services provider to the county prosecuting attorney. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 14, 1998. TRD-9807930 Charles Cooper Chairman, Texas MHMR Board Texas Department of Mental Health and Mental Retardation Effective date: June 3, 1998 Proposal publication date: March 13, 1998 For further information, please call: (512) 206-4516 CHAPTER 409. Medicaid Programs SUBCHAPTER L. Mental Retardation Local Authority (MRLA) Program 25 TAC sec.sec.409.517, 409.519, 409.521, 409.523, 409.525, 409.527, 409.529, 409.531, 409.533, 409.535, 409.537, 409.539, 409.541 The Texas Department of Mental Health and Mental Retardation (TDMHMR) adopts new sec.sec.409.517, 409.519, 409.521, 409.523, 409.525, 409.527, 409.529, 409.531, 409.533, 409.535, 409.537, 409.539, and 409.541 of Chapter 409, Subchapter L, concerning Mental Retardation Local Authority (MRLA) Program. Sections 409.517, 409.519, 409.521, 409.523, 409.525, 409.527, 409.529, 409.531, 409.533, 409.535, 409.537, and 409.539 are adopted with changes to the proposed text published in the March 20, 1998, issue of the Texas Register (23 TexReg 1260). Section 409.541 is adopted without changes. The sections are the second part of a new subchapter that governs the MRLA Program, a pilot project to study an authority structure for service delivery at the local level using a federal waiver to allow a consumer-directed pilot program for persons with mental retardation and other developmental disabilities. The first part of the subchapter was adopted in the March 20, 1998, issue of the Texas Register (23 TexReg 2998-3004). Related provisions governing reimbursement methodology were adopted by the Health and Human Services Commission in the March 27, 1998, issue of the Texas Register (23 TexReg 3258-3260). The MRLA Program will be implemented on June 1, 1998, contingent on the approval of a waiver request by the Health Care Financing Administration. Approval of the waiver will provide access to federal and state funds to serve an additional 225 individuals who are currently on referral lists. The new sections are revised on adoption as follows: Throughout the new sections and principles minor typographical and grammatical errors are corrected to provide improved readability. Throughout the new sections and principles, the terms "consumer," "applicant," "participant," and "client" are changed to "individual" for consistency with other policies of the department. Throughout the new sections, the term "waiting list" is changed to "referral list," "resubmit" is changed to "submit," "authorized waiver services" is replaced with "authorized MRLA Program services," "assign" is replaced with "register," and "geographic area" is replaced with "local service area." Throughout the new sections and principles the term "legally authorized representative (LAR)" replaces the term "representative" and was added to the text in several appropriate locations. In sec.409.517, the full name of the agency is deleted and only the abbreviation is used because the sections adopted in this issue of the Texas Register are a continuation of a subchapter in which the agency's name appears in full. Section 409.519 is retitled "Calculation of Individual Copayment," and the abbreviation "(TDHS)" is added. In sec.409.523(2) language is modified to indicate the MRA will provide written notification of the process that program providers should use to refer individuals for the MRLA program referral list. In sec.409.525(a)(2) language is modified to clarify that individuals have a right to choose between waiver and institutional programs. In sec.409.525(a)(5)(A) language is modified to indicate that the MRA provides a list of MRLA program providers and does not assist in the selection process. Section 409.525(c) is modified to indicate that the MRLA program provider will not initiate services until notified of TDMHMR's enrollment approval. Section 409.527 is modified to include new (a)(1) and (a)(2) to clarify the service coordinator's role in revising the IPC and PDP. Section 409.529(d)(2) is modified to indicate that a request for discharge may be denied by TDMHMR. In sec.409.539 a reference was added that had been inadvertently omitted at proposal. In Figure 1 the purpose statement was revised to be more concise. Subprinciple P2 was revised to require a separate individual record. Principle P9.2 was revised to replace the term "age-appropriate' with the term "relevant." Principle P13(b) was revised to indicate that the provider must live in the residence. Principle P14 was modified to indicate that an individual is related to the provider if related within the fourth degree of consanguinity or within the second degree of affinity. Principle P22 was modified to indicate that assistance with tasks delegated by a RN must be in accordance with applicable state law. Principle P28 was modified to indicate that restriction of an individual's rights must be conducted by a person not involved in the original decision. Principle P29 was modified to indicate that that the individual's LAR is immediately notified of any allegations of abuse and neglect. Principle P31 was modified to indicate that the MRLA program provider protection of the rights of the individuals receiving services shall include maintaining a process for eliciting complaints and maintaining verifiable evidence of complaint resolution. New Principles P26 regarding adaptive aids, P27 regarding home modifications, P39 regarding charges assessed by the MRLA program provider, P40 regarding the need to obtain written informed consent for restrictive procedures, and P41 regarding employee criminal history checks were added. New Subprinciple A5.10 was added to ensure that children who are unable to reside with their natural parents live in a family environment such as adoptive or foster families. Subprinciples A7.1 and A7.2 were modified to coincide with current case management qualifications. The section titled "Provider Monitoring Responsibilities" was retitled "MRA Responsibilities for Conducting Program Reviews." Principle A18 was modified to include the LAR. Subprinciple A18.3 was added to indicate the MRAs must conduct reviews to identify hazards. Principle A25 was modified to include the addressing and resolving of complaints. Principle A29 was added to indicate that MRAs must monitor program providers' management of personal funds. A public hearing to accept testimony concerning the proposed new subchapter was held at TDMHMR Central Office, Austin, on Monday, February 23, 1998. One participant provided oral and written testimony. Written comments were submitted by the following organizations and individuals: Advocacy, Inc., Austin; Central Texas Mental Health and Mental Retardation Center, Brownwood; Dallas MHMR Center, Dallas; Parent Association for the Retarded of Texas, Austin; Private Providers Association of Texas, Austin; The Arc of Texas, Austin; The Texas Council of Community Mental Health and Mental Retardation Centers of Texas, Inc., Austin; and two parents of state school residents, Garland and Richmond. Commenters did not express unqualified endorsement or rejection of the new subchapter and most offered specific recommendations for improvements. Three commenters stated that the subchapter was important and needed more work. Two commenters stated that the new subchapter was confusing. Two commenters commended the department for the open and inclusive process used in developing the rules. One commenter asked what "TAC" is. The department responds that "TAC" is an abbreviation for "Texas Administrative Code," which contains the administrative law promulgated by TDMHMR as rules. One commenter suggested that the department "put teeth" into the rule so that when an MRLA program provider considers going out of business he or she will face strict penalties, possibly to include fines or a jail sentence if the decision results in individuals being "put on the street." The department responds that it does not have statutory authority to impose monetary or criminal penalties. An MRLA program provider is required under agreement with TDMHMR to notify the department at least 60 days in advance of the intent to cancel the MRLA Program contract. In such an event, TDMHMR in conjunction with the MRA would ensure the transfer of the individual(s) to another MRLA program provider so that no individual(s) receiving services would become homeless. One commenter suggested that it would prevent confusion if the rules were made program specific. The department responds that the rules are program specific. The MRLA Program is a Medicaid waiver program, similar to the HCS program, in combination with a pilot project to study an authority structure for service delivery at the local level. Three commenters stated concerns about the fiscal note. One commenter noted that more staff would be needed to accomplish the required monitoring duties; one commenter noted that both additional staff and additional staff training would be needed; and one commenter stated that the fiscal impact statements were made without sufficient study. The department responds that it will be providing additional monies to the participating MRAs through the use of targeted case management funds and funds for administrative costs. These additional funds, which are expended through other program funding sources, are not included in the MRLA rule fiscal impact. One commenter stated that services did not appear to be "unbundled." The commenter questioned if everything would "still go back to TDMHMR." The department responds that if the commenter is using the term "unbundled" with respect to unbundling of funding streams for services, the commenter is correct. With respect to everything "still going back to TDMHMR," the department responds that authorization for enrollment and the IPC will continue to be the responsibility of TDMHMR Central Office. A commenter submitted general and specific comments regarding the need for the department to articulate its expectations about how services will be managed. The commenter cited the "Service Justification Probes," which state, "The overriding philosophy...[is] to authorize only those [services] needed, no more, no less...." The commenter noted that absent explicit direction of this type in the new subchapter, there will be insufficient evidence of policy support for MRLA decisions about resource utilization in cases in which those decisions are challenged and result in a formal administrative hearing or other negotiations. The department responds that "Service Justification Probes" are contained in an untested guide being developed by TDMHMR to assist service coordinators in the development of IPCs and PDPs. Because the "Service Justification Probes" are as yet untested, they are not considered to be appropriate for inclusion in the rule. One commenter stated that the provision of service coordination by the MRA does not provide individuals with a choice in that the individual cannot hire, fire, or transfer to a service coordinator of his/her choosing. The commenter noted concern with the conflict of interest inherent in being an MRLA program provider and an authority. The commenter stated that by including the service coordination function as part of the organizational structure of the MRA, the gatekeeping function is by definition responsible to the organization, not to the individual receiving services. The commenter observed both that the function should be independent and that mechanisms are not in place to provide for the individual to choose among service coordinators. The department responds that service coordination will be delivered through the Medicaid State Plan service of targeted case management. Individuals can request reconsideration by the department of the recommendations of the service coordinator. The department is conducting an ongoing evaluation of the pilot, including an evaluation of consumer satisfaction with service coordinators. Satisfaction with the service coordinator will be a key data element of the MRLA program pilot. Another commenter called for functional definitions of the roles of the MRLA and the local MRA, stating that the terms appear to be used interchangeably in the new subchapter, making it difficult to read and understand. The department responds that it has changed all references to "MRLA" to "MRLA Program" or "MRLA program provider." A commenter stated that the rules were difficult to follow and that a glossary would be helpful. The department acknowledges that a glossary would be a helpful addition to program implementation efforts. However, the Texas Register does not permit the adoption of sections that have not been proposed. Two commenters requested that the term "legal" be inserted before "representative" in sec.409.525(a)(2), (a)(3), and (a)(5) (two places), and sec.409.529(c)(2), (d)(2). The department responds that the term "representative" has been revised to "legally authorized representative" throughout the new subchapter. Regarding sec.409.519, two commenters stated that the information regarding consumer copayment did not provide enough information to calculate the copayment. The department responds that this section is included only to show the general methodology of how copayment is determined for this program. The actual calculations are part of the Medicaid eligibility rules and procedures that are promulgated by the Texas Department of Human Services (40 TAC sec.sec.15.501-15.510). With reference to sec.409.523(a)(1), two commenters questioned why the department did not include the recommendation of the Ad Hoc Committee on Mental Retardation and Managed Care that persons most in need be given priority on the referral list. The department responds that it did not choose to pilot this concept at this time because of the lack of objective criteria for making such a determination. Most of the recommendations of the Ad Hoc Committee on Mental Retardation and Managed Care are being piloted at the same time. Based on experience with the pilot, additional recommendations may be piloted. With reference to sec.409.523(a)(4), a commenter asked if the date that an individual initially requests waiver services is maintained when the person transfers to another MRLA that is not a pilot site. The department responds that MRLA is a program, not an authority. The original date of request determines the chronological placement of an individual on the referral list for MRLA, HCS, and HCS-O programs. Concerning sec.409.525(a)(2), a commenter expressed concern that individuals applying for community programs would be presented routinely with a choice of institutional program (ICF-MR). The commenter's concern was that a more readily available institutional alternative might be misrepresented to divert demand for community programs. The department responds that freedom of choice between institutional and community-based services is a requirement in federally funded Medicaid waiver programs. Language has been added to indicate that the individual has a right to choose between participation in the ICF-MR Program or the MRLA Program. Concerning the same paragraph, two commenters expressed enthusiasm and noted that the provision represents the first rule endorsement of the right of the individual and/or legally authorized representative to exercise choice in services. The department responds that freedom of choice has been previously supported in its rules and related policy documents, i.e., an FYI "ICF/MR Freedom of Choice," effective May 21, 1996, and Chapter 402, Subchapter I, relating to Movement of Individuals with Mental Retardation from Department Facilities, adopted effective September 1, 1997. Also concerning sec.409.525(a)(2), one commenter asked if the MRLA Program is an HCS program, whether provisions in the rule affect ECI, and what role the case coordinator has in the MRLA Program. The department responds that the MRLA Program is a Medicaid waiver program, similar to the HCS program, which will replace the current HCS and HCS-O programs in the pilot areas. Additionally, the ECI program is not affected by the MRLA Program. The case coordinator functions as a case manager in the HCS program. In the MRLA Program, the MRA will be assuming the case management/ service coordination function. Concerning sec.409.525(a)(3), a commenter asked if money would be available for hiring additional service coordinators to perform the functions required by the section. The department responds that the funding for service coordinators would be accessed through billings for targeted case management. With reference to the same paragraph, a commenter requested that use of the "Service Justification Probes and Support Needs Analysis" be required. The department responds that because the "Service Justification Probes" are as yet untested, they are not considered to be appropriate for inclusion in the rule. Also concerning sec.409.525(a)(3), two commenters requested that the department acknowledge the individual's and/or legally authorized representative's participation in the PDP process. The department responds that the requested language has been added. With reference to sec.409.525(a)(3)(A), two commenters questioned whether the individual and/or LAR has input into identifying the services and supports that the individual requires to continue living in the community and suggested language be added to indicate such involvement. The department responds that language has been added to sec.409.525(a)(3). Concerning sec.409.525(a)(3)(C), two commenters questioned whether the individual and/or the LAR have input into the development of outcomes and recommended language be added to indicate such involvement. The department responds that language has been added at sec.409.525(a)(3). With reference to sec.409.525(a)(4), a commenter questioned whether an application form for the MRLA Program would be used. The department responds that the MRA will be required to submit and/or retain information, including standardized forms such as an LOC form and an IPC form, to enable an enrollment request to be considered by TDMHMR. Concerning sec.409.525(a)(4)(A), two commenters recommended that "and/or LAR's" be inserted after "individual's." The department responds that the language addresses a determination related to the individual, not the LAR. Concerning sec.409.525(a)(4)(B), two commenters questioned whether the individual and/or LAR have input into completing the level of care form and suggested that language be added to indicate such involvement. The department responds that the MRA completes the level of care form based on the results of professional assessments of the individual and information gathered from the LAR and others who know the individual. The individual and the LAR are involved in the assessments on which the level of care is based. In sec.409.525(a)(4)(C), two commenters recommended that "Service Justification Probes" be included. Another commenter requested that the department add language referencing its policy on resource management expectations. The department responds that existing rule language in sec.409.503(b) supports effective service utilization, i.e., the language states that services are intended to supplement rather than replace natural community supports. The probes are one part of a set of working tools intended to guide critical thinking around the development of a service plan. Because the "Service Justification Probes" are as yet untested, they are not considered to be appropriate for inclusion in the rule. In the same subparagraph, two commenters requested that the words "and/or LAR" be added after "the individual" to ensure that the legally authorized representative is also involved when the MRA develops the proposed IPC. The department responds that the requested language has been added. With regard to sec.409.525(b), a commenter asked if the waiver (the MRLA Program) deletes the zero-reject provision. The department responds that the "zero-reject" provision refers to an HCS/HCS-O program principle that requires a program provider who has not reached contracted capacity to provide services to any eligible individual who selects the program provider. The provision, which is intended to discourage program providers from discriminating on the basis of disability, is a program principle for the MRLA Program as well (Principle P36). Concerning the same subsection, two commenters requested that the words "and/or LAR" be added after "the applicant" to ensure that the legally authorized representative is also notified of the approval or denial of the individual's application to the MRLA Program. The department responds that the requested language has been added. Concerning sec.409.527, a commenter asked how long the service coordinators should follow the consumers. The commenter noted that follow-along of individuals in ICF-MR programs has represented a substantial additional workload with no additional reimbursement. The department responds that the service coordinator will provide ongoing support for the individual for as long as the individual remains enrolled in the MRLA Program. The MRA will be reimbursed for this ongoing support service through the targeted case management program. With reference to sec.409.527(a), a commenter asked why the person-directed plan is required to be submitted to the department. The department responds that the person-directed plan is not required to be submitted to the department. The IPC is required to be submitted to the department for authorization according to guidelines established by THHSC. In the same subsection, two commenters requested that the words "and/or LAR" be added after "to assure individual" and before "outcomes." The department responds that the referenced outcomes are outcomes for the individual consumer and are not intended to represent outcomes for the legally authorized representative. The term "and/or LAR" was added to the list of persons who review the PDP to ensure that individual outcomes previously identified remain relevant. Regarding sec.409.527(b), two commenters requested that the words "and/or LAR's" be added after "the individual's" and before "needs" to ensure that the needs of the legally authorized representative are also taken into account when revisions to the IPC are made in response to changes in the individual's needs as documented in the current PDP. The department responds that the provision, which has been moved to sec.409.527(a)(1), was not changed. The needs of the LAR, which are relevant in the context of the needs of the individual, are considered with the needs of the individual. Also with reference to sec.409.527(b), two commenters recommended that "Service Justification Probes" be included. Another commenter requested that the department add language referencing its policy on resource management expectations. The department responds that existing rule language in sec.409.503(b) supports effective service utilization, i.e., services are intended to supplement rather than replace natural community supports. Because the "Service Justification Probes" are as yet untested, they are not considered to be appropriate for inclusion in the rule. Concerning the coordination of transfers as addressed in sec.409.529, a commenter suggested that the enrollment of the individual in the receiving MRLA Program, HCS, or HCS-O must be "seamless, timely and constitute the components of services needed in the new location that takes into account an updated PDP and new needs related to a change in the individual's situation." The department concurs that the circumstances surrounding an individual's transfer must be considered by all program providers and adjustments made as needed. Regarding sec.409.529(b), two commenters requested that the words "and/or LAR" be added after "currently receiving services." The department responds that language concerning the LAR has been added after "Program." The commenters also suggested that the department reference the ICF-MR Program. The department responds that person in an ICF/MR may apply to the MRA serving his or her area of residence to be placed on the referral list for MRLA Program services. Regarding sec.409.529(a)(1), two commenters requested that the words "and/or LAR" be added after "with the individual." The department responds that the requested language has been added. Regarding sec.409.529(a)(3), two commenters requested that the words "and/or LAR" be added. The department responds that language has been added after "individual." Regarding sec.409.529(b), two commenters requested that the words "and/or LAR" be added The department responds that the requested language has been added after "Program." Regarding sec.409.529(b)(1), two commenters requested that the words "and/or LAR" be added The department responds that the requested language has been added before "the current MRLA program provider." Regarding sec.409.529(b)(2), two commenters requested that the words "and/or LAR" be added The department responds that language has been added after "with the individual." Concerning sec.409.529(c), a commenter questioned the ease of moving from MRLA services back to HCS-O services. The department responds that the MRLA Program is a Medicaid waiver program, similar to the HCS and HCS-O programs. Provisions of the rule allow individuals eligible for the HCS and HCS-O Programs to transfer from an MRLA program provider to an HCS or HCS-O program provider in a non-pilot geographic area. With reference to sec.409.529(c)(1) and (2), a commenter questioned how the requirement to help a transferring MRLA individual select an HCS provider at the receiving MRA will affect the receiving MRA's performance contract if there is a limit on HCS enrollment. The department responds that questions regarding the impact of these rules on the local authority's performance contract with TDMHMR are beyond the scope of the new subchapter. Concerning sec.409.529(d), two commenters requested clarification of the reasons why discharge would be approved. The criteria include loss of Medicaid eligibility or ICF/MR level-of-care eligibility, application of the eligibility cap, discharge requested by consumer, movement out of state, and refusal to participate in the program. Each request for discharge is considered on its own merits at the state authority level. Regarding sec.409.529(d)(2), two commenters requested that "and/or LAR" be added. The department responds that the requested language has been added. Concerning sec.409.531, a commenter noted that conflict of interest exists when TDMHMR conducts the certification review of MRLA program providers operated by the local MRA. The commenter suggested that true separation of authority and provider roles would occur only if there were no local MRA program providers in the MRLA pilot programs and if service coordination were an independent function. The department responds that it designed the program to involve the state authority's monitoring of local authority programs to avoid conflicts of interest. Regarding sec.409.533, one commenter said that the definition of hazard was too stringent, i.e., that the level of threat required to consider a situation a hazard was too high. The department responds that the proposed language is consistent with the language in other Medicaid rules promulgated by TDMHMR. The proposed language, in combination with other program requirements, has been found to be effective in protecting the health, safety, and welfare of individuals served. The department has a variety of sanctions that can be applied to discourage less serious threats to the well-being of individuals served. These sanctions include decertification, contract termination, and withholding vendor payments. Concerning sec.409.533(2)(B), two commenters requested that the department include language indicating that the MRA would obtain the permission of the individual and/or the LAR prior to developing alternative services for the individual in an emergency. The department responds that in an emergency, it will act swiftly to ensure the health and safety of the persons served. Individuals and legally authorized representatives will be included in any decisions after the immediate threat is addressed. Regarding sec.409.535, two commenters stated that all reviews should be on-site reviews. The department responds that not all plans of correction for deficiencies require on-site reviews, e.g., proof of correction of a deficiency involving MRLA program provider qualifications could be achieved by faxing a copy of a renewed professional certificate. The department weighs each case on an individual basis and attempts to use resources wisely by not requiring on- site visits when desk reviews are adequate. Two commenters requested that the role of the LAR be included in four places in two introductory paragraphs to the Mental Retardation Local Authority Program Evidentiary Principles for Program Providers. The department responds that the first paragraph has been deleted on adoption. The requested language has been added to the second paragraph as requested. Concerning Principle P3, two commenters suggested adding language to require the MRLA program provider to ensure that service information is correct and clearly communicated to not only the MRA, but also to the individual and/or LAR. The department responds that the requested language has been added. In Principle P9.2, two commenters requested that the term "developmentally appropriate" replace "age appropriate" with respect to providing individuals with activities to enhance self-esteem and maximize functional level. One of the commenters noted that her 24-year-old son, who has mental retardation, couldn't participate in an age-appropriate activity such as driving a car. The department responds that it has revised the language to replace the term "age-appropriate activities" with the term "relevant activities." With reference to Principle P12.4, two commenters requested the addition of language to require the LAR to be notified immediately in an emergency. The department responds that it is standard procedure to notify the LAR in an emergency and the requested language has been added to the standard. Additionally, language has been added to Principle P3 to ensure that the LAR is notified of changes in service delivery. In P13.2, concerning assistance with meal planning and preparation, two commenters requested that the words "as appropriate" be added to acknowledge differences in functioning level of individuals receiving services. The department responds that all waiver services must be appropriate to the individual's level of function as determined by the service planning team. The department believes the language of the principle is appropriate as proposed. In P13.4, concerning assistance with housekeeping, two commenters requested that the words "as appropriate" be added to acknowledge differences in functioning level of individuals receiving services. The department responds that all waiver services must be appropriate to the individual's level of function as determined by the service planning team. The department believes the language of the principle is appropriate as proposed. Concerning staff qualifications in the MRLA program provider principles, two commenters suggested the addition of language that would require a criminal history check. The department responds that new Principle P41, which requires criminal history checks, has been added. Concerning Principle P18, which requires the MRLA program provider to utilize service providers of the individual's choice, two commenters requested that "and/or LAR's" be inserted before "choice." The department responds that language has been added. With regard to adopted Principle P28 (proposed as Principle P26), two commenters suggested adding language requiring the MRLA program provider to report an individual's dissatisfaction with rights restrictions to the LAR (as well as to the MRA). The commenter also suggested the addition of language concerning the need to obtain written consent from the LAR as appropriate for rights restrictions. The department responds that language has been added to adopted Principal P28 (proposed as Principle P26) regarding the reporting of an individual's dissatisfaction with restrictions of rights to the LAR. New Principle P40 was added to address the need to obtain written informed consent for rights restrictions and restrictive behavior management procedures. Concerning adopted Principle P31 (proposed as Principle P29), two commenters wanted the complaint process to be explicitly included in the MRLA program provider principles (proposed as Principle P29) and the authority principles (Principles A17 and A25). Both commenters felt it was vital to outline the process for making and resolving complaints. The department responds that it has revised the principles as requested. Also with reference to adopted Principle P31 (proposed as Principle P29), two commenters requested that "and LAR" be added to the statement concerning the responsibility of the MRLA program provider to protect rights of individuals receiving services. The department responds that the rights of the LAR, which are relevant in the context of the rights of the individual, are considered with the rights of the individual. Concerning adopted Principle P32 (proposed as Principle P30), two commenters requested that MRLA program provider procedures include notifying the LAR (as well as the Department of Protective and Regulatory Services and the MRA) of all alleged instances of abuse and neglect. The department responds that language has been added. With reference to adopted Principles P37 and P38 (proposed as Principles P35 and P36), a commenter asked why protection of personal funds was not included as a MRLA program provider principle. The department responds that it has added a principle (Principle P39) that provides this safeguard. Concerning the purpose of the principles for MRAs, two commenters suggested language that would have referenced the LAR in two places. The department responds that the purpose section of the authority principles has been rewritten and that the comments are not pertinent to the language as revised. Concerning Principle A5, one commenter suggested the addition of subprinciples regarding children who reside outside of their natural family. The department responds it has added new Subprinciple A5.10 that requires the MRA to ensure that a child who is unable to reside with his or her natural family lives in a family environment such as an adoptive or foster family. Concerning Principle A5.1, two commenters recommended adding "and/or LAR" to the end of the sentence stating that service coordinators will initiate, coordinate, and facilitate the person-directed planning process to meet the desires and needs of the individual. The department responds that the LAR is involved in the person-directed planning process. The purpose of this principle is to focus on the desires and needs of the individual receiving services. Concerning Principle A5.4, two commenters recommended that "Service Justification Probes" be included in the authority principles. As previously stated, the department believes that the "Service Justification Probes" are as yet untested and as such are not considered to be appropriate for inclusion in the rule or the principles. Regarding Principle A5.8, two commenters questioned the inclusion of a predischarge plan. The department responds that discharge plans are only developed as needed. The language was modified to delete the term "pre-discharge plan" and replace it with "discharge and transfer plans, when necessary." Concerning Principle A10, two commenters suggested adding "and/or the LARs" to language concerning who is involved in the process of selecting a MRLA program provider. The department responds that language has been added. Concerning Principle A11, two commenters suggested adding "and/or the LAR" to language concerning who is involved in the person-directed planning process. The department responds that the person-directed planning process includes the LAR. The use of the term "individual" in the sentence denotes the person receiving services for whom the person-directed planning process is conducted. Concerning Principle A12, two commenters suggested adding "and/or the LAR" to language concerning processes that must occur within 45 working days of the individual indicating a desire for MRLA Program services. The department responds that language has been added. Concerning Principle A15, two commenters expressed concerns relating to the objectivity of the local MRA in the survey process. The department responds that language was added to address the concerns. Concerning authority principles for monitoring MRLA program providers, two commenters addressed the frequency of monitoring of MRLA program providers. The department responds that monitoring of MRLA program providers will occur at least annually, with more frequent reviews if the MRLA program provider does not demonstrate compliance with all of the principles during the annual review or during an intermittent review which is in response to a complaint or which is a follow-up review. The MRA will also be managing the services for each individual and will see each of them at least monthly to ensure that all required services are delivered as specified in the IPC. Also regarding authority principles for monitoring MRLA program providers, two commenters felt that the term "monitoring" was too vague in the MRLA principles. Proposed Principles A19-A26 were revised to delete the term "monitor," which in all cases was unnecessary to the meaning of the principle. The section was retitled "MRA Responsibilities for Conducting Program Reviews." Regarding Principle A18, one commenter requested clarification of the MRA's responsibilities for conducting reviews of the MRLA Program. The department responds that the principle was revised to indicate the MRA performs reviews of non-MRA MRLA program providers. Language was also revised in Principles A18.1 and A18.2 and new A18.3 was added. Concerning Principle A20, two commenters suggested adding "and/or the LAR" to language concerning monitoring to ensure that MRLA program providers in the network contract with providers of the individual's choice if the providers meet minimum requirements. The department responds that language has been added. Concerning Principle A21, two commenters suggested adding "and/or the LAR" to the requirement for the MRA to determine if services and supports are being provided to assist the individual in achieving the outcomes identified in the PDP. The department acknowledges the integral role that the LAR can play in assisting the individual to achieve outcomes, but notes that the focus of the principle is on evaluating the service and supports provided to the individual, not to the LAR, to achieve outcomes. Concerning Principle A22, two commenters suggested adding "and/or the LAR" to language concerning providing individuals with a means for addressing complaints regarding restriction of rights by the MRLA program provider. The department responds that language has been added in new Principle P40 that requires the individual and/or LAR to provide written informed consent to the restriction of rights. The new sections are proposed under the Texas Health and Safety Code, sec.532.015(a), which provides TDMHMR with broad rulemaking authority; Human Resource Code, sec.32.021, and Government Code, sec.531.021, which provide the Texas Health and Human Services Commission (THHSC) with the authority to administer federal medical assistance funds and administer the state's medical assistance program. Senate Bill 509 of the 74th Texas Legislature clarifies THHSC's authority to delegate the operation of all or part of a Medicaid program to a health and human service agency. TDMHMR is the agency responsible for operating the Mental Retardation Local Authority Program. The section affects Human Resources Code, Chapter 32, and Government Code, sec.531.021. sec.409.517. Rejected Claims. If TDMHMR rejects a claim because of errors, the MRLA program provider must research the errors, initiate appropriate corrective action, and submit a corrected claim to TDMHMR with supporting documentation within 180 calendar days from the end of the month of service or within 30 days of notification of a rejected claim by TDMHMR, whichever is later. sec.409.519. Calculation of Individual Copayment. (a) Individuals who are determined to be financially eligible based on the special institutional income limit are required to share in the cost of MRLA program waiver services. The method for determining the individual's copayment is described in subsection (b) of this section and documented on the Texas Department of Human Services (TDHS) Medical Assistance Only Worksheet (40 TAC, sec.sec.15.501-15.510). When calculating the copayment amount for individuals with incomes that exceed the supplemental security income (SSI) federal benefit rate, deduct the following: (1) the cost of the individual's maintenance needs, which must be equivalent to the special institutional income limit for eligibility under the Texas Medicaid program; (2) the cost of the maintenance needs of the individual's dependent children. This amount is equivalent to the Temporary Assistance to Needy Families (TANF) basic monthly grant for children or a spouse with children, using the recognizable needs amounts in the TANF Budgetary Allowances Chart; and (3) the costs incurred for medical or remedial care which are necessary but are not subject to payment by Medicare, Medicaid, or any other third party. These include the cost of health insurance premiums, deductibles, and coinsurance. (b) The copayment is the individual's remaining income after all allowable expenses have been deducted. The copayment is applied only to the cost of home and community-based services which are funded through the MRLA Program and specified on the individual's IPC. The copayment must not exceed the cost of services actually delivered. (c) Individuals must pay the cost-sharing amount to the MRLA program provider contracted to deliver authorized MRLA Program services. sec.409.521. Spousal Impoverishment Provisions. (a) For individuals with spouses who live in the community, the income and resource eligibility requirements are determined according to the spousal impoverishment provisions in the Social Security Act, sec.1924, and as specified in the Medicaid State Plan and in sec.409.505(a)(1) of this title (relating to Eligibility Criteria.) (b) After an individual is determined to be eligible for Medicaid, TDHS determines the amount of the individual's income applicable to for MRLA Program services. (c) To determine the amount of the individual's income applicable to copayment for MRLA Program services, TDHS uses the same methodology as if the individual were residing in an institution, except that the personal needs allowance is equal to the institutional income cap. The spousal diversion is equal to the SSI income limit. sec.409.523. Maintenance of MRLA Program Referral List. The local MRA will maintain an up-to-date referral list of individuals living in and waiting to receive MRLA Program services in the MRA's local service area. (1) The MRA will register the individual on the referral list chronologically by date of request for MRLA Program services. (2) The MRA will provide written notification to MRLA program providers in its local service area of the process that program providers should use to refer individuals who wish to be placed on the MRLA Program referral list. (3) The MRA may remove an individual's name the referral list only when the following exists: (A) written permission of the individual or the individual's legally authorized representative (LAR) to remove the individual's name from the referral list; (B) documentation that the individual is deceased; (C) documentation that the individual does not reside in the local service area; or (D) documentation that TDMHMR has denied the individual enrollment and the individual and/or the LAR has had an opportunity to exercise the individual's right to appeal the decision according to sec.409.505 of this title (relating to Eligibility Criteria). (4) At the written request of an individual and/or the LAR of an individual who moves to the local service area of a different MRA, the original MRA will transfer the individual's name and date of request for MRLA Program services to the MRA in the local service area where the individual has moved. The MRA receiving the referral transfer will add the individual's name to its referral list using the date of request for MRLA Program services to the original MRA. sec.409.525. Process for Referral and Enrollment of Individuals. (a) An individual who seeks MRLA Program services must submit a request to the MRA serving the area where the individual lives. (1) The MRA will register the individual on the MRA's referral list as specified in sec.409.523 of this title (relating to Maintenance of MRLA Program Referral List). (2) The MRA will notify the first individual on the referral list when a placement vacancy occurs in the MRA's local service area and begin the enrollment process by informing the individual and/or the LAR of the individual's right to between participation in the ICF-MR Program or the MRLA Program. The MRA must document the individual's and/or the LAR's choice of services. (3) If the individual and/or the LAR chooses participation in the MRLA Program, the MRA will assign a service coordinator who will develop, in conjunction with the service planning team (including the individual and/or the LAR), a person- directed plan (PDP). At a minimum, the PDP will include the following: (A) a description of the services and supports the individual requires to continue living in the community; (B) a description of the individual's current services and supports, identifying those that will be available if the individual is enrolled in the MRLA Program; (C) a description of individual outcomes to be achieved through MRLA Program service components and justification for each service component to be included in the IPC; (D) a description of all determinations needed to establish the individual's eligibility for SSI or Medicaid benefits and for an ICF-MR level-of-care (LOC); and (E) a description of actions and methods to be used to reach identified service outcomes, projected completion dates, and person(s) responsible for completion. (4) The MRA compiles and maintains information necessary to process the individual's and/or LAR's request for enrollment in the MRLA Program. (A) If the individual's financial eligibility for the MRLA Program must be established, the MRA will initiate, monitor, and support the processes necessary to obtain a financial eligibility determination, (B) The MRA will complete an LOC assessment form if necessary. (i) The MRA will determine or validate a determination that the applicant has mental retardation in accordance with Chapter 405, Subchapter D of this title (relating to Determination of Mental Retardation and Appropriateness for Admission to Mental Retardation Services); or (ii) The MRA will verify that the individual has been diagnosed by a licensed physician as having a related condition as defined in sec.406.202 of this title (relating to Definitions for Level-of-Care and Level-of-Need Criteria); and (iii) The MRA will administer the Inventory for Client and Agency Planning (ICAP) and recommend an LON assignment to TDMHMR in accordance with sec.409.507 of this title (relating to Payment Category Assignment and Provider Claims Payment). (C) The MRA will develop a proposed IPC with the individual and/or the LAR based on the PDP and sec.409.503(b) of this title (relating to Service Components of the MRLA Program). (5) The service coordinator will inform the individual and/or the LAR of all available MRLA program providers in the local service area. The service coordinator will: (A) provide information to the individual and/or the LAR regarding all MRLA program providers in the MRA's local service area; (B) review the proposed IPC with potential MRLA program providers selected by the individual and/or the LAR; (C) arrange for meetings/visits with potential MRLA program providers as desired by the individual and/or the; (D) assure that the individual's and/or LAR's choice of a MRLA program provider is documented, signed by the individual and/or the LAR, and retained by the MRA in the individual's record; and (E) negotiate/finalize the proposed IPC with the selected MRLA program provider. (b) When the selected MRLA program provider has agreed to deliver the services delineated on the IPC, the MRA will transmit the enrollment information to TDMHMR. TDMHMR will notify the individual and/or the LAR, the selected MRLA program provider, and the MRA of its approval or denial of the individual's MRLA Program. (c) The selected MRLA program provider will not initiate services until notified of TDMHMR's enrollment approval. sec.409.527. Revisions and Renewals of Individual Plans of Care (IPCs), Levels of Care (LOCs) and Levels of Need (LONs) for Enrolled Individuals. (a) At least annually, and prior to the expiration of an individual's IPC, the service coordinator, the individual and/or the LAR, and the MRLA program provider must review the PDP and IPC to determine whether individual outcomes and services previously identified remain relevant. (1) The service coordinator, in collaboration with the service planning team, will initiate revisions to the IPC in response to changes in the individual's needs as documented in the current PDP. (2) The service coordinator submits annual reviews and necessary revisions of the IPC to TDMHMR for approval. (b) The service coordinator submits annual reevaluations and revisions of LON or LOC to TDMHMR for approval. sec.409.529. Coordination of Transfers and Permanent Discharges. (a) Individuals who are currently receiving services from an HCS or HCS-O program provider and who are moving to a local service area covered by the MRLA Program, and/or the LAR may request to transfer to an MRLA program provider. The service coordinator from the receiving MRA will: (1) coordinate with the individual and/or the LAR and the current HCS or HCS-O program provider to facilitate selection of a MRLA program provider and enrollment in the MRLA Program; (2) determine an effective date for enrollment in conjunction with the current HCS or HCS-O program provider and the receiving MRLA program provider; and (3) review the current IPC with the individual and/or the LAR and the receiving MRLA program provider and negotiate and finalize the MRLA Program IPC. The effective date of the individual's IPC as established in the HCS or HCS-O Program will not be changed upon enrollment with a MRLA program provider. (b) Individuals currently receiving MRLA Program services and/or their LAR may request to transfer to another MRLA program provider in any of the local service areas specified in sec.409.501(a) of this title (relating to Description of the Mental Retardation Local Authority). (1) If an individual is transferring to an MRLA program provider within the same MRA, the service coordinator will coordinate with the individual and/or the LAR, the current MRLA program provider, and the receiving MRLA program provider to facilitate the transfer. (2) If the transfer is to the local service area of another MRA in the MRLA Program, the current and receiving MRAs will coordinate the transfer. The receiving service coordinator will review the current IPC with the individual and/or the LAR and the receiving MRLA program provider and will initiate any changes if needed. The effective date of the individual's IPC will not be changed upon transfer to another MRLA program provider. The MRAs will determine an effective date for transfer in conjunction with the current MRLA program provider and the receiving MRLA program provider. (c) Individuals who are moving away from the local service area of the MRLA Program and who are currently receiving services from an MRLA program provider may request to transfer their services to an HCS or HCS-O Program provider in the area to which they are moving. (1) If the individual is seeking HCS-O Program services, the service coordinator will confirm the individual's eligibility with TDMHMR. (2) The receiving MRA will provide information to assist the individual and/or the LAR regarding HCS or HCS-O program providers in the area. (3) The current MRA and the receiving MRA will determine an effective date for enrollment in conjunction with the current MRLA program provider and the receiving HCS or HCS-O program provider. (4) The effective date of the individual's IPC as established in the MRLA Program will not be changed upon enrollment into the HCS or HCS-O Program. (d) TDMHMR must approve all discharges from MRLA Program services. (1) The service coordinator must submit the request to TDMHMR to discharge an individual from MRLA Program services. (2) TDMHMR will send a written discharge notification to the individual and/or the LAR, the MRLA program provider, and the MRA, indicating the effective date of the discharge and the individual's right to a fair hearing in accordance with sec.409.505 of this title (relating to Eligibility Criteria) or indicating its denial of the request to discharge the individual. sec.409.531. Certification Status. (a) MRLA program providers contracting with TDMHMR for participation in the MRLA Program must be in continuous compliance with the MRLA Program Principles for Program Providers as described in Mental Retardation Local Authority Program Principles for Program Providers. Each MRLA program provider participating in the MRLA Program will receive a certification review conducted by TDMHMR or its designee at least annually in order to maintain certification status. Figure: 25 TAC sec.409.531(a) (1) TDMHMR personnel will conduct all certification reviews of MRLA program providers operated by the local MRA. (2) TDMHMR or its designee will conduct all certification reviews of non-MRA operated program providers. (b) Certification review corrective actions required from the program provider as determined by prior reviews under the HCS or HCS-O Consumer Principles for Certification and related timelines remain in effect until the first certification review as an MRLA program provider. sec.409.533. Hazards to Health, Safety, and Welfare. A hazard to health, safety, and welfare is any condition that the review team determines may result in imminent death or serious or permanent harm to an individual. A hazard is designated as such in the MRLA review report. If the hazard is corrected during the review visit, the hazard will also be designated as corrected in the report. (1) Immediate Corrective Action. Findings determined to be a hazard to health, safety and welfare must be corrected by the MRLA program provider before the exit conference of the respective review. (2) Sanctions. If the MRLA program provider does not correct the hazard to health, safety, and welfare before the exit conference: (A) the MRLA program provider will be denied certification, and (B) the MRA, with permission of TDMHMR will immediately coordinate the provision of alternative services for individuals enrolled with the MRLA program provider, as appropriate. sec.409.535. Compliance. If any item of noncompliance with the MRLA Program Principles for Program Providers remains uncorrected at the time of the exit conference of the review, the MRLA program provider must complete corrective action within 30 calendar days following the exit conference. TDMHMR or its designee must complete a follow-up review within 15 calendar days following the 30th day. The follow-up review may be either a desk review of documentation or an on-site review at the review team's discretion. sec.409.537. Sanctions. (a) If the MRLA program provider does not correct all remaining items of noncompliance at the time of the exit conference of the first follow-up review, a vendor hold may be implemented and will continue until corrective action is confirmed by TDMHMR. (1) TDMHMR or its designee will complete a second follow-up review between 30 and 60 calendar days from the date the vendor hold was implemented. (2) If the MRLA program provider corrects all items of noncompliance by the completion of the second follow-up review, the vendor hold is removed effective the date the review is completed. (b) TDMHMR denies certification and initiates contract cancellation if the MRLA program provider does not correct all items of noncompliance by the completion of the second follow-up review. sec.409.539. Unannounced or Intermittent Review Visits. (a) TDMHMR or its designee may conduct unannounced or intermittent review visits at any time, with or without prior notice to the MRLA program provider. (b) Items of noncompliance noted in unannounced or intermittent review visits may result in actions described in sec.sec.409.533, 409.535, and 409.537 of this title (relating to Hazards to Health, Safety, and Welfare; Compliance; and Sanctions). This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 18, 1998. TRD-9808079 Ann Utley Chairman, Texas MHMR Board Texas Department of Mental Health and Mental Retardation Effective date: June 7, 1998 Proposal publication date: February 13, 1998 For further information, please call: (512) 206-4516 CHAPTER 417. Agency and Facility Responsibilities SUBCHAPTER K. Abuse, Neglect, and Exploitation in TDMHMR Facilities 25 TAC sec.sec.417.501-417.518 The Texas Department of Mental Health and Mental Retardation (TDMHMR) adopts new sec.sec.417.501-417.518, of new Chapter 417, Subchapter K, concerning abuse, neglect, and exploitation in TDMHMR facilities. Sections 417.502-417.504, 417.507-417.514, 417.516, and 417.517 are adopted with changes to the proposed text as published in the March 13, 1998, issue of the Texas Register (23 TexReg 2701). Sections 417.501, 417.505, 417.506, 417.515, and 417.518 are adopted without changes. The repeal of Chapter 404, Subchapter A, concerning abuse, neglect, and exploitation in TDMHMR facilities, is contemporaneously adopted in this issue of the Texas Register. The subchapter defines abuse, neglect, and exploitation, and describes the procedures for reporting allegations; ensuring the safety and protection of persons served involved in allegations; facilitating proper investigations/peer reviews; notifying appropriate licensing authorities and other individuals of issues relating to an allegation; contesting the finding of an investigation; ensuring proper disciplinary action is taken; collecting data regarding allegations; and training staff in identifying, reporting, and preventing abuse, neglect, and exploitation. Minor clarifying language is added throughout the subchapter. The definition of "contractor" is modified to more accurately define the term as one that provides mental health, mental retardation, and educational services. Language regarding what is not a facility is deleted from the definition of "facility" and moved to sec.417.502. A definition of "guardian" is added. Language is added to the definition of "head of the facility" which directs the designee to assume the responsibilities of the head of the facility if the head of the facility is the alleged perpetrator. The definition of "mental health services provider" is removed from sec.417.503 and included as a new exhibit. Language is added to the definition of "serious physical injury" to include "any laceration requiring sutures." Language stating that the inappropriate use of restraints and seclusion, including PMAB, is considered abuse is deleted from sec.417.504(d)(3) as unnecessary because (d)(1) states that the proper use of restraints and seclusion, including PMAB, is not considered abuse. The direct telephone number for the Consumer Protection Division at the Office of the Attorney General replaces the main telephone number in sec.417.507(a)(1)(B). In sec.417.508(b), the requirement to take the measures listed in (1)-(5) within one hour is deleted, and a time frame is added to each measure, as appropriate, which is specific to that measure. In sec.417.508(b)(3), the term "psychological counseling" is replaced with "psychological attention" to clarify that the psychological services need not be provided by a certified psychologist. Language is added to sec.417.508(b)(5) clarifying the legal status of a person served for which notification would be appropriate. Language in sec.417.508(d) is modified to reference the statutory requirement of reporting of sexual exploitation by a mental health services provider. The statutory language is added as a new exhibit. Language is added to sec.417.509(a) clarifying that allegations involving both clinical practice and non-clinical issues are referred to peer review and an APS investigation. Language is also added that offers two options when a determination regarding whether an allegation involves clinical practice cannot be made. The time frame of 14 calendar days for requesting a review in sec.417.510(f) and (g) is changed to 30 calendar days because information that would prompt the head of the facility to request a review could be revealed during a Thurston rebuttal proceeding, which has a time frame of 30 calendar days. Language in sec.417.510(k) and (l) is modified to clarify that only the alleged victim or guardian have the right to appeal the final finding and receive a copy of the investigative report. Language is added to sec.417.511(b) allowing the head of the facility to charge a reasonable fee to provide the alleged victim or guardian with a copy of the investigative report. Language is modified in sec.417.513 to state that the head of the facility is responsible for requiring contractors to comply with the subchapter, rather than ensuring that contractors comply with the subchapter. Language is added to sec.417.513 requiring the head of the facility to provide each contractor with a copy of TDPRS's companion rules. Language is also added to sec.417.514(c) describing the effects of federal ICR/MR regulations on former employees with confirmed abuse, neglect, or exploitation regarding reemployment at TDMHMR-operated or -contracted ICF/MR facilities. A new exhibit is added to sec.417.516 and the references in sec.417.517 are updated to reflect the changes made to the proposed sections. Written public comment was received from the Texas Department of Protective and Regulatory Services (TDPRS), Austin; the Parent Association for the Retarded of Texas, Inc. (PART), Austin; the parent of a state school resident, Garland; and a mental health consumer advocate, Houston. Regarding sec.417.510(a)(8), one commenter suggested deleting the requirement to have photographs taken within 24 hours after the report of the allegation because TDPRS's recently adopted priority system allows for priority II and II investigations to begin within two and five calendar days, respectively, after the report of an allegation. The department responds by deleting the language as suggested. Two commenters requested a definition for "guardian" or "legally authorized representative." The department responds by adding a definition of "guardian." The two commenters objected to physicians and nurses being listed in the definition of "mental health services provider." The commenters stated that physicians and nurses are providers of health care services and suggested adding them under a separate definition. The department responds that the definition of "mental health services provider" is statutory (Texas Civil Practice and Remedies Code, sec.81.001). The department notes that the definition has been removed from the text of the rule and included in a new exhibit which exclusively addresses the mandate of Chapter 81 of the Texas Civil Practice and Remedies Code. Regarding the term "person served," the two commenters requested changing the term to "individual served." The department responds that, without a compelling reason, it declines to change the term. Regarding the term "serious physical injury," the commenters suggested adding stitches. The department responds by adding language to address the commenters' concerns. Regarding the term "review authority," one of the commenters stated that the committee should never have just one individual. The commenter also stated that at least one member should be a legally authorized representative and asked what qualifications are needed to be a member. The department responds by noting that the appointment of a review authority is optional. Each facility head determines if the facility will have a review authority; who will be a member; what qualifications are required, if any; and which cases the review authority will review. The review authority assists the head of the facility in identifying all pertinent and relevant information involving specific allegations. Regarding sec.417.504(b)(4), the same commenters requested that the term "child" be changed to "individual." The commenters explained that although some individuals with mental retardation are considered adults because of their age in years, they may function at the level of an infant, and therefore require the same protections as a child. The department responds that the definition of "neglect of a child" parallels the statutory definition in the Texas Family Code, sec.261.001(4), and applies to persons between the ages of 0 and 17 years. The definition of "neglect" in sec.417.504(b)(3) provides adequate and appropriate protection for adults with mental retardation including those described by the commenters. Regarding sec.417.506(a), the commenters requested additional language acknowledging that a legally incapacitated person cannot consent to sexual activity. The department responds that the term non-consensual (used in the text) is the opposite of consensual, which means the knowing agreement or approval without coercion. While expressed disagreement or non-approval is most assuredly non-consensual, the absence of agreement or approval can never be interpreted as consensual. If a person served is unable to provide knowing consent, then any sexual activity with another person is non-consensual. Regarding sec.417.508(b)(2)(B), the two commenters asked that before the alleged perpetrator is allowed to remain in his/her current position pending investigation that the head of the facility give serious consideration to the consequences of such action. The department responds that such action is indeed given serious consideration. The department notes that allowing an employee to remain in his/her current position does not necessarily mean the alleged perpetrator and alleged victim are not separated, i.e., it may mean that the employee is performing the same job duties in another area of the facility or while on a different shift. Further, allowing the employee to remain in his/her current position while on the same shift and at the same location may be appropriate if the allegation is obviously spurious or patently without factual basis--one that defies logic or is delusional in origin. Regarding sec.417.508(b)(5), one of the commenters stated that the 24-hour time frame for notifying the guardian of an allegation is too long and requested that it be changed to one hour. The department responds that the subsection states, "Immediately, but in no case later than 24 hours..."; therefore, the notification requirement is immediate. The 24-hour time frame is the maximum and allows for situations in which the guardian is not immediately available. Regarding sec.417.508(d), the same commenters objected to the 30-day time frame for reporting allegations of sexual exploitation by a mental health services provider to the prosecuting attorney. The commenter stated that the time frame should be five to ten days. The department responds that the 30-day time frame is stated in the Texas Civil Practice and Remedies Code, sec.81.006. The department notes that the reporting of allegations of sexual exploitation by a mental health services provider to the prosecuting attorney is in addition to the reporting of allegations of abuse, neglect, and exploitation to the Texas Department of Protective and Regulatory Services (TDPRS). The department also notes that the language has been removed from the text of the rule and included in a new exhibit which exclusively addresses the mandate of Chapter 81 of the Texas Civil Practice and Remedies Code. Regarding sec.417.510(b), one of the commenters asked how membership on a review authority is determined. The department responds that each facility head determines whether the facility will have a review authority and if so, who the members will be. Regarding sec.417.511(c), the same commenters asked if Advocacy, Inc. could have access to the records of a person served over the objections of the person's legally authorized representative. The department responds that it releases client-identifying information in accordance with its rules governing client- identifying information, 25 TAC Chapter 403, Subchapter K. The subchapter states that only the adult client or the adult client's legally authorized representative is authorized to consent to the disclose of client-identifying information. The federal statutes allowing Advocacy, Inc. access to the records of persons who have legally authorized representatives have very specific requirements to be met in order for the lawful release of records over the objection of the legally authorized representative. Since the federal statutes affect the disclosure of client-identifying information in a limited manner, it will be included in the department's rules governing client-identifying information, which are currently proposed for public comment as 25 TAC Chapter 414, Subchapter A. Regarding sec.417.512(g), the commenters asked if Advocacy, Inc. would be notified over the objections of the legally authorized representative. The department responds that Advocacy, Inc. represents individuals or their legally authorized representatives who have consented to its representation. Since the language states, "If Advocacy, Inc. informs TDMHMR that it represents the victim ...." then the legally authorized representative would have agreed to Advocacy, Inc.'s representation and therefore, would not object to Advocacy, Inc.'s notification. One commenter asked "Why are comments needed on a done deal that only deals with the past and not the abuse of today?" The commenter stated that he was abused and neglected in a community respite program. The commenter also stated his impression that the department does not welcome input from mental health consumers, meaning consumers will continued to be abused with no recourse. The department responds that the subchapter addresses abuse of today as well as past abuse. The subchapter does not, however, address abuse, neglect, or exploitation in community programs. (Rules governing abuse, neglect, and exploitation in community programs are scheduled to be proposed in June.) The department welcomes input on its rules from all interested parties, especially persons receiving its services. The sections are adopted under the Texas Health and Safety Code, Title 7, sec.532.015, which provides the Texas Mental Health and Mental Retardation Board with rulemaking powers; sec.161.132, which requires the board to adopt rules that prescribe procedures for the investigation and referral of reports of abuse and neglect or illegal, unprofessional, or unethical conduct toward a person served in a health care facility; Texas Human Resources Code, Chapter 48, which requires the reporting and investigations of abuse, neglect, and exploitation of elderly and disabled persons; Texas Family Code, Chapter 261, which requires the reporting and investigations of abuse or neglect of a child; and Civil Practice and Remedies Code, sec.81.006, which requires the reporting of alleged sexual exploitation by a mental health services provider to the county prosecuting attorney. sec.417.502. Application. (a) This subchapter applies to all facilities (which include SOCS) of the Texas Department of Mental Health and Mental Retardation and their agents. (b) All facilities are responsible for amending their contracts to ensure contractors' compliance as specified in this subchapter. (c) This subchapter does not apply to: (1) psychiatric hospitals licensed by the Texas Department of Health (TDH) under Chapter 577 of the Texas Health and Safety Code; or (2) state-funded community hospitals, which are inpatient mental health facilities licensed by the Texas Department of Health under the Texas Health and Safety Code, Chapter 242, or operated by a university health system and exempted from licensure, that provides TDMHMR-funded inpatient mental health services pursuant to a contract between TDMHMR and a local authority. sec.417.503. Definitions. The following words and terms, when used in this subchapter, have the following meanings, unless the context clearly indicates otherwise: (1) Adult Protective Services (APS) investigator - An employee of the Texas Department of Protective and Regulatory Services (TDPRS) with expertise and demonstrated competence in conducting investigations. (2) Agent - Any individual not employed by the facility but working under the auspices of the facility, (e.g., a volunteer, a student). (3) Allegation - A report by a person suspecting or having knowledge that a person served has been or is in a state of abuse, neglect, or exploitation as defined in this subchapter. (4) Child - A person under 18 years of age who is not and has not been married or who has not had the disabilities of minority removed for general purposes. (5) Clinical practice - Relates to issues of potentially or allegedly unsafe nursing, dental, or medical practice or violations of the Nursing Practice Act, Vocational Nurse Act, Dental Practice Act, or Medical Practice Act. These include acts or omissions of the physician, dentist, or nurse which result from a lack of competence in his/her profession, impaired status, or failure to provide adequate medical, nursing, or dental care to a person served. (6) Confirmed - Term used to describe an allegation which is determined to be supported by the preponderance of evidence. (7) Contractor - Any organization, entity, or individual who contracts with a facility to provide mental health and mental retardation services. The term includes a local independent school district with which a facility has a memorandum of understanding (MOU) for educational services. (8) Department - The Texas Department of Mental Health and Mental Retardation (TDMHMR). (9) Designee - A staff member immediately available who is temporarily or permanently appointed to assume designated responsibilities of the head of the facility. (10) Facility - A state hospital, state school, state center, or state-operated community services (SOCS). (11) Guardian - An individual appointed and qualified as a guardian of the person under the Probate Code, Chapter 13. (12) Head of the facility - The superintendent or executive director of a facility, or designee. (If the superintendent or executive director is the alleged perpetrator, then the designee assumes all responsibilities of the head of the facility described in this subchapter.) (13) Incitement - To spur to action or instigate into activity; implies responsibility for initiating another's actions. (14) Inconclusive - Term used to describe an allegation leading to no conclusion or definite result due to lack of witnesses or other relevant evidence. (15) Non-serious physical injury - Any injury determined not to be serious by the examining physician. Examples of non-serious injury may include the following: superficial laceration, contusion, abrasion. (16) Office of Consumer Services and Rights Protection - The office located at the Texas Department of Mental Health and Mental Retardation's Central Office. (17) Peer review - A review of clinical and/or medical practice(s) by peer physicians; a review of clinical and/or dental practice(s) by peer dentists; or a review of clinical and/or nursing practice(s) by peer nurses. (18) Perpetrator - A person who has committed an act of abuse, neglect, or exploitation. (19) Perpetrator unknown - Term used to describe instances in which abuse, neglect, or exploitation is evident but positive identification of the responsible person(s) cannot be made, and in which self-injury has been eliminated as the cause. (20) Person served - Any person receiving services from a facility or contractor, including those persons who are physically away from the facility/contractor but who are still carried on the rolls of the facility/contractor. (21) Preponderance of evidence - The greater weight of evidence, or evidence which is more credible and convincing to the mind. (22) PMAB or Prevention and Management of Aggressive Behavior - The department's proprietary risk management program which uses the least intrusive, most effective options to reduce the risk of injury for persons served and for staff from acts or potential acts of aggression. (23) Reporter - The person filing a report of alleged abuse, neglect, or exploitation. (24) Retaliatory action - Any action intended to inflict emotional or physical harm or inconvenience on a person that is taken because the person has reported abuse, neglect, or exploitation. This includes, but is not limited to, harassment, disciplinary measures, discrimination, reprimand, threat, and criticism. (25) Review authority - An individual or panel of individuals who, at the discretion and request of the head of the facility, reviews selected cases of abuse, neglect, or exploitation, including those that are confirmed, unconfirmed, unfounded, or inconclusive. The review authority may include a member of the facility's public responsibility committee. (26) Serious physical injury - An injury determined to be serious by the examining physician. Examples of serious injury may include the following: fracture; dislocation of any joint; internal injury; any contusion larger than two and one half inches in diameter; concussion; second or third degree burn; any laceration requiring sutures. (27) Sexual abuse - Any sexual activity involving an employee, agent, or contractor and a person served. Sexual activity includes, but is not limited to: (A) kissing with sexual intent; (B) hugging with sexual intent; (C) stroking with sexual intent; (D) fondling with sexual intent; (E) oral sex or sexual intercourse; (F) request or suggestion or encouragement for the performance of sex; (G) sexual exploitation as defined in this section; and (H) sexual assault as defined in sec.22.011 of the Texas Penal Code (referenced as Exhibit A in sec.417.516 of this title (relating to Exhibits)). (28) Sexual exploitation - A coercive or manipulative pattern, practice, or scheme of conduct, which may include sexual contact, that can reasonably be construed as being for the purposes of sexual arousal or gratification or sexual abuse of any person. The term does not include obtaining information about a patient's sexual history within standard accepted clinical practice. (29) Sexually transmitted disease - Any infection, with or without symptoms or clinical manifestations, that is or may be transmitted from one person to another as a result of sexual contact between persons. (30) TDPRS - The Texas Department of Protective and Regulatory Services. (31) Unconfirmed - Term used to describe an allegation in which a preponderance of evidence exists to prove that abuse, neglect, or exploitation did not occur. (32) Unfounded - Term used to describe an allegation that is spurious or patently without factual basis. sec.417.504. Prohibition and Definitions of Abuse, Neglect, and Exploitation. (a) Abuse, neglect, and exploitation of any person served is prohibited. (b) For the purposes of this subchapter, the terms "abuse," "neglect," and "exploitation" are defined as follows when the alleged perpetrator is an employee, agent, contractor, or is unknown. (1) Abuse includes: (A) any act or failure to act performed knowingly, recklessly, or intentionally, including incitement to act, which caused or may have caused physical injury or death to a person served; (B) any act of inappropriate or excessive force or corporal punishment, regardless of whether the act results in an injury to a person served; (C) any use of chemical or bodily restraints not in compliance with federal and state laws and regulations; (D) sexual abuse as defined in sec.417.503 of this title (relating to Definitions); or (E) any act or use of verbal or other communication (including gestures) to: (i) curse, vilify, or degrade a person served; or (ii) threaten a person served with physical or emotional harm. (2) Abuse of a child includes the following acts or omissions: (A) mental or emotional injury to a child that results in an observable and material impairment in the child's growth, development, or psychological functioning; (B) causing or permitting the child to be in a situation in which the child sustains a mental or emotional injury that results in an observable and material impairment in the child's growth, development, or psychological functioning; (C) physical injury that results in substantial harm to the child, or the genuine threat of substantial harm from physical injury to the child, including an injury that is at variance with the history or explanation given and excluding an accident or reasonable discipline by a parent, guardian, or managing or possessory conservator that does not expose the child to a substantial risk of harm; (D) failure to make a reasonable effort to prevent an action by another person that results in physical injury that results in substantial harm to the child; (E) sexual contact harmful to a child's mental, emotional, or physical welfare; (F) failure to make a reasonable effort to prevent sexual contact harmful to a child; (G) compelling or encouraging the child to engage in sexual conduct as defined by Section 43.01, Penal Code; (H) causing, permitting, encouraging, engaging in, or allowing the photographing, filming, or depicting of the child if the person knew or should have known that the resulting photograph, film, or depiction of the child is obscene as defined by Section 43.21, Penal Code, or pornographic; (I) the current use by a person of a controlled substance as defined by Chapter 481, Texas Health and Safety Code, in a manner or to the extent that the use results in physical, mental, or emotional injury to a child; or (J) causing, expressly permitting, or encouraging a child to use a controlled substance as defined by Chapter 481, Texas Health and Safety Code. (3) Neglect means a negligent act or omission by any person responsible for providing services, which caused or may have caused physical or emotional injury or death to a person served, or which placed a person served at risk of physical or emotional injury or death. Neglect includes, but is not limited to: (A) the failure to establish or carry out an appropriate individual program plan or treatment plan for a specific person served; (B) the failure to provide adequate nutrition, clothing, or health care to a specific person served; or (C) the failure to provide a safe environment for a specific person served, including the failure to maintain adequate numbers of appropriately trained staff. (4) Neglect of a child includes the following acts or omissions: (A) placing the child in or failing to remove the child from a situation that a reasonable person would realize requires judgment or actions beyond the child's level of maturity, physical condition, or mental abilities and that results in bodily injury or a substantial risk of immediate harm to the child; (B) the failure to seek, obtain, or follow through with medical care for the child, with the failure resulting in or presenting a substantial risk of death, disfigurement, or bodily injury or with the failure resulting in an observable and material impairment to the growth, development, or functioning of the child; (C) the failure to provide the child with food, clothing, or shelter necessary to sustain the life or health of the child, excluding failure caused primarily by financial inability unless relief services had been offered and refused; (D) placing a child in or failing to remove the child from a situation in which the child would be exposed to a substantial risk of sexual conduct harmful to the child; or (E) the failure by the person responsible for a child's care, custody, or welfare to permit the child to return to the child's home without arranging for the necessary care for the child after the child has been absent from the home for any reason, including having been in residential placement or having run away. (5) Exploitation means the illegal or improper act or process of using a person served or the resources of a person served for monetary or personal benefit, profit, or gain. (c) In this subchapter, the terms "abuse" and "neglect" incorporate "abuse of a child" and "neglect of a child." (d) Abuse, neglect, or exploitation does not include: (1) the proper use of restraints and seclusion, including PMAB, and the approved application of behavior modification techniques as described in: (A) Chapter 405, Subchapter F of this title (relating to Voluntary and Involuntary Behavioral Interventions in Mental Health Programs); (B) Chapter 404, Subchapter E of this title (relating to Rights of Persons Receiving Mental Health Services); and (C) Chapter 405, Subchapter H of this title (relating to Behavior Management - Facilities Serving Persons With Mental Retardation); (2) other actions taken in accordance with the rules of the department; (3) such actions as an employee/agent/contractor may reasonably believe to be immediately necessary to avoid imminent harm to self, persons served, or other individuals if such actions are limited only to those actions reasonably believed to be necessary under the existing circumstances. Such actions do not include acts of unnecessary force; or (4) general complaints (e.g. regarding rights violations, theft of property, the daily administrative operations of a facility, the failure to carry out individual program/treatment plans, or the failure to maintain adequate numbers of appropriately trained staff) that do not relate to a specific incident or allegation involving a specific person served. (Within 24 hours of receipt of such a complaint, the APS investigator refers the complaint to the head of the facility using the Adult Protective Services Referral Form, referenced as Exhibit B in sec.417.516 of this title (relating to Exhibits), who ensures the complaint is investigated administratively by the head of the facility, the facility rights officer, or other appropriate parties.) sec.417.507. Prohibition Against Retaliatory Action. (a) Retaliatory action. Any employee/agent or any individual affiliated with an employee/agent is prohibited from engaging in retaliatory action against an employee/agent or person served who in good faith reports an allegation. (1) Any person who believes he or she is being subjected to retaliatory action upon reporting an allegation, or who believes an allegation has been ignored without cause, should immediately contact the head of the facility. The person may also contact: (A) the Office of Consumer Services and Rights Protection at the dedicated toll- free number for state hospital, state schools, state centers, and state-operated community services at 1-800-252-8154; or (B) the Office of the Attorney General at (512) 463-2185 (Consumer Protection Division) which, under the Whistleblower Act, Texas Civil Statutes, Article 6252-16a, may prosecute a supervisor who suspends or terminates a public employee for reporting a violation of law to law enforcement authorities. (2) Retaliatory action against a person served which might be considered abuse, neglect, or exploitation is reported to TDPRS in accordance with this subchapter. (b) Disciplinary action. Any employee/agent found to have engaged in retaliatory action is subject to disciplinary action. sec.417.508. Responsibilities of the Head of the Facility. (a) All allegations are investigated in accordance with 40 TAC Chapter 710, Subchapter A (concerning Abuse, Neglect, and Exploitation of Persons Served by TDMHMR Facilities). Upon receiving a report of an allegation the APS investigator immediately notifies the head of the facility of the allegation and whether or not the allegation will be reported to a law enforcement agency. (b) Immediately upon notification of an allegation the head of the facility takes measures to ensure the safety of the alleged victim(s), including the following actions: (1) As necessary, the head of the facility ensures immediate and on-going medical attention is provided to the alleged victim and any other person served involved in the incident (e.g., treatment for injuries, physician's exam, screening and treatment for sexually transmitted diseases). The physician's exam and treatment of abuse/neglect-related injuries is documented on the Client Injury/Incident Report form (referenced as Exhibit D in sec.417.516 of this title (relating to Exhibits)), with a copy submitted to the APS investigator. The physician's documentation during or following the examination should address the injury's cause, age, and treatment, to the extent that the information can be determined, as well as the timing of the medical exam with regard to the date the injury was received. All issues relating to clinical practice are referred to the medical/clinical director for consultation. (2) The head of the facility ensures the protection of the alleged victim in keeping with "Guidelines for Separation of Alleged Victim and Alleged Perpetrator During Abuse/Neglect Investigations" (referenced as Exhibit E in sec.417.516 of this title, which may include, but is not limited to, the following actions: (A) reassignment of the employee/agent to a non-direct care area; (B) allowing the employee/agent to remain in his or her current position pending investigation; (C) granting the employee emergency leave; or (D) suspending the agent pending investigation. (3) As necessary, the head of the facility ensures psychological attention is provided to the alleged victim and any other person served who may have witnessed or been affected by the incident. The psychological attention shall be provided in a timely manner while preserving the integrity of the investigation. (4) If the alleged perpetrator is known but is not an employee/agent (e.g., family member, friend, guest), the head of the facility imposes a restriction on the alleged perpetrator's access to the alleged victim pending investigation. The restriction should be documented in the record of the alleged victim. (5) Immediately, but in no case later than 24 hours after notification of an allegation, the head of the facility notifies the following individuals of the allegation: (A) the alleged victim (if appropriate); (B) the guardian; and (C) in cases in which the alleged victim is an adult who is unable to give consent to the disclosure of client-identifying information and who does not have a guardian, any other person designated as the alleged victim's correspondent who receives all other information about the alleged victim (e.g., spouse, parent). (c) The head of the facility designates a contact staff person to coordinate with the APS investigator to ensure private interview space, private telephones, and employees/agents are available to the APS investigator. The head of the facility shall require employees/agents to cooperate with APS investigators so that the investigators are afforded immediate access to all records and evidence and provided keys as are necessary to conduct an investigation in a timely manner. The head of the facility shall assist in whatever way possible to make employees/agents who are relevant to the investigation available in an expeditious manner. Employees/agents who fail to cooperate with an investigation are subject to disciplinary action. (d) Reports regarding alleged sexual exploitation committed by a mental health services provider are made by the head of the facility to the prosecuting attorney in the county in which the alleged sexual exploitation occurred and any state licensing board that has responsibility for the mental health services provider's licensing in accordance with the Texas Civil Practice and Remedies Code, sec.81.006. A copy of the Texas Civil Practice and Remedies Code, sec.81.001 and sec.81.006 is referenced as Exhibit I in sec.517.516 of this title (relating to Exhibits). sec.417.509. Peer Review. (a) If the allegation involves the actions of a physician, dentist, registered nurse, or licensed vocational nurse, then a determination of whether the allegation involves the clinical practice, as defined in sec.417.503 of this title (relating to Definitions), of the physician, dentist, registered nurse, or licensed vocational nurse is made by the head of the facility, the APS investigator, and the facility medical\dental\nursing director, as appropriate to the discipline involved. (1) If the allegation does not involve clinical practice the APS investigator pursues an investigation. (2) If the allegation does involve clinical practice the APS investigator refers the allegation to the head of the facility, who immediately refers the allegation to the facility medical\dental\nursing director, as appropriate to the discipline involved, for review for possible peer review as follows: (A) for allegations involving physicians and dentists, Investigative Medical Peer Review Operating Instruction 408-2; and (B) for allegations involving registered nurses and licensed vocational nurses, Investigative Nursing Peer Review Operating Instruction 408-1. (3) If the allegation involves clinical practice and non-clinical issues, then the allegation is referred to peer review in accordance with paragraph (2) of this subsection and is investigated by the APS investigator. (4) If a determination of whether the allegation involves clinical practice cannot be made, then: (A) the allegation is referred to peer review in accordance with paragraph (2) of this subsection and is investigated by the APS investigator; or (B) the regional APS program administrator and the head of the facility jointly agree to use a previously mutually agreed-upon physician/dental/nursing consultant, as appropriate to the discipline involved, to make the final determination within 24 hours. The facility is responsible for the costs of the consultant's services. (b) If the allegation involves the facility medical\dental\nursing director, the head of the facility refers the allegation to the TDMHMR medical\dental\nursing director, as appropriate to the discipline involved, for review for possible peer review in accordance with subsection (a)(2)(A) or (B) of this section. (c) All allegations involving physicians, nurses (RN or LVN), and dentists, regardless of type or clinical/non-clinical practice, are reported by the head of the facility to the TDMHMR medical\nursing\dental director, as appropriate to the discipline, within five working days of the allegation. The report may be brief, but will include; (1) the date of the alleged incident; (2) name of the alleged victim and alleged perpetrator; (3) a brief description of the incident; and (4) a brief description of the investigation planned. (d) The TDMHMR medical\dental\nursing director, as appropriate to the discipline involved, ensures that reports of allegations of abuse and neglect are made, if required by law, to the licensing authority for the discipline under review, i.e., the Board of Medical Examiners for physicians, the Board of Dental Examiners for dentists, the Board of Nurse Examiners for registered nurses, or the Board of Licensed Vocational Nurses for licensed vocational nurses. (e) When an allegation is determined to involve the clinical practice of a physician, nurse (RN or LVN), or dentist, then the head of the facility ensures that the alleged victim and/or guardian or parent (if the alleged victim is a child) are informed that the allegation has been referred for peer review. sec.417.510. Completion of the Investigation. (a) Upon completion of the investigation in accordance with 40 TAC Chapter 710, Subchapter A (concerning Abuse, Neglect, and Exploitation of Persons Served by TDMHMR Facilities), the APS investigator submits to the head of the facility a copy of the complete investigative report, with any information that would reveal the identity of the reporter concealed, including: (1) a statement of the allegation; (2) a summary of the investigation; (3) an analysis of the evidence, including factual information related to what occurred, how the evidence was weighed, and what testimony was considered credible; (4) the investigator's finding that the allegation is confirmed, unconfirmed, inconclusive, or unfounded; (5) a recommendation of how the allegation should be classified in accordance with the classification system outlined in sec.417.512(a) of this title (relating to Classifications and Disciplinary Actions); (6) the name of the (alleged) perpetrator, if known; (7) the physician's exam and treatment of abuse/neglect-related injuries documented on the department's client injury/incident report; (8) photographs relevant to the investigation, including photographs depicting the existence of injuries or the non-existence of injuries, when appropriate; (9) all witness statements and supporting documents; (10) any recommendations resulting from the investigation; and (11) a signed and dated Client Abuse and Neglect Report (AN-1-A) form, referenced as Exhibit G in sec.417.516 of this title (relating to Exhibits), reflecting the information contained in paragraphs (4)-(6) of this subsection. (b) Upon receiving the written investigative report from the APS investigator, the head of the facility may submit the report and concerns articulated by the APS investigator to a review authority for review. (1) The review authority may interview witnesses in the course of its review. (2) If the review authority is reviewing a case determined by the APS investigator to be unfounded, it may consult with the APS investigator if appropriate. If the review authority determines that there is good cause to reopen the investigation (e.g., new evidence or information that was not previously available during the investigation), the head of the facility may contact the local APS supervisor to request that the case be re-opened. (3) The review authority submits a report of its review to the head of the facility. (c) The head of the facility: (1) reviews the APS investigator's report; (2) reviews the review authority's report, if applicable; and (3) interviews witnesses, if necessary. (d) The rights of employees who appear before the review authority or the head of the facility are outlined in "Procedures in Facility Abuse, Neglect, and Exploitation Investigations and Thurston Rebuttal Proceedings," referenced as Exhibit H in sec.417.516 of this title (relating to Exhibits). (e) A confirmed finding can not be changed by the head of the facility. However, if the head of the facility disagrees with the APS investigator's unconfirmed, inconclusive, or unfounded finding, the head of the facility may elect to confirm the finding. If the head of the facility elects to confirm the finding, then the finding can not be appealed. (f) If the head of the facility believes that the methodology used in conducting the investigation was flawed (e.g., failure to collect or consider evidence, such as witnesses' statement, progress notes, test results), the head of the facility may request a review by submitting a completed Request by Head of Facility/SOCS/Center for Review of Finding form to the regional APS program administrator. (The Request by Head of Facility/SOCS/Center for Review of Finding form is referenced as Exhibit F in sec.417.516 of this title.) The request for review must be filed within 30 calendar days after receiving the investigative report. (1) The regional APS program administrator reviews the case within 14 calendar days of receipt. (2) The regional APS program administrator notifies the head of the facility in writing of the results of the review. (3) If methodological concerns cannot be resolved at the regional level, the head of the facility sends the request to the APS Director, TDPRS, P.O. Box 149030, E-561, Austin, TX 78714-9030, along with a copy of the written investigative report and the regional APS program administrator's review, for review by APS. (4) A review is completed by APS within 14 calendar days of receipt. (5) APS notifies the head of the facility in writing of the results of the review. (g) If the head the facility disagrees with: (1) the APS investigator's finding, the head of the facility may contest the finding by submitting a copy of the written investigative report and a completed Request by Head of Facility/SOCS/Center for Review of Finding form to the APS Director, TDPRS, P.O. Box 149030, E-561, Austin, TX 78714-9030. (The Request by Head of Facility/SOCS/Center for Review of Finding form is referenced as Exhibit F in sec.417.516 of this title.) When filing the request for review, the head of the facility will include a copy of the report by the review authority, if applicable and relevant. The request for review must be filed within 30 calendar days after receiving the investigative report. (A) A review is completed by APS within 14 calendar days of receipt. (B) APS notifies the head of the facility in writing of the results of the review. (2) the APS review as described in paragraph (1)(A) of this subsection, the head of the facility may contest the review by apprising the TDMHMR director of mental health facilities/mental retardation facilities /state-operated community MHMR services, as appropriate. If the TDMHMR director also disagrees with the APS review, the TDMHMR director may request a decision by the TDMHMR commissioner and the TDPRS executive director. The decision of the TDMHMR commissioner and the TDPRS executive director can not be contested. (h) The final finding is the last uncontested finding, which may be: (1) the APS investigator's finding in accordance with subsection (a)(4) of this section; (2) the head of the facility's confirmed finding in accordance with subsection (e) of this section; (3) the APS finding in accordance with subsection (g)(1) of this section; or (4) the TDMHMR commissioner and the TDPRS executive director's decision in accordance with subsection (g)(2) of this section. (i) Within 30 calendar days of receipt of the investigative report or the final finding, the head of the facility is responsible for completing the Client Abuse and Neglect Report (AN-1-A) form, referenced as Exhibit G in sec.417.516 of this title, and ensuring the information is entered into the Client Abuse and Neglect Reporting System (CANRS). (j) The APS investigator promptly notifies the reporter in writing of the final finding and the method of appealing the final finding if the final finding was not made by the head of the facility as provided by subsection (e) of this section. (k) The head of the facility ensures that the (alleged) victim or guardian is promptly notified of: (1) the final finding and if any previous findings were contested; (2) the method of appealing the final finding as described in 40 TAC sec.710.11 (concerning Request for Appeal; Filing a Complaint), if the final finding was not made by the head of the facility as provided by subsection (e) of this section; and (3) the right to receive a copy of the investigative report in accordance with sec.417.511(b) of this title (relating to Confidentiality of Investigative Process and Report) upon request. (l) The head of the facility ensures that any other person who was previously notified of the allegation (as provided for in sec.417.508(b)(5)(C) of this title (relating to Responsibilities of the Head of the Facility)) is promptly notified of the final finding. (m) The head of the facility informs the alleged perpetrator of the final finding. (n) The head of the facility shall establish a mechanism for evaluating any recommendations concerning problematic patterns or trends identified during the investigation by the APS investigator and the review authority, if applicable. sec.417.511. Confidentiality of Investigative Process and Report. (a) The reports, records, and working papers used by or developed in the investigative process and the resulting written investigative report regarding allegations are confidential and may be disclosed only as provided under law. Information discussed during deliberations of abuse, neglect, and exploitation investigations may not be discussed outside the purview of those deliberations with the exception of the concerns and recommendations which are to be addressed by the appropriate person(s) or as allowed in sec.417.510 of this title (relating to Completion of the Investigation) and sec.417.512 of this title (relating to Classifications and Disciplinary Actions), or as otherwise required by law. (b) Upon request, the head of the facility will provide a copy of the investigative report to the (alleged) victim or guardian with the identities of other persons served and any information determined confidential by law concealed. The head of the facility may charge a reasonable fee for providing a copy of the investigative report. (c) Advocacy, Inc. is entitled to access the records of the (alleged) victim in accordance with 42 USC sec.10806 or sec.6042(a)(2)(I) (Protection and Advocacy of Individuals with Mental Illness and Protection and Advocacy of Individuals with Developmental Disabilities). sec.417.512. Classifications and Disciplinary Actions. (a) Following an investigation, the APS investigator recommends a classification for all allegations according to the following system: (1) Class I abuse means: (A) any act or failure to act performed knowingly, recklessly, or intentionally, including incitement to act, which caused or may have caused serious physical injury to a person served; or (B) any sexual abuse, without regard to injury. (2) Class II abuse means: (A) any act or failure to act performed knowingly, recklessly, or intentionally, including incitement to act, which caused or may have caused non-serious physical injury to a person served; (B) any act of inappropriate or excessive force or corporal punishment, including striking or pushing a person served, regardless of whether the act results in non-serious physical injury to a person served; or (C) exploitation. (3) Class III abuse means any act or use of verbal or other communication (including gestures) to: (A) curse, vilify, or degrade a person served; or (B) threaten a person served with physical or emotional harm. (4) Neglect means a negligent act or omission by any person responsible for providing services, which caused or may have caused physical or emotional injury or death to a person served, or which placed a person served at risk of physical or emotional injury or death. (b) Under no circumstances may the head of the facility change a recommended classification to a lower classification (e.g., Class I to Class II). However, the head of the facility may change a recommended classification to a higher classification (e.g., Class II to Class I) in accordance with the evidence and subsection (a) of this section. (c) The head of the facility is responsible for taking prompt and proper disciplinary action when an allegation involving an employee/agent is confirmed. (1) Disciplinary action against an employee is based on criteria including, but not limited to: (A) the seriousness of the abuse, neglect, and/or exploitation; (B) the circumstances surrounding the incident; (C) the employee's work record; and (D) repeat violations and the length of time between violations. (2) When an allegation has been confirmed the head of the facility takes the following disciplinary action. (A) Class I abuse. The employee/agent is dismissed. (B) Class II abuse. (i) The employee is placed on suspension for up to 10 days, demoted, or dismissed. If the employee is exempt under the provisions of the Fair Labor Standards Act (FLSA), the suspension shall be in compliance with relevant provisions of the FLSA and current TDMHMR personnel policies. (ii) The agent is dismissed. (C) Class III abuse or neglect. (i) The employee receives a written reprimand which becomes a part of the employee's personnel file, or the employee is placed on suspension for up to 10 days, demoted, or dismissed. If the employee is exempt under the provisions of the FLSA the suspension shall be in compliance with relevant provisions of the FLSA and current TDMHMR personnel policies. (ii) The agent is dismissed. (d) When disciplinary action is taken against an employee based on confirmed abuse or neglect, the head of a facility notifies the employee in writing of the disciplinary action taken and any right to a grievance hearing the employee may have under the department's internal policies and procedures relating to employee grievances. If the employee files a complaint in response to a written reprimand resulting from confirmed abuse or neglect, or if the employee files a grievance in response to disciplinary action resulting from confirmed abuse or neglect, the head of the facility, upon the employee's written request, provides the employee with a copy of or access to the investigative report. Before receiving or inspecting the report, the employee is required to complete a document acknowledging that the report's content must be kept confidential. Additional documentary evidence, if any, may be accessed by the employee in accordance with procedures outlined in Section 3.116 of the Human Resources Operating Instruction (relating to Employee Grievances). (e) When disciplinary action is taken against an agent as a result of confirmed abuse or neglect, the head of a facility notifies the agent in writing of the disciplinary action taken. (f) The head of the facility ensures the victim or guardian or parent (if the victim is a child) is promptly notified of: (1) the disciplinary action taken against the employee/agent; (2) the employee's right to request a grievance hearing to dispute the disciplinary action if the disciplinary action was not a written reprimand; and (3) an offer to inform the victim or guardian or parent (if the victim is a child) of the occurrence of a grievance hearing if such information is requested. (g) If Advocacy, Inc. informs the head of the facility that it represents the victim of confirmed Class I abuse, the head of the facility will notify Advocacy, Inc. if the dismissed employee requests a grievance hearing. (h) If requested by the head of the facility, the APS investigator who conducted the investigation shall provide consultation and testimony at the grievance hearing. (i) The head of the facility provides the APS director with a copy of hearings officers' decisions of employee grievances that involve TDPRS investigations. sec.417.513. Contractors. The head of the facility is responsible for requiring that all of the facility's contractors comply with this subchapter with the exception of sec.417.512 of this title (relating to Classifications and Disciplinary Actions) and sec.417.514 of this title (relating to TDMHMR Administrative Responsibilities). The head of the facility shall ensure that each contractor is provided a copy of TDPRS's rules governing abuse, neglect, and exploitation of persons served by TDMHMR facilities and state-operated community services, 40 TAC Chapter 710, Subchapter A. Each contract shall describe the procedural responsibilities of the facility and the contractor regarding at least the following: (1) the reporting of allegations of abuse, neglect, and exploitation; (2) the safety and protection of persons served involved in allegations; (3) the facilitation of proper investigations/peer reviews and the preservation of the integrity of investigations/peer reviews; (4) the notification of appropriate licensing authorities and other individuals regarding issues relating to allegations; (5) taking proper disciplinary action or other appropriate action; and (6) staff training in identifying, reporting, and preventing abuse, neglect, and exploitation. sec.417.514. TDMHMR Administrative Responsibilities. (a) Data collection. (1) TDMHMR will use TDPRS Child Abuse and Adult Protective Services System (CAPS) to record the data necessary to report and analyze information, including individual incidents, multiple incidents, group incidents, unfounded allegations, and pending cases when CAPS becomes available to TDMHMR. TDMHMR will use the Client Abuse and Neglect Reporting System (CANRS) to record data until CAPS becomes available. (2) TDMHMR and TDPRS will create a quarterly and annual report, which includes: (A) number of investigations completed by classification sorted by program type; (B) number of confirmed investigations completed by classification sorted by program type; (C) number of completed investigations by disposition; (D) percent of completed investigations by disposition; (E) number of completed investigations involving serious physical injuries sorted by program type; (F) confirmation rate; (G) average number of days to complete the investigations sorted by program type; (H) total number of investigations that required an extension by TDPRS sorted by program type; (I) number of cases reported to law enforcement; (J) number of pending investigations at the end of the report period; and (K) disciplinary actions resulting from confirmed findings. (3) TDPRS will download CAPS information on facility investigations to TDMHMR who will add at least the following information: (A) employee/agent disciplinary actions (added at the facility level); (B) employee grievance dispositions (added by the Office of Consumer Services and Rights Protection); and (C) employee/agent identification (added at the facility level). (b) Coordination of oversight responsibilities. TDMHMR makes available to TDPRS on an ongoing basis a list of: (1) all programs operated by and under contract with facilities; and (2) all private providers funded by Medicaid to provide home and community-based services (HCS) and home and community-based services-OBRA (HCS-O). (c) TDMHMR implements systems to ensure that former employees with confirmed Class I abuse and former employees who were dismissed because of confirmed abuse or neglect and whose dismissal is upheld at a grievance hearing or who fail to request a grievance hearing are not eligible for reemployment at any facility. Former employees with confirmed abuse, neglect, or exploitation regardless of classification are not eligible for reemployment at any TDMHMR-operated or - contracted ICF/MR facility. sec.417.516. Exhibits. The following exhibits referenced in this subchapter are available from the Texas Department of Mental Health and Mental Retardation, Office of Policy Development, P.O. Box 12668, Austin, TX 78711-2668. (1) Exhibit A - "Sexual assault" as defined the Texas Penal Code, sec.22.011; (2) Exhibit B - Adult Protective Services Referral Form; (3) Exhibit C - "Guidelines for Securing Evidence"; (4) Exhibit D - Client Injury/Incident Report form (PORS 5/16R); (5) Exhibit E - "Guidelines for Separation of Alleged Victim and Alleged Perpetrator During Abuse/Neglect Investigations"; (6) Exhibit F - Request by Head of Facility/SOCS/Center for Review of Finding form; (7) Exhibit G - Client Abuse and Neglect Report (AN-1-A) form; (8) Exhibit H - "Procedures in Facility Abuse, Neglect, and Exploitation Investigations and Thurston Rebuttal Proceedings"; and (9) Exhibit I - Texas Civil Practice and Remedies Code, sec.81.001 and sec.81.006. sec.417.517. References. Reference is made to the following statutes and rules and operating instructions of the department: (1) Texas Health and Safety Code, Chapters 242, 481, and 577; (2) Probate Code, Chapter 13; (3) Whistleblower Act, Texas Civil Statutes, Article 6252-16a; (4) Texas Penal Code, sec.sec.22.011, 43.01, and 43.21; (5) Chapter 404, Subchapter E of this title (relating to Rights of Persons Receiving Mental Health Services); (6) Chapter 404, Subchapter G of this title (relating to Unusual Incidents Involving Persons Served by TXMHMR Facilities); (7) Chapter 405, Subchapter F of this title (relating to Voluntary and Involuntary Behavioral Interventions in Mental Health Programs; (8) Chapter 405, Subchapter H of this title (relating to Behavior Management - Facilities Serving Persons With Mental Retardation); (9) 40 TAC Chapter 710, Subchapter A (concerning Abuse, Neglect, and Exploitation of Persons Served by TDMHMR Facilities). (10) TDMHMR Human Resources Operating Instruction, sec.3.116 (relating to Employee Grievances); (11) Investigative Medical Peer Review Operating Instruction, 408 - 2; (12) Investigative Nursing Peer Review Operating Instruction, 408 - 1; (13) Texas Civil Practice and Remedies Code, sec.81.006; and (14) 42 USC sec.10806 or sec.6042(a)(2)(I). This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 14, 1998. TRD-9807929 Charles Cooper Chairman, Texas MHMR Board Texas Department of Mental Health and Mental Retardation Effective date: June 3, 1998 Proposal publication date: March 13, 1998 For further information, please call: (512) 206-4516 TITLE 30. ENVIRONMENTAL QUALITY PART I. Texas Natural Resource Conservation Commission CHAPTER 50.Action on Applications SUBCHAPTER C.Action by Executive Director 30 TAC sec.50.31 The Texas Natural Resource Conservation Commission (commission) adopts amendments to sec.50.31, relating to purpose and applicability of actions by the executive director, without changes to the proposed text as published in the January 9, 1998, issue of the Texas Register (23 TexReg 318). The text of the rule will not be republished. EXPLANATION OF THE ADOPTED RULE The purpose of the adopted amendment is to clarify which matters may be delegated to the executive director for action on behalf of the commission. The following matters may not be delegated to the executive director: approval of a fire department or fire-fighting services plan under Texas Water Code, sec.49.351; applications for conversion of a district to a municipal utility district under Texas Water Code, sec.54.030; and application for creation of a municipal management district under Local Government Code, Chapter 375. Also, pursuant to Senate Bill (SB) 1865, Acts of the 75th Legislature, 1997, the executive director may now be delegated authority to act on applications for creation of a district and for approval of standby fees. The executive director may also be delegated authority to act on impact fee petitions under Texas Local Government Code, Chapter 395; therefore, the adopted amendments delete the reference to such petitions in sec.50.31(c), which specifies the matters on which the executive director may not act. FINAL REGULATORY IMPACT ANALYSIS The commission has reviewed the adopted rulemaking in light of the regulatory analysis requirements of Texas Government Code, sec.2001.0225, and has determined that the rulemaking is not subject to sec.2001.0225 because it does not meet the definition of "major environmental rule" because the specific intent of the amendment is to make the rule consistent with statutory authority, not to protect the environment or reduce risks to human health from environmental exposure. TAKINGS IMPACT ASSESSMENT The commission has prepared a Takings Impact Assessment for these rules pursuant to Texas Government Code Annotated, sec.2007.043. The following is a summary of that Assessment. The specific purpose of the rule is to make the rule consistent with statutory authority. The rules will substantially advance this specific purpose by specifying that certain matters may or may not be delegated to the executive director. Promulgation and enforcement of these rules will not burden private real property because private real property is not subject to these rules. CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM (CMP) The commission has reviewed this rulemaking and found that the rule is neither identified in Coastal Coordination Act Implementation Rules, 31 TAC sec.505.11, relating to Actions and Rules Subject to the Coastal Management Program, nor will it affect any action/authorization identified in Coastal Coordination Act Implementation Rules, 31 TAC sec.505.11. Therefore, the adopted rule is not subject to the CMP. COMMENTS RECEIVED No written or oral comments were received by the commission. The commission has made no changes to the text of the proposed rule. STATUTORY AUTHORITY The amended sections are adopted under Texas Water Code, sec.5.103, which provides the commission the authority to adopt and enforce rules necessary to carry out its powers and duties under the laws of this state, and to implement Texas Water Code, sec.sec.36.014, 49.011, 49.231, 51.028, 54.018, 55.042, 58.028, 65.018, and 66.018. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 13, 1998. TRD-9807846 Kevin McCalla Director, Legal Services Texas Natural Resource Conservation Commission Effective date: June 5, 1998 Proposal publication date: January 9, 1998 For further information, please call: (512) 239-4640 CHAPTER 293.Water Districts The Texas Natural Resource Conservation Commission (commission) adopts amendments to sec.sec.293.5, 293.11-293.13, 293.15, 293.41, 293.47, 293.48, 293.51, 293.54, 293.62, 293.64, 293.65, 293.67, 293.69, 293.70, 293.80, 293.81, 293.83, 293.84, 293.94, 293.96, 293.101, 293.125, 293.131, 293.133, 293.145, 293.171, 293.173, 293.174, 293.180, 293.361, and 293.365, and new sec.293.89 and sec.293.112 relating to Water Districts. Sections 293.11-293.12, 293.41, 293.65, 293.67, 293.89, 293.112, and 293.145 are adopted with changes to the proposed text as published in the January 9, 1998 issue of the Texas Register (23 TexReg 325). Amendments to sec.sec.293.5, 293.13, 293.15, 293.47, 293.48, 293.51, 293.54, 293.62, 293.64, 293.69, 293.70, 293.80, 293.81, 293.83, 293.84, 293.94, 293.96, 293.101, 293.125, 293.131, 293.133, 293.171, 293.173, 293.174, 293.180, 293.361, and 293.365 are adopted without changes and will not be republished. EXPLANATION OF THE ADOPTED RULE The purpose of the adopted amendments and new rules is to incorporate new requirements relating to the administration of water districts and the commission's supervision over their actions as provided by SB 1865, Acts of the 75th Legislature, 1997, which related to the administration, management, operation, and authority of water districts. The adopted amendments would also incorporate new references and requirements related to priority groundwater management areas required by SB 1, Acts of the 75th Legislature, 1997. The adopted amendments would also make several procedural changes related to the agency's oversight of water districts designed to clarify the responsibilities of water districts, or to clarify the intent of the rules. Additionally, these amendments update definitions to conform to 30 TAC Chapter 3 and make other wording changes to generally conform to agency usage. The adopted amendment to sec.293.5 will extend the time for the commission to hold a hearing on the filing of a request from 10 days to 19 days to give staff time to process and review the request prior to the hearing. The adopted amendments to sec.293.11(b) would update references to conform to SB 1, 75th Legislature, 1997. Adopted amendments to sec.293.11 delete subsection (d)(8) because the requirements are duplicated in subsection (d)(7). Section 293.11(d)(7) remains in effect. All applicants subject to the Texas Water Code, sec.54.016, will have to continue to insure that the municipal consent fully complies with that statute. The adopted amendment to sec.293.11(h)(9) clarifies the requirements for dissolution of a water supply corporation that is converted to a special utility district. The adopted sec.293.11(h)(9)(B) has been modified to correct the Water Code citation. The adopted amendments to sec.293.12 and sec.293.13 consolidate notice and hearing requirements for creation of various types of districts pursuant to the statutory changes made by SB 1865. The adopted amendments will create one procedure for the creation of most types of water districts and also allow the commission to create districts, which are not protested, without having to hold a hearing. The adopted amendments to former sec.293.12(f), which is to be renumbered as sec.293.12(e), clarify the additional notice requirements for creation of a special utility district and approval of an impact fee, if requested. The adopted sec.293.12(b)(1) has been modified to clarify the notice requirements where a district is proposed to be located in more than one county. The adopted amendments to sec.293.15 are to make the rule conform to statutory requirements for conversion of a district to a municipal utility district under Texas Water Code, sec.54.030. The adopted amendments to sec.293.41 would require Drainage Districts and Levee Improvement Districts to obtain commission approval before issuance of bonds and also add a reference to provide that the bond approval requirements apply to proceeds of a contract tax that are used to reimburse a developer. In addition, the adopted amendments clarify that the definition of bond applies to the entire subchapter, and the commission has also clarified the language in the adopted rule to provide that the subchapter related to issuance of bonds applies to revenue notes or contract tax revenues only to the extent set out in sec.293.80(d) and sec.293.89, respectively. The adopted amendment to sec.293.41(c) is to clarify that districts meeting the test of that subsection are exempt from all the commission rules related to the issuance of bonds. The adopted amendments to sec.293.47(d)(5) clarify the intent of the commission to consider costs associated with constructing lift stations and force mains connecting the district's system to regional wastewater trunklines the same as connecting to a regional wastewater facility, and therefore eligible for 100 percent reimbursement on a sale of the system to the district by the developer. The adopted amendment to sec.293.48(a)(1) deletes the reference to a hearing which is no longer required. The adopted amendment to sec.293.51(b) clarifies that the basis of reimbursement to a developer for land can include the interest on any borrowed funds the developer used to acquire the land, at the rate of the lesser of the net effective interest rate on the bonds sold, or the interest rate actually paid by the developer. If the developer did not use borrowed funds, the net effective interest rate on the bonds may be used to calculate eligible interest reimbursement expense. The subsection also clarifies that taxes as well as interest on the land are eligible reimbursable expenses. The commission has clarified the adopted amendment to sec.293.65 to require a district's engineer to notify the appropriate commission regional office, rather than the executive director, of the date and time of final inspection of construction projects. The adopted amendments to sec.293.67 and sec.293.69 address repairing or accounting for damages to project facilities prior to purchase and immediately after purchase by the district, during the transfer of the project facilities. The title of sec.293.67 in the adopted amendment has been clarified to reflect more accurately the intent of that section. The adopted amendments to sec.293.80 exempt those districts issuing revenue notes to other governmental agencies from having to obtain commission approval. The adopted new sec.293.89 would require approval of the executive director for obligations to collect taxes for debt that exceed three years, if the district is required under the Texas Water Code, sec.49.181, to obtain commission approval for bond issuance. The adopted rule also sets out the information requirements of the application for this type of approval. The adopted amendments to sec.293.94 would exempt those districts which collect taxes, if total revenues, including tax revenue, are less than $100,000, from having to file audited financial reports, as provided in Texas Water Code, sec.49.198, as amended. The adopted new sec.293.112 would require districts to adopt rules providing for persons to provide notice to the district before making any improvement or starting any construction on easements, rights-of-way, or property where district facilities are located, pre- and post-construction inspection of district facilities, and repair of any damages prior to connection for service by the district. The adopted amendments to sec.293.145 are to establish notice requirements for standby fee applications as provided in SB 1865, and will also allow the commission to approve standby fees, which are not protested, without having to hold a hearing. The cross references in the adopted amendments have been modified to reflect the correct titles of the referenced sections. Adopted amendments to sec.293.171 are intended to exempt certain tap fees and retail or wholesale service, financed by revenue bonds, to nontaxable entities, from the notice and approval process required for impact fees. Adopted amendments to sec.293.173 and sec.293.174 are intended to establish notice requirements for impact fee applications similar to those as provided for standby fees in SB 1865, and will allow the commission to approve impact fees, which are not protested, without having to hold a hearing. Other adopted amendments would change word usage to conform to the definitions in 30 TAC Chapter 3, word usage in this chapter generally, and correct references. FINAL REGULATORY IMPACT ANALYSIS The commission has reviewed the rulemaking in light of the regulatory analysis requirements of Texas Government Code, sec.2001.0225, and has determined that the rulemaking is not subject to sec.2001.0225 because it does not meet the definition of "major environmental rule" as defined in the act because the specific intent of the rules is to regulate the administration of water districts, not to protect the environment or reduce risks to human health from environmental exposure. TAKINGS IMPACT ASSESSMENT The commission has prepared a Takings Impact Assessment for these rules pursuant to Texas Government Code Annotated, sec.2007.043. The following is a summary of that Assessment. The specific purpose of the rule is to adopt new requirements relating to the administration of water districts and the commission's supervision over their actions as provided by SB 1865, Acts of the 75th Legislature, 1997, and to incorporate new references and requirements related to priority groundwater management areas required by SB 1, Acts of the 75th Legislature, 1997, to clarify the intent of the rules, to streamline the agency's procedures, and to update definitions to conform to 30 TAC Chapter 3 and make other wording changes to conform to general agency usage. The rules will substantially advance this specific purpose by providing a procedure for public notice and hearing for applications for creation of water districts, delegating routine functions to the executive director, allowing the commission to create districts and approve standby fees that are uncontested without a hearing, and exempting districts issuing revenue notes to other governmental agencies from having to seek agency approval. Promulgation and enforcement of these rules will not burden private real property because private real property is not subject to these rules. CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM (CMP) The commission has reviewed this rulemaking and found that the rule is neither identified in Coastal Coordination Act Implementation Rules, 31 TAC sec.505.11, relating to Actions and Rules Subject to the CMP, nor will it affect any action/authorization identified in Coastal Coordination Act Implementation Rules, 31 TAC sec.505.11. Therefore, the adopted rule is not subject to the CMP. COMMENTS RECEIVED Written comments suggesting changes to a section of the rules were provided by the Lower Colorado River Authority (LCRA). Vinson & Elkins submitted written comments, and an individual provided oral comments suggesting changes and clarifications to proposed sec.293.112. The following paragraphs summarize the written and oral comments received. The LCRA objected to sec.293.89 as proposed. The LCRA expressed concern about regulation by the commission under this section of certain projects of the LCRA whereby a district receives water or wastewater service from the LCRA and the district pledges a tax to secure payments to the LCRA. The LCRA first suggested a revision to sec.293.89 that would provide that the requirements of a complete Bond Application Report and the requirements of sec.sec.293.41-293.61 related to Issuance of Bonds (subsections (b)(6) and (c) of the proposed rule) would not apply where a district involved in the transaction is located in four or more counties; the bonds issued by that district are payable from the revenues of a combined electric, water, and wastewater system; the proceeds of the district's bonds are to be used to provide reimbursement to a developer; and the amount of the reimbursement to the developer is limited to the amount of eligible reimbursement under the commission's rules. Alternatively, the LCRA suggested revising sec.293.89 to allow the commission to waive any of the requirements of that section upon a showing by the applicant that the requirements were not necessary to protect the public interest or that the waiver would encourage regionalization or otherwise promote the public interest. The commission disagrees in part with the comments. Section 49.108(e) of the Water Code now provides that any district required to obtain commission approval of its bonds must obtain the executive director's approval before entering into an obligation to collect tax for debt that exceeds three years; therefore, the review requirements of sec.293.89 could not be waived entirely. The purpose of the proposed rule is to subject contract tax obligations by water districts to substantially the same regulatory oversight as other long term district debt (i.e., bonds). The purpose of the regulatory oversight is to protect district customers and taxpayers from excessive debt of the district by requiring the district to demonstrate that the project is financially feasible and is cost- effective. The rule is not intended to subject entities such as the LCRA to regulation by the commission that would not otherwise be required. The risk that a water district will enter into an infeasible transaction, however, is not necessarily diminished by the fact that the other party is located in four or more counties, is financing its obligations with a combination of electric, water and wastewater system revenues, and is willing to include provisions in its contracts concerning developer reimbursement. The commission does recognize that some of the regulatory requirements applicable to the issuance of bonds should not apply to contract tax obligations, even where the proceeds are used to reimburse a developer, and that there may be some situations where a diminished level of oversight is appropriate. Accordingly, the adopted rule has been clarified to provide in subsection (b)(6) that only certain provisions in the rule chapter concerning bond issuance apply to applications for approval of a contract tax obligation where the proceeds are to be used to reimburse a developer, and the rule has also been reworded to allow a district to submit information to demonstrate that the requirements of subsection (b)(6) should be waived because doing so will promote regionalization or is otherwise justified. The commission will examine this showing on a case-by-case basis. However, in all cases the commission will not waive the requirements of sec.293.59 (relating to Economic Feasibility of Project). Vinson & Elkins suggested changes to proposed sec.293.112 to clarify the applicability of that section where a district provides drainage or flood control services only. An individual suggested that because many of a district's water or sewer lines may be located in easements or rights-of-way, sec.293.112 should be clarified to specifically include construction near district facilities located on these types of property. The commission has determined that because drainagye and flood control facilities are not generally subject to the type of construction damage contemplated by sec.293.112, the rule should not apply where a district provides drainage and flood control services only. Therefore, the adopted rule has been modified to apply only to districts providing water or wastewater services. The commission also agrees with the second comment concerning this section. Accordingly, the rule is being adopted with clarifying language. In addition, the commission has made other modifications to clarify the language of the rule and has also modified subsection (4) to clarify that repairs may be performed by the responsible party or that the district may make the repairs provided that the district is reimbursed for those repairs. SUBCHAPTER A.General Provisions 30 TAC sec.293.5 STATUTORY AUTHORITY The amended sections are adopted under Texas Water Code, sec.5.103, which provides the commission with the authority to adopt and enforce rules necessary to carry out its powers and duties under the laws of this state. Section 293.12 is also proposed under Texas Water Code, sec.49.011, which requires the commission to establish a procedure by rule for public notice and hearing for applications for creation of general law water districts. The amendment to sec.293.12 implements Texas Water Code, sec.sec.36.014, 49.011, 51.028, 54.018, 54.020, 55.042, 58.028, 58.030, 59.007, 65.018, and 66.018. The amendment to sec.293.15 implements Texas Water Code, sec.sec.65.020-65.021. The amendment to sec.293.41 implements Texas Water Code, sec.54.030. The amendment to sec.293.80 implements Texas Water Code, sec.49.181. The amendment to sec.293.89 implements Texas Water Code, sec.49.108. The amendment to sec.293.94 implements Texas Water Code, sec.49.198. The amendment to sec.293.145 implements Texas Water Code, sec.49.231. The amendment to sec.293.171 implements Texas Water Code, sec.49.212. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 13, 1998. TRD-9807847 Kevin McCalla Director, Legal Services Texas Natural Resource Conservation Commission Effective date: June 5, 1998 Proposal publication date: January 9, 1998 For further information, please call: (512) 239-4640 SUBCHAPTER B.Creation of Water Districts 30 TAC sec.sec.293.11-293.13, 293.15 STATUTORY AUTHORITY These sections are adopted under Texas Water Code, sec.5.103, which provides the Texas Natural Resource Conservation Commission with the authority to adopt any rules necessary to carry out its powers and duties under the Texas Water Code and other laws of the State of Texas. Section 293.12 is also proposed under Texas Water Code, sec.49.011, which requires the commission to establish a procedure by rule for public notice and hearing for applications for creation of general law water districts. sec.293.11. Information Required to Accompany Applications for Creation of Districts. (a) (No change.) (b) Creation applications for Chapter 36, Texas Water Code, Groundwater Conservation Districts shall contain the items listed in subsection (a) of this section and the following items: (1) a petition containing the items required by Texas Water Code, sec.36.013, signed by the majority of the landowners in the proposed district, or if there are more than 50 landowners, at least 50 of those landowners. The petition shall include the following: (A) - (E) (No change.) (2) evidence that the boundaries are coterminous with or inside the boundaries of a delineated groundwater management area, priority groundwater management area, or groundwater reservoir or subdivision thereof. A groundwater conservation district may include all or part of one or more counties, cities, districts, or other political subdivision and may consist of separate bodies of land within a groundwater management area, priority groundwater management area, or groundwater reservoir or subdivision thereof separated by land not included in the proposed district. Evidence shall show: (A) a rule adopted by the commission designating a groundwater management area as provided in the Texas Water Code, sec.35.004, and sec.sec.293.21-293.25 of this title (relating to Designation of Groundwater Management Areas), an order designating a priority groundwater management area as provided under the Texas Water Code, sec.35.008, or an order designating delineation of a groundwater reservoir or subdivision thereof; or (B) if part of the proposed district is not included within either a delineated groundwater management area, priority groundwater management area, or groundwater reservoir or a subdivision thereof, the petition may also contain a request (meeting the requirements of the Texas Water Code, sec.35.005 and sec.sec.293.21 - 293.25 of this title) to create or alter the boundaries of a management area. If such a request is made, it may be acted upon separately by the commission from the petition for the creation of the proposed district; (3) - (4) (No change.) (5) a geologic/hydrologic report including as appropriate: (A) - (D) (No change.) (E) if the proposed district is located in a designated priority groundwater management area, a description of how the proposed projects will address issues identified within the priority groundwater management area; (F) - (K) (No change.) (6) - (8) (No change.) (c) (No change.) (d) Creation applications for Chapter 54, Texas Water Code, Municipal Utility Districts, shall contain items listed in subsection (a) of this section and the following; (1)-(7) (No change.) (8) the petitioners for districts proposed to be created within the corporate boundaries of a municipality should show that the city will rebate to the district an equitable portion of city taxes to be derived from the residents of the area proposed to be included in the district if such taxes are used by the city to finance elsewhere in the city services of the type the district proposes to provide. If like services are not to be provided, then an agreement regarding a rebate of city taxes is not necessary. Nothing in this subsection is intended to restrict the contracting authorization provided in the Local Government Code, sec.402.014; (9) affidavits by those persons desiring appointment by the commission as temporary directors, showing compliance with applicable statutory requirements of qualifications and eligibility for temporary directors, in accordance with Texas Water Code, sec.54.102 and sec.49.052; and (10) other data and information as the executive director may require. (e) - (g) (No change.) (h) Creation applications for Chapter 65, Texas Water Code, Special Utility Districts, shall contain items listed in subsection (a) of this section and the following: (1) a certified copy of the resolution requesting creation, as required by Texas Water Code, sec.65.014 and sec.65.015, signed by the president and secretary of the board of directors of the water supply corporation, and stating that the water supply corporation, acting through its board of directors, has found that it is necessary and desirable for the water supply corporation to be converted into a district. The resolution shall include the following: (A) a description of the boundaries of the proposed district by metes and bounds or by lot and block number, if there is a recorded map or plat and survey of the area, or by any other commonly recognized means in a certificate attached to the resolution executed by a licensed engineer; (B) - (E) (No change.) (2)- (8) (No change.) (9) certified copy of resolution and an order canvassing election results, adopted by the water supply corporation, which shows: (A) an affirmative vote of a majority of the membership to authorize conversion to a special utility district operating pursuant to Texas Water Code, Chapter 65; (B) a vote by the membership in accordance with the requirements of Texas Water Code, Chapter 67 , and the Texas Non-Profit Corporation Act, Texas Civil Statutes, Articles 1396-1.01 to 1396-11.01, to dissolve the water supply corporation at such time as creation of the special utility district is approved by the commission and convey all the assets and debts of the water supply corporation to the special utility district upon dissolution. (10)- (12) (No change.) (i) - (j) (No change.) sec.293.12. Creation Notice Actions and Requirements. (a) On receipt by the executive director of all required documentation associated with an application for creation of a district by the commission pursuant to Texas Water Code, Chapter 36, Groundwater Conservation Districts, Chapter 51, multi-county Water Control & Improvement Districts, Chapter 54, Municipal Utility Districts, Chapter 55, Water Improvement Districts, Chapter 58, multi-county Irrigation Districts, Chapter 59, Regional Districts, Chapter 65, Special Utility Districts, and Chapter 66, Stormwater Control Districts, the executive director shall notify the chief clerk that the application is administratively complete. (b) For those applications described in paragraph (a) of this section, the chief clerk shall send a copy of a notice to the applicant indicating that an application has been received and notifying interested persons of the procedures for requesting a public hearing. The applicant shall cause the notice to be published as follows: (1) notice must be published once a week for two consecutive weeks in a newspaper regularly published or circulated in the county or counties where the district is proposed to be located with the last publication not later than the 30th day before the date on which the commission may act on the application, and (2) posted on the bulletin board used for posting legal notices in each county in which all or part of the proposed district is to be located. (c) For those applications described in subsection (a) of this section, the commission may act on an application without holding a public hearing if a public hearing is not requested by the commission, the executive director, or an affected person in the manner prescribed by commission rule during the 30 days following the final publication of notice under this section. If the commission determines that a public hearing is necessary, the chief clerk shall advise all parties of the time and place of the hearing. The commission is not required to provide public notice of a hearing under this subsection. (d) If a petition for the creation of a groundwater conservation district pursuant to Texas Water Code, sec.36.013 contains a request to create or alter the boundaries of a groundwater management area in all or part of the proposed district, the notice must also be given in accordance with the requirements of Texas Water Code, sec.35.006 and sec.sec.293.21-293.25 of this title (relating to Designation of Groundwater Management Areas); (e) For a petition for the creation of a Special Utility District pursuant to Texas Water Code, Chapter 65, which includes transfer of the certificate of convenience and necessity, the applicant shall also, unless waived by executive director, mail copies of the notice to customers of the water supply corporation and other affected parties at least 120 days prior to approval. Such notice shall include the following: (1) name and business address of the district; (2) a description of the service area involved; (3) the anticipated effect of the conversion on the operation or the rates and services provided to customers; and (4) a statement that if a hearing is granted, persons may attend the hearing and participate in the process. (f) If a petition for the creation of a Special Utility District pursuant to Texas Water Code, Chapter 65, contains a request for approval of an impact fee, the applicant shall comply with the notice provisions of sec.293.173 of this title (relating to Impact Fee Notice Actions and Requirements). (g) The hearing action and notice requirements for Local Government Code, Chapter 375, Municipal Management Districts are as follows: (1) The chief clerk shall send a copy of the notice of hearing to all counties in which the proposed district is located and all municipalities which have extraterritorial jurisdiction in the county or counties in which the proposed district is located and which have formally requested notice of creation of all districts in their county or counties. The chief clerk shall prepare a certificate indicating that notice was properly mailed to any such counties and/or municipalities. (2) The chief clerk shall send a copy of the notice of hearing to the petitioners, or their agents, who shall: (A) cause the notice to be published in a newspaper with general circulation in the municipality in which the proposed district is located once a week for two consecutive weeks with the first publication being at least 31 days prior to the date of the commission hearing; (B) send the notice of the hearing by certified mail, return receipt requested, to all property owners within the district at least 30 days before the hearing. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 13, 1998. TRD-9807848 Kevin McCalla Director, Legal Services Texas Natural Resource Conservation Commission Effective date: June 5, 1998 Proposal publication date: January 9, 1998 For further information, please call: (512) 239-4640 SUBCHAPTER E.Issuance of Bonds 30 TAC sec.sec.293.41, 293.47, 293.48, 293.51, 293.54 STATUTORY AUTHORITY These sections are adopted under Texas Water Code, sec.5.103, which provides the Texas Natural Resource Conservation Commission with the authority to adopt any rules necessary to carry out its powers and duties under the Texas Water Code and other laws of the State of Texas. sec.293.41.Approval of Projects and Issuance of Bonds. (a) Bonds, as referred to in this subchapter include any bonds authorized to be issued by the Texas Water Code or special statute, and are represented by an instrument issued in bearer or registered form. This section does not apply to refunding bonds, and bonds issued to and approved by the Farmers Home Administration of the United States Department of Agriculture or the Texas Water Development Board, or successor agencies. This subchapter does apply to revenue notes to the extent described in sec.293.80(d) of this title (relating to Revenue Notes) and contract tax obligations to the extent described in sec.293.89 of this title (relating to Contract Tax Obligations). (b) (No change.) (c) This subchapter does not apply to a district if: (1)- (3) (No change.) (4) the district is governed by a board of directors appointed in whole or part by the governor, a state agency, or the governing body or chief elected official of a municipality or county and does not provide, or propose to provide, water, wastewater, drainage, reclamation, or flood control services to residential retail or commercial customers as its principal function. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 13, 1998. TRD-9807849 Kevin McCalla Director, Legal Services Texas Natural Resource Conservation Commission Effective date: June 5, 1998 Proposal publication date: January 9, 1998 For further information, please call: (512) 239-4640 SUBCHAPTER F.District Actions Related To Construction Projects and Purchase of Facilities 30 TAC sec.sec.293.62, 293.64, 293.65, 293.67, 293.69, 293.70 STATUTORY AUTHORITY These sections are adopted under Texas Water Code, sec.5.103, which provides the Texas Natural Resource Conservation Commission with the authority to adopt any rules necessary to carry out its powers and duties under the Texas Water Code and other laws of the State of Texas. sec.293.65. Commission Inspection. The executive director or his designated representative may inspect a district construction project at any time. When individual contracts for construction are substantially complete, the engineer for the district will notify the agency's regional office of date and time of final inspection. The engineer will conduct, in company with the owner or his representative, a final inspection of the work for conformance with the design concept and compliance with the contract documents. The district shall not accept the project or release the statutory retainage on partial payments until work is determined to be in substantial compliance with plans and specifications as approved by the executive director. sec.293.67. Project Completion and Acceptance by District. (a) Upon completion of the project, the district's engineer shall submit to the governing board a final detailed report including revised contract "as built" drawings showing the work as actually constructed, and the engineer shall certify to the executive director that the work was substantially completed in accordance with and includes all items in plans and specifications submitted to, or approved by the executive director. (b) Prior to accepting facilities for operation and maintenance, the district shall adopt rules as required by sec.293.112 of this title (relating to Water, Wastewater and Drainage Facilities). This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 13, 1998. TRD-9807850 Kevin McCalla Director, Legal Services Texas Natural Resource Conservation Commission Effective date: June 5, 1998 Proposal publication date: January 9, 1998 For further information, please call: (512) 239-4640 SUBCHAPTER G.Other Actions Requiring Commission Consideration For Approval 30 TAC sec.sec.293.80, 293.81, 293.83, 293.84, 293.89 STATUTORY AUTHORITY These sections are adopted under Texas Water Code, sec.5.103, which provides the Texas Natural Resource Conservation Commission with the authority to adopt any rules necessary to carry out its powers and duties under the Texas Water Code and other laws of the State of Texas. sec.293.89. Contract Tax Obligations. (a) A district that is required under Water Code, sec.49.181 to obtain approval by the commission of the issuance of bonds may not enter into an obligation under Water Code sec.49.108 to collect taxes for debt that exceeds three years unless approved by the executive director. This section does not apply to contract taxes that are levied to pay for a district's share of bonds that have been issued by another district and approved by the commission. (b) Applications for commission approval of contract tax obligations shall include the following: (1) a resolution by the governing board requesting approval of the contract; (2) a copy of the proposed contract; (3) a detailed explanation of the intended use and project to be financed, and complete justification for the project to be financed; (4) a proposed cash flow over the life of the obligation which includes all debt obligations of the district; (5) unless waived by the executive director, if growth is used to support the projected tax rates, an independent market study; (6) if funds received under the contract are proposed to reimburse a developer as defined in the Water Code, sec.49.052(d), a complete Bond Application Report as described in sec.293.43(5) of this title (relating to Application Requirements) for the issuance of bonds. The reimbursement is subject to sec.293.44, sec.sec.293.46-293.53, sec.293.56, sec.293.57, sec.293.59, and sec.293.60 of this title (relating to the issuance of Bonds) and, if appropriate, subject to executive director approval before reimbursement to the developer. The executive director may waive any of the requirements of this subsection upon a showing by the applicant that waiver will promote regionalization or is otherwise justified. (7) an application fee in the amount of $100; and (8) other information as the executive director may require. (c) All applications for executive director approval of contract tax obligations will be subject to the limitations in sec.293.59 of this title (relating to Economic Feasibility of Project). This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 13, 1998. TRD-9807851 Kevin McCalla Director, Legal Services Texas Natural Resource Conservation Commission Effective date: June 5, 1998 Proposal publication date: January 9, 1998 For further information, please call: (512) 239-4640 SUBCHAPTER H.Reports 30 TAC sec.sec.293.94, 293.96 STATUTORY AUTHORITY These sections are adopted under Texas Water Code, sec.5.103, which provides the Texas Natural Resource Conservation Commission with the authority to adopt any rules necessary to carry out its powers and duties under the Texas Water Code and other laws of the State of Texas. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 13, 1998. TRD-9807852 Kevin McCalla Director, Legal Services Texas Natural Resource Conservation Commission Effective date: June 5, 1998 Proposal publication date: January 9, 1998 For further information, please call: (512) 239-4640 SUBCHAPTER I.District Name Changes and Posting Signs 30 TAC sec.293.101 STATUTORY AUTHORITY The section is adopted under Texas Water Code, sec.5.103, which provides the Texas Natural Resource Conservation Commission with the authority to adopt any rules necessary to carry out its powers and duties under the Texas Water Code and other laws of the State of Texas. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 13, 1998. TRD-9807853 Kevin McCalla Director, Legal Services Texas Natural Resource Conservation Commission Effective date: June 5, 1998 Proposal publication date: January 9, 1998 For further information, please call: (512) 239-4640 SUBCHAPTER J.Water and Wastewater System Rules and Regulation 30 TAC sec.293.112 STATUTORY AUTHORITY The section is adopted under Texas Water Code, sec.5.103, which provides the Texas Natural Resource Conservation Commission with the authority to adopt any rules necessary to carry out its powers and duties under the Texas Water Code and other laws of the State of Texas. sec.293.112. Water, Wastewater and Drainage Facilities. All water districts that provide or propose to provide water or wastewater service to residential retail or commercial customers shall adopt rules that require inspection and repair of all damages to facilities the district is responsible for maintaining prior to initiation of service. The rules must, at a minimum: (1) require that the district's operator or the district be notified prior to making any improvement or starting any construction on property within the district if such improvement, construction or equipment used in the construction will be within easements, rights-of-way or property where district facilities are located; (2) require that an inspection be completed by the district's operator or the district to verify district facilities prior to starting construction; (3) require that an inspection be completed by the district's operator or the district to verify district facilities after completion of construction; and (4) require that any damages found be repaired to the satisfaction of the district or that reimbursement for repairs be made to the district before service is initiated. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 13, 1998. TRD-9807854 Kevin McCalla Director, Legal Services Texas Natural Resource Conservation Commission Effective date: June 5, 1998 Proposal publication date: January 9, 1998 For further information, please call: (512) 239-4640 SUBCHAPTER K.Fire Department Projects 30 TAC sec.293.125 STATUTORY AUTHORITY The section is adopted under Texas Water Code, sec.5.103, which provides the Texas Natural Resource Conservation Commission with the authority to adopt any rules necessary to carry out its powers and duties under the Texas Water Code and other laws of the State of Texas. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 13, 1998. TRD-9807855 Kevin McCalla Director, Legal Services Texas Natural Resource Conservation Commission Effective date: June 5, 1998 Proposal publication date: January 9, 1998 For further information, please call: (512) 239-4640 SUBCHAPTER L.Dissolution of Districts 30 TAC sec.sec.293.131, 293.133 STATUTORY AUTHORITY These sections are adopted under Texas Water Code, sec.5.103, which provides the Texas Natural Resource Conservation Commission with the authority to adopt any rules necessary to carry out its powers and duties under the Texas Water Code and other laws of the State of Texas. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 13, 1998. TRD-9807856 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: June 5, 1998 Proposal publication date: January 9, 1998 For further information, please call: (512) 239-4640 SUBCHAPTER M.Application For Approval of Standby Fees 30 TAC sec.293.145 STATUTORY AUTHORITY The section is adopted under Texas Water Code, sec.5.103, which provides the Texas Natural Resource Conservation Commission with the authority to adopt any rules necessary to carry out its powers and duties under the Texas Water Code and other laws of the State of Texas. sec.293.145.Public Notice Requirements. (a) On receipt by the executive director of all required documentation associated with an application for standby fees as required by sec.sec.293.141- 293.144 of this title (relating to Standby Fees, Application Requirements for Imposition of Standby Fees To Be Used to Supplement the Debt Service Account, Application Requirements for Standby Fees to Be Used To Supplement the Operation and Maintenance Fund, Application Requirements For Imposition of Standby Fees To Supplement the Debt Service Account and the Operation and Maintenance Account), the executive director shall notify the chief clerk that the application is administratively complete. (b) The chief clerk shall send a copy of a notice to the applicant indicating that an application has been received and notifying interested persons of the procedures for requesting a public hearing. The applicant shall cause the notice to be published and mailed as follows: (1) notice must be published once a week for two consecutive weeks in a newspaper regularly published or circulated in the county or counties where the district is proposed to be located with the last publication not later than the 30th day before the date on which the commission may consider the application. (2) The district shall send, not later than the 30th day before the date of consideration by the commission, copies of the notice by certified mail, return receipt requested, to each owner of undeveloped property in the district identified on the district's tax rolls. Notice must be provided by certified mail, return receipt requested, to each mortgagee of record that has submitted a written request to be informed of any application. The written request for notice must include the name and address of the mortgagee, the name of the property owner in the district, and a brief property description. (c) The district shall submit an affidavit certifying compliance with the requirements of subsection (b) of this section to the Commission at least one week prior to commission consideration. (d) The commission may act on an application without holding a public hearing if a public hearing is not requested by the commission, the executive director, or an affected person in the manner prescribed by commission rule during the 30 days following the final publication of notice under this section. If the commission determines that a public hearing is necessary, the chief clerk shall advise all parties of the time and place of the hearing. The commission is not required to provide public notice of a hearing under this subsection. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 13, 1998. TRD-9807857 Kevin McCalla Director, Legal Services Texas Natural Resource Conservation Commission Effective date: June 5, 1998 Proposal publication date: January 9, 1998 For further information, please call: (512) 239-4640 SUBCHAPTER N.Petition for Approval of Impact Fees 30 TAC sec.sec.293.171, 293.173, 293.174 STATUTORY AUTHORITY These sections are adopted under Texas Water Code, sec.5.103, which provides the Texas Natural Resource Conservation Commission with the authority to adopt any rules necessary to carry out its powers and duties under the Texas Water Code and other laws of the State of Texas. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 13, 1998. TRD-9807858 Kevin McCalla Director, Legal Services Texas Natural Resource Conservation Commission Effective date: June 5, 1998 Proposal publication date: January 9, 1998 For further information, please call: (512) 239-4640 SUBCHAPTER O.Appeal of Decision Regarding Facilities Constructed for a Municipal Utility District 30 TAC sec.293.180 STATUTORY AUTHORITY The section is adopted under Texas Water Code, sec.5.103, which provides the Texas Natural Resource Conservation Commission with the authority to adopt any rules necessary to carry out its powers and duties under the Texas Water Code and other laws of the State of Texas. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 13, 1998. TRD-9807859 Kevin McCalla Director, Legal Services Texas Natural Resource Conservation Commission Effective date: June 5, 1998 Proposal publication date: January 9, 1998 For further information, please call: (512) 239-4640 SUBCHAPTER Q.Special Actions Relating to the Harris-Galveston Coastal Subsidence District 30 TAC sec.sec.293.361, 293.365 STATUTORY AUTHORITY These sections are adopted under Texas Water Code, sec.5.103, which provides the Texas Natural Resource Conservation Commission with the authority to adopt any rules necessary to carry out its powers and duties under the Texas Water Code and other laws of the State of Texas. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 13, 1998. TRD-9807860 Kevin McCalla Director, Legal Services Texas Natural Resource Conservation Commission Effective date: June 5, 1998 Proposal publication date: January 9, 1998 For further information, please call: (512) 239-4640 CHAPTER 309.Domestic Wastewater Effluent Limitation and Plant Siting The Texas Natural Resource Conservation Commission (commission) adopts amendments to sec.sec.309.1-309.4 and 309.10-309.14, concerning effluent quality limitations. Sections 309.1-309.4, 309.10-309.12, and 309.14 are adopted without changes and will not be republished. Section 309.13 is adopted with changes to the proposed text as published in the December 26, 1998 issue of the Texas Register (22 TexReg 12676). The adopted changes amend and update requirements relating to effluent limitations and facility location standards. The adopted changes will ease the administrative burden on the commission as well as provide added flexibility to those regulated by the rules by clarifying allowances for case-by-case reviews of modifications, allowing the use of smaller disinfection basins under certain conditions, and simplifying the methods used to meet the buffer zone requirements for the siting of wastewater treatment facilities to abate nuisance conditions. The adopted changes to the distance requirements from water wells and other sources of drinking water conform with other agency rules contained in Chapter 290 of this title (relating to Water Hygiene). The purpose of the amendments is to also update the rules to meet current commission permitting practices and make corrections to domestic effluent limitations. Additionally, the amendments are intended to clarify the location requirements for wastewater treatment plants, including buffer zone requirements to abate nuisance conditions. The amendments will also update the rules to meet technology advancements and current engineering industry practices. The amendments are also intended to allow for performance based compliance. The amendments should reduce the need for the number of variances requested from permittees since modifications that in the past initiated requests for variances will now be more clearly defined in the rule. The adopted changes to sec.309.1 and sec.309.2, relating to Effluent Sets, allow the agency to consider flexible, alternative criteria when evaluating certain existing, natural systems such as aerated lagoons, stabilization ponds, facultative ponds or constructed wetlands that cannot meet pH or total suspended solids criteria because of their operational nature. Several existing facilities, obtaining approvals through variances, use a chlorination system that does not meet the sizing criteria set out in the existing rule. The adopted changes to sec.309.3 would provide these facilities with alternative, performance-based criteria to ensure disinfection of the wastewater effluent necessary to meet applicable water quality standards. In addition, a rule revision in 1990 inadvertently lowered the effluent criteria for wastewater irrigated on publicly-accessible land, causing confusion between the regulated public and commission regional inspectors. The adopted changes to sec.309.4 correct the requirements for disposal of treated effluent by irrigation at publicly accessible sites. Subchapter B sets the siting criteria for wastewater treatment plants. Revisions to sec.309.12 simplify the requirements for compliance with the agency's ground water protection efforts. Nearly 40% of all amendments submitted for domestic wastewater treatment facilities are the result of existing requirements for the buffer zones. The adopted changes to sec.309.13, Unsuitable Site Characteristics, clarify the prohibition of using wetlands for wastewater treatment, correlate the distance requirements from water wells and other sources of drinking water with other agency rules, and allow the use of public easements to meet the buffer zone requirements for wastewater treatment facilities without requiring an amendment to a permit. Finally, this revision corrects typographical errors, clarifies the effective date of the location standards, and adds definitions to clarify the meaning of certain terms used in the rule. REGULATORY IMPACT ANALYSIS The commission has reviewed the adopted rulemaking in light of the regulatory analysis requirements of Texas Government Code sec.2001.0225 and has determined that the rulemaking is not subject to sec.2001.0225 because the rule does not meet the full applicability of a "major environmental rule" as defined in the act. The specific intent of these amendments are to bring Chapter 309 into conformance with technology advancements and current industry practices by allowing the Commission to recognize these practices as being able to meet standards established to allow for performance based compliance. The rulemaking is being adopted through Chapter 26 of the Texas Water Code in order to provide both consistency as well as flexibility meeting established standards. There is currently no delegation agreement or contract directly applicable to the adopted rule. The rule will not adversely affect in a material way any contemplated sector but rather will provide greater clarity as to the applicability of location and siting requirements for wastewater treatment plants as well as to provide for compliance of certain systems by establishing standards which recognizes the different types of treatment technology. There is no delegation agreement or contract directly applicable to the adopted rule. TAKINGS IMPACT ASSESSMENT The commission has prepared a Takings Impact Assessment for these rules pursuant to Texas Government Code Annotated, sec.2007.043. The following is a summary of that Assessment. The specific purpose of the rule is to ease the burden on the commission and those regulated by rule in establishing effluent limits and buffer zone requirements. Promulgation and enforcement of these amendments will not affect private real property which is the subject of the rules. COASTAL MANAGEMENT PLAN The executive director has reviewed the rulemaking and found that the rule is neither identified in Coastal Coordination Act Implementation Rules, 31 TAC sec.505.11, relating to Actions and Rules Subject to the Coastal Management Program (CMP), nor will affect any action/authorization identified in Coastal Coordination Act Implementation Rules, 31 TAC sec.505.11. Therefore, the rulemaking is not subject to the CMP. HEARING AND COMMENTS A public hearing was held on January 12, 1997 in Austin, Texas. The City of Austin provided oral comments. Written comments were received from the following individuals and organizations: the Water and Wastewater Utility of the City of Austin (COA) and the City of Fort Worth (FW). GENERAL COMMENTS COA comments are in general supportive of the proposed changes in that they will clarify the requirements and provide flexibility for the regulated community regarding effluent limitations, disinfection requirements, and plant siting criteria. The TNRCC responds that it agrees with these statements. The changes provide clearer rules for the regulated and general community. FW comments that the separation distances between wastewater treatment plants and public/private water facilities in sec.309.13 differ from the separation distances between small, on-site systems and public/private water facilities provided in sec.285.91, relating to Tables (Location, planning, construction, and installation), On-site Sewage Facilities. FW further suggests that these separation distances should be the same for wastewater treatment plants as those provided for on-site sewerage systems such as septic tanks in sec.285.91, relating to Tables (Location, planning, construction, and installation), On-site Sewage Facilities. The TNRCC responds that the separation distances are appropriate as stated in sec.309.13, relating to Unsuitable Site Characteristics, because larger wastewater treatment facilities pose a greater risk to public/private water facilities than smaller, underground on-site sewerage systems. Such separate systems are also intended to be consistent with 30 TAC sec.290.41, relating to Ground Water Sources and Development, and do not conflict with the requirements in sec.285.91, relating to Tables (Location, planning, construction, and installation), On-site Sewage Facilities. Finally, changes to the proposed rules have been made to correct typographical errors. Specifically, in sec.309.13(c), the site of the Ground Water Source and Development section has been changed to sec.290.41(c)(1)(B), from (c)(1)(A). In sec.309.13(c)(1), the rule incorrectly refers to Chapter 290. Soil absorption systems are erroneously included in sec.309.13(c)(2), (3), and (5). The siting distances for all soil absorption systems are provided in Chapter 285 or Chapter 290 of this title. Staff agrees with the findings, and will make the correction. SUBCHAPTER A.Effluent Limitations 30 TAC sec.sec.309.1-309.4 STATUTORY AUTHORITY These amendments are adopted under the Texas Water Code, sec.5.102, which provides the commission with the authority to carry out duties and general powers of the commission under its jurisdictional authority as provided by Texas Water Code sec.5.103. These amendments are also adopted under the Texas Water Quality Control Act which gives the commission the authority to adopt rules for the approval of disposal system plans under sec.26.034 of the Texas Water Code as well as the authority to set standards to prevent the discharge of waste that is injurious to the public health under sec.26.041 of the Texas Water Code. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 13, 1998. TRD-9807861 Kevin McCalla Director, Legal Services Texas Natural Resource Conservation Commission Effective date: June 5, 1998 Proposal publication date: December 26, 1997 For further information, please call: (512) 239-4640 SUBCHAPTER B.Location Standards 30 TAC sec.sec.309.10-309.14 STATUTORY AUTHORITY These amendments are adopted under the Texas Water Code, sec.5.102, which provides the commission with the authority to carry out duties and general powers of the commission under its jurisdictional authority as provided by Texas Water Code sec.5.103. These amendments are also adopted under the Texas Water Quality Control Act which gives the commission the authority to adopt rules for the approval of disposal system plans under sec.26.034 of the Texas Water Code as well as the authority to set standards to prevent the discharge of waste that is injurious to the public health under sec.26.041 of the Texas Water Code. sec.309.13.Unsuitable Site Characteristics. (a) A wastewater treatment plant unit may not be located in the 100-year flood plain unless the plant unit is protected from inundation and damage that may occur during that flood event. (b) A wastewater treatment plant unit may not be located in wetlands. (This prohibition is not applicable to constructed wetlands.) (c) A wastewater treatment plant unit may not be located closer than 500 feet from a public water well as provided by sec.290.41(c)(1)(B) of this title (relating to Ground Water Sources and Development) nor 250 feet from a private water well. The following separation distances apply to any facility used for the storage, processing, or disposal of domestic wastewater. Exceptions to these requirements will be considered at the request of a permit applicant on a case- by-case basis, and alternative provisions will be established in a permit if the alternative condition provides adequate protection to potable water sources and supplies: (1) A wastewater treatment plant unit, land where surface irrigation using wastewater effluent occurs, or soil absorption systems (including low pressure dosing systems, drip irrigation systems, and evapotranspiration beds) must be located a minimum horizontal distance of 150 feet from a private water well ; (2) A wastewater treatment plant unit, or land where surface irrigation using wastewater effluent occurs, must be located a minimum horizontal distance of 500 feet from an elevated or ground potable-water storage tank as provided by sec.290.43 (b)(1) of this title (relating to Location of Clear Wells, Standpipes, and Ground Storage and Elevated Tanks.); (3) A wastewater treatment plant unit, or land where surface irrigation using wastewater effluent occurs, must be located a minimum horizontal distance of 500 feet from a public water well site as provided by sec.290.41(c)(1)(C) of this title, spring, or other similar sources of public drinking water; (4) A wet well or pump station at a wastewater treatment facility must be located a minimum horizontal distance of 300 feet from a public water well site, spring, or other similar sources of public drinking water as provided by sec.290.41(c)(1)(B) of this title; and (5) A wastewater treatment plant unit, or land where surface irrigation using wastewater effluent occurs must be located a minimum horizontal distance of 500 feet from a surface water treatment plant as provided by sec.290.41(e)(3)(A) of this title. (d) A wastewater treatment facility surface impoundment may not be located in areas overlying the recharge zones of major or minor aquifers, as defined by the Texas Water Development Board, unless the aquifer is separated from the base of the containment structure by a minimum of three feet of material with a hydraulic conductivity toward the aquifer not greater than 10-7 cm/sec or a thicker interval of more permeable material which provides equivalent or greater retardation of pollutant migration. A synthetic membrane liner may be substituted with a minimum of 30 mils thickness and an underground leak detection system with appropriate sampling points. (e) One of the following alternatives must be met as a compliance requirement to abate and control a nuisance of odor prior to construction of a new wastewater treatment plant unit, or substantial change in the function or use of an existing wastewater treatment unit: (1) Lagoons with zones of anaerobic activity (e.g., facultative lagoons, un- aerated equalization basins, etc.) may not be located closer than 500 feet to the nearest property line. All other wastewater treatment plant units may not be located closer than 150 feet to the nearest property line. Land used to treat primary effluent is considered a plant unit. Buffer zones for land used to dispose of treated effluent by irrigation shall be evaluated on a case-by-case basis. The permittee must hold legal title or have other sufficient property interest to a contiguous tract of land necessary to meet the distance requirements specified in this paragraph during the time effluent is disposed by irrigation; (2) The applicant must submit a nuisance odor prevention request for approval by the executive director. A request for nuisance odor prevention must be in the form of an engineering report, prepared and sealed by a licensed professional engineer in support of the request. At a minimum, the engineering report shall address existing climatological conditions such as wind velocity and atmospheric stability, surrounding land use which exists or which is anticipated in the future, wastewater characteristics in affected units pertaining to the area of the buffer zone, potential odor generating units, and proposed solutions to prevent nuisance conditions at the edge of the buffer zone and beyond. Proposed solutions shall be supported by actual test data or appropriate calculations. The request shall be submitted, prior to construction, either with a permit application and subject to review during the permitting process or submitted for executive director approval after the permitting process is completed; or, (3) The permittee must submit sufficient evidence of legal restrictions prohibiting residential structures within the part of the buffer zone not owned by the applicant. Sufficient evidence of legal restriction may, among others, take the form of a suitable restrictive easement, right-of-way, covenant, deed restriction, deed recorded, or a private agreement provided as a certified copy of the original document. The request shall be submitted, prior to construction, either with a permit application and subject to review during the permitting process or submitted for executive director approval after the permitting process is completed. (f) For a facility for which a permit application, other than a renewal application, is made after October 8, 1990, if the facility will not meet the buffer zone requirement by one of the alternatives described in subsection (e) of this section, the applicant shall include in the application for the discharge permit a request for a variance. A variance will be considered on a case-by-case basis and, if granted by the commission, shall be included as a condition in the permit. This variance may be granted by the commission, consistent with the policies set out in Texas Water Code, sec.26.003. (g) Any approved alternative for achieving the requirements of this subsection must remain in effect as long as the wastewater treatment plant is permitted by the commission. To comply with this requirement, the permittee must carry out the nuisance odor prevention plan at all times, shall ensure sufficient property ownership or interest and shall maintain easements prohibiting residential structures, as appropriate. (h) For a permitted facility undergoing renewal of an existing permit with plans and specifications approved prior to March 1, 1990, for which no design change is requested, the facility will not be required to comply with the requirements of this subsection. (i) Facilities for which plans and specifications have been approved prior to March 1, 1990, are not required to resubmit revised plans and specifications to meet changed requirements in this section in obtaining renewal of an existing permit. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 13, 1998. TRD-9807862 Kevin McCalla Director, Legal Services Texas Natural Resource Conservation Commission Effective date: June 5, 1998 Proposal publication date: December 26, 1997 For further information, please call: (512) 239-4640 TITLE 31. NATURAL RESOURCES AND CONSERVATION PART II. Texas Parks and Wildlife Department CHAPTER 53.Finance SUBCHAPTER A.License Fees and Boat and Motor Fees 31 TAC sec.53.6, sec.53.7 The Texas Parks and Wildlife Commission in a regularly scheduled public hearing, April 16, 1998 adopted amendments to sec.53.6, concerning Commercial Fishing Licenses and Tags, and sec.53.7, concerning Business Licenses and Permits, without changes to the proposed text as published in the March 13, 1998, issue of the Texas Register (23 TexReg 2724). Responsibility for establishing provisions enabling a commercial crab fishery license limitation program, including creation of a commercial crab fishing license, is delegated to the Texas Parks and Wildlife Commission by passage of House Bill 2542 by the 75th Legislature. The amendments establish license fees, license transfer fees, and duplicate license fees for resident and non-resident commercial crab fisherman's licenses. The commercial crab trap tag fee is being removed, as it will no longer be required. The Department received no public comment on the proposed rule. The amendments are adopted under Parks and Wildlife Code, Chapter 78, Subchapter B, which delegate to the Texas Parks and Wildlife Commission authority to establish provisions enabling a commercial crab fishery license limitation program, including creation of commercial crab fishing licenses. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 12, 1998. TRD-9807732 Bill Harvey, Ph.D. Regulatory Coordinator Texas Parks and Wildlife Department Effective date: June 1, 1998 Proposal publication date: March 13, 1998 For further information, please call: (512) 389-4642 CHAPTER 58.Oysters and Shrimp SUBCHAPTER B.Statewide Shrimp Fishery Proclamation 31 TAC sec.58.160 The Texas Parks and Wildlife Commission in a regularly scheduled public hearing, April 16, 1998 adopted amendments to sec.58.160, concerning the Statewide Shrimp Fishery Proclamation. Responsibility for establishing seasons, bag limits, means and methods for taking wildlife resources is delegated to the Texas Parks and Wildlife Commission under Parks and Wildlife Code, Chapter 61, Uniform Wildlife Regulatory Act (Wildlife Conservation Act of 1983) without changes to the proposed text as published in the March 13, 1998, issue of the Texas Register (23 TexReg 2730). These regulations contain measures which will reduce overfishing while assisting in achieving, on a continuing basis, the optimum yield for the fishery, manage bait fish throughout their range, promote efficiency in utilizing bait fish resources, minimize costs, avoid unnecessary duplications in administration, and enhance enforcement. The foregoing constitute findings by the Commission which support the need for the proposed proclamation. Department outreach efforts with Texas bait dealers indicate the exemption adopted in 1997 is working well to provide adequate numbers of live bait-fish for recreational anglers without creating undo resource problems or abuse. Extending the exemption would allow for further evaluation of alternative management measures in this fishery. The addition of an exemption for the retention of Atlantic cutlassfish for bait should provide a better opportunity to serve the Texas offshore anglers. The amendments extend the sunset of the live bait-fish exemption for commercial bait shrimp fishermen until September 1, 2001 and adds a temporary exemption for retaining Atlantic cutlassfish. One individual bait dealer said he felt the 1500 fish/day limit was inadequate to meet demands and compensate for daily mortality of bait fish held at bait houses. Department outreach efforts with Texas bait dealers, however, indicate most dealers believe the exemption adopted in 1997 is working well to provide adequate numbers of live bait fish for recreational anglers without creating undo problems or abuse. The amendment is adopted under authority of Parks and Wildlife Code, Chapter 61, Uniform Wildlife Regulatory Act (Wildlife Conservation Act of 1983), which provides the commission with authority to establish wildlife resource regulations for this state. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 12, 1998. TRD-9807734 Bill Harvey, Ph.D. Regulatory Coordinator Texas Parks and Wildlife Department Effective date: June 1, 1998 Proposal publication date: March 13, 1998 For further information, please call: (512) 389-4642 SUBCHAPTER C.Statewide Crab Fishery Proclamation 31 TAC sec.sec.58.201-58.210 The Texas Parks and Wildlife Commission in a regularly scheduled public hearing, April 16, 1998 adopted new 31 TAC sec.sec.58.201-58.210, concerning Crab Fishery Proclamation, without changes to the proposed text as published in the March 13, 1998, issue of the Texas Register (23 TexReg 2730). Responsibility for establishing provisions enabling a commercial crab fishery license limitation program, including creation of a commercial crab fishing license, is delegated to the Texas Parks and Wildlife Commission by passage of House Bill 2542 by the 75th Legislature. The Commission incorporates by reference as findings the Texas Crab Fishery Management Plan (31 TAC sec.57.691) and the publication Hammerschmidt, et al. (In Press). Status and Trends in the Texas Blue Crab (Callinectes sapidus) Fishery. Journal of Shellfish Research (Copies of these documents may be obtained by request in writing to Texas Parks and Wildlife, 4200 Smith School Road, Austin, TX 78744). The Commission finds that findings, conclusions, and recommendations set forth in these documents support the need for the licensing requirements established in these rules. These regulations contain measures which will reduce overfishing and prevent waste while assisting in achieving on a continuing basis optimum yield for the fishery, manage crabs throughout their range, promote efficiency in utilizing crab resources, minimize costs, avoid unnecessary duplications in administration, and enhance enforcement The new rules create a crab license management program, including rules to establish: a commercial crab fishing license; eligibility requirements to receive the license in the 1998-99 license year and subsequent years; provisions for transfer of licenses; the number of licenses an individual may possess; rules regarding license requirements for persons engaged in commercial crab fishing; and provisions for suspension and revocation of licenses. The new regulations also create a Review Board to review and advise the department regarding appeal and hardship cases for eligibility into the license management program, and establish a license buyback program, under which the department may purchase and retire commercial crab licenses in the future. The department received no public comment concerning the proposed new rules. The new rules are proposed under Parks and Wildlife Code, Chapter 78, Subchapter B, which delegate to the Texas Parks and Wildlife Commission the authority to establish provisions enabling a commercial crab fishery license limitation program, including creation of commercial crab fishing licenses. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 12, 1998. TRD-9807779 Bill Harvey, Ph.D. Regulatory Coordinator Texas Parks and Wildlife Department Effective date: June 1, 1998 Proposal publication date: March 13, 1998 For further information, please call: (512) 389-4642 CHAPTER 65.Wildlife SUBCHAPTER A.Statewide Hunting and Fishing Proclamation Division 3. Seasons and Bag Limits; Fishing Provisions 31 TAC sec.65.78 The Texas Parks and Wildlife Commission in a regularly scheduled public hearing, April 16, 1998 adopted amendments to sec.65.78, concerning Crabs and Ghost Shrimp, without changes to the proposed text as published in the March 13, 1998, issue of the Texas Register (23 TexReg 2742). Responsibility for establishing seasons, bag limits, means and methods for taking wildlife resources is delegated to the Texas Parks and Wildlife Commission under Parks and Wildlife Code, Chapter 61, Uniform Wildlife Regulatory Act (Wildlife Conservation Act of 1983). The adopted change adds language "for bait purposes only" to the 5% tolerance limit regarding possession of undersize crabs; establishes new provisions for marking commercial crab traps and crab lines, and adds the option of using untreated steel wire (20-gauge or smaller) in place of jute or sisal twine, or using a hinged door over a cut out in a crab trap, as requirements for equipping crab traps with degradable panels. Following implementation of the degradable panel rules in September 1997, industry members recommended testing some form of degradable wire as an alternative method of installing degradable panels in their traps. Department testing indicates that untreated steel wire of 20-gauge or smaller would alleviate the crab fishermen's concerns while still providing for an adequate degradable panel. Additionally, a hinged "door" installed over the degradable panel opening is currently in use by some crab fishermen. Its design meets the requirements of a degradable panel. New language allows for this option to be used by crab fishermen in their traps. The degradable panel portion of the proclamation will become effective as soon as possible after adoption by the Commission. Theft of traps and crabs from traps has been a significant and persistent concern of commercial crab fishermen. Passage of HB 2542 by the 75th Texas Legislature, which authorizes the Texas Parks and Wildlife Commission to establish a license limitation system for the commercial crab fishery, including creation of a commercial crab fisherman's license, provided the opportunity to develop an effective marking system that would minimize the opportunity for theft while enhancing law enforcement. This marking system as adopted links directly to establishment of a commercial crab fishermen's license and was approved by the industry work group which helped develop the license limitation package. In addition, to minimize the opportunity for theft, the new rules establish that traps or crab lines marked by a commercial crab fisherman's license plate number may be run only by an individual in a boat bearing the same commercial crab fisherman's license plate number. Addition of the restriction requiring the 5% tolerance of undersize crabs to be used for bait purposes only, clarifies the original intent of the 5% tolerance provision. These regulations contain measures which will reduce overfishing and prevent waste while assisting in achieving, on a continuing basis, the optimum yield for the fishery, manage crabs throughout their range, promote efficiency in utilizing crab resources, minimize costs, avoid unnecessary duplications in administration, and enhance enforcement. The foregoing constitute findings of fact by the Commission which support the need for the proposed proclamation. Although no formal comments were received by letter, phone call or during the public hearings, department staff have heard from fishermen at other meetings and informal settings that some commercial crab fishermen believe that regulations requiring degradable panels are not necessary. The department disagrees with the comments and responds that scientific evidence documents that abandoned and lost traps continue to fish and both the Texas Blue Crab Fishery Management Plan and the gulf States Marine Fishery Management Plan for blue crabs indicate the need for degradable panels in traps to minimize mortality of crabs in lost and abandoned traps; trap loss due to theft and shrimp trawls certainly occurs but traps are also lost due to loss of buoys and float lines, storms, and deliberate abandonment; although the exact magnitude of the amount of lost and abandoned traps is unknown, abandoned traps continue to fish and degradable panels will effectively minimize crab mortality in such traps. The amendments are adopted under Parks and Wildlife Code, Chapter 61, Uniform Wildlife Regulatory Act (Wildlife Conservation Act of 1983), which provides the commission with authority to establish wildlife resource regulations for this state. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 12, 1998. TRD-9807733 Bill Harvey, Ph.D. Regulatory Coordinator Texas Parks and Wildlife Department Effective date: June 1, 1998 Proposal publication date: March 13, 1998 For further information, please call: (512) 389-4642 PART XV. Texas Low-Level Radioactive Waste Disposal Authority CHAPTER 450.Planning and Implementation Fees SUBCHAPTER A.Assessment of Fees 31 TAC sec.sec.450.1-450.4 The Texas Low-Level Radioactive Waste Disposal Authority adopts amendments to sec.sec.450.1-450.4, concerning planning and implementation fees for low-level radioactive waste generators for the state's fiscal year 1998. Section 450.3 is adopted with changes to the proposed text as published in the April 3, 1998, issue of the Texas Register (23 TexReg 3420). Sections 450.1, 450.2 and 450.4 are adopted without changes and will not be republished. The amendments are necessary to comply with the Health and Safety Code, sec.402.2721 that authorizes the adoption by rule of planning and implementation fees for each fiscal year. Fees collected in 1998 will be applied to the Authority's costs as set out in the Authority's appropriation bill for 1998. No comments were received regarding adoption of the amended sections. However, the company name for the South Texas Project has changed to: South Texas Project Nuclear Operating Company. The amendments are adopted under the Health and Safety Code, sec.402.054 which provides the Texas Low-Level Radioactive Waste Disposal Authority with the authority to adopt rules, standards, and orders necessary to properly carry out the Texas Low-Level Radioactive Waste Disposal Authority Act, and sec.402.2721 which directs the authority to adopt planning and implementation fees. The Texas Health and Safety Code, sec.402.054 and sec.402.2721 are affected by the amended sections. sec.450.3.Assessed Fees. (a) Fees shall be assessed to persons subject to sec.450.2(a)(1) of this title (relating to Applicability), as follows: Figure: 31 TAC sec.450.3(a) (b) Fees shall be assessed to persons subject to sec.450.2(a)(2), as follows: $500 plus an additional $1.00 for every cubic foot in excess of 7.5 cubic feet of radioactive material generated and shipped. (c) For purposes of determining shipment volumes under subsection (b) of this section, the board shall rely on the manifest information management system data base maintained by the United States Department of Energy and/or the Texas manifest reporting system maintained by the Texas Department of Health, as appropriate, and these records shall be determinative for purposes of assessing fees under subsection (b) of this section. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 13, 1998. TRD-9807895 Lee H. Mathews Deputy General Manager and General Counsel Texas Low-Level Radioactive Waste Disposal Authority Effective date: June 2, 1998 Proposal publication date: April 3, 1998 For further information, please call: (512) 451-5292 TITLE 34. PUBLIC FINANCE PART I. Comptroller of Public Accounts CHAPTER 1. Central Administration SUBCHAPTER A. Practice and Procedure 34 TAC sec.1.5 The Comptroller of Public Accounts adopts an amendment to sec.1.5, concerning initiation of a hearing, without changes to the proposed text as published in the March 27, 1998, issue of the Texas Register (23 TexReg 3228). The section is being amended to incorporate provisions in Chapters 154 and 155 of the Tax Code. No comments were received regarding adoption of the amendment. This amendment is adopted under the Tax Code, sec.111.002, which provides the comptroller with the authority to prescribe, adopt, and enforce rules relating to the administration and enforcement of the provisions of the Tax Code, Title 2. The amendment implements the Tax Code, sec.sec.154.1142, 154.309, 155.0592, and 155.186. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 15, 1998. TRD-9807996 Martin Cherry Chief, General Law Comptroller of Public Accounts Effective date: June 4, 1998 Proposal publication date: March 27, 1998 For further information, please call: (512) 463-4062 34 TAC sec.1.7 The Comptroller of Public Accounts adopts an amendment to sec.1.7, concerning content of statement of grounds and preliminary conferences, without changes to the proposed text as published in the March 27, 1998, issue of the Texas Register (23 TexReg 3229). The section is being amended to incorporate provisions in Chapters 154 and 155 of the Tax Code. No comments were received regarding adoption of the amendment. This amendment is adopted under the Tax Code, sec.111.002, which provides the comptroller with the authority to prescribe, adopt, and enforce rules relating to the administration and enforcement of the provisions of the Tax Code, Title 2. The amendment implements the Tax Code, sec.154.1142 and sec.155.0592. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 15, 1998. TRD-9807997 Martin Cherry Chief, General Law Comptroller of Public Accounts Effective date: June 4, 1998 Proposal publication date: March 27, 1998 For further information, please call: (512) 463-4062 34 TAC sec.1.9 The Comptroller of Public Accounts adopts an amendment to sec.1.9, concerning position letters, without changes to the proposed text as published in the March 27, 1998, issue of the Texas Register (23 TexReg 3229). The section is being amended to incorporate provisions in Chapters 154 and 155 of the Tax Code. No comments were received regarding adoption of the amendment. This amendment is adopted under the Tax Code, sec.111.002, which provides the comptroller with the authority to prescribe, adopt, and enforce rules relating to the administration and enforcement of the provisions of the Tax Code, Title 2. The amendment implements the Tax Code, sec.154.1142 and sec.155.0592. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 15, 1998. TRD-9807998 Martin Cherry Chief, General Law Comptroller of Public Accounts Effective date: June 4, 1998 Proposal publication date: March 27, 1998 For further information, please call: (512) 463-4062 34 TAC sec.1.10 The Comptroller of Public Accounts adopts an amendment to sec.1.10, concerning acceptance or rejection of a position letter and motions to dismiss petition or set for hearing, without changes to the proposed text as published in the March 27, 1998, issue of the Texas Register (23 TexReg 3229). The section is being amended to incorporate provisions in Chapters 154 and 155 of the Tax Code. No comments were received regarding adoption of the amendment. This amendment is adopted under the Tax Code, sec.111.002, which provides the comptroller with the authority to prescribe, adopt, and enforce rules relating to the administration and enforcement of the provisions of the Tax Code, Title 2. The amendment implements the Tax Code, sec.154.1142 and sec.155.0592. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 15, 1998. TRD-9807999 Martin Cherry Chief, General Law Comptroller of Public Accounts Effective date: June 4, 1998 Proposal publication date: March 27, 1998 For further information, please call: (512) 463-4062 34 TAC sec.1.14 The Comptroller of Public Accounts adopts an amendment to sec.1.14, concerning notice of setting, without changes to the proposed text as published in the March 27, 1998, issue of the Texas Register (23 TexReg 3230). The section is being amended to incorporate provisions in Chapters 154 and 155 of the Tax Code. No comments were received regarding adoption of the amendment. This amendment is adopted under the Tax Code, sec.111.002, which provides the comptroller with the authority to prescribe, adopt, and enforce rules relating to the administration and enforcement of the provisions of the Tax Code, Title 2. The amendment implements the Tax Code, sec.sec.154.1142, 154.309, 155.0592 and 155.186. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 15, 1998. TRD-9808000 Martin Cherry Chief, General Law Comptroller of Public Accounts Effective date: June 4, 1998 Proposal publication date: March 27, 1998 For further information, please call: (512) 463-4062 34 TAC sec.1.15 The Comptroller of Public Accounts adopts an amendment to sec.1.15, concerning taxpayer's reply to the position letter, without changes to the proposed text as published in the March 27, 1998, issue of the Texas Register (23 TexReg 3230). The section is being amended to incorporate provisions in Chapters 154 and 155 of the Tax Code. No comments were received regarding adoption of the amendment. This amendment is adopted under the Tax Code, sec.111.002, which provides the comptroller with the authority to prescribe, adopt, and enforce rules relating to the administration and enforcement of the provisions of the Tax Code, Title 2. The amendment implements the Tax Code, sec.154.1142 and sec.155.0592. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 15, 1998. TRD-9808001 Martin Cherry Chief, General Law Comptroller of Public Accounts Effective date: June 4, 1998 Proposal publication date: March 27, 1998 For further information, please call: (512) 463-4062 34 TAC sec.1.16 The Comptroller of Public Accounts adopts an amendment to sec.1.16, concerning response of the Tax Division, without changes to the proposed text as published in the March 27, 1998, issue of the Texas Register (23 TexReg 3231). The section is being amended to incorporate provisions in Chapters 154 and 155 of the Tax Code. No comments were received regarding adoption of the amendment. This amendment is adopted under the Tax Code, sec.111.002, which provides the comptroller with the authority to prescribe, adopt, and enforce rules relating to the administration and enforcement of the provisions of the Tax Code, Title 2. The amendment implements the Tax Code, sec.154.1142 and sec.155.0592. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 15, 1998. TRD-9808002 Martin Cherry Chief, General Law Comptroller of Public Accounts Effective date: June 4, 1998 Proposal publication date: March 27, 1998 For further information, please call: (512) 463-4062 34 TAC sec.1.42 The Comptroller of Public Accounts adopts an amendment to sec.1.42, concerning definitions, without changes to the proposed text as published in the March 27, 1998, issue of the Texas Register (23 TexReg 3231). The section is being amended to incorporate provisions in Chapters 154 and 155 of the Tax Code. No comments were received regarding adoption of the amendment. This amendment is adopted under the Tax Code, sec.111.002, which provides the comptroller with the authority to prescribe, adopt, and enforce rules relating to the administration and enforcement of the provisions of the Tax Code, Title 2. The amendment implements the Tax Code, sec.sec.151.7031, 154.1142, and 155.0592. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 15, 1998. TRD-9808003 Martin Cherry Chief, General Law Comptroller of Public Accounts Effective date: June 4, 1998 Proposal publication date: March 27, 1998 For further information, please call: (512) 463-4062 CHAPTER 3. Tax Administration SUBCHAPTER CC. Waste Tire Recycling Fee 34 TAC sec.3.721 The Comptroller of Public Accounts adopts the repeal of sec.3.721, concerning collection and reporting requirements, without changes to the proposed text as published in the March 20, 1998, issue of the Texas Register (23 TexReg 2984). This rule is being repealed because the Waste Tire Recycling Program expired on December 31, 1997, in accordance with Health and Safety Code, sec.361.497. No comments were received regarding adoption of the repeal. This repeal is adopted under the Tax Code, sec.111.002 and sec.111.0022, which provide the comptroller with the authority to adopt rules for the administration and enforcement of the Tax Code and programs or functions assigned to the comptroller by law. The repeal implements Health and Safety Code, sec.361.497. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 14, 1998. TRD-9807937 Martin Cherry Chief, General Law Comptroller of Public Accounts Effective date: June 3, 1998 Proposal publication date: March 20, 1998 For further information, please call: (512) 463-3699 TITLE 40. SOCIAL SERVICES AND ASSISTANCE PART I. Texas Department of Human Services CHAPTER 77. Continuing Education Policy and Procedures 40 TAC sec.sec.77.1-77.5, 77.9-77.12 The Texas Department of Human Services (DHS) adopts the repeal of sec.sec.77.1- 77.5 and 77.9-77.12 and new sec.sec.77.10-77.15, without changes to the proposed text as published in the April 10, 1998, issue of the Texas Register (23 TexReg 3665). Justification for the new sections is a more efficient use of public funds through the deletion of outdated training provisions and the inclusion of provisions that reflect the agency's current training needs. The new sections will replace the obsolete training plan that references Child Protective Services training with one that reflects the current needs of DHS. The department received no comments regarding adoption of the repeals and new sections. The repeals are adopted under the Government Code, Chapter 656, which authorizes the department to adopt rules relating to employee training and education. The repeals implement the Government Code, sec.656.048. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 14, 1998. TRD-9807935 Glenn Scott General Counsel, Legal Services Texas Department of Human Services Effective date: June 3, 1998 Proposal publication date: April 10, 1998 For further information, please call: (512) 438-3765 CHAPTER 77. Employment Practices SUBCHAPTER A. Employee Training and Education 40 TAC sec.77.10-77.15 The new sections are adopted under the Government Code, Chapter 656, which authorizes the department to adopt rules relating to employee training and education. The new sections implement the Government Code, sec.656.048. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 14, 1998. TRD-9807936 Glenn Scott General Counsel, Legal Services Texas Department of Human Services Effective date: June 3, 1998 Proposal publication date: April 10, 1998 For further information, please call: (512) 438-3765 PART XX. Texas Workforce Commission CHAPTER 821.Texas PayDay Rules The Texas Workforce Commission (Commission) adopts new sec.sec.821.1-821.6, 821.21, 821.22, 821.25-821.28, 821.41-821.46, 821.61-821.63 and 821.81, concerning Payment of Wages. Sections 821.21, 821.25-821.28, 821.41, 821.46, 821.62, 821.63 and 821.81 are adopted with changes to the proposed text as published in the January 23, 1998, issue of the Texas Register (23 TexReg 535). Sections 821.1-821.6, 821.22, 821.42 -- 821.45 and 821.61 are adopted without changes and will not be republished. The Commission has not adopted proposed sec.821.23 and sec.821.24. The purpose of the rules is to facilitate the Commission's administration of Texas Labor Code, Chapter 61, Payment of Wages. The Commission is responsible for the investigation, determination and collection of unpaid wages for employees. This program is an administrative alternative to litigation in Texas courts. The Commission made non-substantive corrections to proposed sec.sec.821.21, 821.27, 821.41, 821.62 and 821.81 to standardize statutory references, and non-substantive grammatical changes to proposed sec.sec.821.25 and 821.46 to improve readability. The Commission added to the proposed text of sec.821.63 a reference in subsection 821.63(a) to the assignment of lien that had been omitted inadvertently. The Commission has explained the other changes to the proposed text in its responses to the comments below. Subchapter A of the adopted rules contains provisions of general application relating to the title and purpose of the rules, definitions of terms, jurisdiction and the relation of Texas Labor Code, Chapter 61, to other wage and hour laws. Subchapter B of the adopted rules interprets and clarifies statutory provisions relating to the form and delivery of wages, the timeliness of payment, fringe benefits and commissions, treatment of loans, and withholding wages. Subchapter C of the adopted rules interprets and clarifies statutory provisions relating to various stages in the administrative wage claim process. Subchapter D of the adopted rules addresses the wage collection process. Finally, Subchapter E of the adopted rules sets out the Commission's policy on requiring bonds of certain employers. The Commission held a public hearing on the proposed rules on February 10, 1998 in Room 644 of the TWC Building at 101 E. 15th Street in Austin, Texas. The Commission received comments on the rules from business, labor, legislators and a private attorney. Some commenters were for the rules, and others had concerns and questions about the rules as proposed, and suggested changes. The names of interested groups or associations offering comments on the rules are as follows: two Texas State Representatives; The Texas Association of Business and Chambers of Commerce; The Texas AFL-CIO; The Salvation Army; The Houston Welfare Rights Organization; The Texas Appleseed Advocacy Fund; and an individual. Following each comment or group of related comments is the Commission's response. Section 821.5. Employment Status: Employee or Independent Contractor. Comment: The checklist adopted in sec.821.5 is inconsistent with the common law the Commission is bound to follow. Response: The Commission disagrees. The Commission believes the checklist is consistent with the federal common law and the Act. Also, the checklist is merely a guide to be used in applying the applicable law. Section 821.6. Wage Claims Involving Minimum Wage or Overtime. Comment: Under sec.821.6, the Commission should limit its consideration of overtime claims to those in which the employer has acknowledged such a liability or the United States Department of Labor (USDOL) has determined it. Response: The Commission disagrees. While the Commission believes it is appropriate to defer to an existing determination of the USDOL on overtime, the Commission believes it has a mandate to determine unpaid wages if an employee either has chosen not to complain to the USDOL or has been left to private litigation by them. Comment: Under sec.821.6, the Commission should consider case law and regulations promulgated under the Fair Labor Standards Act (FLSA) as well as the FLSA itself. Response: The Commission agrees. The consideration of case law and regulations is implicit in the rule. Section 821.21. Complete and Unconditional Payment of Wages. Comment: Section 821.21(b) is unclear as to its intended purpose, its benefit and on whom it ultimately places responsibility. Comment: The Commission should delete sec.821.21(b) as it applies to forms of payment that need to be cashed because it is unnecessary, it places an undue burden on employees, it allows employers to realize a windfall and it is not authorized by the Act. Comment: The Commission should delete sec.821.21(c), which allows an employee to refuse a paycheck under certain circumstances. Response: The Commission acknowledges the concerns raised by the comments on this rule and, without agreeing or disagreeing with them, has deleted sec.821.21(b) and (c) of the rule and re-lettered the remaining subsections accordingly. Section 821.23. Delayed Wage Payments. Comment: Section 821.23 prohibits the payment of bonuses on a schedule different from the payment of regular wages. Comment: Section 821.23 places an unauthorized burden on employees and is vague. Response: The Commission acknowledges the concerns raised by the comments on this rule and, without agreeing or disagreeing with them, has declined to adopt the rule. Section 821.24. Electronic Funds Transfer. Comment: Section 821.24(a) places unauthorized limitations on an employer's right to pay wages by electronic funds transfer (EFT) - that it be agreed to in writing by the employee; and that an employer may not make it a condition of employment. Comment: The Commission has no authority to, and should not, allow employers to charge employees for the cost of paying wages by EFT as provided by sec.821.24(b). The cost of doing business belongs to owner not employee. Response: The Commission acknowledges the concerns raised by the comments on this rule and, without agreeing or disagreeing with them, has declined to adopt the rule. Section 821.25. Fringe Benefits. Comment: Section 821.25(b) is unclear on what severance pay is and too narrowly defines wages in lieu of notice. Response: The Commission agrees in part and disagrees in part. The Commission has deleted references to wages in lieu of notice. The Commission believes that the definition of severance pay is merely a clarification of a term not defined in the Act. Comment: Section 821.25(b) is irrelevant and should be deleted because it does not matter in the context of a wage claim. The reference seems to be directed at a problem related to unemployment claims. Response: The Commission agrees that the definition of wages in lieu of notice is irrelevant because the Act makes no reference to that term. The Commission has deleted references to wages in lieu of notice. The Act does, however, refer to severance pay. That definition is relevant. Comment: Section 821.25(f) is an unauthorized interference with business practices and should be deleted. The Commission should not charge out accrued leave or state how it is to be paid upon separation. Response: The Commission disagrees. The provision merely clarifies the limitation imposed by the Act that such payments are considered wages only if owed in writing. Comment: Section 821.25 - The Commission should honor oral agreements between employers and employees. Response: The Commission disagrees. The Act gives the Commission no authority to adopt a rule inconsistent with the Act's limitation that such payments are covered wages only if owed in writing. Section 821.26. Commissions. Comment: Section 821.26 imposes unauthorized limitations on agreements for wages paid on commission basis. Commissions should not be payable until all facts needed to determine their amount and entitlement are known. The rule should require such agreements to be in writing to be made the basis of a wage claim. Response: The Commission disagrees. The rule defers to the agreements between parties. The Commission has no authority to limit claims for wages paid on commission basis to those based on written agreements. The Commission has modified sec.821.26(b) to clarify that the Commission will look to the agreement between the parties whether written or oral. Section 821.27. Loans and Advances. Comment: Section 821.27 prohibits the recovery of loans from minimum wage or overtime pay and limits the repayment schedule. Response: The Commission disagrees. The rule expressly allows an employer to count loan repayments toward required minimum wage and overtime pay, and it allows the parties to agree to any amount of deduction. Comment: Section 821.27 goes beyond the authority granted by the Act. Comment: The Commission has no authority to adopt sec.821.27(d) because that provision was expressly rejected by the legislature in 1997. Comment: Section 821.27(d) and (e) create confusion, argument, misunderstanding and the ability to mislead the other party by not requiring written authorization. Response: The Commission acknowledges the concerns raised by the comments on sec.821.27(d) and (e) and, without agreeing or disagreeing with them, has deleted those subsections, re-lettered the remaining subsections and modified the title of the rule accordingly. Section 821.28. Deductions. Comment: Section 821.28 gives no guidance to employers on dealing with foreign wage garnishments and places unauthorized restrictions on employee authorizations. Response: The Commission disagrees. Section 821.28(a)(1) recognizes the constitutional precept that full faith and credit be given to foreign court orders. The rule merely fleshes out the meaning of the term "authorization." The Commission has amended sec.821.28(b) to clarify that the Commission's concern is effective notice to the employee rather than a particular form of authorization. Comment: Section 821.28(b) is unclear as to whether it requires specificity at the time of authorization or at the time of deduction or both. It should require the employer to state the specific purpose of the deduction at the time of authorization and at the time of the deduction. Response: The Commission agrees in part and disagrees in part. The Commission has amended sec.821.28(b) to clarify that only the authorization needs to be specific. The Act does not expressly give the Commission the authority to require the employer to specify the purpose of the deduction at the time the deduction is made. Comment: Section 821.28(c) condones the practice of hiding an authorization to withhold pay in an employee handbook or employer manual. Such a practice defeats the purpose of requiring written authorization. Response: The Commission disagrees. Section 821.28(c) incorporates the safeguards in sec.821.28(b). To clarify its intent, the Commission has amended sec.821.28(c) by adding language aimed at maximizing the notice to the employee of an authorization incorporated into the employer's handbook or manual. Comment: Section 821.28(d) is too broad as to the authorization required to deduct losses in general and as to the kinds of losses for which an employer may withhold pay even with specific authorization. Comment: Section 821.28(d) was expressly rejected by the legislature in 1997. Response: The Commission acknowledges the concerns raised by the comments on sec.821.28(d) and, without agreeing or disagreeing with them, has deleted that subsection and re-lettered the remaining subsections accordingly. Section 821.41. Validity of Claim/Filing and Investigative Procedures. Comment: Employees are unlikely to be able to discover the legal names of their employers. Response: The Commission disagrees. The Commission must be able to notify the employer. The employee need not provide the exact name, but must give adequate details to allow the Commission to complete a valid investigation. Section 821.42. Timeliness. Comment: The Commission should consider a premature wage claim timely filed if the wages remain unpaid after they've become due for payment. Response: The Commission disagrees. The Act does not recognize a premature wage claim. Section 821.43. Wage Claim Withdrawal. Comment: The Commission should expressly prohibit the withdrawal of a wage claim absent an agreement of all parties because claimants will abuse the tactic. Response: The Commission disagrees. The Commission has no statutory authority to prohibit the withdrawal of a wage claim. Section 821.44. Bad Faith. Comment: Employers should be held in bad faith if they continue in wage disputes past the expiration of the initial claim notice period. Response: The Act does not authorize the imposition of a bad faith penalty against an employer for anything other than for failing to pay wages in violation of the Act. Comment: Findings of bad faith should be limited to violations of the Act itself, not the Rules. Response: The Commission disagrees. Any violation of a rule adopted under this chapter will be a violation of the Act as well. Section 821.45. Appeals. Comment: The Commission should limit appeals to issues raised by the parties. Response: The Commission disagrees. The Act makes these hearings subject to the rules that govern unemployment benefits hearings. One of those rules requires that a hearing officer conduct the hearings in a manner as to ascertain the substantial rights of the parties and to consider and pass upon all issues relevant to the appeal. General Comments. General Comment: By and large, the proposed rules are constructive and helpful in adding certainty to and remaining faithful to the intent of the Act in establishing a system for the collection of liquidated wage claims. General Comment: The entire chapter as proposed should be withdrawn or re- written and re-proposed because of the many disadvantages they impose on workers. General Comment: The rules will trap claimants and likely snare the agency in litigation. Because of the number of flaws and imbalances, the Commission should withdraw or at least extend the comment period, and then rewrite the rules. General Comment: Some rules are unnecessary, some reflect poor public policy and some simply are an illegal exercise of power by the agency. The Commission should decline to enact rules and continue with the orderly and predictable enforcement that employers and employees have come to rely on. General Response: The Commission believes that the rules interpret and clarify the rights and duties conferred on employers and employees by the Act. The Commission has incorporated the suggestions presented in the comments where appropriate. SUBCHAPTER A.General Provisions 40 TAC sec.sec.821.1-821.6 The new rules are adopted under Texas Labor Code, Title 2, which provides the Texas Workforce Commission with the authority to adopt, amend, or rescind such rules as it deems necessary for the effective administration of the Commission and compliance with Texas Labor Code, Chapter 61, Payment of Wages. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 12, 1998. TRD-9807768 J. Randel (Jerry) Hill General Counsel Texas Workforce Commission Effective date: June 1, 1998 Proposal publication date: January 23, 1998 For further information, please call: (512) 463-8812 SUBCHAPTER B.Payment of Wages 40 TAC sec.sec.821.21, 821.22, 821.25-821.28 The new rules are adopted under Texas Labor Code, Title 2, which provides the Texas Workforce Commission with the authority to adopt, amend, or rescind such rules as it deems necessary for the effective administration of the Commission and compliance with Texas Labor Code, Chapter 61, Payment of Wages. sec.821.21.Complete and Unconditional Payment of Wages. (a) An employer has paid an employee's wages for purposes of the Act if the employer has delivered the wages to the employee: (1) in a form authorized by sec.61.016 of the Act; and (2) by a method authorized by sec.61.017 of the Act. (b) An employer has not paid an employee's wages for purposes of the Act if the employee has received the wages subject to a third party claim because: (1) the paycheck has been dishonored due to insufficient funds, a stop-payment order or any other reason attributable to the employer; (2) the employer has caused a direct deposit of the wages to be reversed; or (3) the employer has taken other similar action to undo the payment of wages. sec.821.25.Fringe Benefits. (a) For purposes of sec.61.001 (7)(B) of the Act, vacation pay and sick leave pay are payable to an employee upon separation from employment only if a written agreement with the employer or a written policy of the employer specifically provides for payment. (b) Severance pay is payment by an employer to an employee beyond the employee's wages on termination of employment, usually based on the employee's length of prior service, and is not attributable to any period of time subsequent to termination. (c) For purposes of sec.61.001 (7)(B) of the Act, the sale of an employer's business is a termination of employment with all of the employer's employees. At the time of termination, the employer becomes liable for the payment of vacation pay, holiday pay, sick leave pay, parental leave pay, or severance pay if owed pursuant to a written agreement or written policy between the employer and its employees. (d) For purposes of sec.61.001 (7) of the Act, expense reimbursements paid to employees are not wages. Expense reimbursements are payments to the employee for costs expended by the employee directly related to the employer's business. (e) Absent the inclusion of definitions of terms in a written agreement with the employer or under a written policy of the employer, a term will be given its ordinary meaning unless a party establishes that it is defined in another way. (f) For purposes of sec.61.001 (7)(B) of the Act, accrued leave time of an employee shall carry over to subsequent years only if a written agreement with the employer or a written policy of the employer specifically provides for it. sec.821.26.Commissions. (a) For purposes of sec.61.015 of the Act: (1) Commissions are earned when the employee has met all the required conditions set forth in the applicable agreement with the employer. To change an agreement, there must be prior notice as to the nature and effective date of the changes. Changes to written agreements shall be in writing. (2) Commissions are due to be paid, in a timely manner, according to the terms specified in an agreement between an employer and an employee. The terms should specify the time intervals or circumstances (or combinations thereof) that would cause commissions to become payable, such as, but not limited to, weekly, monthly, quarterly, when sales transactions are recorded, upon buyer's remittance, etc. (b) Unless otherwise agreed, the employer shall pay, after separation, commissions earned as of the time of separation. (c) Commissions due after separation from employment are payable based on the routine or practice specified in the agreement when the employee was employed, or on any special agreement made between the employee and the employer upon separation. (d) Draws against commissions may be recovered from the current or any subsequent pay period until fully reconciled. sec.821.27.Loans. (a) An employer must comply with sec.61.018 of the Act, and this chapter in order to recoup a loan the employer made to an employee. (b) In recouping a loan made to an employee, an employer may count the loan repayment toward any applicable minimum or overtime wages the employer is obligated to pay to the employee. (c) In recouping a loan made to an employee from any of the employee's paychecks, including the employee's final paycheck, the employer may not withhold or divert more than the agreed amount. The agreed amount is the amount: (1) identified as the amount to be withheld from any one paycheck in the written loan agreement between the employer and employee; or (2) otherwise authorized in writing by the employee for repayment of the loan. sec.821.28.Deductions. (a) The Commission provides the following guidance in determining whether an employer is entitled to withhold or divert wages under court order, by law or with written authorization under sec.61.018 of the Act: (1) A court is presumed to be a court of competent jurisdiction with respect to issuing court orders. The burden shall be on the party opposing a court order to challenge the court's authority by appealing to the issuing court or court of appropriate review as the Commission will presume full faith and credit applies to court orders. (2) State or federal law includes statutes and codes enacted by Congress or the Texas Legislature, rules promulgated by a Texas or federal agency, and regulations promulgated by a Texas or federal agency. (3) A lawful purpose is one that is authorized, sanctioned, or not forbidden, by law. (b) Written authorization for deductions shall be specific as to the lawful purpose for which the employee has accepted the responsibility or liability. Written authorizations shall be: (1) sufficient to give the employee a reasonable expectation of the amount to be withheld from pay; and (2) a clear indication that the deduction is to be withheld from wages. (c) If an employer uses a handbook, policy manual or other similar document instead of a separate writing, the employee's signed acknowledgment of receipt of company policies can be authorization to withhold wages if the acknowledgment meets the requirements of subsection (b) of this section and specifically informs the employee of the deduction. The signed acknowledgment of receipt shall also include language that states that the employee agrees to abide by or be bound to the authorization for deduction. (d) The employer shall ensure that properly withheld wages are applied toward their authorized purpose. Properly withheld wages not applied toward their authorized purpose will be considered unlawful deductions. (e) The employer shall obtain written authorization as required under the Act to deduct credit card service charges from an employee's tips. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 12, 1998. TRD-9807769 J. Randel (Jerry) Hill General Counsel Texas Workforce Commission Effective date: June 1, 1998 Proposal publication date: January 23, 1998 For further information, please call: (512) 463-8812 SUBCHAPTER C.Wage Claims 40 TAC sec.sec.821.41-821.46 The new rules are adopted under Texas Labor Code, Title 2, which provides the Texas Workforce Commission with the authority to adopt, amend, or rescind such rules as it deems necessary for the effective administration of the Commission and compliance with Texas Labor Code, Chapter 61, Payment of Wages. sec.821.41.Validity of Claim/Filing and Investigative Procedures. (a) A faxed wage claim does not meet the requirements of sec.61.051 of the Act and will not be accepted as a valid claim. (b) A photocopy of a wage claim is not valid without original signatures of the claimant and the witness. (c) A wage claim must be filled out completely, legibly, and sufficiently to identify and allow the Commission to attempt contact with the employer. sec.821.46.Void Determination Orders and Decisions. A preliminary wage determination order and a decision shall be void from its inception when it orders a non-existent entity to pay wages. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 12, 1998. TRD-9807770 J. Randel (Jerry) Hill General Counsel Texas Workforce Commission Effective date: June 1, 1998 Proposal publication date: January 23, 1998 For further information, please call: (512) 463-8812 SUBCHAPTER D.Collection Action 40 TAC sec.sec.821.61-821.63 The new rules are adopted under Texas Labor Code, Title 2, which provides the Texas Workforce Commission with the authority to adopt, amend, or rescind such rules as it deems necessary for the effective administration of the Commission and compliance with Texas Labor Code, Chapter 61, Payment of Wages. sec.821.62.Collection Pending Judicial Review. The Commission may initiate or continue collection on a final order unless a party complies with the payment provision of sec.61.063 of the Act. sec.821.63.Assignment of Lien to Claimant. (a) Upon written request by the claimant, the Commission shall execute an assignment of lien to the claimant. The claimant shall bear responsibility for recording the assignment of lien. (b) Any partial assignment shall leave in full force and effect the lien regarding the remaining claimants. (c) The Commission's assignment of lien is final and irrevocable. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 12, 1998. TRD-9807771 J. Randel (Jerry) Hill General Counsel Texas Workforce Commission Effective date: June 1, 1998 Proposal publication date: January 23, 1998 For further information, please call: (512) 463-8812 SUBCHAPTER E.Bonds 40 TAC sec.821.81 The new rule is adopted under Texas Labor Code, Title 2, which provides the Texas Workforce Commission with the authority to adopt, amend, or rescind such rules as it deems necessary for the effective administration of the Commission and compliance with Texas Labor Code, Chapter 61, Payment of Wages. sec.821.81.Bonding. (a) When authorized by sec.61.031 of the Act, the Commission may require a bond of an employer if the Commission reasonably believes the employer would otherwise fail to comply with the Act. (b) The Commission shall consider the following factors in determining the amount of the bond: (1) the seriousness of the violation, including nature, circumstances, extent and gravity of any prohibited acts; (2) the history of previous violations; (3) the amount necessary to deter future violations; (4) efforts to pay past due wages and penalties; (5) the total amount of wages not paid in accordance with the Act; and (6) any other matter that justice may require. (c) The bond shall be in an amount not less than the cumulative total amount of wages finally determined to be due and unpaid by the employer in the past. The maximum bond shall be in an amount not more than five times the cumulative total amount of wages finally determined to be due and unpaid by the employer in the past. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on May 12, 1998. TRD-9807772 J. Randel (Jerry) Hill General Counsel Texas Workforce Commission Effective date: June 1, 1998 Proposal publication date: January 23, 1998 For further information, please call: (512) 463-8812