This month’s front cover artwork: Artist: Ofelia Rico 11th Grade Valley View High School
School children’s artwork has decorated the blank filler pages of the Texas Register since 1987. Teachers throughout the state submit the drawings for students in grades K- 12. The drawings dress up the otherwise gray pages of the Texas Register and introduce students to this obscure but important facet of state government. We will display artwork on the cover of each Texas Register. The artwork featured on the front cover is chosen at random. The artwork is published on what would otherwise be blank pages in the Texas Register. These blank pages are caused by the production process used to print the Texas Register. The artwork does not add additional pages to each issue and does not increase the cost of the Texas Register. For more information about the student art project, please call (800) 226-7199.
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a section of the Texas Administrative Code Office of the Secretary of State Dana Blanton P.O. Box 13824 Roberta Knight Austin, TX 78711-3824 (800) 226-7199 Texas Register (512) 463-5561 Carla Carter FAX (512) 463-5569 Tricia Duron http://www.sos.state.tx.us Ann Franklin Kris Hogan Secretary of State - Elton Bomer Diana Muniz-Franklin Becca Williams Director - Dan Procter Assistant Director - Dee Wright Circulation/Marketing Jill S. Ledbetter Receptionist - Brett Tiedt Liz Stern ATTORNEY GENERAL TEXAS BOARD OF PHYSICAL THERAPY EXAMIN- Office of the Attorney General ERS Request for Opinions...... 4655 LICENSE RENEWAL EMERGENCY RULES 22 TAC §341.6 ...... 4687 22 TAC §341.8 ...... 4687 TEXAS PARKS AND WILDLIFE DEPARTMENT TEXAS REAL ESTATE COMMISSION OYSTERS AND SHRIMP PROVISIONS OF THE REAL ESTATE LICENSE 31 TAC §58.161...... 4657 ACT EDWARDS AQUIFER AUTHORITY 22 TAC §535.131, §535.132...... 4688 EMERGENCY DROUGHT MANAGEMENT PLAN 22 TAC §§535.141, 535.143 - 535.148, 535.154, 535.156, 535.159 RULES FOR 2000 4690 31 TAC §720.1 ...... 4660 22 TAC §§535.148, 535.150 - 535.152, 535.155, 535.157, 535.158 31 TAC §§720.120, 720.122, 720.124, 720.126, 720.128, 720.130, 4693 720.132, 720.134, 720.136, 720.138, 720.140, 720.142, 720.144, 22 TAC §535.191, §535.192 ...... 4694 720.146, 720.148, 720.150, 720.152, 720.154, 720.156, 720.157, 720.158, 720.160, 720.162, 720.164...... 4662 TEXAS STATE BOARD OF EXAMINERS OF DIETI- TIANS PROPOSED RULES DIETITIANS OFFICE OF THE GOVERNOR 22 TAC §§711.1 - 711.14, 711.16, 711.17, 711.19 ...... 4695 CRIMINAL JUSTICE DIVISION 22 TAC §711.15...... 4707 1 TAC §3.53 ...... 4669 TEXAS DEPARTMENT OF INSURANCE 1 TAC §3.53, §3.55...... 4669 STATE FIRE MARSHAL 1 TAC §§3.73, 3.75, 3.77, 3.79, 3.83, 3.87...... 4670 28 TAC §§34.301-34.304...... 4708 1 TAC §3.609, §3.611...... 4671 28 TAC §34.1004 ...... 4709 1 TAC §3.717 ...... 4672 GENERAL LAND OFFICE 1 TAC §3.1209 ...... 4672 LAND RESOURCES 1 TAC §3.2007 ...... 4673 31 TAC §13.79, §13.81...... 4711 1 TAC §§3.2007, 3.2009, 3.2021...... 4673 1 TAC §§3.2501, 3.2503, 3.2515...... 4673 WITHDRAWN RULES GENERAL SERVICES COMMISSION STATE SECURITIES BOARD SUPPORT SERVICES DIVISION–TRAVEL AND VE- RULES OF PRACTICE IN CONTESTED CASES HICLE 7 TAC §105.14 ...... 4717 1 TAC §§125.1, 125.3, 125.5, 125.7, 125.9, 125.11, 125.13, 125.15, ADOPTED RULES 125.17, 125.19, 125.21, 125.23, 125.25, 125.27, 125.29...... 4674 OFFICE OF THE ATTORNEY GENERAL CREDIT UNION DEPARTMENT NEGOTIATION AND MEDIATION OF CERTAIN CHARTERING, OPERATIONS, MERGERS, LIQUI- CONTRACT DISPUTES DATIONS 1 TAC §§68.1, 68.3, 68.5, 68.7 ...... 4720 7 TAC §91.401 ...... 4684 1 TAC §§68.21, 68.23, 68.25, 68.27, 68.29, 68.31, 68.33, 68.35, TEXAS RACING COMMISSION 68.37...... 4720 OTHER LICENSES 1 TAC §§68.47, 68.49, 68.51, 68.53, 68.55, 68.57, 68.59, 68.614720 16 TAC §311.3 ...... 4685 TEXAS ALCOHOLIC BEVERAGE COMMISSION 16 TAC §311.101 ...... 4685 ALCOHOL AWARENESS AND EDUCATION OFFICIALS AND RULES OF HORSE RACING 16 TAC §50.1 ...... 4721 16 TAC §313.308 ...... 4686 16 TAC §50.2 ...... 4721
TABLE OF CONTENTS 25 TexReg 4651 16 TAC §50.3 ...... 4722 TEXAS STATE BOARD OF PHARMACY 16 TAC §50.4 ...... 4726 LICENSING REQUIREMENTS FOR PHARMACISTS 16 TAC §50.5 ...... 4727 22 TAC §283.5 ...... 4777 16 TAC §50.6 ...... 4729 PHARMACIES 16 TAC §50.7 ...... 4730 22 TAC §291.7, §291.17...... 4777 16 TAC §50.8 ...... 4731 22 TAC §§291.32, 291.33, 291.36...... 4778 16 TAC §50.9 ...... 4731 22 TAC §§291.72-291.75...... 4816 16 TAC §50.10 ...... 4733 TEXAS DEPARTMENT OF HEALTH 16 TAC §50.11 ...... 4734 RADIATION CONTROL TEXAS RACING COMMISSION 25 TAC §289.201 ...... 4825 GENERAL PROVISIONS 25 TAC §289.202 ...... 4834 16 TAC §303.92...... 4735 25 TAC §289.231 ...... 4855 RACETRACK LICENSES AND OPERATIONS TEXAS YOUTH COMMISSION 16 TAC §309.202 ...... 4735 ADMISSION AND PLACEMENT 16 TAC §309.309 ...... 4736 37 TAC §85.29, §85.33...... 4868 16 TAC §309.361 ...... 4736 37 TAC §85.33 ...... 4875 OFFICIALS AND RULES OF HORSE RACING TEXAS DEPARTMENT OF HUMAN SERVICES 16 TAC §313.409 ...... 4737 MEDICAID PROGRAMS–CHILDREN AND PREG- TEXAS LOTTERY COMMISSION NANT WOMEN ADMINISTRATION OF THE STATE LOTTERY ACT 40 TAC §4.1002...... 4875 16 TAC §401.305 ...... 4737 TEXAS WORKFORCE COMMISSION TEXAS EDUCATION AGENCY GENERAL ADMINISTRATION EDUCATIONAL PROGRAMS 40 TAC §800.2 ...... 4880 19 TAC §102.1011 ...... 4762 40 TAC §800.178, §800.191...... 4880 TEXAS STATE BOARD OF BARBER EXAMINERS EXEMPT FILINGS PRACTICE AND PROCEDURE Texas Department of Insurance 22 TAC §51.3 ...... 4764 Proposed Action on Rules...... 4881 22 TAC §§51.13, 51.15-51.21, 51.23-51.26, 51.30, 51.39, 51.404765 RULE REVIEW 22 TAC §§51.22, 51.36, 51.37...... 4766 Proposed Rule Reviews 22 TAC §51.91, §51.93...... 4766 Finance Commission of Texas...... 4883 PRACTICE AND PROCEDURE General Services Commission ...... 4883 22 TAC §§51.92, 91.95, 51.97...... 4766 Texas Department of Health...... 4884 22 TAC §51.101...... 4767 Adopted Rule Reviews BOARD OF NURSE EXAMINERS Texas Department of Agriculture...... 4884 DELEGATION OF SELECTED NURSING TASKS Texas State Board of Barber Examiners...... 4884 22 TAC §§218.1-218.11...... 4767 Texas State Board of Pharmacy...... 4886 DELEGATION OF SELECTED NURSING TASKS Texas Board of Physical Therapy Examiners...... 4886 BY REGISTERED PROFESSIONAL NURSES TO UNLI- Texas Workforce Commission ...... 4886 CENSED PERSONNEL TABLES AND GRAPHICS 22 TAC §§218.1-218.11...... 4767 Tables and Graphics
TABLE OF CONTENTS 25 TexReg 4652 Tables and Graphics...... 4889 Notice of 2000 Texas Community Development Program Grant Awards...... 4929 IN ADDITION Notice of 2000 Texas Community Development Program Grant Agricultural Resources Protection Authority Awards...... 4929 Notice of Taking of Public Comment on Pesticide Regulation...4917 Notice of 2000 Texas Community Development Program Grant Office of the Attorney General Awards...... 4930 Texas Health and Safety Code and Texas Water Code Enforcement Texas Department of Insurance Settlement Notice ...... 4917 Insurer Services...... 4930 Coastal Coordination Council Notice of Public Hearing...... 4930 Notice and Opportunity to Comment on Requests for Consistency Third Party Administrator Applications ...... 4930 Agreement/Concurrence under the Texas Coastal Management Pro- gram ...... 4917 Texas Lottery Commission Comptroller of Public Accounts Instant Game Number 185–"9’s in a Line"...... 4931 Notice of Request for Proposals...... 4918 Instant Game Number 188–"On a Roll"...... 4935 Office of Consumer Credit Commissioner Texas Natural Resource Conservation Commission Notice of Rate Ceilings...... 4919 Correction of Error ...... 4941 Court Reporters Certification Board Invitation to Comment - Notice of Availability of the Draft April 2000 Update to the Water Quality Management Plan for the State of New Certified Shorthand Reporters...... 4919 Texas...... 4942 Credit Union Department Notice of Application for Conversion of a Water Supply Corporation to a Special Utility District...... 4942 Application(s) to Amend Articles of Incorporation ...... 4919 Notice of District Creation...... 4943 Application(s) to Expand Field of Membership ...... 4919 Public Notice...... 4944 Notice of Final Action Taken ...... 4920 Texas State Superfund Registry...... 4944 Texas Council for Developmental Disabilities Public Utility Commission of Texas Intent to Award Funds ...... 4920 Notice of Application Filed for Designation as an Eligible Telecom- Texas Forest Service munications Carrier Under 47 United States Code §214(e)...... 4946 Request for Proposal for an Information Resources Consultant Notice of Application for Service Provider Certificate of Operating Contract for: ERP Strategic Planning and Independent Project Authority...... 4946 Management Service...... 4921 Notice of Application Pursuant to P.U.C. Substantive Rule General Services Commission §26.208...... 4946 Guideline Memo...... 4921 Notice of Application Pursuant to P.U.C. Substantive Rule Petition to Add Products and/or Services to the QISV Eligible Items §26.208...... 4947 List ...... 4922 Notice of Application to Amend Certificated Service Area Bound- Request for Comments on Guidelines for Automated Information aries...... 4947 Systems...... 4923 Notice of Workshop to Amend P.U.C. Substantive Rules §§25.211 Texas Department of Health and 25.212 ...... 4947 Correction of Error ...... 4924 Public Notice of Amendment to Interconnection Agreement...... 4948 Correction of Error ...... 4924 Public Notice of Amendment to Interconnection Agreement...... 4948 Designation of Federal Correctional Complex/UTMB Managed Care Public Notice of Amendment to Interconnection Agreement...... 4949 as a Site Serving Medically Underserved Populations...... 4925 Public Notice of Amendment to Interconnection Agreement...... 4949 Licensing Action for Radioactive Materials...... 4925 Public Notice of Amendment to Interconnection Agreement...... 4950 Notice of Request for Proposals for Independent Consultant to Public Notice of Interconnection Agreement...... 4950 Perform a Study of the Provision of Basic Health Care Services by Texas Counties, Hospital Districts, and Public Hospitals, and the Cost Public Notice of Interconnection Agreement...... 4951 of Providing Those Services...... 4928 Public Notice of Workshop on Capacity Auctions Rulemaking 4951 Texas Department of Housing and Community Affairs
TABLE OF CONTENTS 25 TexReg 4653 Southwest Texas State University Texas Department of Transportation Contract Award...... 4952 Public Notice–Aviation...... 4955 Consultant Contract Extension...... 4952 Public Notice of DEIS ...... 4955 The University of Texas System Texas Workforce Commission Request for Information (Federal Tax)...... 4952 Request for Qualifications for Selection of Professional Architectural/ Engineering Services...... 4956 Request for Information (Health Law and Contracting)...... 4953 Request for Information (Intellectual Property)...... 4953 Texas Youth Commission Request for Information (Tax-Exempt Bond)...... 4954 Consultant Request for Offer...... 4957 Request for Information (FCC)...... 4954
TABLE OF CONTENTS 25 TexReg 4654 OFFICE OF THE ATTORNEY GENERAL Under provisions set out in the Texas Constitution, the Texas Government Code. Title 4, §402.042, and numerous statutes, the attorney general is authorized to write advisory opinions for state and local officials. These advisory opinions are requested by agencies or officials when they are confronted with unique or unusually difficult legal questions. The attorney general also determines, under authority of the Texas Open Records Act, whether information requested for release from governmental agencies may be held from public disclosure. Requests for opinions, opinions, and open records decisions are summarized for publication in the Texas Register. The attorney general responds to many requests for opinions and open records decisions with letter opinions. A letter opinion has the same force and effect as a formal Attorney General Opinion, and represents the opinion of the attorney general unless and until it is modified or overruled by a subsequent letter opinion, a formal Attorney General Opinion, or a decision of a court of record. You may view copies of opinions at http://www.oag.state.tx.us. To request copies of opinions, please fax your request to (512) 462-0548 or call (512) 936-1730. To inquire about pending requests for opinions, phone (512) 463-2110. Office of the Attorney General 2-212, Austin, Texas 78701-3942, regarding whether the comptroller or the Commission on State Emergency Communications is the Request for Opinions proper entity to initiate a contested case hearing to collect delinquent RQ-0227-JC. The Honorable Homero Ramirez, Webb County Attor- amounts from a telecommunications service provider (Request No. ney, 1110 Victoria, Suite 403 Laredo, Texas 78040, regarding county 0229-JC).Briefs requested by June 9, 2000. responsibility for costs in mental health proceedings (Request No. TRD-200003398 0227-JC) Briefs requested by June 10, 2000. Rick Gilpin RQ-0228-JC. The Honorable Susan D. Reed, Bexar County Criminal Assistant Attorney General District Attorney, 300 Dolorosa, Fifth Floor, San Antonio, Texas Office of the Attorney General 78205-3030, regarding whether a city council may pay attorneys Filed: May 16, 2000 fees incurred in defending certain of its members for violations of the Open Meetings Act, and related questions (Request No. 0228- ♦♦♦ JC).Briefs requested by June 10, 2000. RQ-0229-JC. Mr. James D. Goerke, Executive Director, Commission on State Emergency Communications, 333 Guadalupe Street, Suite
ATTORNEY GENERAL May 26, 2000 25 TexReg 4655 EMERGENCY RULES An agency may adopt a new or amended section or repeal an existing section on an emergency basis if it determines that such action is necessary for the public health, safety, or welfare of this state. The section may become effective immediately upon filing with the Texas Register, or on a stated date less than 20 days after filing and remaining in effect no more than 120 days. The emergency action is renewable once for no more than 60 additional days. Symbology in amended emergency sections. New language added to an existing section is indicated by the text being underlined. [Brackets] and strike-through of text indicates deletion of existing material within a section. TITLE 31. NATURAL RESOURCES AND follows: the general closed season for shrimp in outside waters extends from 30 minutes after sunset May 11, 2000 to 30 minutes CONSERVATION after sunset July 15, 2000. Part 2. TEXAS PARKS AND WILDLIFE Filed with the Office of the Secretary of State, on May 11, 2000. DEPARTMENT TRD-200003335 Gene McCarty Chapter 58. OYSTERS AND SHRIMP Chief of Staff Texas Parks and Wildlife Department Subchapter B. STATEWIDE SHRIMP FISHERY Effective date: May 11, 2000 PROCLAMATION Expiration date: July 30, 2000 For further information, please call: (512) 389-4775 31 TAC §58.161 ♦♦♦ The Texas Parks and Wildlife Department adopts on an emer- gency basis an amendment to §58.161, concerning shrimping in outside waters (Gulf waters of the Texas territorial sea–nine Part 20. EDWARDS AQUIFER AU- nautical miles). Based on sound biological data, the executive THORITY director has determined that migration of small brown shrimp from the bays to the Gulf of Mexico will occur earlier than the Chapter 720. EMERGENCY DROUGHT MAN- May 15 regulatory closure date. The emergency rule is adopted to adjust the May 15 closing date to May 11, 2000 for a maxi- AGEMENT PLAN RULES FOR 2000 mum closure of 75 days. The Edwards Aquifer Authority ("Authority") adopts, on an emergency basis, the following new rules: §§720.1, 720.120, The purpose of the closed Gulf season is to protect brown 720.122, 720.124, 720.126, 720.128, 720.130, 720.132, shrimp during their major period of emigration from the bays to 720.134, 720.136, 720.138, 720.140, 720.142, 720.144, the Gulf of Mexico until they reach a larger, more valuable size 720.146, 720.148, 720.150, 720.152, 720.154, 720.156, before harvest and to prevent waste caused by the discarding of 720.157, 720.158, 720.160, 720.162, 720.164, concerning the smaller individuals. This emergency measure minimizes social Emergency Drought Management Plan Rules for 2000 and and economic hardship in a depressed industry by closing the these emergency rules specify mandatory restrictions on the season four days earlier than scheduled to obtain optimum yield use of groundwater from the Edwards Aquifer designed to from the shrimp resource. slow, stop, or reverse the decline of water levels in the aquifer The amendment is adopted on an emergency basis under and springflows at Comal and San Marcos Springs. authority of Parks and Wildlife Code, §77.062, which authorizes Emergency Rules Summary the commission to regulate the catching of shrimp, to change the opening and closing dates of the closed season to provide The emergency rules establish three emergency drought man- for an earlier, later, or longer season, and to delegate to the agement areas, three emergency drought stages, a mechanism director the duties and responsibilities of opening and closing for reporting aquifer use, a requirement for emergency drought the shrimping season. In April 1978, the Texas Parks and or critical period ordinances to be adopted by municipalities and Wildlife Commission delegated to the executive director the approved by the Authority, and reductions in aquifer use. Mu- duties and responsibilities of opening and closing the shrimping nicipal users are allowed to develop their own rules for their season under this section. Additionally, Parks and Wildlife customers that are within their jurisdictions, and industrial users Code, §77.007 provides that a proclamation of the commission are allowed to develop their own plan to achieve the reductions. under the provisions §77.007 prevails over any conflicting The emergency rules generally apply to all existing users who provision of Chapter 77 to the extent of the conflict. have applied to the Authority for an initial regular permit and all owners of wells which are exempt from the permitting require- §58.161. Shrimping in Outside Waters. ments of the Act. (a)-(d) (No change.) The three emergency drought management areas are: (e) Early Closure of the Gulf Shrimping Season. The provisions of subsection (d)(2)(A) of this section are replaced, as
EMERGENCY RULES May 26, 2000 25 TexReg 4657 (1) The East Area, which consists of those portions of Bexar, Municipalities and municipal water distribution systems are to Comal, Hays, Caldwell and Guadalupe Counties which are encourage water conservation by their customers by imposing within the Authority’s boundaries; water rates which increase as a customer’s usage increases. (2) The Medina/Atascosa Area, which consists of those portions Irrigation of new crops is generally prohibited. of Medina and Atascosa Counties which are within the Author- The rules also require owners of golf courses or athletic fields ity’s boundaries; and who have applied for a permit or who are dependent upon (3) The Uvalde/Atascosa Area, which consists of Uvalde water from the aquifer to submit a groundwater conservation County. plan to the Authority, and to reduce to 95%, 90% or 85% of their monthly pumping schedules in Stages 1, 2, and The rules impose three emergency drought management 3, respectively, or, alternatively, to reduce their replacement stages which apply to each area based upon aquifer condi- of daily evapotranspiration rate ("ET rate") by a series of tions. In the East Area, Stage I applies when index well J-17 percentages during the Stages. Such golf course or athletic is at or below 650 feet above mean sea level (" ft. m.s.l.") and field owners must also make and maintain certain daily water above 640 ft. m.s.l.; Stage II applies when well J-17 is at or records. below 640 ft. m.s.l. and above 630 ft. m.s.l.; and Stage III applies when well J-17 is at or below 630 ft. m.s.l. The rules impose a number of additional provisions and require- ments including: In the Medina/Atascosa Area, Stage I applies when index well TD 69-47-306 (the "Medina Well") is at or below 670 ft. m.s.l extensive water use reporting requirements; and and above 660 ft. m.s.l.; Stage II applies when the Medina Well a mechanism whereby an applicant may request and obtain is at or below 660 ft. m.s.l. and above 655 ft. m.s.l.; and Stage from the Authority a variance from the rules. III applies when the Medina Well is at or below 655 ft. m.s.l. The Need for Emergency Rules In the Uvalde Area, Stage I applies when index well J-27 is at or below 845 ft. m.s.l and above 840 ft. m.s.l; Stage II applies Current conditions within the Edwards Aquifer and at Comal and when well J-27 is at or below 840 ft. m.s.l. and above 835 San Marcos Springs necessitate the adoption of these rules on ft. m.s.l; and Stage III applies when well J-27 is below 835 ft. an emergency basis. The Authority is currently in the process m.s.l. of developing and adopting, pursuant to the regular rulemaking process specified in the Texas Administration Procedure Act, a During Stage 1: set of drought management rules similar to these emergency Applicants must submit monthly water use reports to the rules. In the meantime, however, current aquifer and springflow Authority. conditions warrant adoption of emergency rules immediately. Municipal and industrial applicants must reduce to 95% of their Comal and San Marcos Springs are the primary natural out- monthly pumping schedule. flows from the Aquifer. There are at least six species which are directly dependent upon Comal Springs and/or San Marcos Residential landscape watering is restricted to one day per week Springs and which are federally-listed as endangered or threat- in the morning and evening. ened pursuant to the Endangered Species Act, 16 U.S.C.A. Municipalities which are permit applicants must designate days §§1531-1544 (the "ESA"). Those species are: the fountain of the week which customers within their jurisdiction may darter (Etheostoma fonticola), the San Marcos gambusia (Gam- conduct landscape watering. busia georgei), Texas wild-rice (Zizania texana), the San Mar- cos salamander (Eurycea nana), the Peck’s Cave amphipod Use of Edwards Aquifer water for ornamental fountains or similar (Stygobromus pecki), and the Comal Springs riffle beetle (Sty- features is prohibited. goparnus comalensis). During Stage II, in addition to the restrictions in place for Stage The United States Fish and Wildlife Service ("FWS") is the fed- I: eral agency primarily responsible for implementing and enforc- Municipal and industrial applicants must reduce to 90% of their ing the ESA. FWS has determined that maintaining adequate monthly pumping schedule. discharge at the springs is one of the major requirements to protect threatened and endangered species that depend upon Residential landscape watering is further restricted to one day the Comal and San Marcos Springs ecosystems. Reduced per week with shorter morning and evening hours. spring discharges threaten the endangered species by decreas- Restrictions are imposed upon filling and draining swimming ing available habitat, decreasing available food supply, increas- pools. ing competition from native and exotic species, increasing water temperature, and decreasing dissolved oxygen. FWS has made During Stage III, in addition to the restrictions in place for Stages determinations relative to minimum springflows necessary for I and II: certain of these species. It is the Authority’s understanding that Municipal and Industrial applicants must reduce to 85% of their FWS currently contends that the fountain darter, San Marcos monthly pumping schedule. gambusia, and Texas wild-rice are generally "taken," i.e. killed or injured, when springflow at San Marcos Springs drops to Residential landscape watering is prohibited, with the exception below 100 cubic ft. per second ("c.f.s."). FWS also currently of using a hand-held bucket, hand-held hose, soaker hose, or contends that when San Marcos springflow drops to 100 c.f.s., properly installed drip irrigation system. there is an appreciable reduction in the likelihood of survival Applicants must submit weekly withdrawal reports to the Au- and recovery of these three species (i.e. "jeopardy " conditions thority. exist), and there is an appreciable diminution of the value of crit-
25 TexReg 4658 May 26, 2000 Texas Register ical habitat for the survival and recovery of these species (i.e. Figure 1 is a graph of groundwater elevations at the J-17 Index destruction or adverse modification of critical habitat occurs). Well for the previous nine months. A trend analysis of the data for the period between November 1999 and mid April 2000 The FWS has made similar general determinations of the indicated that the aquifer would not drop below 650 feet mean springflow needs of the fountain darter in Comal Springs. Those sea level (msl) during the high demand summer months. An numbers are: (1) 200 c.f.s. for "take"; and (2) 150 c.f.s for elevation of 650 feet msl in J-17 is approximately equal to 200 "jeopardy." cfs at Comal Springs. Generally, demand during the late fall With respect to the threatened or endangered species found and winter months decreases and the aquifer levels rebound as within the Comal and San Marcos Springs, the Authority, recharge surpasses discharge. This trend is indicated in Figure pursuant to §§1.14(a) and (h) of the Edwards Aquifer Authority 1 for the October-November time period in 1999. However, an Act, has broad powers and responsibilities to take measures unexpected acceleration in the rate of decline since April 16, designed to protect these species. In order to achieve that 2000 has indicated a much greater rate of decrease, with J-17 objective, the Authority is currently engaged in a large-scale dropping below 650 feet msl on April 30, 2000. project to develop a habitat conservation plan, or HCP, for the A reduction in aquifer demand through implementation of these management of the aquifer and protection of the listed species. rules at this time will help limit the rate of decline of the aquifer Any such HCP will ultimately be approved by FWS before it and help mitigate impacts of dry weather and groundwater is implemented. The HCP is a long-term project which will demand on San Marcos and Comal Springs until wetter and likely take many months for completion. In the meantime, cooler weather returns. the Authority believes these emergency rules are needed as a short-term remedy. For these reasons, these rules are adopted on an emergency basis because the Authority finds that an imminent peril to The Authority does not concede that it can legally be held public health, safety or welfare and a requirement of federal law directly liable for a "take" of the species based upon diminished requires adoption of these rules on fewer than 30 days’ notice. springflows. It has, however, been advised by FWS that As explained more fully above, declining aquifer and springflow FWS may seek to hold the Authority liable for a "take" under levels create an imminent peril to the well-being of federally- the ESA if springflows drop below these specified levels. listed species in Comal and San Marcos Springs. Congress, Likewise, the Authority does not concede that the springflow through the passage of the ESA, has determined that protection numbers currently relied upon by FWS accurately reflect when of endangered species is of the utmost importance to mankind. "take," "jeopardy" or adverse habitat modification occur. The Authority believes that, as more biological data on the species It is in the best interests of mankind to minimize the losses of is developed, these flow numbers might be revised. It is hoped genetic variations. The reason is simple: they are potential that the Authority’s HCP project will lead to such revisions. In resources. They are keys to puzzles which we cannot solve, the meantime, however, the Authority has determined that it and may provide answers to questions which we have not yet needs to implement these emergency rules in order to reduce learned to ask.1 (1 H.R. Rep. No. 93-412, 93d Cong., 1st aquifer withdrawals and thereby increase, or at a minimum, slow Sess., pp. 4-5 (1973) (Committee report on statutory precursor decreases in flows at Comal and San Marcos Springs in order to the ESA)). to protect these species. Declining springflows, therefore, create an imminent threat to Spring discharge is a function of groundwater elevation in the public health, safety and welfare which requires adoption of aquifer. The Authority maintains a series of observation and in- these rules on fewer than 30 days’ notice. dex wells across the region to gauge groundwater elevations Further, based upon current aquifer conditions combined with in the aquifer. The index well for Medina and Atascosa Coun- the approach of the typically "high-demand" months of May, ties (Hondo Well) and the index well for Bexar, Comal, Caldwell, June, July and August, springflow rates and aquifer levels Guadalupe, and Hays Counties (J-17) have indicated a sharp could continue to decline precipitously. The Authority believes drop over the preceding 10 days (attached Figure 1). Comal that quick implementation of the aquifer withdrawal reduction Springs has also shown a corresponding decrease in discharge. measures mandated by these rules will reduce the likelihood J-17 is used to predict trends in the aquifer because it has a very of the need to impose more draconian demand management good correlation to spring flow at Comal Springs. In addition, measures at a later time, thereby averting negative economic San Marcos Springs has a significant regional flow component impacts and other threats to the public welfare in the region. from the western region which increases as aquifer levels drop. Finally, as explained more fully above, because dropping Aquifer levels are decreasing because of hot and dry weather springflow levels threaten the listed species at Comal and San across the region and the subsequent increase in demand Marcos Springs, federal law (the "ESA") requires adoption of by municipal and agricultural users. Long-range weather these rules on fewer than 30 days’ notice. predictions indicate that these conditions will most likely persist. In addition, the months of May, June, July, and August have The Authority has determined that a local employment impact historically been high demand periods for the region that will statement ("LEIS"), pursuant to §2001.022 of the TEXAS put an additional stress on aquifer levels. GOVERNMENT CODE, is not required for the adoption of these emergency rules because the requirement to prepare an LEIS is Groundwater discharge at San Marcos Springs has been above made explicitly inapplicable to the adoption of emergency rules 100 c.f.s. for a number of months; however, increased demand pursuant to TEXAS GOVERNMENT CODE §2001.022(g). of groundwater across the region resulted in San Marcos Springs reaching 98 c.f.s. on April 30, 2000. In addition, Comal The Authority has determined that a regulatory impact anal- Springs is also expected to reach 200 c.f.s. by the third week ysis of major environmental rules ("RIAMER"), pursuant to in May. §2001.0225 of the TEXAS GOVERNMENT CODE, is not re- quired for the adoption of these emergency rules. This con-
EMERGENCY RULES May 26, 2000 25 TexReg 4659 clusion has been reached for the following reasons: First, the GENERAL LAWS 2350, as amended by Act of May 28, 1995, requirements of §2001.0225 do not apply to rules proposed 74th Legislature, Regular Session, chapter 3189, 1995 TEXAS or adopted on an emergency basis to protect the environment GENERAL LAWS 2505, Act of May 16, 1995, 74th Legislature, or to reduce risks to human health from environmental ex- Regular Session, chapter 361, 1995 TEXAS GENERAL LAWS posure. See, TEXAS GOVERNMENT CODE §2001.0225(h). 3280, and Act of May 6, 1999, 76th Legislature, Regular Ses- These emergency rules fall well within the scope of this ex- sion, chapter 163, 1999 TEXAS GENERAL LAWS (the "Act"). ception. Second, because emergency rules may, pursuant to Section 1.08(a) grants the Authority all powers, rights and priv- TEXAS GOVERNMENT CODE §2001.034(a), be adopted with- ileges necessary to manage, conserve, preserve and protect out any prior notice or hearing, compliance with the "notice", the aquifer; §1.11(a) requires the Authority to adopt rules to "draft impact analysis" and "final regulatory analysis" required carry out its powers and duties under the Act; §1.14(a) requires by §2001.0225 would be impossible during emergency rulemak- the Authority to limit all authorizations and rights to withdraw ing. water from the aquifer to, among other things: (1) protect the water quality of the aquifer and its springflows, (2) achieve wa- The Authority has determined that a small business effects ter conservation, (3) protect aquatic and wildlife habitats, and statement ("SBES"), pursuant to Chapter 2006, subchapter A, (4) protect species that are listed as endangered or threatened; TEXAS GOVERNMENT CODE, is not required for the adoption §1.14(f) enables the Authority to interrupt permitted withdrawals of these emergency rules. The basis for this determination is if aquifer levels drop below 650 feet at index well J-17 or below that the Act does not itself make the Authority subject to Chapter 845 feet at index well J-27, and requires the Authority to limit 2006, and the Authority is not a "state agency" as that term additional withdrawals to ensure springflows are not affected is defined in §2006.001(3), TEXAS GOVERNMENT CODE. during critical drought conditions; §1.14(h) requires the Author- Further, the Authority has determined that, as a matter of ity to implement and enforce water management practices to law, chapter 2006, Subchapter A, is inapplicable to emergency ensure that springflows of the Comal and San Marcos Springs rulemaking. are maintained to protect endangered and threatened species to The Authority has determined that the preparation of a Tak- the extent required by federal law through, inter alia, "phased re- ings Impact Assessment ("TIA") pursuant to Subchapter C, ductions" in the amount of aquifer water that may be withdrawn; Chapter 2007, TEXAS GOVERNMENT CODE (the "Property §1.15(a) directs the Authority to manage all withdrawals from the Rights Act") is not required in connection with the Author- aquifer; §1.17(b) allows the Authority to determine interim au- ity’s adoption of these emergency rules. This determination thorization amounts; §1.17(c) clarifies that interim authorization has been reached for the following reasons: First, the pro- use is subject to the Authority’s rules; §1.26 directs the Authority cedural requirements of the Property Rights Act are incom- to implement a plan for critical period management which dis- patible with the requirements concerning emergency rulemak- tinguishes between discretionary and non-discretionary uses, ing set forth in TEXAS GOVERNMENT CODE ANNOTATED requires reductions in discretionary uses, requires utility pricing §2001.034. In the event of an unreconcilable conflict between to limit use by water utility customers, and requires reductions two statutes, the more specific statue (in this case, TEXAS of nondiscretionary uses as necessary. GOVERNMENT CODE ANNOTATED§2001.034) prevails. Sec- §720.1. Definitions. ond, all actions of the Authority are excluded from the Property Rights Act by virtue of TEXAS GOVERNMENT CODE ANNO- The following words and terms, when used in this chapter, shall TATED §2007.003(b)(11)(C). Third, the Authority’s adoption of have the following meanings, unless the context clearly indicates these emergency rules are actions reasonably taken to fulfill otherwise: an obligation mandated by state and federal law and is there- fore excluded from the Property Rights Act by virtue of TEXAS (1) Applicant - An existing user who has filed with the GOVERNMENT CODE ANNOTATED §2007.003(b)(4). Finally, Authority an application for an initial regular Permits/Enforcement the Authority’s adoption of these emergency rules is an action Coordinator. taken in response to a real and substantial threat to public health (2) Aquifer - The Edwards Aquifer, which is that portion and safety and is therefore excluded from the Property Rights of an arcuate belt of porous, water-bearing, predominantly carbonate Act by virtue of TEXAS GOVERNMENT CODE ANNOTATED rocks known as the Edwards and Associated Limestones in the §2007.003(b)(13). Balcones Fault Zone extending from west to east to northeast from the Expedited Effective Date Notice hydrologic division near Brackettville in Kinney County that separates underground flow toward the Comal Springs and San Marcos Springs These emergency rules shall be effective immediately upon from underground flow to the Rio Grande Basin, through Uvalde, filing with the Secretary of State and shall be effective for 120 Medina, Atascosa, Bexar, Guadalupe, and Comal counties, and in days, unless renewed by the Authority. Pursuant to §2001.034 Hays County south of the hydrologic division near Kyle that separates and §2001.036 of the TEXAS GOVERNMENT CODE and flow toward the San Marcos River from flow to the Colorado River as explained more fully above, the Authority finds that this Basin. expedited effective date is necessary because of imminent peril to the public health, safety or welfare. (3) Athletic field - A sports play field including play- grounds whose essential feature is a grass turf, other than a golf Subchapter A. DEFINITIONS course. 31 TAC §720.1 (A) Conforming athletic field - An athletic field with an approved groundwater conservation plan under §720.150 of this The new rules are adopted on an emergency basis by the chapter (relating to Athletic Fields); Authority pursuant to §§1.08(a), 1.11(a), 1.14(a), (f) and (h), 1.15(a), 1.17(b) and (c), and 1.26 of the Act of May 30, 1993, (B) Non-conforming athletic field - Any other athletic 73rd Legislature Regular Session, chapter 626, 1993 TEXAS field that is not a conforming athletic field.
25 TexReg 4660 May 26, 2000 Texas Register (4) Authorized pumping amount - an applicant’s interim maximum beneficial use as claimed on Section 4B of an application authorization amount as set forth in Section 4B of a Declaration of for the initial regular permit. Historical Use plus a transferred amount, if any, or the contracted (18) Landscape watering - The application of groundwater amount which is applied against a monthly pumping schedule. from the aquifer for the discretionary use to grow or maintain plants (5) Average historical groundwater withdrawal amount - such as flowers, ground covers, turf or grasses, shrubs, and trees, but The average annual amount of groundwater pumped during the years does not include: an applicant was in business from June 1, 1972 to May 31, 1993. (A) Nondiscretionary use without waste of groundwa- (6) c.f.s. - Cubic feet per second. ter by a commercial nursery to the extent the water is used for pro- duction rather than decorative landscaping; (7) Commercial landscape watering - landscape watering which is not agricultural or residential. (B) Application of groundwater without waste to a non-commercial family garden or orchard, the produce of which is (8) Conjunctive user - An applicant is a conjunctive user for household consumption only; if: (C) Application of groundwater by means of hand- (A) the applicant uses water other than groundwater held bucket; hand-held hose; soaker hose or properly installed drip from the aquifer for at least 10% of the portion of the total amount irrigation system; and of water used in the preceding 12 months; (D) Application of groundwater by means of a soaker (B) the non-aquifer water satisfies a demand that hose, hand-held hose, or properly installed drip irrigation system would otherwise be satisfied by the aquifer; immediately next to a concrete foundation solely for the purpose (C) the applicant, on a daily basis, uses all available of preventing, to the extent the watering is necessary, substantial non-aquifer water before using aquifer groundwater; and damage to the foundation or the structure caused by movement of the foundation. (D) the non-aquifer water use considered with respect to determining the applicant’s status as a conjunctive user was first (19) Maximum allowable withdrawals - The product of used after 1986. the groundwater withdrawal times the reduction percentage assigned to each reduction stage. The stages and reduction percentages are (9) Conservation Plan - a method and time schedule for shown in the figure listed in §720.136(f) of this title (relating to the application of groundwater for commercial landscaping. Beginning and End of Emergency Drought Management Stages). (10) Contract amount - An amount of groundwater from (20) Maximum transfer withdrawals - The product of the the aquifer than an applicant contracts with the Authority not to estimated monthly transfer amount times the reduction percentage withdraw over an annual basis in excess of. assigned to each reduction stage. (11) Day - A 24-hour period beginning at midnight (21) Monthly pumping schedule - The amount of water Central Daylight Time (CDT). an applicant plans to pump each month of a calendar year. If an (12) Discretionary use - Any use of groundwater other applicant fails to provide the Authority with a pumping schedule than a nondiscretionary use. within thirty days of adoption of these rules, the Authority will determine a pumping schedule for the applicant. (13) ft. m.s.l. - Feet above mean sea level. (22) Municipal distribution system - a system for the (14) Golf course - An area of land used for the game of distribution of potable water from the aquifer for municipal use golf. by an applicant who is a person, privately owned utility, political (A) Conforming Golf Course - A golf course with an subdivision, or other entity. approved groundwater conservation plan pursuant to §720.148 of this (23) Nondiscretionary use - A use of groundwater for: chapter (relating to Golf Courses). (A) The protection of public health, safety, or welfare, (B) Non-conforming golf course - Any other golf including but not limited to use for drinking, food preparation, course that is not a conforming golf course. personal hygiene, public sanitation, control or prevention of disease, (15) Groundwater - Water within or withdrawn from the and fire fighting; Edwards Aquifer. (B) An industrial, irrigation, or military use that di- (16) Index well - One of the following wells indicating rectly supports gainful employment; or aquifer water level conditions used to declare Emergency Drought (C) Domestic or livestock use. Management Stages: (24) Transfer - The sale or lease of an applicant’s interim (A) for Bexar, Guadalupe, Comal, Hays, and Caldwell authorization status to a third party. counties, well J-17; (25) Transfer schedule - A document indicating the es- (B) for Uvalde County, well J-27; and timated monthly amount of groundwater to be withdrawn by each (C) for Medina and Atascosa Counties, the Medina applicant that has been transferred. well in the Hondo Well Yard (well number TD 69-47-306). (26) Water Conservation Rates - A method of encouraging (17) Interim Authorization - The period prior to the efficient water use through quantity-based pricing structures by means issuance of an initial regular permit when an applicant owning a of increasing the price of the water as more volume of water is used. well qualifying for interim authorization status may withdraw on an annual basis an amount that can not exceed the applicant’s historical,
EMERGENCY RULES May 26, 2000 25 TexReg 4661 (27) Watering days and hours - A day and hours desig- to implement a plan for critical period management which dis- nated for landscape watering, limited as follows: tinguishes between discretionary and non-discretionary uses, requires reductions in discretionary uses, requires utility pricing (A) Stage I is limited to the morning hours from to limit use by water utility customers, and requires reductions midnight to 10:00 a.m. and the evening hours from 8:00 p.m. to of nondiscretionary uses as necessary. midnight. Thus, if Friday is a designated watering day, the period of time referenced is Friday morning between 12:00 a.m. to 10:00 a.m., §720.120. Policy/Mission Statement. and Friday evening between 8:00 p.m. and midnight; and The purpose of this subchapter is to enable the authority to diminish (B) Stage II is limited to the morning hours of 3:00 the possibility of cessation of springflow, by working toward accom- a.m. to 8:00 a.m., and the evening hours of 8:00 p.m. to 10:00 p.m. plishment of §1.14(h) of the Act. Filed with the Office of the Secretary of State,on May 10, 2000. §720.122. Applicability. TRD-200003316 This chapter applies to Gregory M. Ellis (1) applicants; and General Manager (2) owners of exempt wells. Edwards Aquifer Authority Effective date: May 10, 2000 §720.124. Exempt Wells. Expiration date: September 7, 2000 Owners of exempt wells are subject to the reduction measures in For further information, please call: (210) 222-2204 §720.142 (relating to Stage I Restrictions), §720.144 (relating to ♦♦♦ Stage II Restrictions), and §720.146 (relating to Stage III Emergency Springflow Protection Measures) of this title, irrespective of the Subchapter B. EMERGENCY DROUGHT reference to "applicant" in these sections. MANAGEMENT RULES §720.126. Nondiscretionary Uses. 31 TAC §§720.120, 720.122, 720.124, 720.126, 720.128, Nondiscretionary uses will be reduced if necessary in order to help maintain adequate minimum spring discharges. These might be 720.130, 720.132, 720.134, 720.136, 720.138, 720.140, required under §720.146 of this subchapter (relating to Stage III 720.142, 720.144, 720.146, 720.148, 720.150, 720.152, Emergency Springflow Protection Measures) and, if required, will 720.154, 720.156, 720.157, 720.158, 720.160, 720.162, follow the priority as specified in §1.26(4) of the Act. 720.164 §720.128. Reduction Efforts for Discretionary Uses. The new rules are adopted on an emergency basis by the (a) An applicant shall avoid exceeding the maximum allow- Authority pursuant to §§1.08(a), 1.11(a), 1.14(a), (f) and (h), able withdrawal level at each Emergency Drought Management Stage 1.15(a), 1.17(b) and (c), and 1.26 of the Act of May 30, 1993, by conserving groundwater, minimizing waste, reducing discretionary 73rd Legislature Regular Session, chapter 626, 1993 TEXAS uses of groundwater to the maximum extent feasible, and taking any GENERAL LAWS 2350, as amended by Act of May 28, 1995, other necessary steps to reduce withdrawals of groundwater from the 74th Legislature, Regular Session, chapter 3189, 1995 TEXAS aquifer. GENERAL LAWS 2505, Act of May 16, 1995, 74th Legislature, Regular Session, chapter 361, 1995 TEXAS GENERAL LAWS (b) A municipal distribution system, or appropriate govern- 3280, and Act of May 6, 1999, 76th Legislature, Regular Ses- mental jurisdiction, shall adopt and enforce an Emergency Drought sion, chapter 163, 1999 TEXAS GENERAL LAWS (the "Act"). Management Ordinance, a Critical Period Management Ordinance, or Section 1.08(a) grants the Authority all powers, rights and priv- other appropriate legal instrument that meets or exceeds §720.136(d) ileges necessary to manage, conserve, preserve and protect of this chapter (relating to Beginning and End of Emergency Drought the aquifer; §1.11(a) requires the Authority to adopt rules to Management Stages). carry out its powers and duties under the Act; §1.14(a) requires (c) All proposed or current ordinances (or appropriate legal the Authority to limit all authorizations and rights to withdraw instruments) will be submitted to the general manager for review and water from the aquifer to, among other things: (1) protect the approval as a qualifying instrument to ensure compliance with this water quality of the aquifer and its springflows, (2) achieve wa- chapter. ter conservation, (3) protect aquatic and wildlife habitats, and (4) protect species that are listed as endangered or threatened; (d) If a municipal distribution system, or appropriate govern- §1.14(f) enables the Authority to interrupt permitted withdrawals mental jurisdiction, does not have the authority to enforce this sub- if aquifer levels drop below 650 feet at index well J-17 or below chapter(s), then the Authority will be responsible for enforcement. 845 feet at index well J-27, and requires the Authority to limit (e) During all times, in which a qualifying ordinance is not additional withdrawals to ensure springflows are not affected in effect, the provisions of this subchapter shall apply. during critical drought conditions; §1.14(h) requires the Author- ity to implement and enforce water management practices to (f) The Emergency Drought Management Ordinance, or Crit- ensure that springflows of the Comal and San Marcos Springs ical Period Management Ordinance must be certified by the general are maintained to protect endangered and threatened species to manager as a qualifying instrument to ensure compliance with this the extent required by federal law through, inter alia, "phased re- chapter. The ordinance shall be certified within 30 days of receipt by ductions" in the amount of aquifer water that may be withdrawn; the Authority, unless the general manager requests additional infor- §1.15(a) directs the Authority to manage all withdrawals from the mation from the applicant , or if the general manager fails to respond aquifer; §1.17(b) allows the Authority to determine interim au- within 30 days. All municipal distribution systems, or appropriate thorization amounts; §1.17(c) clarifies that interim authorization governmental jurisdictions, shall file with the Authority any updated use is subject to the Authority’s rules; §1.26 directs the Authority water service pricing orders or ordinances adopting rates, charges,
25 TexReg 4662 May 26, 2000 Texas Register and other Emergency Drought programs by their effective date. If 720.132, and 720.134 of this title (relating to Emergency Drought the general manager does not certify the Emergency Drought Man- Management Stages - East Area; Emergency Drought Management agement Ordinance (or other appropriate legal instrument) then the Stages - Medina Area; Emergency Drought Management Stages - municipal distribution system, or appropriate governmental jurisdic- Uvalde Area, respectively). tion, has the right to appeal the decision to the Board of Directors of (b) If the groundwater elevation for the relevant index well is the Authority on a form prescribed by the Authority. not available on a particular day, the stage in effect in the applicable §720.130. Emergency Drought Management Stages - East Area. area will continue to the next day. The Emergency Drought Management Stages listed in paragraphs (1)- (c) An Emergency Drought Management Stage will remain (3) of this section apply within the boundaries of the Authority in the in effect for at least thirty days unless a more restrictive stage is counties of Bexar, Comal, Hays, Caldwell, and Guadalupe. When the implemented. A stage may be rescinded before the thirty days expire J-17 well reaches the following levels: if the general manager determines aquifer groundwater levels are (1) Stage I. Stage I applies on any day following a day sufficient to end the stage. when the J-17 well level is at or below 650 ft. m.s.l. and above 640 (d) The maximum allowable withdrawals for each stage are ft. m.s.l.; as follows: (2) Stage II. Stage II applies on any day following a day (1) Stage I Restrictions: The maximum allowable with- when the J-17 well level is at or below 640 ft. m.s.l. and above 630 drawals for applicants, except for irrigation users, shall be 95% of ft. m.s.l.; or the authorized pumping amount for that corresponding month. (3) Stage III Emergency Springflow Protection Measures. (2) Stage II Restrictions: The maximum allowable with- Stage III Emergency Springflow Protection Measures applies on any drawals for applicants, except for irrigation users, shall be 90% of day following a day when the J-17 well level is at or below 630 ft. the authorized pumping amount for that corresponding month. m.s.l. (3) Stage III Emergency Springflow Protection Measures: §720.132. Emergency Drought Management Stages - Medina/Atas- The maximum allowable withdrawals for applicants, except for cosa Area. irrigation users, shall be 85% of the authorized pumping amount for The Emergency Drought Management Stages listed in paragraphs (1) that corresponding month. - (3) of this section apply within the boundaries of the Authority in (e) Transfer Withdrawals - Withdrawals of transferred the counties of Medina and Atascosa, when the Medina well level amounts are based on the estimated monthly withdrawals indicated reaches the following levels: on the transfer schedule and for each stage is as follows: Stage (1) Stage I. Stage I applies on any day following a day I - 95% of monthly withdrawals; Stage II - 90% of monthly when the TD 69-47-306 Medina well level is at or below 670 ft. withdrawals; Stage III Emergency Springflow Protection Measures m.s.l. and above 660 ft. m.s.l.; - 85% of monthly withdrawals. The monthly transfer schedule is the total amount of transfer water that can be withdrawn monthly. (2) Stage II. Stage II applies on any day following a day The monthly transfer schedule is determined by the following: when the TD 69-47-306 Medina well level is at or below 660 ft. Monthly transfer schedule = Total Annual Transfer Amount * ( m.s.l. and above 655 ft. m.s.l.; or monthly pumping schedule for the corresponding month / interim (3) Stage III Emergency Springflow Protection Measures. authorization amount or contract amount.). Stage III Emergency Springflow Protection Measures applies on any (f) The well levels that trigger stages as described in this day following a day when TD 69-47-306 Medina well level is at or section and the applicable maximum withdrawal amounts are stated in below 655 ft. m.s.l. the following table, which is incorporated herein. Stages are triggered §720.134. Emergency Drought Management Stages-Uvalde Area. independently in each of the three areas. The Emergency Drought Management Stages listed in paragraphs (1) Figure: 31 TAC §720.136(f) - (3) of this section apply within the boundaries of the Authority §720.138. Enforcement. in the County of Uvalde, when the J-27 level reaches the following levels: (a) All measurements in this section are for one calendar month intervals. (1) Stage I. Stage I applies on any day following a day when the J-27 well level is at or below 845 ft. m.s.l. and above 840 (b) Subject to §720.126 of this title (relating to Nondiscre- ft. m.s.l.; tionary Uses), applicants are prohibited from withdrawing more than the applicable monthly pumping schedules during each Emergency (2) Stage II. Stage II applies on any day following a day Drought Management Stage. when the J-27 well level is at or below 840 ft. m.s.l. and above 835 ft. m.s.l.; or (c) An applicant that violates these rules is subject to enforcement as provided for in the Act. (3) Stage III Emergency Springflow Protection Measures. Stage III Emergency Springflow Protection Measures applies on any §720.140. Determination of Monthly Pumping Schedule. day following a day when the J-27 level is at or below 835 ft. m.s.l. (a) The general manager will initially determine the monthly §720.136. Beginning and End of Emergency Drought Management pumping schedule for each applicant, except an irrigation user. The Stages. general manager will notify applicants of the determinations in writing. (a) The general manager will post on the Internet and at the official office of the authority, by 10:00 a.m. every business (b) The general manager, with the approval of the board, day, the most recently available index well levels and the applicable may calculate the monthly pumping schedule and monthly transfer Emergency Drought Management Stage as established by §§720.130, schedule on different criteria than is otherwise required by these rules
EMERGENCY RULES May 26, 2000 25 TexReg 4663 in particular cases, to better approximate the minimum amount of §720.158 of this title (relating to Variance Applications). Such a groundwater the applicant needs for nondiscretionary uses, or to avoid request must be accompanied by an emergency plan. penalizing the applicant for development of alternative water supplies. (5) Filling of all new and existing swimming pools is (c) Notwithstanding subsection (a) of this section, applicants prohibited, unless at least 30% of the water is obtained from a have the duty to self-determine their monthly pumping schedule and source other than the aquifer. Groundwater may be used to replenish monthly transfer schedule within 30 days of the implementation of swimming pools to maintenance level. Draining of swimming pools is these rules regardless of whether the general manager has determined permitted only onto a pervious surface or onto a pool deck where the such amounts or notified an applicant of such determinations. water is transmitted directly to a pervious surface, only if necessary, to: §720.142. Stage I Restrictions. (A) remove excess water from the pool due to rain to When Stage I is in effect, the following restrictions apply to lower the water to the maintenance level; applicants, or their customers as applicable throughout the applicable area of the Authority: (B) repair, maintain, or replace a pool component that has become hazardous; or (1) An applicant shall file monthly withdrawal reports. (C) repair a pool leak. (2) No applicant may withdraw from the aquifer more than 95% of the authorized pumping amount for that corresponding §720.146. Stage III Emergency Springflow Protection Measures. month. When Stage III is in effect, the following restrictions apply to all (3) Municipalities must designate a specific day or days applicants and owners of exempt wells throughout the applicable area of the calendar week when customers within their jurisdictions are of the Authority: allowed to use groundwater for landscape watering, in accordance with this section. For all customers of applicants using groundwater (1) Any other provision of this chapter notwithstanding, for landscape watering of property located within a municipality, the groundwater from the aquifer may be used when and to the extent it watering days are those days designated in that system’s Emergency is necessary to prevent danger to public health, safety, or welfare. Drought Management Ordinance or Critical Period Management Or- (2) The provisions of §720.142 of this chapter (relating to dinance. Municipal distribution systems, or appropriate governmental Stage I Restrictions); jurisdictions, are encouraged to stagger those days to reduce peaks of demand. (3) The provisions of §720.144 of this chapter (relating to Stage II Restrictions); (4) For all applicants and owners of exempt wells whose property is not in a municipality, the watering day, in accordance with (4) An applicant may not withdraw from the aquifer more the last digit of the property address is as follows: than 85% of the authorized pumping amount for the corresponding Figure: 31 TAC §720.142(4) month. (5) No applicant or owner of an exempt well may use (5) An applicant shall submit weekly reports of ground- groundwater for an ornamental outdoor fountain or similar feature. water withdrawals as required by §720.157 of this chapter (relating to Weekly Withdrawal Reports). (6) Applicants and owners of exempt Edwards Aquifer water wells inside the appropriate jurisdiction of a municipal corpo- (A) Weekly groundwater reports are to be submitted to ration must comply with that entity’s Emergency Drought Manage- the authority by 8:00 a.m. on Tuesday following the reporting week. ment Ordinance. (B) Weekly groundwater reports will monitor progress §720.144. Stage II Restrictions. towards monthly pumping goals; however, compliance and enforce- ment will be based on monthly reports. When Stage II is in effect, the following restrictions apply to all applicants, or their customers as applicable, and owners of exempt (C) The reporting period for Weekly groundwater wells throughout the applicable area of the Authority: reports is from Sunday to Saturday. (1) An applicant shall file monthly withdrawal reports. (6) Irrigation is limited to two acre-feet per acre irrigated during the calendar year. Irrigation can continue on the acreage (2) Section 720.142 of this title (relating to Stage I irrigated during that calendar year if the crop is planted prior Restrictions) apply in Stage II. to implementation of Stage III Emergency Springflow Protection (3) No applicant may withdraw from the aquifer more Measures. Irrigation of a new crop is prohibited during or while than 90% of the authorized pumping amount for that corresponding Stage III Emergency Springflow Protection Measures are in effect. month. Municipalities must designate a specific day or days of the This limitation is subject to variances that may be issued by the calendar week when customers within their jurisdictions are allowed general manager based on rainfall. to use groundwater for landscape watering, in accordance with this (7) Landscape watering by means of a hand-held hose, section. a hand-held bucket, a soaker hose, properly installed drip irrigation (4) Landscape watering hours are reduced to the morning system is permitted during the same days and hours authorized in hours of 3:00 a.m. to 8:00 a.m. and the evening hours of 8:00 p.m. Stage II. to 10:00 p.m. However, landscape watering by means of a hand- (8) The Authority may seek further reductions of ground- held hose, a hand-held bucket, a soaker hose, or a properly installed water withdrawals for Stage III and may require reduction of nondis- drip irrigation system is permitted on the authorized day of the week cretionary use by permitted or contractual users, to the extent further during the designated hours listed in this paragraph. Persons utilizing reductions are necessary, in the reverse order of the following water irrigation systems requiring more than seven hours to complete one use preference: weekly watering cycle may request a variance in accordance with
25 TexReg 4664 May 26, 2000 Texas Register (A) municipal, domestic, and livestock (5) The owner or operator of a conforming golf course or a golf course with a CCIS must maintain daily water use records (B) industrial and crop irrigation; of their evapotransporation ("ET rate") or daily soil holding capacity, (C) residential landscape irrigation; which must be available for inspection upon request. (D) recreational and pleasure; and (6) All daily records must be kept on site. (E) other uses that are authorized by law. §720.150. Athletic Fields. §720.148. Golf Courses. Notwithstanding any other language in this Emergency Drought Management Plan, the owners of an athletic field that is an applicant, Notwithstanding any other language in this Emergency Drought or a customer of an applicant, shall only be required to submit a Management Plan, the owners of golf courses that are applicants or groundwater conservation plan and shall be defined as "conforming" customers of an applicant shall be required to submit a groundwater and "non-conforming" and shall reduce usage of aquifer groundwater conservation plan and shall be defined as "conforming" and "non- under the following terms: conforming" and shall reduce usage of aquifer groundwater under the following terms: (1) A conforming athletic field is one that achieves enhanced conservation by utilizing a computer controlled irrigation (1) A conforming golf course is one that achieves en- system ("CCIS"), or similar system, which may be comprised of hanced conservation by utilizing a computer controlled irrigation sys- a computer controller (digital operating system), software, interface tem ("CCIS"), or similar system, which may be comprised of a com- modules, satellite, field controller, soil sensors, weather station, or puter controller (digital operating system), software, interface mod- similar devices, which is capable of achieving maximum efficiency ules, satellite, field controller, soil sensors, weather station, or simi- and conservation in the application of water to the athletic field. must lar devices, which is capable of achieving maximum efficiency and require the user to accomplish the following restrictions listed in conservation in the application of water to the golf course, must ac- subparagraphs (A)-(C) of this paragraph: complish the following restrictions listed in subparagraphs (A)-(C) of this paragraph: (A) Stage I – 10% reduction in the replacement of ET rate or daily soil holding capacity; or use of not more than 95% of (A) Stage I - 10% reduction in the replacement of daily the Authorized Pumping Amount for that corresponding month for evapotranspiration rate ("ET rate") or daily soil holding capacity; or athletic fields, use of not more than 95% of the Authorized Pumping Amount for that corresponding month, (B) Stage II – 15% reduction in the replacement of daily ET rate or daily soil holding capacity; or use of not more (B) Stage II – 15% reduction in the replacement of ET than 90% of the Authorized Pumping Amount for that corresponding rate or daily soil holding capacity; or use of not more than 90% of month for athletic fields, the Authorized Pumping Amount for that corresponding month, (C) Stage III Emergency Springflow Protection Mea- (C) Stage III Emergency Springflow Protection Mea- sures – 20% reduction in the replacement of daily ET rate or daily soil sures – 20% reduction in the replacement of daily ET rate or daily holding capacity, or use of not more 85% of the Authorized Pumping soil holding capacity, or use of not more than 85% of the Authorized Amount for that corresponding month for athletic fields Pumping Amount for that corresponding month. (2) A non-conforming athletic field shall comply with the (2) A non-conforming golf course shall comply with the following reduction measures listed in subparagraphs (A)-(C) of this following reduction measures listed in subparagraphs (A)-(C) of this paragraph: paragraph: (A) Stage I - 10% reduction in the replacement of daily (A) Stage I – 15% reduction in the replacement of ET rate as monitored by a properly operating CCIS, if determined to daily ET rate as monitored by a properly operating CCIS or use be cost effective, or use of not more 95% of the Authorized Pumping of not more than 95% of the Authorized Pumping Amount for that Amount for that corresponding month for athletic fields that are not corresponding month for golf courses that are not equipped with a equipped with a CCIS; CCIS; (B) Stage II - 20% reduction in the replacement of (B) Stage II - 20% reduction in the replacement of daily ET rate as monitored by a properly operating CCIS, if daily ET rate as monitored by a properly operating CCIS or use determined to be cost effective, or use of not more than 90% of of not more than 90% of the Authorized Pumping Amount for that the Authorized Pumping Amount for that corresponding month for corresponding month for golf courses that are not equipped with a athletic fields that are not equipped with a CCIS; CCIS; (C) Stage III Emergency Springflow Protection Mea- (C) Stage III Emergency Springflow Protection sures - 30% reduction in the replacement of daily ET rate as moni- Measures- 30% reduction in the replacement of daily ET rate as tored by a properly operating CCIS, if determined to be cost effective, monitored by a properly operating CCIS or use of not more than or use of not more than 85% of the Authorized Pumping Amount for 85% of the Authorized Pumping Amount for that corresponding that corresponding month for athletic fields that are not equipped with month for golf courses that are not equipped with a CCIS. a CCIS. (3) The owner or operator of a golf course must comply (3) The owner or operator of an athletic field must comply with all Stage III Emergency Springflow Protection Measures rules with all Stage III Emergency Springflow Protection Measures rules issued by the board under §720.146 of this chapter (relating to Stage issued by the board under §720.146 (relating to Stage III Emergency III Emergency Springflow Protection Measures) of this title. Springflow Protection Measures) of this title. (4) The owner or operator of a golf course must maintain (4) The owner or operator of an athletic field must daily water use records available for inspection upon request. maintain daily water use records available for inspection upon request.
EMERGENCY RULES May 26, 2000 25 TexReg 4665 (5) The owner or operator of an athletic field with a CCIS (a) Each applicant must file monthly withdrawal reports with must maintain daily water use records of their evapotransporation the Authority for any month during which a stage is in effect for the ("ET rate") or daily soil holding capacity, which must be available particular area where the applicant is located. These reports must for inspection upon request. contain the following information: (6) All daily records must be kept on site. (1) the applicant’s name, address, and telephone number; §720.152. Commercial Landscape Watering. (2) contact person and title; Commercial landscape watering users that are applicants or customers (3) the reporting month; of applicants that are outside an appropriate jurisdiction of a munici- (4) total amount of groundwater withdrawn during the pality and cannot specifically comply with §§720.142(3), 720.144(4), reporting month; or 720.146(9) of this chapter (relating to Stage I Restrictions, State II Restrictions, and Stage III Emergency Springflow Protection mea- (5) the estimated amount of groundwater applied to sures respectively) may submit a Conservation Plan that achieves the nondiscretionary use during the reporting month, and the nature of withdrawal restrictions of the Authority. For customers of municipal such use; and distribution systems, or appropriate governmental jurisdictions, the (6) any other information requested by the general man- general manager may refer to ordinances within the entities jurisdic- ager. tion to determine consistency of the plan during his review. (b) Monthly withdrawal reports must be filed with the §720.154. Groundwater Withdrawal Reports. Authority no later than the fifth business day of the month following (a) Every applicant other than an irrigation user, must file a the reporting month. groundwater withdrawal report with the Authority that contains the following information; (c) An applicant who fails to timely file a monthly withdrawal report in accordance with this section is not entitled to exclude (1) the applicant’s name, address, and telephone number; groundwater under §720.126 of this title (relating to Nondiscretionary (2) contact person and title; Uses) from mandatory restrictions for the reporting month. (3) the location and name or number of all wells from (d) The general manager may in special cases arrange for which groundwater is withdrawn (attach map); different reporting requirements under this section, including less frequent reporting. (4) the total amount of groundwater withdrawn each month during the 12 months prior to the date of the report; (e) The monthly withdrawal report shall be filed on a form prescribed by the Authority. (5) the estimated amount of groundwater actually benefi- cially applied without waste to nondiscretionary uses, and the nature (f) The monthly withdrawal report may be filed by e-mail, of such uses; regular mail, or hand delivery. The subject line of the e-mail shall include: "MWR", the permit application number and applicant’s (6) a summary of the applicant past efforts to conserve name. water and reduce the amount of water required, and the efficacy of such efforts; §720.157. Weekly Withdrawal Reports. (7) a summary of any actions the applicant intends to take (a) Each applicant must file weekly withdrawal reports with to conserve water and reduce the amount of water required in order the Authority for any week during which Stage III Emergency to comply with these rules; and Springflow Protection Measures is effect for the particular area where the applicant is located. These reports must contain the following (8) any other information requested by the general man- information: ager. (1) the applicant’s name, address, and telephone number; (b) An applicant must file its groundwater withdrawal report with the Authority within 30 days after the effective date of these (2) contact person and title; rules. (3) the reporting week; (c) A person who, based on a transfer, becomes an applicant (4) total amount of groundwater withdrawn during the after the effective date of these rules must file a groundwater reporting week; withdrawal report within seven days of the first day the person becomes an applicant. (5) any other information requested by the general man- ager. (d) An applicant who, without good cause, fails to timely file a completed groundwater withdrawal report, is not entitled to (b) Weekly withdrawal reports must be filed with the Au- exclude groundwater water under §720.126 of this title (relating to thority no later than 8:00 a.m. on Tuesday of the week following the Nondiscretionary Uses) from mandatory restrictions until a ground- reporting week. water withdrawal report is filed with the Authority. (c) The general manager may in special cases arrange for (e) The groundwater withdrawal report shall be filed on a different reporting requirements under this section, including less form prescribed by the Authority. frequent reporting. (f) The groundwater withdrawal report may be filed by e- (d) The weekly withdrawal report shall be filed on a form mail, regular mail, or hand delivery. The subject line of the e-mail prescribed by the Authority. shall include: "GWR", an application number and applicant’s name. (e) The weekly withdrawal report may be filed by e-mail as §720.156. Monthly Withdrawal Reports. an option to filing by regular mail or hand delivery. The subject line
25 TexReg 4666 May 26, 2000 Texas Register of the e-mail shall include: "WWR", the permit application number (a) The board may affirm a provisional variance for a specific and applicant’s name. term and with any conditions the board deems appropriate. (f) A reporting week is from Sunday through Saturday. (b) The board may require an applicant granted a variance to file reports with the Authority containing such information as is §720.158. Variance Applications. relevant to monitoring the continuing appropriateness of the variance An applicant may file with the Authority an application for a variance. and compliance with the terms and conditions of the variance. §720.160. Basis for Granting and Affirming Variances; Action of the (c) If the board does not affirm the general manager’s action General Manager. or variance, then the provision becomes null and void. The general manager shall provisionally grant an application for §720.164. Rescission of Variance. a variance from the Emergency Drought Management Plan until The board may rescind a variance at any time due to changed cir- the board considers the variance application if all of the following cumstances, new information, or failure of an applicant to abide by elements are established by convincing evidence: the terms and conditions of the variance, the Act, the rules of the Au- (1) the applicant paid the application fee; thority, or any order of the board. (2) the variance is necessary to avoid an unusual, direct, Filed with the Office of the Secretary of State,on May 10, 2000. and substantial hardship; TRD-200003315 (3) there are no other reasonably available means for Gregory M. Ellis avoiding the hardship or elimination without a variance; General Manager (4) the application is in compliance with the Act; Edwards Aquifer Authority Effective date: May 10, 2000 (5) the application is in compliance with the rules of the Expiration date: September 7, 2000 Authority; and For further information, please call: (210) 222-2204 (6) granting the variance will not cause significant harm ♦♦♦ to any other person or group of persons. §720.162. Board Action on Variance Application.
EMERGENCY RULES May 26, 2000 25 TexReg 4667 PROPOSED RULES Before an agency may permanently adopt a new or amended section or repeal an existing section, a proposal detailing the action must be published in the Texas Register at least 30 days before action is taken. The 30-day time period gives interested persons an opportunity to review and make oral or written comments on the section. Also, in the case of substantive action, a public hearing must be granted if requested by at least 25 persons, a governmental subdivision or agency, or an association having at least 25 members. Symbology in proposed amendments. New language added to an existing section is indicated by the text being underlined. [Brackets] and strike-through of text indicates deletion of existing material within a section. TITLE 1. ADMINISTRATION Comments on the proposed sections may be submitted to Camille Cain at the Criminal Justice Division of the Governor’s Part 1. OFFICE OF THE GOVERNOR Office, P. O. Box 12428, Austin, Texas 78711, (512) 463-1919. Chapter 3. CRIMINAL JUSTICE DIVISION Subchapter B. GENERAL GRANT PROGRAM The Office of the Governor proposes amendments to Chapter 3, POLICIES Subchapter B, §3.55, §3.73, §3.75, §3.77, §3.79, §3.83, §3.87; Division 1. ELIGIBILITY REQUIREMENTS Subchapter C §3.609, §3.611, §3.717, §3.1209; Subchapter D §3.2009, §3.2021; and Subchapter E §3.2501, §3.2503, 1 TAC §3.53 §3.2515. Subchapter B concerns General Grant Program Poli- (Editor’s note: The text of the following section proposed for repeal cies. Subchapter C concerns Fund Specific Grant Policies. will not be published. The section may be examined in the Office of Subchapter D concerns Conditions of Grant Funding. Subchap- the Governor or in the Texas Register office, Room 245, James Earl ter E concerns Administering Grants. Rudder Building, 1019 Brazos Street, Austin.) The Office of the Governor also proposes the repeal of Chapter The repeal is proposed under the Texas Government Code, 3 Supchapter B §3.53 and Subchapter D §3.2007, and pro- Title 7, §772.006 (a) (11), which provides the Office of the poses new Chapter 3 Subchapter B §3.53 and Supchapter D Governor, Criminal Justice Division, the authority to adopt rules §3.2007. and procedures as necessary. The Office of the Governor reviewed the rules affecting the The repeal implements the Texas Government Code, Title Criminal Justice Division’s grant processes and procedures 7, §772.066(a), which requires the Office of the Governor, with the goal of increasing efficiency and updating the rules Criminal Justice Division, to advise and assist the governor in to address changes in the administration process. The review developing policies, plans, programs, and proposed legislation disclosed that a number of the rules required further clarification for improving the coordination, administration, and effectiveness and simplification. As a result, the Office of the Governor has of the criminal justice system. determined that the sections in the Texas Administrative Code identified above should be amended. No other statutes, articles or codes are affected by this repeal. Tom Jones, Director of Accounting for the Criminal Justice §3.53. Juvenile Justice and Youth Projects. Division, has determined that for the first five year period the This agency hereby certifies that the proposal has been re- sections are in effect there will be no fiscal implications for state viewed by legal counsel and found to be within the agency’s or local government as a result of enforcing or administering the legal authority to adopt. sections. Filed with the Office of the Secretary of State, on May 15, 2000. Mr. Jones also has determined that for the first five-year period that the sections are in effect there will be no fiscal TRD-200003365 implications for state or local government as a result of enforcing John Orton or administering the sections. The public will benefit from Assistant General Counsel more efficient processes and procedures and more easily Office of the Governor understanding the current rules. There will be no anticipated Earliest possible date of adoption: June 25, 2000 economic cost to persons or small businesses for complying For further information, please call: (512) 463-1919 with the sections. There is no anticipated economic costs to persons who are required to comply with the proposed sections. ♦♦♦ 1 TAC §3.53, §3.55
PROPOSED RULES May 26, 2000 25 TexReg 4669 The new and amended rules are proposed under the Texas (B) Develop and maintain computer-based information Government Code, Title 7, §772.006 (a) (11), which provides systems that will match children and families with appropriate the Office of the Governor, Criminal Justice Division, the services providers based on risk and needs profiles. authority to adopt rules and procedures as necessary. (C) Provide appropriate dispositions to mentally ill The new and amended rules implement the Texas Government youth and youth with mental retardation accused of committing Code, Title 7, §772.066(a), which requires the Office of the crimes. Governor, Criminal Justice Division, to advise and assist the (D) Target female and special needs offenders. governor in developing policies, plans, programs, and proposed legislation for improving the coordination, administration, and §3.55. Criminal Justice Projects. effectiveness of the criminal justice system. (a) - (b) (No change.) §3.53. Juvenile Justice and Youth Projects. (c) Projects may not use grant funds to serve adult offenders Juvenile justice or youth projects must meet at least one of the charged with, given deferred adjudication for, or convicted of violent following needs to be eligible for funding. or other serious crimes including murder, arson, robbery, sexual assault, aggravated sexual assault, burglary, felony drug crimes, (1) FAMILY NEEDS. Examples include, but are not crimes against children, kidnapping, aggravated kidnapping, and limited to, programs that: manslaughter, unless the executive director grants an exception. The (A) Instill appropriate social values and character in executive director may only approve exceptions to this prohibition in children. the following instances: (B) Emphasize family preservation whenever possible (1) projects that serve offenders between 17 and 25 years and appropriate. old; (C) Provide family crisis intervention for delinquent or (2) projects that fund batterers’ intervention programs; pre-delinquent children and their families. [or] (D) Recognize the role of faith-based programs in (3) projects that support a Residential Substance Abuse preventing juvenile delinquency. for State Prisoners Program[.]; or (2) EARLY INTERVENTION AND PREVENTION (4) innovative projects in prisons, jails, and community PROGRAMS. Examples include, but are not limited to, programs supervision and correction departments. that: (d) (No change.) (A) Address, through community-based efforts, condi- (e) CJD will not fund projects for adult offenders in correc- tions contributing to delinquent behavior. tional facilities unless the executive director has granted an exception (B) Hold juveniles accountable and responsible for for a project supporting the Residential Substance Abuse for State their actions. Prisoners Program or for innovative projects in prisons, jails, and community supervision and corrections departments . (3) SAFE ENVIRONMENT. Examples include, but are not limited to, programs that: This agency hereby certifies that the proposal has been re- viewed by legal counsel and found to be within the agency’s (A) Counteract gangs through identification, surveil- legal authority to adopt. lance, arrest, and prosecution of gang members involved in criminal activities. Filed with the Office of the Secretary of State, on May 15, 2000. (B) Involve the local community in comprehensive TRD-200003366 efforts to deal with juvenile crime. John Orton (4) SCHOOLS/EDUCATION. Examples include, but are Assistant General Counsel not limited to, programs that: Office of the Governor Earliest possible date of adoption: June 25, 2000 (A) Train educational and law enforcement personnel For further information, please call: (512) 463-1919 in juvenile justice laws and procedures. ♦♦♦ (B) Encourage appropriate student discipline and ac- countability to create and maintain a safe and productive learning Division 2. GRANT BUDGET REQUIRE- environment. MENTS (C) Teach good citizenship, literacy, and vocational 1 TAC §§3.73, 3.75, 3.77, 3.79, 3.83, 3.87 skills. The amendments are proposed under the Texas Government (D) Identify and intervene with students at-risk for Code, Title 7, §772.006 (a) (11), which provides the Office of delinquent behavior as early as possible. the Governor, Criminal Justice Division, the authority to adopt (5) JUVENILE JUSTICE POLICIES, PROCEDURES rules and procedures as necessary. AND FACILITIES. Examples include, but are not limited to, The amendments implement the Texas Government Code, Title programs that: 7, §772.066(a), which requires the Office of the Governor, (A) Support mandatory progressive sanctions for mis- Criminal Justice Division, to advise and assist the governor in conduct and delinquent behavior. developing policies, plans, programs, and proposed legislation
25 TexReg 4670 May 26, 2000 Texas Register for improving the coordination, administration, and effectiveness are not included in any of the grantee’s other budget categories[, that of the criminal justice system. have a useful life of less than one year,] and that have an acquisition cost of less than $1,000 per unit. Allowable costs for supplies and §3.73. Matching Funds Policy. direct operating expenses include office rent, utilities, office supplies, (a) An applicant must prove that it possesses or can acquire shared usage costs of office equipment, vehicle operating expenses, the required matching funds (or in-kind match) to satisfy the matching fidelity bonds, paper, printing, postage, classroom instructional sup- funds requirement. An applicant’s use of matching funds must plies, production costs for public service announcements, educational comply with the same rules and guidelines applicable to the use of resource materials, vehicle leases, confidential funds, and emergency CJD grant funds. clothing purchases for juveniles referred to court. (b)-(e) (No change.) (b)-(c) (No change.) §3.75. Personnel. (d) Unless otherwise allowed by this chapter, grantees (a)-(b) (No change.) cannot use grant funds to pay for food, meals, beverages, or other (c) Salaries for staff assigned to a grant project who expend refreshments unless the expense is [:] less than 25 percent of their time on the project may not be charged [(1)] for a working event where full participation by against the grant. If the job descriptions for multiple employees participants mandates the provision of food and beverages [;] and who all work on the grant are identical, however, grantees may add that event is together the time expended by each of these employees on the grant for the purpose of meeting this requirement. The executive director [(2)] not related to amusement and/or social activities in may grant exemptions to this rule for individuals working on multiple any way. grants. Grants to COGs are exempt from this rule. §3.87. Program Income. (d) Grantees may not use grant funds to provide overtime (a)-(c) (No change.) pay. Overtime pay is remuneration for hours worked in excess of (d) Grantees must submit written requests to CJD to carry full time on a grant project. Full time is 40 hours per week. Grants program income forward from one grant year to the next. Grantees under the Extraordinary Costs of Prosecuting Capital Murder Cases may not carry program income forward without written CJD approval. program are exempt from this rule. This agency hereby certifies that the proposal has been re- (e) (No change.) viewed by legal counsel and found to be within the agency’s (f) If approved by CJD (and in accordance with a grantee’s legal authority to adopt. policy), grantees may use grant funds to pay staff members leav- Filed with the Office of the Secretary of State, on May 15, 2000. ing employment for accrued compensatory time and compensated absences. These payments may only fund compensatory time and TRD-200003367 compensated absences accrued during the current grant period. The John Orton proportion of grant funds paid for compensatory time and compen- Assistant General Counsel sated absences cannot exceed the proportion of grant funds used to Office of the Governor pay the staff member’s salary. Grantees may not carry forward com- Earliest possible date of adoption: June 25, 2000 pensatory time and compensated absences from one grant period to For further information, please call: (512) 463-1919 another. ♦♦♦ (g) CJD may only approve the use of on-call services to meet in-kind match requirements. Grantees must justify a demonstrated Subchapter C. FUND-SPECIFIC GRANT POLI- need for on-call services and submit to CJD, as part of the grant application, the grantee’s on-call policy approved by its governing CIES board. Division 6. CRIME STOPPERS ASSISTANCE §3.77. Professional and Contractual Services. FUND (a)-(c) (No change.) 1 TAC §3.609, §3.611 (d) All grantee expenditures used to purchase [residential] services for children must comply with the rate schedules set by the The amendments are proposed under the Texas Government Texas Juvenile Probation Commission, which are adopted here by Code, Title 7, §772.006 (a) (11), which provides the Office of reference. the Governor, Criminal Justice Division, the authority to adopt rules and procedures as necessary. §3.79. Transportation, Travel, and Training. (a)-(b) (No change.) The amendments implement the Texas Government Code, Title 7, §772.066(a), which requires the Office of the Governor, (c) Grantees using grant funds to develop and provide train- Criminal Justice Division, to advise and assist the governor in ing through conferences or academies may not use grant funds to pay developing policies, plans, programs, and proposed legislation for transportation, lodging, per diem, or any related costs for partic- for improving the coordination, administration, and effectiveness ipants. The executive director, in his or her discretion, may exempt of the criminal justice system. grants for Crime Stoppers training from this rule. §3.609. Indirect Costs. (d) (No change.) CJD will not approve the use of any grant funds to pay for indirect §3.83. Supplies and Direct Operating Expenses. costs. The executive director may, in his or her discretion, waive this rule for Statewide projects. (a) Supplies and direct operating expenses are costs directly related to the grantee’s day-to-day operation of the grant project that §3.611. Ineligible Expenses.
PROPOSED RULES May 26, 2000 25 TexReg 4671 Grantees may not use grant funds to pay any of the following items: for approval prior to making payments to confidential informants in excess of $2,500. CJD will also ensure that the grantee’s controls (1)-(6) (No change.) over the disbursement of confidential funds are adequate to safeguard (7) rewards except for statewide projects ; against the misuse of the funds. CJD will render its determination after reviewing the grant application and the accompanying signed (8)-(9) (No change.) certification. This agency hereby certifies that the proposal has been re- (e) The time limit and approval levels for the official advance viewed by legal counsel and found to be within the agency’s of funds are as follows: legal authority to adopt. (1) up to two days advance requires the Field Supervisor’s Filed with the Office of the Secretary of State, on May 15, 2000. written approval; TRD-200003368 (2) three to seven days advance requires the commander’s John Orton written approval; Assistant General Counsel Office of the Governor (3) eight to 30 days requires the project director’s written Earliest possible date of adoption: June 25, 2000 approval; and For further information, please call: (512) 463-1919 (4) 31 to 60 days requires CJD written approval. ♦♦♦ (f) Approval beyond seven calendar days should be limited to special operations such as Mobile Enforcement Teams, special Division 7. TEXAS NARCOTICS CONTROL deployments and other exceptional situations. PROGRAM (g) In considering whether to approve these requests or 1 TAC §3.717 extensions, CJD reviews the amount of funds involved and the The amendment is proposed under the Texas Government security under which the funds are being held. Grantees should store Code, Title 7, §772.006 (a) (11), which provides the Office of funds in a locked, fireproof container such as a safe or vault until the Governor, Criminal Justice Division, the authority to adopt needed. rules and procedures as necessary. (h) Under no circumstances may a grantee use confidential The amendment implements the Texas Government Code, Title funds to pay confidential informants who are law enforcement officers 7, §772.066(a), which requires the Office of the Governor, or elected or appointed public officials. Criminal Justice Division, to advise and assist the governor in (i) If CJD no longer funds a grant and the grantee does developing policies, plans, programs, and proposed legislation not continue project activities, then the grantee must refund all for improving the coordination, administration, and effectiveness accumulated confidential funds to CJD in the proportion of CJD of the criminal justice system. funding. §3.717. Confidential Funds. This agency hereby certifies that the proposal has been re- [(a) The grantee may use confidential funds only for three viewed by legal counsel and found to be within the agency’s types of law enforcement operations:] legal authority to adopt. [(1) purchase of services for documented confidential Filed with the Office of the Secretary of State, on May 15, 2000. investigative expenses;] TRD-200003369 [(2) purchase of evidence; and] John Orton Assistant General Counsel [(3) purchase of specific information.] Office of the Governor (a) [(b)]Grant projects that include the expenditure of Earliest possible date of adoption: June 25, 2000 confidential funds must strictly comply with all relevant requirements For further information, please call: (512) 463-1919 in the OJP Financial Guide, which are hereby adopted by reference. ♦♦♦ (b) A documented investigation is an investigation that has an assigned task force number and documents investigative actions Division 12. JUVENILE ACCOUNTABILITY that can be directly related back to the purchase of services. INCENTIVE BLOCK GRANT PROGRAM (c) Confidential funds are those moneys allocated for the 1 TAC §3.1209 purchase of services, the purchase of evidence, or the purchase of The amendment is proposed under the Texas Government specific information. These funds should be allocated only when the Code, Title 7, §772.006 (a) (11), which provides the Office of particular merits of a project or investigation warrant the expenditure the Governor, Criminal Justice Division, the authority to adopt of these funds or when requesting agencies are unable to obtain these rules and procedures as necessary. funds from other sources. The amendment implements the Texas Government Code, Title [(c) Grantees must submit to CJD a written request for 7, §772.066(a), which requires the Office of the Governor, approval prior to making payments to confidential informants in Criminal Justice Division, to advise and assist the governor in excess of $2,500.] developing policies, plans, programs, and proposed legislation (d) The expenditure of confidential funds requires written for improving the coordination, administration, and effectiveness CJD approval either through an original grant award or subsequent of the criminal justice system. grant adjustment. Grantees must submit to CJD a written request
25 TexReg 4672 May 26, 2000 Texas Register §3.1209. Indirect Costs. governor in developing policies, plans, programs, and proposed Under the Juvenile Accountability Incentive Block Grant program, legislation for improving the coordination, administration, and CJD will allow up to ten percent of the allocation to be used for effectiveness of the criminal justice system. indirect costs. [CJD will not approve grant funds to pay for indirect §3.2007. Confidential Funds Certification. costs.] Any applicant proposing a project that may require the expenditure This agency hereby certifies that the proposal has been re- of confidential funds must sign and return with their application a viewed by legal counsel and found to be within the agency’s copy of a Confidential Funds Certification. By signing, the applicant legal authority to adopt. certifies he or she has read and agreed to comply with the CJD rules Filed with the Office of the Secretary of State, on May 15, 2000. regarding the control and use of confidential funds found this Code. TRD-200003370 §3.2009. Cooperative Working Agreement. John Orton (a) When a grantee intends to carry out a project largely Assistant General Counsel through cooperating with outside organizations, the grantee must Office of the Governor obtain authorized approval signatures on the cooperative working Earliest possible date of adoption: June 25, 2000 agreement from each outside participating organization. Texas For further information, please call: (512) 463-1919 Narcotics Control Program grantees and adult program grantees under ♦♦♦ the Criminal Justice Planning Fund (Fund 421) [Grantees] must provide CJD with a signed copy of any such agreement(s) [the Subchapter D. CONDITIONS OF GRANT agreement]. FUNDING (b) A cooperative working agreement must include each chief of police and each sheriff in a multi-jurisdictional task force’s impact 1 TAC §3.2007 area. Counties must be contiguous and the chief or sheriff may not (Editor’s note: The text of the following section proposed for repeal execute a cooperative working agreement with more than one task will not be published. The section may be examined in the Office of force project. the Governor or in the Texas Register office, Room 245, James Earl §3.2021. Resolutions. Rudder Building, 1019 Brazos Street, Austin.) Except for applications from state agencies, each application must The repeal is proposed under the Texas Government Code, include a resolution from the applicable governing body, such as the Title 7, §772.006 (a) (11), which provides the Office of the city council, county commissioners’ court, school board, or board of Governor, Criminal Justice Division, the authority to adopt rules directors, that contains the following: and procedures as necessary. (1)-(3) (No change.) The repeal implements the Texas Government Code, Title 7, §772.066(a), which requires the Office of the Governor, (4) a written assurance that, in the event of loss or misuse Criminal Justice Division, to advise and assist the governor in of CJD funds, the governing body will return all funds to CJD. developing policies, plans, programs, and proposed legislation [For nonprofit corporations, this statement must assure CJD that the for improving the coordination, administration, and effectiveness governing body will secure a fidelity bond covering the full amount of the criminal justice system. of CJD funds.] No other statutes, articles or codes are affected by this repeal. This agency hereby certifies that the proposal has been re- viewed by legal counsel and found to be within the agency’s §3.2007. Confidential Funds Certification. legal authority to adopt. This agency hereby certifies that the proposal has been re- Filed with the Office of the Secretary of State, on May 15, 2000. viewed by legal counsel and found to be within the agency’s legal authority to adopt. TRD-200003373 John Orton Filed with the Office of the Secretary of State, on May 15, 2000. Assistant General Counsel TRD-200003372 Office of the Governor John Orton Earliest possible date of adoption: June 25, 2000 Assistant General Counsel For further information, please call: (512) 463-1919 Office of the Governor ♦♦♦ Earliest possible date of adoption: June 25, 2000 For further information, please call: (512) 463-1919 Subchapter E. ADMINISTERING GRANTS ♦♦♦ 1 TAC §§3.2501, 3.2503, 3.2515 1 TAC §§3.2007, 3.2009, 3.2021 The amendments are proposed under the Texas Government The new and amended rules are proposed under the Texas Code, Title 7, §772.006 (a) (11), which provides the Office of Government Code, Title 7, §772.006 (a) (11), which provides the Governor, Criminal Justice Division, the authority to adopt the Office of the Governor, Criminal Justice Division, the rules and procedures as necessary. authority to adopt rules and procedures as necessary. The amendments implement the Texas Government Code, Title The new and amended rules implement the Texas Government 7, §772.066(a), which requires the Office of the Governor, Code, Title 7, §772.066(a), which requires the Office of the Criminal Justice Division, to advise and assist the governor in Governor, Criminal Justice Division, to advise and assist the developing policies, plans, programs, and proposed legislation
PROPOSED RULES May 26, 2000 25 TexReg 4673 for improving the coordination, administration, and effectiveness in order to clarify language and procedures in compliance with of the criminal justice system. Chapter 2171, Texas Government Code. The amendments are part of a periodic rule review process mandated by the Texas §3.2501. Grant Officials. Government Code, §2001.039 (relating to Agency Review of Each grant must have three different persons designated to serve as Existing Rules). grant officials: Mr. Frank Mays, Director of the Support Services Division, has (1) The project director. This person must be (at the determined for the first five year period the rules are in effect, applicant’s option) an employee of the applicant agency or be from the there will be no adverse effect to state or local government as contractor organization that will be responsible for project operation a result of enforcing these rules. or monitoring and who will serve as the point-of-contact regarding the project’s day-to-day operations. In Crime Stoppers Programs this Mr. Frank Mays, Director of the Support Services Division, person can be an employee of a law enforcement agency who will further determines that for each year of the first five-year period act as the coordinator; the amendments are in effect, the public benefit anticipated as a result of enforcing these rules will be streamlined procedures, (2)-(3) (No change.) comprehensive definitions, and updated terminology relating to §3.2503. Obligating Funds. the State Travel Management Program. There will be no effect A grantee may not obligate grant funds (without advance written on small or large businesses and/or persons. approval by CJD’s executive director) before the beginning or after Comments on the proposals may be submitted to Ann Dil- the end of the grant period. [Grantees may only obligate funds for lon, General Counsel, General Services Commission, P.O. Box CJD approved budget items and purposes. Grant-funded personnel 13047, Austin, Texas, 78711-3047. Comments must be re- may use grant funds only for project activities stated in the approved ceived no later than 30 days from the date of publication of grant application.] the proposal to the Texas Register. §3.2515. Bonding and Insurance. The amendments are proposed under the authority of the Each nonprofit agency receiving funds from CJD must obtain and Texas Government Code, Title 10, Subtitle D, §§2152.003 and have on file a blanket fidelity bond that indemnifies CJD against the 2171.002 which provides the General Services Commission loss and theft of the entire amount of CJD grant funds. The cost of with the authority to promulgate rules necessary to implement the bond is an eligible expense of the grant. [Continuation projects the sections. must submit a copy of the bond with the application for funding. The following code is affected by these rules: Government New applicants may submit a copy of the bond after they receive a Code, Title 10, Subtitle D, Chapter 2171. grant award.] §125.1. General. This agency hereby certifies that the proposal has been re- viewed by legal counsel and found to be within the agency’s (a) The travel and vehicle fleet services program legal authority to adopt. [transportation division] of the commission administers the State Travel Management Program. Filed with the Office of the Secretary of State, on May 15, 2000. TRD-200003371 (b) State Travel Management Program services are provided to state agencies, their employees, elected or appointed officers, and John Orton other persons entitled to reimbursement for official state business Assistant General Counsel travel expenses incurred on behalf of the state[, regardless of the Office of the Governor source of funds used to pay the travel expenses]. Earliest possible date of adoption: June 25, 2000 For further information, please call: (512) 463-1919 (c) Use of the State Travel Management Program’s Contract Airline Fares is extended to a Texas county officer or employee ♦♦♦ including a county sheriff, deputy sheriff, or juvenile probation officer, or persons who are in the custody of the state, provided that Part 5. GENERAL SERVICES COMMIS- the county has elected to participate in the program that provides this SION service. (d) It is the policy of the commission to administer the State Chapter 125. SUPPORT SERVICES DIVISION– Travel Management Program [travel program] to provide timely and efficient travel services to eligible entities as defined in subsections TRAVEL AND VEHICLE (b) and (c) of this section, and to generate savings, whenever possible. Subchapter A. TRAVEL MANAGEMENT SER- (e) These rules are intended to be consistent with the State of Texas Travel Allowance Guide published by the comptroller of VICES public accounts [Comptroller of Public Accounts]. 1 TAC §§125.1, 125.3, 125.5, 125.7, 125.9, 125.11, 125.13, §125.3. Definitions. 125.15, 125.17, 125.19, 125.21, 125.23, 125.25, 125.27, 125.29 The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates The General Services Commission proposes amendments to otherwise. Title 1, TAC, Chapter 125, Subchapter A, §§125.1, 125.3, 125.5, 125.7, 125.9, 125.11, 125.13, 125.15, 125.17, 125.19, (1) Accumulated depreciation–The total amount of vehi- 125.21, 125.23, 125.25, 125.27, and 125.29 concerning Travel cle depreciation recorded in the Vehicle Information Program. Management Services. The amendments are being proposed
25 TexReg 4674 May 26, 2000 Texas Register (2) Airlines Reporting Corporation (ARC)–The organiza- (16) [(21)] Driver’s handbook–A reference manual or tion of participating airlines which provides a common method of guide detailing state agency operational policy and procedure for state approving travel [authorized] agency locations [location] for the sale vehicles. of domestic air transportation [for the account of the participating [(22) Executive director–The executive director of the airlines]. General Services Commission.] (3) Alternative fuel–Compressed natural gas, liquefied (17) [(23)] Facility–A building used for meetings, con- natural gas, liquefied petroleum gas, electricity, methanol (or M85), ventions, conferences, and seminars. or ethanol (or E85) [other alternative fuel specified in Texas Natural Resource Conservation Commission rules]. (18) [(24)] Fleet officer–The individual designated by each state agency who is responsible for the timely and accurate (4) Alternative fuel vehicle–A motor vehicle capable of submission of all required information utilized by the vehicle fleet using alternative fuel in the original equipment manufactured engine, management system. or in a converted traditional gasoline or diesel engine. (19) [(25)] Gross vehicle weight (GVW)–The greatest (5) Assigned vehicle–A state vehicle normally driven by weight of vehicle and load which the manufacturer recommends that a the same employee or small specific group of employees. vehicle accommodate. The GVW includes the total weight of chassis, [(6) Award–The act of accepting a bid or proposal.] cab, body, special equipment, oil, water, gasoline, driver, and the maximum payload. [(7) Board–The governing body of a county or local school district.] (20) [(26)] Group/Meeting Planning Requisition–The form developed [method recognized] by the program [commission] (6) [(8)] Book value–The capitalized value less the accu- for state agencies to request Group/Meeting Planning Services. mulated depreciation. (21) [(27)] Indirect labor–The labor cost of vehicle fleet (7) [(9)] Capitalized value–The original cost of a vehicle, related employees whose time cannot be identified with repairing or plus later adjustments for major additions or improvements. servicing individual vehicles. [(10) Charge card-A method of payment for travel ser- (22) [(28)] International Airlines Travel Agent Network vices that does not involve actual cash, but entails credit and payment (IATAN)–The organization of participating airlines which provides a processes.] common method of approving authorized agency locations for the sale (8) [(11)] City pair–A one-way airline flight between of international air transportation [for the account of the participating two cities, from origin to destination, regardless of stopovers or airlines]. connections. (23) Negotiated rate–A price for a travel service negoti- (9) [(12)] Commission–The General Services Commis- ated or awarded by the program. sion. (24) [(29)] Nonparticipating state agency–Any state [(13) Competitive bidding–Shall have the same meaning agency that [is not approved to utilize the services of the State Travel as this term is defined in §111.2 of this title (relating to Definitions).] Management Program and/or that] has not submitted a properly completed and approved travel service requisition [ setting forth its (10) [(14)] Computerized Reservations System (CRS)– desire to participate]. One of a number of interactive electronic systems linking individual travel agencies to a central airline-owned computer, allowing agents (25) [(30)] Nonresident bidder-A [Refers to a] person who to make availability inquiries and travel reservations. is not a resident bidder [within the meaning of Texas Government Code, Chapter 2252]. (11) Corporate travel charge card-A method of payment for travel services. (26) [(31)] Official state business travel–The travel under- taken by a state official or employee [employees] to conduct official (12) [(15)] Depreciation rate–A uniform mathematical state business or to represent the state in an official capacity. factor which reflects a vehicle’s loss of market value due to wear, deterioration, or obsolescence. (27) [(32)] Official county business–The travel undertaken by a county officer or employee, including a county sheriff, deputy (13) [(16)] Direct labor–The cost of labor associated with sheriff, or juvenile probation officer, to conduct official county repairing or servicing vehicles, whether performed by a contractor or business or to represent the county in an official capacity. state employee. (28) [(33)] On-Site Location–A full [Full]-service travel [(17) Director–The director of the travel and transporta- agency office located on state property, in accordance with Chapter tion division of the General Services Commission.] 2165, Subchapter E of the Government Code that processes travel [(18) Discount rate–A price for a travel service established reservations [sells, issues, and delivers tickets] for high-volume state by the commission.] agencies. (14) [(19)] Disposal date–The date on which a state (29) [(34)] Participating County–A county that has exe- vehicle is no longer included in a state [an] agency’s property cuted a Commissioner’s Court Resolution [an interlocal agreement inventory. with the commission] and paid the participation [required] fee for the county[county’s sheriff department and juvenile probation board]to (15) [(20)] Downtime–The total number of working hours use the contract airline fares. a state vehicle, otherwise eligible for assignment, is out of service for repair or maintenance. (30) [(35)] Participating state agency–A state agency that has submitted [which has been approved to utilize the services of the
PROPOSED RULES May 26, 2000 25 TexReg 4675 State Travel Management Program upon submission of] a properly (45) [(50)] State employee–A person employed by a state completed and approved travel service requisition. agency, or an elected or appointed state official [officials, and appointed state officials]. (31) [(36)] Passenger Name Record (PNR)–A record in a computer reservation system [Record] that contains all travel (46) [(51)] State vehicle–Any state-owned vehicle which arrangements and information for a particular trip for a specific is propelled by a self-contained engine and is licensed to operate on traveler. public highways. (32) [(37)] Pool vehicle–A vehicle normally garaged in (47) [(52)] Texas State Travel Directory [state travel a central location for use by any authorized employee of the state directory]–The directory distributed [published] by the program agency. [travel and transportation division, at least annually,] which lists travel guidelines, contract travel vendors and negotiated [applicable current] (33) [(38)] Program–The State Travel Management Pro- rates. All or part of the Texas State Travel Directory and updates are gram. accessible on the commission’s web site at www.gsc.state.tx.us. (34) [(39)] Proposal–The response made by a travel (48) [(53)] Transfer date–The date a vehicle is transferred vendor [bidder] to provide goods or services in accordance with the from one state agency to another. terms and conditions of an [a previously] issued request for proposal. (49) [(54)] Transition-A designated [Designated] period (35) [(40)] Proposal evaluation team–The group of indi- of time that a terminated contract travel vendor [contracted travel viduals selected by the program [commission]to[discuss and] eval- agency or travel agent] provides travel services until a successor is uate proposals made in response to an [a previously] issued request selected and performing services as required by the commission’s for proposal. [has been selected that can adequately service the State’s] contract. (36) [(41)] Rental car–A vehicle not owned by the State (50) [(55)] Travel agency [agent]–Any individual, corpo- of Texas and rented from a rental car vendor. ration, association, partnership, company, or firm designated as an (37) [(42)] Request for proposal–An official solicitation appointed airline industry agent by the Airlines Reporting Corpora- to receive proposals from competitive sources in accordance with tion or the International Airlines Travel Agent Network, an airline, or specific [delineated specification] terms and conditions contained in a company, corporation, association, partnership, or firm owned by the solicitation documents. an airline or group of airlines which provides travel reservations and ticketing services. (38) [(43)] Resident bidder-A [Refers to a] person whose principal place of business is in this state, including a contractor (51) [(56)]Travel agency services contract–Terms and whose ultimate parent company or majority owner has its principal conditions established [Travel Agent Services Contract–Contracting place of business in this state. process used] by the commission’s State Travel Management Pro- gram [central travel office] to ensure travel agencies meet minimum (39) [(44)] Revenue Sharing–A percentage of revenue [certain reasonable] requirements to provide travel services for the [commissions] received by the state from [the booking of State of State of Texas. Texas business travel by the] contract travel vendors [agencies/agents which is remitted to the State]. (52) [(57)] Travel service requisition-The form developed [method recognized] by the program [commission] for state agencies (40) [(45)] Salvage value–The amount expected to be to request services provided by the State Travel Management Pro- realized from the disposal of a vehicle at the conclusion of its useful gram. life. (53) Travel status–When a state employee conducts offi- (41) [(46)] Satellite Ticket Printer (STP) Location-A loca- cial state business for which travel expenses may be eligible for re- tion at which [Location whose sole function is the printing of] travel imbursement in accordance with the Comptroller of Public Accounts documents are printed by means of a ticket printing device. State of Texas Travel Allowance Guide. (42) [(47)] Special purpose vehicle (SPV)–A motor vehi- (54) [(58)] Travel vendor–A provider of any travel or cle commercially designed to be used primarily for purposes other transportation service. than to provide transportation service for personnel, supplies, or equipment. (55) [(59)] Traveler–A person who [under §125.1 of this title (relating to General)] is eligible to use the program’s contract (43) [(48)] Standard labor rate (SLR)–A rate computed services and negotiated [or] rates. to approximate the total hourly cost of salaries and related fringe benefits. (56) [(60)] Vehicle fleet management system–A comput- erized data retrieval system to assist each state agency in the man- (44) [(49)] State agency– agement of its vehicle fleet. (A) any department, commission, board, office, coun- (57) [(61)] Vehicle inventory–A list of state agency vehi- cil, or other agency in the executive branch of state government cre- cles by type and class which is utilized to determine their average ated by the constitution or by a statute of this state; cost of operation. (B) the Supreme Court of Texas, the Court of Criminal §125.5. Available Services. Appeals of Texas, a court of civil appeals, or the Texas Civil Judicial Council; The State Travel Management Program services include [are]: (C) a university system or an institution of higher (1) travel agency [agent] services–reservation and ticket- education as defined in the Texas Education Code, §61.003, other ing services for airline, hotel, and rental car rates and requirements than a public junior college. under contracts established by the commission’s State Travel Man- agement Program [commission];
25 TexReg 4676 May 26, 2000 Texas Register (2) corporate travel charge card services–charge accounts with §125.19 of this title [(relating to Participation by State Agen- and cards provided [are available] for official state business travel cies)]. use; [(2) State agencies may begin participation in the charge (3) negotiated [discount] rate services–negotiated card services portion of the program at any time during the term of a [discount] rates for travel services including but not limited to airline contract with the selected charge card company with the concurrence fares, lodging establishments, and rental cars [are established by the of the commission. ] commission]; (d) [(3)] An employee is not required to obtain [accept]a (4) group/meeting planning [meeting] services–services state corporate travel charge card. However, all contract air fares [assistance is] provided to state agencies with site selection, rate must be charged on the state’s corporate travel charge card [contract]. negotiation, and contracting assistance for meetings, conventions, [Use of a personal charge card that offers insurance benefits not conferences, and/or [and] seminars. available from the state’s charge card contract is permitted only for non-contracted air fares used in accordance with §125.19 of this title.] §125.7. Travel Agency [Agent] Services. (e) [(c)] Participating state agencies may choose to have (a) Except as otherwise provided in subsection (c) [(d)]of charges billed as follows:[.] this section, airlines, lodging, and rental car reservation and ticketing services are obtained from travel agencies [agents]. Travel agency (1) Individual billing. All official state business travel employees or authorized [as well as] state agency employees may charges are billed directly to the individual employee who is [be used to] process reservation and ticketing requests. reimbursed through standard travel voucher procedures. (b) Travel agency [agent] services are provided under con- (2) Central billing. All official state business travel tracts between [selected] travel agencies [agents] and the commission. charges, allowable by law, [allowed by the General Appropriations The commission shall contract with multiple travel agencies [agents] Act, Article V,] are billed to the state agency. The state agency that meet certain minimum [reasonable] requirements established by pays the charge card vendor [company] through established voucher the commission’s program [promulgated by the commission, allowing payment procedures [processed through the Comptroller of Public contracts by as many private travel agents as possible with preference Accounts]. given to Texas resident entities. The contracting process is described (f) [(d)] A state agency shall approve issuing a corporate in §125.27 of this title (relating to Travel Agency Contracts)]. travel charge card to an employee if the employee is expected to (1) Travel agency [These] services are available to all state take at least three trips or spend at least $500 per fiscal year for agencies and institutions of higher education [, in accordance with official state travel business. However, a state agency may approve §125.19 of this title (relating to Participation by State Agencies)]. issuing a card to an employee who does not meet this requirement. (2) The term [length] of the contract [contracts]isestab- (g) A state [The] agency shall cancel a corporate travel charge lished [determined] by the commission. card upon the employee’s termination of employment, and [it] may cancel the [a] card and/or impose other disciplinary action if the (3) State agencies may select one or more contract travel employee does not comply with subsection (i) [(e)] of this section or agencies [begin participation] at any time during the term of the [a] with any other provision of the corporate travel charge card policies contract [, with the concurrence of the commission]. [use] established by the state agency. [(c) Those travel agencies awarded contracts with the com- (h) A state agency shall monitor employee corporate travel mission on behalf of the state must meet all of the following basic charge card spending and payment delinquency and may take qualifications, which should not be construed to comprise the com- disciplinary action up to and including termination of employment. plete vendor specifications for requests for proposals:] (i) [(e)] By accepting an individual corporate travel [a] charge [(1) be a travel agent as defined in §125.3 of this title card, the employee accepts the responsibility for paying all charges (relating to Definitions); and] timely and agrees that the [charge] card is intended for official state [(2) have automated systems in place to make reservations business travel use. Payment of charges on individual corporate travel and to capture travel data for management reporting purposes.] charge cards is the sole responsibility of the individual. The state shall not be responsible for the charges, regardless of the type of charge, (c) [(d)] In accordance with Texas Government Code, Title nor shall the state be liable for nonpayment by the employee. 10, Chapter 2171.052, the commission’s program may negotiate directly with vendors to obtain [commission, at its discretion, may §125.11. Negotiated Rate Services. obtain] travel and transportation services [through sources other than (a) Negotiated[Discount] rates for travel [and transportation] travel agents including obtaining such services via direct negotiation services for official state business travel are contracted[provided by with travel vendors]. contracts] between the commission and [selected] travel vendors. §125.9. Corporate Travel Charge Card Services. (b) The negotiated [These] rates are to be used by state (a) Charge accounts and cards are provided for official state agencies in accordance with §125.19 of this title [(relating to business travel use. Accounts may be established for individual state Participation by State Agencies)]. employees, the participating state agency, or both. (c) Negotiated rates [Discount rates established under this (b) Corporate travel charge [Charge] card services are pro- portion of the program] may be extended[used] for personal business vided by [under] contract established between the commission and use only at the discretion of the contract [providing] travel vendors. the selected charge card vendor [company]. (d) The negotiated [discount] rates will be listed [published] (c) [(1)]Contract corporate travel charge card [Contracted] in the Texas State Travel Directory and made accessible at the services are available to all participating state agencies in accordance
PROPOSED RULES May 26, 2000 25 TexReg 4677 commission’s web site at www.gsc.state.tx.us [at least annually or (e) Group/meeting planning services will not be provided if a more often as deemed necessary by the commission]. state agency has initiated the planning process with potential vendors regarding a specific meeting. (e) Negotiated [Discount] rates are established by written contract. Contract rates are [shall be] binding for the specified term [(d) Convention and meeting services are provided at no cost agreed upon by the commission and the travel vendor. by the commission as a result of group/meeting planning requisitions received from state agencies. Group/meeting planning requisitions (f) State agencies may request the program [commission]to must be submitted on forms prescribed by and approved by the attempt to establish negotiated [discount] rates with specific travel commission. Group/Meeting planning requisitions must be received vendors. The program [commission] will honor such requests when no later than 30 days prior to the beginning date of the meeting.] it determines that it is in the best interest of the state. [(e) Travel service requisitions for group/meeting services (g) A state agency required to use the commission’s travel submitted by requesting state agencies must be duly signed and must services contracts may not establish a separate, similar contract certify as to the availability of funds for the payment of services without commission approval. A state agency shall submit any received for specified meetings.] proposed travel services contract document to the program for review and approval before the contract is signed. Contracts determined to be §125.15. Certification of Capability To Provide Services. unfavorable to the state, or to have a negative affect on the Program’ contracts will not be approved. Pursuant to Texas Government Code, Title 10, §2171.051, prior to the State Travel Management Program services being provided to a state §125.13. Group/Meeting Planning [Meeting] Services. agency [under the State Travel Management Program], the division director of the Support Services Division shall certify to the executive (a) General assistance is provided to state agencies in the director of the commission that the program is capable of providing planning of meetings, conventions, conferences, seminars, displays, such services. The executive director of the commission shall approve examinations, auctions, and/or [and] other similar events which are the use of services provided by the program to requesting state sponsored by state agencies whenever space for such events is to agencies after receipt of the required certification. be utilized for less than one month. [Assistance is provided for aspects of such functions which are related to travel.] The program §125.17. Travel Vendor Selection Process. [commission] does not provide assistance in regard to the content or operation of the event [program content or the operation of programs (a) [The commission shall contract for travel agent services at such functions]. as described in §125.27 of this title (relating to Travel Agency Contracts).] The commission contracts [may contract] for all [other] (b) All group/meeting planning services [as] provided by the travel services through [either] competitive bidding, competitive program [commission] are available to all state agencies. sealed proposals, or negotiation [at its discretion]. (c) At the request of a state agency, the program (b) The program may [When a competitive process is deemed [commission] will provide the following services: to be in the best interests of the state, the commission shall] solicit (1) assistance in selecting a location and/or [and] facility competitive bids by [issuing an invitation for bids, or competitive for a meeting. The program may [commission will] consider proposals by] issuing a request for proposal using the following transportation costs for attendees; availability of facilities and the procedures: [proposals. For competitive bids, the division shall use ability of facilities to meet space, equipment, and catering needs; the procedures required by §113.11 of this title (relating to Delegated costs for obtaining meeting space and lodging; and other factors Purchases). The following procedures shall be used for competitive the program [commission] deems [to be] important in recommending proposals.] sites to state agencies; (1) Notice of the request for proposal shall be published (2) assistance in negotiating the most favorable facility, in the Texas Register and the Texas Electronic Marketplace and other [travel, and related] costs and rates; distributed [mailed] to prospective travel vendors [ who have asked to be included on a bidders list for the type of services addressed in (3) assistance in contracting [negotiating contracts] with the request for proposal]. facilities and travel vendors. (2) A request for proposal shall include but not be limited (d) Group meeting/planning services are provided at no cost to the following: by the program upon receipt of a completed group/meeting planning requisition from the state agency. The completed group/meeting (A) a detailed description [statement] of the services planning requisition must meet the following requirements: sought; (1) must be submitted on forms developed and approved (B) any available supporting statistical information by the program, and which is to be taken into account by prospective travel vendors in preparing proposals; (2) must be received no later than 30 days prior to the beginning date of the meeting, and (C) the criteria to be used in evaluating proposals for final awards; (3) must be signed and certified as to the availability of funds for the payment of the services received for specified meetings, (D) the specified date, time, [date,] and place for and submission of proposals; and (4) must be signed and certified that all possibilities (E) qualifications [which] prospective travel vendors involving the use of state facilities have been exhausted due to the lack must meet to be considered for award. of availability on the needed date(s) or inadequacy to accommodate (3) A pre-proposal conference may be held after a request the meeting. for proposal is issued[, if the commission determines one to be
25 TexReg 4678 May 26, 2000 Texas Register necessary]. The time, date, and location of the conference shall be revenue funds or educational and general funds as defined by the stated [noted] in the request for proposal. Education Code, § 51.009; (4) Proposals and the required [correct] number of copies (3) The Employees Retirement System of Texas is not must be submitted by [at] the specified date, time, [date,] and place required to participate in the contract travel agency services or other stated [specified] in the request for proposal. travel services purchased from funds other than general revenue funds. (5) The program may select a [commission shall use a (b) A state agency that is not required to use the commis- proposal evaluation] team to evaluate proposals. [Members of the sion’s travel services contracts, shall: proposal evaluation team shall be selected by the commission at its (1) Participate at its own option. discretion.] (2) Use the corporate travel charge card services if a state (6) The [proposal] evaluation team may request oral agency decides to use travel agency services contracts. presentations by any or all prospective travel vendors [offerors] submitting proposals. (3) Give the commission’s program at least 60 days advance written notice if the state agency terminates its participation (7) During discussions or oral presentations with prospec- in the program. tive travel vendors [offerors], no information from competing propos- als shall be disclosed [made known] to other prospective travel ven- (c) To begin participating in the travel agency and/or corpo- dors [offerors]. [Any type of auction practice or allowing the transfer rate travel charge card contracts, a state agency must submit a com- of technical information is specifically prohibited as being inconsis- pleted travel service requisition to the program and then the commis- tent with fair competition.] sion will: (8) Upon completion of oral presentations or discussions, (1) review and approve participation by the requesting prospective travel vendors [offerors] may be requested to revise any state agency in the Program upon a determination that the program or all portions of their proposals. is capable of providing those services requested; and (9) Based upon the evaluation of the proposals, the direc- (2) If the program cannot provide those services re- tor of the Support Services Division shall determine and recommend quested, then the director of Support Services Division shall not ap- to the executive director of the commission the travel vendor(s) se- prove the travel service requisition and shall so notify the requesting lected [offeror(s) chosen] for contract awards. state agency in writing as to the reasons for this determination. (10) Notice of Award(s) [Awards] shall be made to the (d) The commission’s travel services contracts must be used travel vendor(s) [offeror(s)] whose proposal(s) are most advantageous unless at least one exception listed in paragraphs (1)-(4) of this and are in the best interest [interests] of the state considering subsection exists. Travel Agent contracts are not affected by the the evaluation criteria set forth in the request for proposal. The conditions listed in paragraphs (2)-(5) of this subsection. commission may reject all or any part of the proposal(s) when in the (1) Contract travel agency alternative. Use of an autho- best interest of the state. [The commission may reject all proposals if rized alternative method is allowable because the state traveler is al- none of the offers are acceptable or if rejection is in the best interest ready in travel status which renders the use of a contract travel agency of the state.] impractical or unnecessary; airline reservations are not required; or (11) The contract(s) resulting from the request for pro- travel is undertaken as part of a group program for which reservations posal process consists of the following: must be made through a specified source to obtain a particular rate and/or service. (A) The request for proposal; (2) Lower total cost to the state. Use of a non-contract (B) The transcribed preproposal conference questions travel vendor is less than the contract fare or rate, and/or when all trip and answers; expenses are evaluated, including ground transportation, insurance (C) Any addenda to the request for proposal; fees, parking fees, taxes, and travel time, the use results in a lower total overall cost to the state. (D) The successful travel vendor’s response; and (3) Efficient use of services. Use of a non-contract travel (E) The notice of award(s). vendor is necessary because the contract travel vendor is sold out, [(11) A notice of award shall be sent to the offeror or is not able to provide services at the time or location necessary to offerors whose proposals are accepted.] accomplish the purpose of the trip, has a real or anticipated labor disruption, or is providing negotiated rates for group travel. [(12) The contract resulting from the competitive proposal process consists of the request for proposals, the accepted proposal, (4) Health and safety issues. Use of a non-contract and the notice of award.] travel vendor may be allowed when a state traveler finds that the accommodations provided by the vendor may reasonably present a §125.19. Participation by State Agencies. risk to the state traveler or person under the state’s custody in the (a) State agencies’ participation in the program is as follows: following circumstances: (1) State agencies in the executive branch of state gov- (A) Accommodations may lack a reasonable amount ernment shall participate in the program and use the travel agency, of security or safety, and/or may present a health risk based on the charge card, rental car, airline, hotel, and other travel services nego- state traveler’s individual needs; tiated by the program; (B) Accommodations fail to provide an adequate (2) Institutions of higher education are not required to use amount of services required for a person with disabilities; or the travel agency services contracts, but are required to use all other travel services contracts when such purchases are made using general
PROPOSED RULES May 26, 2000 25 TexReg 4679 (C) Accommodations have limited availability of med- [(5) A contract vendor is unable to provide the required ical emergency facilities or equipment that may be required by a state services because it is sold-out. ] traveler or person under the state’s custody. [(6) Alternative rental car or hotel arrangements can be (5) Corporate travel charge card alternative. Use of a made at a lower total cost than the contract hotels or rental car personal charge card is allowable only for non-contract airfares used companies. For rental cars, total costs include the base rate, loss/ in accordance with this chapter if it offers insurance benefits not damage waiver protection, mileage charge, surcharges, and cost for available from the state’s corporate travel charge card contract. comparable liability insurance protection. To compare total costs for hotels the following shall be considered: the cost of the guest (e) An exception must be indicated on or with a voucher or room without taxes, travel time to point of business location, any other payment document as specified by the comptroller of public transportation costs, such as taxi or rental car and/or parking fees.] accounts. State agencies shall establish travel procedures to comply with this subsection and submit them to the program for approval. [(7) A contract vendor offers a fare or rate lower by any amount than the contract fare or rate. ] [(a) Except as otherwise provided in this section, state agencies in the executive branch of state government shall participate [(8) A non-contract airline offers a published fare to the in the program and use the travel agency, charge card, rental car, general public which results in a lower total trip cost, including travel airline, hotel, and other travel service contracts that are effective for time, to the agency. However, lower or identical airfares offered to at least a 12-month term. Institutions of higher education are not state travelers only are not included within this exception. ] required to use the travel agency contracts, but are required to use all [(9) Travel is undertaken by persons with disabilities, by other contracts when such purchases are made using general revenue persons transporting prisoners or other persons in the custody of the funds or educational and general funds as defined by the Education state, or in a medical emergency.] Code, §51.009.] [(10) Use of contract travel vendors is perceived by the [(b) A state agency that is not required to use the travel state traveler to present a security, safety, or health risk to the state services contracts may do so at its option. However, a state agency traveler.] that uses travel agent services must use the charge card services also.] [(11) Travel is by persons who under §125.1 of this title [(c) To begin participating in the travel agency and charge (relating to General) are not eligible to use the contract services or card contracts, a state agency must send the commission a travel rates.] service requisition.] [(12) Promotional air fares used by two or more state [(d) The commission shall receive a travel service requisition travelers on a companion basis resulting in an average air fare for from a requesting state agency and shall approve participation by such each state traveler lower than the individual contract fare.] state agency in the program upon a determination that the program is capable of providing those services requested. If the commission (f) [(g)] A state agency required to use the commission’s determines that the program cannot provide those services requested, travel services contracts may not purchase or reimburse a person for then the commission shall not approve the travel service requisition the purchase of commercial airline or rental car transportation in an and shall so notify the requesting state agency in writing as to the amount exceeding the contract rate established by the commission reasons for this determination.] unless an exception [a condition] identified in subsection (d) [(f)]of this section exists. The exception [existence of the condition] must [(e) A state agency not required to use the commission’s con- be indicated on or with the [payment] voucher or other payment tracts may terminate its participation by giving the commission at document as specified by the comptroller of public accounts. least 60 days’ advance written notice.] (g) [(h)] Contract rates will be distributed [communicated] [(f) The contracts for travel services must be used as required by the commission [on an annual basis] to state agencies and the by §§125.1-125.21 and 125.27 of this title (relating to Travel comptroller of public accounts when contracts are established by the Management Services) unless the conditions listed below exist. The program. existence of the condition must be indicated on or with the payment voucher as specified by the comptroller of public accounts. State (h) [(i)] When a voucher or other payment document for agencies shall establish procedures to comply with this subsection and travel services is submitted to the comptroller of public accounts submit them to the commission for approval within 90 days after the [is for travel services where a contract negotiated by the commission effective date of this section. Travel agent contracts are not affected must have been used for some or all of the travel] and it does not show by the conditions listed in paragraphs (5)-(12) of this subsection.] that a travel services [the] contract was properly used or an exception [condition] listed in subsection (d) [(f)] of this section is not reflected [(1) The state traveler is already in travel status which [has not been properly claimed], the comptroller of public accounts renders the use of a contract travel agent impractical or unnecessary will handle the document as specified in paragraphs (1) and (2) of or airline reservations are not required. ] this subsection. [(2) Travel is undertaken as part of a group program for (1) Pre-payment audits by the comptroller of public which reservations must be made through a specified source to obtain accounts. a specified rate or service.] (A) Except as provided in subparagraph (B) of this [(3) A contract travel vendor cannot provide services in paragraph, the comptroller of public accounts may not refuse to the time period required to accomplish the purpose of the travel. ] process a voucher or other payment document solely because it [(4) A contract travel vendor’s services are not available involves the non-use of a travel services contract negotiated by the in a location that will reasonably allow the business requirements of Program [commission]. The comptroller of public accounts will a state traveler to be fulfilled. ] [shall] report instances of non-compliance [the voucher or document] to the commission.
25 TexReg 4680 May 26, 2000 Texas Register (B) The comptroller of public accounts will not [may (1) receiving and distributing travel information to em- not] process a voucher or other payment document that requests pay- ployees of the state agency; ment or reimbursement of commercial airline or rental car transporta- (2) coordinating with state agency employees and travel tion that exceeds [to the extent the amount of that payment or reim- vendors to ensure proper use of travel contracts; bursement would exceed] the amount of the contract [commission’s contracted] rate unless a valid exception is noted. The comptroller of (3) reviewing travel data reports for compliance with the public accounts will [shall] report instances of non-compliance [the contracts and rules established by the program [§§125.1 to 125.21 voucher or document] to the commission. and 125.27 of this title (relating to Travel Management Services)]; (2) Post-payment audits by the comptroller of public (4) monitoring the state agency’s travel activities and accounts. reporting travel needs and problems to the program [commission]; (A) Except as provided in subparagraph (B) of this (5) serving on a travel vendor proposal evaluation team paragraph, the comptroller of public accounts may not require a as requested. state agency to obtain a refund of a payment or reimbursement (b) The state agency shall provide the name, address, and made under a voucher or other payment document that shows the phone number of the designated travel coordinator to the program non-use of a contract travel service [services contract negotiated [division] in writing. Changes must [are to]besubmitted to the by the commission]. The comptroller of public accounts shall program [provided] in writing [ also], within 30 days following any report instances of non-compliance [the voucher or document] to the [the] change. commission. (c) The program [commission] shall establish a travel advi- (B) The comptroller of public accounts may take the sory group of state agency travel coordinators and other state em- actions authorized by Government Code, §403.071(h), concerning ployees to promote better understanding and operation of the State a voucher or other payment document that shows a payment or Travel Management Program. This travel advisory group may as- reimbursement of commercial airline or rental car transportation sist with preparation and evaluation of request for proposals, review [in an amount] that exceeds the program’s contract [commission’s [formulation] of travel rules, or [any] other travel-related issues [travel contracted] rate. The comptroller of public accounts shall [also] related issue]. report instances of non-compliance [the voucher or document] to the commission. §125.25. Conference Rooms. (i) [(j)] A state agency may submit a written request for (a) Conference rooms in state owned buildings are for use by exemption from the required use of one or more travel services state agencies for official purposes only and the private use thereof contracts. The commission will approve an exemption if it determines is prohibited. The commission may require documentation to verify that such an exemption would provide an economic or service benefit that a conference room request is for official purposes. to the state, taking into account any affect on the commission’s contracts and ability to obtain favorable contracts in the future. An (b) The commission will not provide any furniture, equip- exemption expires when the related contract is terminated or replaced. ment, or meeting materials other than the tables and chairs already in the conference rooms. No existing furniture, equipment, heavy §125.21. Reporting Requirements for State Agencies. tables, large podiums or fixtures may be removed from the confer- ence rooms. Using state agencies may rearrange tables and chairs (a) A state agency that does not [at a minimum] charge all that are movable but must return all furniture to its original config- required air fares on the state’s corporate travel charge card contract uration at the end of the reservation period. Any special equipment, shall submit travel data for monitoring and analysis of state travel furniture, or materials brought into a conference room for a meeting costs and for use in rate negotiations with travel vendors. The travel must be removed at the end of the reservation period. Tampering data will be reported in the form and manner requested by the pro- with public address systems, recording systems, video equipment, gram [division] to identify airline, lodging establishment [hotel], and telecommunications or computer wiring in the conference rooms is rental car usage [use] and expenses. strictly prohibited. (b) Information required by this section shall be submitted (c) Using state agencies shall be responsible for costs to monthly by the 30th day following the end of the month for [in] repair any damage to the conference rooms, furnishings or equipment which the data has been compiled[, beginning September 1988]. that occurs during use. [(c) A state agency required to use the commission’s con- (d) Conference room reservations and cancellations may be tracts for travel services may not establish a separate, similar contract made orally, in writing (including e-mail) or by facsimile. Oral without commission approval. The agency shall submit the proposed cancellations [must] require written (including e-mail) or facsimile contract to the division for review and approval before the contract follow up. A reservation may be canceled only by the state agency is signed. Contracts determined to be unfavorable to the state, or that made the reservation. Cancellation of reservations is to be made to have a negative affect on the commission’s contracts will not be as soon as possible after a state [an] agency learns that the room will approved. Any separate contracts in effect before the effective date not be needed. Written confirmation of reservation or cancellations of this subsection must be submitted to the division for review and will be provided to a state [an] agency by the commission upon approval also. If an existing contract is not approved, the agency will request. terminate the contract at the earliest time permitted by the contract.] (e) A state agency may use a conference room for more than §125.23. State Agency Travel Coordinators. 20 hours of a standard 40 hour work week only upon approval of a (a) State agencies [in the executive branch of state govern- request submitted in writing. ment] shall designate at least one employee of the state agency to (f) If meetings are scheduled for hours other than 8:00 a.m. serve as the travel coordinator for the state agency. The designated to 5:00 p.m. weekdays or on holidays, the requesting state agency travel coordinator shall be responsible for the following:
PROPOSED RULES May 26, 2000 25 TexReg 4681 must notify the Department of Public Safety Capitol Detail, [at 463- the total charges to the state shall not exceed the sum of charges as- 3476,] to arrange for building access. sessed by the airlines, rental car vendors, and hotels; (g) Reservations are made on a first come, first serve basis. (5) specify minimum volumes for STP, CRS, on-site The commission will not alter the conference room schedule on behalf locations, and terms for ticket delivery in writing to individual state of any state agency. agencies upon request; (h) The conference room schedule is public record, and is (6) agree that the state shall have the right to review, subject to disclosure. obtain, and copy all state business travel records pertaining to the services rendered, permit the state access to its premises for an on-site §125.27. Travel Agency [Agent] Services Contracts. inspection during normal business hours, and maintain all applicable (a) A travel agency seeking to contract with the state to accounting records relating to state business travel transactions for provide travel services to state agencies shall complete and submit a minimum period of three years from transaction date for audit an application on a form prescribed by the commission’s program purposes; [commission]. (7) submit travel data reports as identified in the travel (b) An application must include, but is not limited to, the agency services contract [Travel Agent Services Contract] on diskette following: in ASCII format or other automated or electronic means as the commission’s program [commission] may specify; (1) information identifying business organization, includ- ing corporate and/or dba name, address, telephone and facsimile num- (8) have access to and obtain information from the bers; principal place(s) of business; federal tax identification num- Internet, as directed by the commission’s program [commission], to ber; Airline Reporting Corporation (ARC) and/or International Air- disseminate information and facilitate communication in the most line Travel Agent Network (IATAN) number(s); cost-efficient means; [ and] (2) a list of locations within Texas, willing to and capable (9) require the project manager to attend at least one of generating tickets and other travel related services, including implementation training session annually and semiannual sessions addresses, telephone, e-mail, and facsimile contacts that will provide thereafter if these sessions are established by the commission’s services to the state [State] and the respective ARC/IATAN number of program [commission]; each or evidence of designation by all commercial airlines to provide (10) commit to servicing a state agency for a minimum travel reservations and ticketing services required for state business of one year from the date of selection, and; travel; (11) comply with applicable state laws, rules and proce- (3) verifying documentation that the vendor, for a mini- dures related to contracting or subcontracting, including [but not lim- mum of five years, has been in business as a travel agency, under ited to §§111.11-111.24 of this title (relating to Historically Under- the same ARC/IATAN number, [for a minimum of five years,] and utilized Business Certification Program) which pertains to contracting [has been in business as a travel agency] providing services using a with] Historically Underutilized Businesses requirements. Computer Reservation System (CRS) [ for a minimum of five years]; (d) An application that is incomplete or contains inaccurate (4) a notarized [an] affidavit that the vendor meets the information will not be approved and the vendor will be notified that requirements identified in subsection (c) and agrees that services to corrections are needed. state agencies will be rendered pursuant to the requirements stated herein and set forth in the state’s travel agency services contract (e) The commission’s program [commission] shall notify a [Travel Agent Services Contract]. travel agency of approval or denial of an application for a contract not later than 60 days after the date the commission receives a completed (c) Vendors seeking to qualify for a travel agency services application. contract [Travel Agent Services Contract] to provide travel services to state agencies shall: (f) The commission’s program [commission] may refuse an application for contract based on one or more of the following: (1) identify an employee experienced in the travel busi- ness as the vendor’s central point of contact or project manager for the (1) the applicant does not meet the requirements specified state and the other contract travel vendors,[contractors] and inform in subsection (b) or (c) of this section; the commission’s program [commission] in writing of any changes (2) the application contains false information; in designation; (3) the applicant’s past and current record of performance (2) at the time of application, for a minimum of five years under any prior travel contracts, the commission’s bidders’ list or any has been [be] in business as a travel agency under the same ARC/ unresolved complaints on record from state agencies. IATAN number [for a minimum of five years,] and [as a travel agency] providing services using a Computer Reservation System (CRS) [for (g) An award of a travel agency services contract [travel a minimum of five years]; agent services contract] by the commission’s program [commission] shall signify that the contractor meets the minimum qualifications (3) make travel arrangements in accordance with the to provide travel agency [agent] services. There is no guarantee state’s travel management rules, the comptroller of public accounts’ that any volume of business will result from the award of a State of Texas Travel Allowance Guide, [§125.19 of this title (relating travel agency[agent] services contract by the commission’s program to Participation by State Agencies),] and all terms and conditions set [commission]. forth in the travel agency services contract [Travel Agent Services Contract]; (h) Term of Travel Agency[Agent] Services Contract: (4) provide reservations, ticketing, reticketing, ticket de- livery, and refunds at no additional charge to the state, meaning that
25 TexReg 4682 May 26, 2000 Texas Register (1) Each contract shall be for a term of three calendar (C) the travel agency vendor(s), under the same major- years, beginning on the date the commission’s program [commission] ity ownership, will not be eligible to reapply for six months following approves the application. the completion of the transition period. (2) The commission’s program [commission] will send (j) Selection by state agencies: notification and application for renewal to the vendor approximately (1) The commission’s program [commission] shall pro- 90 days prior to expiration of the three-year period. vide to state agencies, by the most cost efficient means, a listing of (i) Revocation of Travel Agency[Agent] Services Contract: all travel agency vendor(s) [agencies] authorized [by contract] to book state travel. The listing will be updated quarterly or as necessary; (1) A travel agency[agent] services contract may be revoked or canceled by the commission’s program [commission]: (2) Each state agency [that is] required to use [contracted] travel agency vendor(s)[agencies as specified in §125.19(f) of this (A) if it is discovered the travel agency vendor title] shall select the travel agency vendor(s)[contractor(s) to handle [contractor] has provided false information on the application; its travel business] from the commission’s program list; (B) for failure to follow procedures established by (3) In the selection process, state agencies shall consider the state, the corporate travel charge card vendor[provider], or any participation by as many travel agency vendors [contractors]as other contract travel service vendor[contractor] as designated by the possible, with preference given to Texas resident travel agency program[state]; vendors [contractors] in accordance with §113.8 of this title [(relating (C) for failure to process refunds as prescribed in the to Preferences)]. State agencies shall consider: contract; (A) the travel agency vendor’s [contractor’s] ability, (D) for failure to provide accurate reports to the qualifications and availability to meet the needs of the state agency’s commission or state agencies as prescribed in the travel agency operations; services contract; or (B) whether the travel agency vendor [contractor] can (E) for failure to follow state policies in regard to the provide the necessary services within the time required, without delay use of state contract travel vendors[contractors] as prescribed in the or interference; contract. (C) performance of previous contracts or services; (2) A travel agency[agent] services contract may be (D) any previous or existing noncompliance by the canceled by the vendor: travel agency vendor [contractor] with specifications contained in (A) upon written notification by U.S. certified mail to the travel agency services contract [Travel Agent Services Contract], the commission’s program [commission] and subject to the transition state agency requirements or any laws, rules or policies related to period described in subsection (k) of this section; contracting with the state; and (B) the transition period shall begin upon the commis- (E) references from previous contracts or services. sion’s program receipt of notification. (4) State agencies have varying priorities and require- (3) If a travel agency [agent] services contract is canceled ments. Selection criteria may vary and additional standards and ser- by either party: vices may be imposed by a state agency based on need. State agencies shall establish specific criteria and procedures to use in selecting a (A) the travel agency vendor(s) [contractor(s)] shall be travel agency vendor(s) [provider or providers from travel agencies required to delete from their records all state agency data and trav- contracted by the commission]. A state agency’s criteria shall be eler profile information obtained for state business travel following documented and evaluation should be consistent for all travel agency the completion of the transition period; and vendors; and [contractors;] (B) the travel agency vendor(s) [contractor(s)] shall (5) State agencies requiring STPs, CRSs, or other on- follow transition guidelines as specified in subsection (k) of this site services shall commit to a minimum of one year participation, section; and provided that all contractual obligations are fulfilled by the travel (C) the travel agency vendor(s), under the same major- agency [agent]. ity ownership, will not be eligible to reapply for two years following (k) In the event that a state agency determines that it will the completion of the transition period. no longer use the services of a particular travel agency vendor or (4) Based on the reason for cancellation, the travel agency the travel agency vendor [contractor] chooses to terminate services vendor(s) [contractor(s)], under the same majority ownership, may be to the agency or to terminate its travel agency services contract ineligible for all future consideration. [Travel Agent Services Contract] with the commission’s program [commission], or the travel agency services contract [Travel Agent (5) If a travel agency services contract is not renewed by Services Contract] is revoked or canceled by the [Commission, the the travel agency vendor at the end of the contract term: contractor(s)]commission’s program, or the contract travel agency (A) the transition period shall begin at the end of the does not renew at the end of the contract term, the travel agency contract period; and vendor(s) shall: (B) the travel agency vendor(s) shall be required (1) extend services to the state and the state agency for a to delete from their records all state agency data and traveler period of 120 days or until such time as services from the successor profile information obtained for state business travel following the are available, as determined by the commission’s program and [state]; completion of the transition period; and (2) agree to exercise their best efforts and cooperation to effect an orderly transition to a successor; and
PROPOSED RULES May 26, 2000 25 TexReg 4683 (3) at the request of a state agency, negotiate in good faith Part 6. CREDIT UNION DEPARTMENT a plan with the successor to establish the transition with the least impact on the state agency and travelers; and Chapter 91. CHARTERING, OPERATIONS, (4) provide a diskette copy in ASCII format of all MERGERS, LIQUIDATIONS travelers’ profiles to the state agency, after which the travel agency vendor(s)[contractor(s)] shall delete all state agency data and traveler Subchapter D. POWERS OF CREDIT UNIONS profile information obtained for state business travel from their records; and 7 TAC §91.401 (5) release all PNRs for future state business travel to the The Texas Credit Union Commission proposes an amendment state agency and/or selected travel agency vendor[agent]. to §91.401 pertaining to operational powers of credit unions. The proposed amendment, if adopted, establishes new require- (l) A travel agency vendor may protest the commission’s ments and limits certain types of activities as they related to a program denial of its application, or the commission’s program credit union making insurance products available to its mem- revocation or cancellation of a travel agency services contract bers. The amendment is contained in subsection (f). [Travel Agent Services Contract] by filing a written protest with the commission’s program [commission] within 30 days after the date the Lynette Pool, Deputy Commissioner, has determined that there commission’s program [commission] sent notice of the disposition to will be no fiscal implications for state or local government as a the travel agency vendor. The commission’s program [Commission] result of enforcing or administering the proposed rule. staff will then prepare a recommendation for review by the executive She has also determined that for each year of the first five years director of the commission. The decision of the executive director of the proposed rule is in effect, the public benefits anticipated the commission is final. as a result of enforcing the rule will be that state-chartered §125.29. Texas Counties Use of Contract Airline Fares. credit unions will have clearly defined requirements for making available insurance products for the benefit of their members. (a) A Texas county officer or employee, including a county There is no anticipated effect on small businesses as a result sheriff, deputy sheriff, or juvenile probation officer traveling on of adopting the new amendment. There is no economic cost official county business or persons who are in the custody of the anticipated to entities that are required to comply with the new state may use the program’s contract airline fares for purposes of amendment as a result of its future adoption. obtaining reduced airline fares. Written comments on the proposal must be submitted within (1) A Texas county seeking to participate in the program 30 days after its publication in the Texas Register to Lynette to use the contract airline fares shall execute [complete] and submit Pool, Deputy Commissioner, Credit Union Department, 914 a Commissioner’s Court Resolution [an interlocal agreement as pre- East Anderson Lane, Austin, Texas 78752-1699. scribed by the commission]. The Commissioner’s Court Resolution [interlocal agreement] shall include, but is not limited to the follow- The rule is proposed under the provisions of §123.107 of the ing provisions: Texas Finance Code that is interpreted as authorizing the Credit Union Commission to adopt rules that facilitate the provision of (A) Participation fee; insurance by credit unions for the benefit and convenience of (B) Participation dates; their members. (C) Use of contract airline fares; The specific section affected by this proposed rule is Texas Finance Code §123.107. (D) Reporting requirements; and §91.401. Operational Powers. (E) Contract termination. (a)-(e) (No change.) (2) The commission will charge Texas counties a partici- pation fee to recover the commission’s cost incurred in administering (f) Insurance for members. A credit union may make this program for counties. insurance programs available to its members, including insurance programs at the individual member’s own expense, if the following (b) Texas counties participating in this program must comply conditions are complied with: with all rules and procedures as outlined in the airline contract between the commission and the airlines. (1) The purchase of any type of insurance coverage by a member is voluntary, except as provided in paragraph (2) of This agency hereby certifies that the proposal has been re- this subsection, and a copy of the written election to purchase the viewed by legal counsel and found to be within the agency’s insurance is on file at the credit union. legal authority to adopt. (2) Subject to reasonable requirements, if the insurance is Filed with the Office of the Secretary of State, on May 9, 2000. a condition of a loan, the member who is borrowing may purchase TRD-200003262 or provide the insurance from a carrier of the member’s choice, or Ann Dillon the member who is borrowing may assign any existing insurance General Counsel coverage. General Services Commission (3) An officer, director, employee, or committee member Earliest possible date of adoption: June 25, 2000 of a credit union may not accept anything of value from an insurance For further information, please call: (512) 463-3960 agent, insurance company, or other insurance provider offered to ♦♦♦ induce the credit union to sell or offer to sell insurance or other related products or services to the members of the credit union. TITLE 7. BANKING AND SECURITIES
25 TexReg 4684 May 26, 2000 Texas Register (4) A credit union may furnish to an insurance carrier or the Texas Racing Commission, P.O. Box 12080, Austin, Texas an agent any membership lists of addresses, without compensation, 78711-2080. other than reimbursement of actual costs, from the insurance carrier The amendment is proposed under the Texas Civil Statutes, or agent, if such action is approved by the board of directors. A Article 179e, §3.02, which authorizes the Commission to adopt credit union, for an appropriate fee, may mail marketing materials to rules for conducting racing with wagering and for administering its membership if its board of directors approves such action. the Texas Racing Act; §5.03, which authorizes the Commission (5) If a credit union replaces an existing loan or renews a to require fingerprints from license applicants; and§5.04, which loan and sells the member new credit life or disability insurance, the authorizes the Commission to obtain criminal history information credit union shall cancel the prior insurance and provide the member on all license applicants from the Department of Public Safety with a refund or credit of the unearned premium or identifiable charge and the Federal Bureau of Investigation. before selling the new insurance to the member. The proposed amendment implements Texas Civil Statutes, This agency hereby certifies that the proposal has been re- Article 179e. viewed by legal counsel and found to be within the agency’s §311.3. Information for Background Investigation. legal authority to adopt. (a) Fingerprint Requirements and Procedure. Filed with the Office of the Secretary of State, on May 8, 2000. (1) Except as otherwise provided by this section, an TRD-200003247 applicant for a license must submit with the application documents Harold E. Feeney a set of the applicant’s fingerprints on a form prescribed by the Commissioner Department of Public Safety [and a set of the applicant’s fingerprints Credit Union Department for classification by the Federal Bureau of Investigation]. If the Earliest possible date of adoption: June 25, 2000 applicant is not an individual, the applicant must submit a set of For further information, please call: (512) 837-9236 fingerprints on the above-referenced forms for each individual who: ♦♦♦ (A) - (C) (No change.) TITLE 16. ECONOMIC REGULATION (2) - (5) (No change.) (b) (No change.) Part 8. TEXAS RACING COMMISSION This agency hereby certifies that the proposal has been re- viewed by legal counsel and found to be within the agency’s Chapter 311. OTHER LICENSES legal authority to adopt. Subchapter A. LICENSING PROVISIONS Filed with the Office of the Secretary of State, on May 10, 2000. Division 1. OCCUPATIONAL LICENSES TRD-200003293 Paula C. Flowerday 16 TAC §311.3 Executive Secretary The Texas Racing Commission proposes an amendment to Texas Racing Commission §311.3 concerning the information required for a background Earliest possible date of adoption: June 25, 2000 investigation. For further information, please call: (512) 490-4032 The amendment to §311.3(a) eliminates the requirement that a ♦♦♦ license applicant submit a set of fingerprints on a separate card for the Federal Bureau of Investigation. Under a new system in Subchapter B. SPECIFIC LICENSES place at the Department of Public Safety, fingerprints submitted 16 TAC §311.101 by the Commission to the Department are sent electronically to the FBI. Therefore, a separate set of fingerprints for the FBI is The Texas Racing Commission proposes an amendment to no longer required. §311.101 concerning the licensing of horse owners. Paula C. Flowerday, Executive Secretary for the Texas Racing The amendment eliminates the "entry time" deadline for licens- Commission, has determined that for the first five-year period ing of horse owners. A horse owner must still be licensed before the amendment is in effect there will be no fiscal implications a horse may start in a race in Texas. for state or local government. Paula C. Flowerday, Executive Secretary for the Texas Racing Ms. Flowerday has also determined that for each of the first five Commission, has determined that for the first five-year period years the amendment is in effect the public benefit anticipated the amendment is in effect there will be no fiscal implications for as a result of enforcing the proposal will be that the occupational state or local government as a result of enforcing the proposal. licensing process will be more streamlined and efficient. There Ms. Flowerday has also determined that for each of the first five will be no fiscal implications for small or micro businesses. years the amendment is in effect the public benefit anticipated There is no anticipated economic cost to an individual required as a result of enforcing the proposal will be that the licensing to comply with the amendment as proposed. The proposal process for horse owners will be easier. There will be no has no effect on the state’s agricultural, horse breeding, horse fiscal implications for small businesses. There is no anticipated training, greyhound breeding, or greyhound training industries. economic cost to an individual required to comply with the Comments on the proposal may be submitted on or before amendment as proposed. The proposal will have effect on the July 29, 2000, to Paula C. Flowerday, Executive Secretary for state’s agricultural, horse breeding, horse training, greyhound breeding, or greyhound training industries.
PROPOSED RULES May 26, 2000 25 TexReg 4685 Comments on the proposal may be submitted on or before process will be more consistent with other states and an owner July 29, 2000, to Paula C. Flowerday, Executive Secretary for who claims a horse will have more opportunities to race the the Texas Racing Commission, P.O. Box 12080, Austin, Texas horse in Texas during the initial ownership period. There will 78711-2080. be no fiscal implications for small or micro businesses. There will be no economic cost to an individual required to comply The amendment is proposed under the Texas Civil Statutes, with the proposal. The proposal has no effect on the state’s Article 179e, §3.02, which authorizes the Commission to adopt agricultural, horse breeding, greyhound breeding, or greyhound rules for conducting racing with wagering and for administering training industries. The proposal may have an effect on the the Texas Racing Act; and §7.02, which authorizes the Com- horse training industry in that it should encourage more owners mission to establish categories of occupational licenses and the to claim horses, thereby keeping more horses in racing and qualifications and experience required for licensing in each cat- training. egory. Comments on the proposal may be submitted on or before The proposed amendment implements Texas Civil Statutes, July 29, 2000, to Paula C. Flowerday, Executive Secretary for Article 179e. the Texas Racing Commission, P.O. Box 12080, Austin, Texas §311.101. Horse Owners. 78711-2080. (a) General Provisions. The amendment is proposed under the Texas Civil Statutes, (1) The [Except as otherwise provided by this subsection, Article 179e, §3.02, which authorize the Commission to adopt the] owner of a horse, as listed on the animal’s registration paper, must rules for conducting racing with wagering and for administering obtain an owner’s license from the Commission. [before the horse the Texas Racing Act; and §6.06, which authorizes the Com- may be entered in a race. A horse may be entered in a stakes race mission to adopt rules on all matters relating to the operation of without the owner first obtaining a license, but the owner must obtain racetracks. a license before the horse may start in the stakes race.] A person The proposed amendment implements Texas Civil Statutes, may not be licensed as an owner if the person is not the owner of Article 179e. record of a properly registered horse that the person intends to race in Texas. §313.308. Restrictions on Subsequent Use. (2) - (5) (No change.) (a) A horse claimed in a claiming race in Texas: [During the 30-day period after a person claims a horse in a claiming race:] (b) - (g) (No change.) (1) may not be sold or transferred, in whole or part, This agency hereby certifies that the proposal has been re- by any method other than a claiming race during the 30-day period viewed by legal counsel and found to be within the agency’s after the initial claim; and [the claimant of a horse may not sell or legal authority to adopt. transfer any ownership interest in the horse by any method other than Filed with the Office of the Secretary of State, on May 10, 2000. a claiming race;] TRD-200003290 (2) is ineligible to start in a race at a race meeting other Paula C. Flowerday than the one at which it was claimed until the end of the race meeting Executive Secretary at which the horse was claimed. [the horse is ineligible to enter a Texas Racing Commission claiming race or starter race for a price less than 25% more than the Earliest possible date of adoption: June 25, 2000 price at which the horse was claimed; and] For further information, please call: (512) 490-4032 [(3) the horse is ineligible to start in a race outside this ♦♦♦ state.] (b) A horse claimed in another state is subject to the Chapter 313. OFFICIALS AND RULES OF eligibility requirements for claimed horses in effect at the time of HORSE RACING the claim in the jurisdiction in which the horse was claimed. This agency hereby certifies that the proposal has been re- Subchapter C. CLAIMING RACES viewed by legal counsel and found to be within the agency’s 16 TAC §313.308 legal authority to adopt. The Texas Racing Commission proposes and amendment to Filed with the Office of the Secretary of State, on May 10, 2000. §313.308 concerning the restrictions on transferring and racing TRD-200003291 a horse that has been claimed in Texas. Paula C. Flowerday The amendment eliminates the requirement that a claimed Executive Secretary horse run back at 125% of the claiming price and establishes a Texas Racing Commission reciprocal relationship for other states’ claiming rules. Earliest possible date of adoption: June 25, 2000 Paula C. Flowerday, Executive Secretary for the Texas Racing For further information, please call: (512) 833-6699 Commission, has determined that for the first five-year period ♦♦♦ the amendment is in effect there will be no fiscal implications for state or local government as a result of enforcing the proposal. TITLE 22. EXAMINING BOARDS Ms. Flowerday has also determined that for each of the first five Part 16. TEXAS BOARD OF PHYSICAL years the amendment is in effect the public benefit anticipated as a result of enforcing the proposal will be that the claiming THERAPY EXAMINERS
25 TexReg 4686 May 26, 2000 Texas Register Chapter 341. LICENSE RENEWAL has been in practice in the other state for the two years preceding application. If the board no longer retains manual files on the person, 22 TAC §341.6 the person must resubmit an application in accordance with §329.6(b) The Texas Board of Physical Therapy Examiners proposes of this title (relating to Licensure of Persons Currently Licensed in amendments to §341.6, concerning Restoration of license. Other States, the District of Columbia, or Territories of the United These amendments delete an outdated reference to CEUs, States) and provide appropriate documentation and proof of current clarify how timeliness is determined, and change the basis for licensure in another state for the two-year period. The person must the restoration fee from the NPTE fee to the board’s renewal pay to the executive council a fee that is equal to the examination fee. fee for the license. If a new application must be submitted, the board requires additionally the submission of an application fee. The John P. Maline, Executive Director of the Executive Council of person must pay to the executive council a fee that is equal to the Physical Therapy and Occupational Therapy Examiners, has examination fee for the license.] determined that for the first five-year period the rule is in effect there will be no effect on state or local government. (4) If the license has been expired for one year or more, and the licensee is currently licensed and has actively practiced Mr. Maline also has determined that for each year of the first five in another state for the past two years, the board may renew the years the rule is in effect the public benefit anticipated as a result license without examination. The licensee must provide appropriate of enforcing the rule will be clearer instructions for restoration documentation and proof of current licensure in another state for the of license. There will be no effect on small business, and no two-year period. The licensee also must pay to the executive council economic cost to persons having to comply is anticipated. a restoration fee that is equal to the renewal fee for the license. If Comments on the proposed amendments may be submitted to the board no longer has the licensee’s application file, the licensee Nina Hurter, PT Coordinator, Texas Board of Physical Therapy must also submit a new application, including the application fee, Examiners, 333 Guadalupe, Suite 2-510, Austin, Texas 78701; in accordance with §329.6(b) of this title (relating to Licensure of email: [email protected]. Persons Currently Licensed in Other States, the District of Columbia, or Territories of the United States). The amendments are proposed under the Physical Therapy Practice Act, Title 3, Subtitle H, Chapter 453, Occupations (b) When a person restores a license, the renewal month stays Code, which provides the Texas Board of Physical Therapy the same as the original renewal month. Examiners with the authority to adopt rules consistent with this This agency hereby certifies that the proposal has been re- Act to carry out its duties in administering this Act. viewed by legal counsel and found to be within the agency’s Title 3, Subtitle H, Chapter 453, Occupations Code is affected legal authority to adopt. by this amended section. Filed with the Office of the Secretary of State, on May 15, 2000. §341.6. Restoration of License. TRD-200003362 (a) When a licensee fails to renew the license within the John P. Maline renewal month, as indicated by the postmark date on the items Executive Director required for renewal, [of their submitted renewal application, fees, Texas Board of Physical Therapy Examiners and CEUs,] the licensee may restore the license by complying with Earliest possible date of adoption: June 25, 2000 the requirements as follow. [is subject to fees as follows.] For further information, please call: (512) 305-6900 (1) If the [a person’s] license has been expired for 90 ♦♦♦ days or less, the licensee must submit [person may renew the license by paying] to the executive council the required renewal fee and a 22 TAC §341.8 restoration fee that is one-half of the renewal [examination] fee for the The Texas Board of Physical Therapy Examiners proposes license. The licensee must also comply with all renewal requirements amendments to §341.8, concerning Inactive status. These set by §341.1 of this title (relating to License renewal). amendments establish that the board charges a fee to go (2) If the [a person’s] license has been expired for more inactive, rather than to return to active status, clarify that a late than 90 days but less than one year, the licensee must submit [person fee will be charged if the change in status is not completed may renew the license by paying] to the executive council the required prior to the license expiration date; clarify that a passing score renewal fee [all unpaid renewal fees] and a restoration fee that is equal on the jurisprudence exam is a requirement to return to active to the renewal [examination] fee for the license. The licensee must status; and correct a misstatement about continuing education also comply with all renewal requirements set by §341.1 of this title requirements. (relating to License renewal). John P. Maline, Executive Director of the Executive Council of (3) If the [a person’s] license has been expired for one Physical Therapy and Occupational Therapy Examiners, has year or more, and the licensee has not maintained licensure in another determined that for the first five-year period the rule is in effect state as provided in paragraph (4) of this subsection, the license there will be no effect on state or local government. may not be renewed. [the person may not renew the license.]To Mr. Maline also has determined that for each year of the first five [The person may] obtain a new license, the licensee must take and years the rule is in effect the public benefit anticipated as a result pass the national examination again and comply [by submitting to of enforcing the rule will be clearer instructions for licensees reexamination and complying] with the requirements and procedures about the inactive status, and more efficient administrative for obtaining an original license set by §329.1 of this title (relating processes. There will be no effect on small business, and no to General licensure procedure).[However, the board may renew economic cost to persons having to comply is anticipated. without examination an expired license of a person who was licensed in this state, moved to another state, and is currently licensed and
PROPOSED RULES May 26, 2000 25 TexReg 4687 Comments on the proposed amendments may be submitted to (2) the license renewal fee for the current renewal period; Nina Hurter, PT Coordinator, Texas Board of Physical Therapy (3) a completed and notarized reinstatement [re- Examiners, 333 Guadalupe, Suite 2-510, Austin, Texas 78701; instatement] application; and email: [email protected]. (4) proof of the required amount of continuing education The amendments are proposed under the Physical Therapy for each two-year renewal period on inactive status, including the Practice Act, Title 3, Subtitle H, Chapter 453, Occupations current period and the renewal period prior to the effective date of Code, which provides the Texas Board of Physical Therapy the inactive status. Alternatively, the licensee applying for reinstate- Examiners with the authority to adopt rules consistent with this ment to active status may substitute for the continuing education re- Act to carry out its duties in administering this Act. quirements one of the following actions [for the continuing education Title 3, Subtitle H, Chapter 453, Occupations Code is affected requirements] listed in subparagraphs (A) - (C) of this paragraph: by this amended section. (A) re-take and pass the national licensure exam; §341.8. Inactive Status. (B) attend a university review course pre-approved by (a) Requirements for Inactive Status. Inactive status indicates the board; or the voluntary termination of the right or privilege to practice physical therapy in Texas by a licensee in good standing with the board. (C) complete an internship (equal to 150 hours of A licensee who is not actively engaged in the practice of physical continuing education) pre-approved by the board. therapy in the state may request a change to inactive status, to be This agency hereby certifies that the proposal has been re- effective on the next license renewal date. viewed by legal counsel and found to be within the agency’s (1) To be put on inactive status, the licensee must notify legal authority to adopt. the board in writing and submit the inactive fee as adopted by the Filed with the Office of the Secretary of State, on May 15, 2000. executive council. The written request and the fee must be received prior to the expiration date of the license. [A licensee who is not TRD-200003363 actively engaged in the practice of physical therapy in the state may John P. Maline request in writing a change to inactive status, to be effective on the Executive Director next license renewal date. On or by that date, the licensee must Texas Board of Physical Therapy Examiners submit to the board a written request to be placed on inactive status. Earliest possible date of adoption: June 25, 2000 A completed inactive status application must be received by the board For further information, please call: (512) 305-6900 no later than one month after the expiration date of the license.] ♦♦♦ (2) If the inactive status requirements are not met prior to the expiration date of the license, the licensee is subject to late Part 23. TEXAS REAL ESTATE COM- renewal fees as adopted by the executive council. MISSION [(2) A licensee may remain on inactive status for no more than six consecutive years (three renewal periods). A licensee may Chapter 535. PROVISIONS OF THE REAL ES- petition the board in writing for an extension of inactive status for more than six years.] TATE LICENSE ACT (3) A licensee on inactive status must fulfill the contin- Subchapter M. NONRESIDENTS uing education requirements set for active license renewal for each two-year renewal period the license is inactive, including the one in 22 TAC §535.131, §535.132 which the inactive status is requested. The Texas Real Estate Commission (TREC) proposes an (4) [(3)] A licensee on inactive status must notify the amendment to §535.131, concerning the splitting of fees with board by the end of each renewal period of his/her intention to remain nonresident brokers, and to §535.132, concerning a nonres- on inactive status. If [A fee equal to that for late renewal will be ident’s eligibility for a Texas real estate broker or salesper- charged if] the licensee does not notify the board prior to the license son license. The amendments are proposed in connection expiration date, the inactive licensee is subject to late renewal fees as with TREC’s on-going review of its rules and are generally in- adopted by the executive council. [expiration of the license.] tended to clarify the existing sections and revise them to ad- dress changes in law or policy since the sections were adopted. (5) A licensee may remain on inactive status for no more than six consecutive years (three renewal periods). A licensee may The amendment to §535.131 rewrites the section to cite TREC’s petition the board in writing for an extension of inactive status for enabling act and to make the section easier to read. The more than six years. amendment also clarifies that a person engaged in real estate brokerage in a foreign state that does not license brokers will (b) Reinstatement of active status. A licensee on inactive be considered a licensed broker for the purpose of Texas Civil status may request a return to active status at any time. After the Statutes, Article 6573a, §14 if the person complies with the licensee has fulfilled the requirements for reinstatement, the board law of the foreign state and practices there as a real estate will send a renewal certificate for the current two-year renewal period broker. The purpose of the section is to prevent the sharing to the licensee [for display purposes]. To return to active status, a of fees with a person who is not in compliance with the law licensee must submit the following listed in paragraphs (1) - (4) of of the state in which the person practices, and the purpose this subsection: would continue to be served by requiring the foreign broker (1) a successfully completed jurisprudence exam [the to practice in compliance with the requirements of the foreign Inactive to Active Status reinstatement fee]; law. Permitting cooperation between foreign brokers and Texas
25 TexReg 4688 May 26, 2000 Texas Register licensees may also serve the public interest by opening up (e) A resident of a foreign state that does not require a person cross-border business between Texas consumers and residents to be licensed to act as a real estate broker is considered to be licensed of states which do not presently license real estate brokers. as a broker for the purposes of the Act, §14(a), if the person complies with the law of the foreign state and practices there as a real estate The amendment to §535.132 adds limited liability companies broker. to the general provisions of the section relating to the licensing of corporations chartered in another state. These entities are §535.132. Eligibility for Licensure. treated in the same manner in Texas Civil Statutes, Article 6573a, and the amendments would clarify that a limited liability (a) (No change.) company created under the law of another state may apply for (b) A limited liability company created under the laws of a Texas real estate broker license if the limited liability company another state or a [A] corporation chartered in a state other than is licensed as a broker in the state in which it was created or Texas may apply for a Texas real estate broker license if the entity is licensed as a broker by a state in which it is permitted to meets one of the following requirements. engage in business as a foreign limited liability company. In some states, a limited liability company or corporation cannot (1) The entity is licensed as a broker by the state in which be licensed as a broker, and the amendment clarifies that the is was created or chartered. business entity may use a license issued by another state for (2) The entity is licensed as a broker in a state in which it the purpose of qualifying for a Texas license. is permitted to engage in real estate brokerage business as a foreign Mark A. Moseley, general counsel, has determined that for the limited liability company or corporation. first five-year period the sections are in effect there will be no (3) The entity was created or chartered in a state that fiscal implications for the state or for units of local government does not license limited liability companies or corporations, as the as a result of enforcing or administering the sections. There is case may be, and the entity [obtain Texas broker licensure, but to no anticipated impact on small businesses, micro businesses be eligible to apply for same it must be licensed as a real estate or local or state employment as a result of implementing the broker by the state of its incorporation or by a state in which it is sections. permitted to engage in real estate brokerage business as a foreign Mr. Moseley also has determined that for each year of the corporation and must designate an officer to act for it who meets the first five years the sections as proposed are in effect the public requirements of §6(c); provided, however, that the designated officer benefit anticipated as a result of enforcing the sections will is not required to be a resident of Texas. A corporation which is not be elimination of confusion as to whether foreign brokers may licensed in the state of its incorporation may also apply for Texas be paid a real estate commission in Texas or obtain a Texas licensure upon proof that such state does not license corporations as real estate license. There is no anticipated economic cost to brokers and that the corporation] is lawfully engaged in the practice of persons who are required to comply with the proposed sections. real estate brokerage in another state and meets all other requirements for applications for a license in Texas [licensure]. Comments on the proposal may be submitted to Mark A. Moseley, General Counsel, Texas Real Estate Commission, P.O. (c) An individual licensed as a broker who subsequently Box 12188, Austin, Texas 78711-2188. moves to another stateis not [would not be] required to maintain an office in Texas unless the individual sponsors [wished to sponsor]a The amendments are proposed under Texas Civil Statutes, Ar- salesperson in this state. ticle 6573a, §5(h), which authorize the Texas Real Estate Com- mission to make and enforce all rules and regulations necessary (d) The word "state" refers to the states, territories, and pos- for the performance of its duties. sessions of the United States and any foreign country or governmental subdivision thereof. The statute which is affected by this proposal is Texas Civil Statutes, Article 6573a. (e) To be eligible to receive a license and maintain an active license, a limited liability company or corporation created or chartered §535.131. Unlawful Conduct; Splitting Fees. in another state must designate a person to act for it who meets the (a) The Real Estate License Act, Texas Civil Statutes, Article requirements of the Act, §6(c), although the designated person is not 6573a,( the Act) permits Texas-licensed brokers to cooperate with required to be a resident of Texas. Foreign corporations and limited and share earned commissions [commission] with persons licensed liability companies also must be permitted to engage in business in as brokers in other states, but all negotiations physically conducted this state to receive a Texas real estate broker license. [A foreign within Texas must be handled by Texas licensees. limited liability company organized under the laws of another state may apply for a Texas real estate broker license if it meets the (b) As used in §14 of the Act, the [The] word "state" refers following requirements.] to the states, territories, and possessions of the United States and any foreign country or governmental subdivision thereof. [(1) If the state of its organization licenses limited liability companies, it is licensed as a real estate broker by that state.] (c) An unlicensed person may share in the income earned by a real estate brokerage operation if the [, provided that such [(2) If the state of its organization does not license limited unlicensed] person engages in no acts for which a license is required liability companies, it is lawfully engaged in the real estate brokerage [performs none of the activities of a real estate agent] and does not business in that or another state.] lead the public [is not led] to believe that the [such unlicensed] person [(3) The designated manager of the foreign limited liabil- is in the real estate brokerage business. ity company is licensed as an active Texas real estate broker.] (d) If a member of a partnership or an officer of a corporation [(f) Foreign corporations and limited liability companies does not engage in acts for which a license is required [the activity must be permitted to engage in business in this state to receive a of a real estate agent], the person is not required to be licensed and Texas real estate broker license.] may share in the income earned by the partnership or corporation.
PROPOSED RULES May 26, 2000 25 TexReg 4689 This agency hereby certifies that the proposal has been re- either in the contract of sale or rental agreement, or in a writ- viewed by legal counsel and found to be within the agency’s ing given prior to entering into any contract. The amendment legal authority to adopt. would treat a licensee as acting on his or her own behalf if the licensee is acting on behalf of a business entity controlled by Filed with the Office of the Secretary of State, on May 12, 2000. the licensee or in which the licensee is more than a 10% owner. TRD-200003341 The amendment would ensure that licensees who either control Mark A. Moseley the entity acting as a party to the contract or have a material General Counsel stake in the transaction disclose their status as licensees so as Texas Real Estate Commission to prevent advantage being taken by reason of their position Earliest possible date of adoption: June 25, 2000 and expertise. For further information, please call: (512) 465-3900 The amendment to §535.145 concerns false promises by ♦♦♦ a licensee, which are a basis for disciplinary action under Texas Civil Statutes, Article 6573a (the Act), §15(a)(6)(B). The Subchapter N. SUSPENSION AND REVOCA- amendment would clarify that it is not necessary for a party to a real estate transaction to have relied upon a false promise made TION OF LICENSURE by a licensee for TREC to discipline the licensee. While reliance 22 TAC §§535.141, 535.143 - 535.148, 535.154, 535.156, or lack of reliance upon the promise may be considered in 535.159 determining the appropriate discipline, the Act does not require proof of reliance to establish grounds for disciplinary action. The Texas Real Estate Commission (TREC) proposes amend- Adoption of the amendment would ensure that the section is ments to §§535.141, concerning initiation of investigation, consistent with the Act. 535.143, concerning fraudulent procurement of a license, 535.144, concerning a licensee’s conduct when acquiring or The amendment to §535.146 would provide a definition of the disposing of property, 535.145, concerning false promises, 535. term "trust account" consistent with the Act, and require a 146, concerning failure to properly account for or remit money licensee maintaining a trust account to retain a documentary and commingling, 535.147, concerning splitting a fee with record of each deposit or withdrawal from the account for a an unlicensed person, 535.154, concerning false advertising, period of four years. TREC is authorized by the Act to initiate 535.156, concerning dishonesty, bad faith or untrustworthiness, investigations of complaints concerning a licensee’s conduct 533.159, concerning failing properly deposit escrow monies within four years after the transaction, and this change would and new §535.148, concerning a licensee’s receiving an ensure that pertinent records would be available if needed undisclosed commission or rebate. The amendments and to resolve a complaint. Other changes to the section would new section are proposed in connection with TREC’s on-going require a licensee to remove money belonging to the licensee review of its rules and are generally intended to update and from a trust account within 30 days after the licensee acquires to clarify the grounds for disciplinary action against Texas real ownership of the money in the account, regardless of the reason estate licensees. the licensee acquires ownership of the money. Nonsubstantive changes also are proposed in order to make the section easier The amendment to §535.141 clarifies that easement and right- to read. of-way agents registered with TREC are "licensees" for the pur- poses of the section, which relates to the investigation of com- The amendment to §535.147 addresses the splitting of fees plaints and the effect of a suspension or revocation on a li- with an unlicensed person, which is prohibited by the Act. The censee’s business. To streamline the resolution of complaints, amendment would clarify that the Act is not violated in this the amendment also would permit a licensee not named in the regard if the licensee pays a portion of the licensee’s fee to a original complaint to be included in the investigation if reason- party in the transaction, since the Act does not require a person able cause has been found in the course of the investigation to to be licensed as a real estate broker or salesperson to act as believe that the licensee has engaged in a violation of the law a principal in a transaction. The amendment would require the or a TREC rule. In some cases, all the licensees who were licensee who intends to pay a portion of the licensee’s fee to involved in a transaction are unknown to the complainant and a party the licensee does not represent in the transaction to may not be named in the original complaint. Before the licensee obtain the consent of the party represented by the licensee could be added to the investigation, however, the section would before making the payment. This change would incorporate require TREC to notify the licensee and provide the licensee into the section the common law rules that, as a fiduciary, a with a copy of the complaint. Currently, these matters are pre- real estate licensee is charged with the responsibility of acting sented to the members of the commission at a public meeting; in the best interests of the licensee’s principal and not acting on adoption of the amendment would permit investigations to be the behalf of an adverse party without the principal’s consent. concluded more quickly. New §535.148 concerns a licensee’s acceptance of an undis- The amendment to §535.143 would shorten the rule to make it closed commission or rebate. The new section would prohibit easier to read by combing two related subsections. a licensee from receiving a commission, rebate, or fee in a transaction from a person other than the person the licensee The amendment to §535.144 would clarify when a licensee is represents without first disclosing the licensee’s intention to all considered to be acting on his or her own behalf. Licensees parties and obtaining the consent of all parties. The section who are acting on their own behalf in a real estate transaction would implement the Act, §15(a)(6)(H), which authorizes disci- are subject to discipline by TREC if they engage in misrepre- plinary action against licensees who accept, receive, or charge sentation, fraud or dishonesty. The section requires a licensee an undisclosed commission or rebate and §15(a)(D), which au- acting on his or her on behalf to disclose in writing the fact that thorizes disciplinary action against licensees who fail to make the person is licensed as a real estate broker or salesperson, it clear for whom they are acting or who receive compensa-
25 TexReg 4690 May 26, 2000 Texas Register tion from more than one party except with the knowledge and or local or state employment as a result of implementing the consent of all parties. The amended section would also be con- sections. sistent with the common rule that an agent must deal fairly with Mr. Moseley also has determined that for each year of the his principal in all matters related to the transaction between first five years the sections as proposed are in effect the public them. benefit anticipated as a result of enforcing the sections will be The amendment to §535.154 would clarify that communications a simplified process for accrediting existing schools. There is from a licensee to a member of the public are not advertise- no anticipated economic cost to persons who are required to ments subject to statutory disclosure requirements if the com- comply with the proposed sections. munication is made after the member of the public has signed a Comments on the proposal may be submitted to Mark A. written agreement for the licensee to provide services. The Act, Moseley, General Counsel, Texas Real Estate Commission, P.O. §15(a)(6)(P), authorizes disciplinary action against a licensee Box 12188, Austin, Texas 78711-2188. who fails to disclose that the licensee is acting as a real estate broker or agent in an advertisement. If the licensee has entered The amendments are proposed under Texas Civil Statutes, into a written agreement to represent a consumer, the consumer Article 6573a, §5(h), which authorize the Texas Real Estate would no longer need to be notified of the capacity in which the Commission to make and enforce all rules and regulations licensee is acting. In the absence of such an agreement, it may necessary for the performance of its duties. not be clear to the member of the public that the communica- The statute which is affected by this proposal is Texas Civil tion is from a licensee. The amendment also clarifies that any Statutes, Article 6573a. advertisement that does not readily identify the licensee as a real estate agent must include an additional designation such §535.141. Initiation of Investigation; Compliance with Orders. as "agent" or "broker." The amendment deletes as unnecessary a provision that encouraged licensees to use a broker’s name (a) If the Texas Real Estate Commission (the commission) first in a business name including the name of a salesperson. receives a complaint, and such complaint on its face alleges a possible Finally, the amendment addresses advertisements which offer violation of the Real Estate License Act, Texas Civil Statutes, Article a rebate of the licensee’s commission or which promote the use 6573a, (the Act), the commission [Texas Real Estate Commission] of a service provider with an expectation that the licensee will be shall investigate the complaint. As used in this section, the term paid by the service provider. In such cases, the licensee would "licensee" includes a person registered as an easement or right-of- be required to include disclosures in the advertisement that pay- way agent and the term "license" includes a registration issued by the ment of the rebate is subject to the consent of the person the commission. licensee represents in the transaction, and that the payment (b) The commission, on its own motion, with reasonable of the rebate is subject to restrictions if use of a specific ser- cause, may initiate an investigation of the actions and records of vice provider is required to receive the rebate. The amendment alicensee [real estate broker or real estate salesperson]. also would require the licensee to disclose in the advertisement that the licensee may receive compensation from the service (c) - (d) (No change.) provider. (e) Once a complaint has been filed with the commission, the The amendment to §535.156 revises the section to require a li- commission has jurisdiction to consider, investigate and take action censee to provide information to a principal considering whether based on the complaint. If information obtained in the course of to make an offer, as well as to a principal considering whether an investigation provides the commission with reasonable cause to or not to accept or reject an offer. If the principal is a buyer, believe that a licensee other than the licensee named in the complaint or a seller who is initiating the negotiations, it would be consis- has engaged in a violation of the Act or a rule of the commission, the tent also to require information to be provided to that principal commission shall promptly notify the licensee that the licensee has relative to the making of an offer. The amendment also would been added as a respondent in the investigation of the complaint and make the section consistent with current industry practice of ob- shall provide the licensee with a copy of the complaint. Complaints taining written consent from a principal if the licensee is not to may be withdrawn only with the consent of the commission. submit an offer to the principal after the principal has accepted (f) (No change.) an offer to buy, sell, rent or lease the property. (g) If the commission suspends or revokes a license or The amendment to §535.159 clarifies that a person depositing registration [certification] or probates an order of suspension or funds with a broker may authorize the broker in writing to retain revocation against a licensee or holder of a registration certificate any interest on the deposited funds. In the absence of a written issued by the commission, the commission may monitor compliance agreement, the section would continue to require the person with its order and initiate action based on the authority of the who deposited the funds to receive any interest earned on the original complaint or original authorization by the members of the funds. The amendment could relieve the broker of accounting commission. for nominal amounts of interest earned on small deposits or deposits held for short periods of time, while ensuring that the (h) A person whose license or registration [certification] has owner of the funds would have to consent for the broker to retain been suspended may not during the period of any suspension: any accrued interest. (1) perform or attempt to perform any act for which a Mark A. Moseley, general counsel, has determined that for the license or registration [certification] is required by law or commission first five-year period the sections are in effect there will be no rule; or fiscal implications for the state or for units of local government (2) unless instructed otherwise by the principals to the as a result of enforcing or administering the sections. There is transaction, continue to hold any funds received in a real estate no anticipated impact on small businesses, micro businesses transaction in which the person acted as a real estate broker or salesperson.
PROPOSED RULES May 26, 2000 25 TexReg 4691 (i) - (j) ( No change.) from all parties before paying the money to any party or parties, and if the licensee chooses to exercise that right, "properly account §535.143. Fraudulent Procurement of License. for or remit" means to furnish every party with a written statement [(a)] A violation of the Act, §15(a)(2), occurs if an applicant requesting such receipt, release and authorization and detailing the for licensure for the applicant or a salesperson omits material amount and place of custody of the money and to pay the money information or makes material misstatements, written or oral, in to the party or parties in accordance with the receipts, releases and connection with the filing of an application to obtain licensure. This authorizations, if obtained. A licensee may pay the money into the does not include an unintentional mistake of fact; however, a broker registry of a court and interplead the parties if the receipts, releases submitting an application as sponsor of a proposed salesperson has and authorizations that the licensee has the right to require cannot be an affirmative duty to ascertain that all information called for in the obtained. application is given and is true, correct and complete, whether the application is filled out by the broker or the prospective salesperson. (f) [(e)] If escrow or other money belonging to another is held by a licensee, it must be maintained in a trust account. [(b) A violation of the Act, §15(a)(2), occurs if pertinent Placing such money in a licensee’s operating account constitutes information is omitted from an application, and that omission causes commingling. the application to be inaccurate in any material particular.] (g) [(f)]If[,by virtue of closing a sales transaction, or by §535.144. When acquiring or disposing of own property. virtue of default of one of the parties,] a licensee acquires ownership A licensee, when engaging in a real estate transaction on his or her of money in the licensee’s trust [escrow] account that was originally own behalf, or on behalf of a business entity controlled by the license held in trust for another, such money must be removed from the trust or in which the licensee is more than a 10% owner, is obligated to [escrow] account within a reasonable time. "Reasonable time" in this inform any person with whom the licensee deals that he or she is a context means within 30 days after the licensee acquires ownership licensed real estate broker or salesperson acting on his or her own of the money. behalf either by disclosure in any contract of sale or rental agreement, (h) [(g)] Paying operating expenses or making withdrawals or by disclosure in any other writing given prior to entering into any from a broker’s trust [escrow] account for any purpose other than contract of sales or rental agreement. A licensee shall not use the proper disbursement of [escrow] money held in trust is prima facie licensee’s expertise to the disadvantage of a person with whom the evidence of commingling money held in trust with the broker’s own licensee deals. funds. §535.145. False promise. §535.147. Splitting Fee with Unlicensed Person. "False promise" includes both oral and written promises. The fact that a written contract between the parties to a real estate transaction does (a) "Any other state" means the states, territories, and posses- not recite a promise made by a real estate licensee to one of the parties sions of the United States and any foreign country or governmental or that a person did not detrimentally rely on the false promise will subdivision thereof. not prevent the commission from determining that a false promise was (b) "Commission or fees" includes any form of compensation made. When deciding whether this section has been violated, neither received for engaging in an act for which a license is required by a written contractual provision disclaiming oral representations nor Texas Civil Statutes, Article 6573a [services as a real estate agent]. the parol evidence rule shall prevent the commission from considering oral promises made by a licensee. (c) It is not a violation of this section for a licensee to pay a portion of the licensee’s fee or commission to a party in the §535.146. Failure to Properly Account for Money; Commingling. transaction. A licensee who intends to pay a portion of the licensee’s (a) For the purposes of this section, "trust account" includes fee or commission to a party the licensee does not represent must any trust, escrow, custodial, property management account , or other obtain the consent of the party represented by the licensee prior to account in which a licensee holds money on behalf of another person. making the payment. ["Services as a real estate agent" refers to the acts of a "real estate broker" as enumerated in §2(2)(A-J) and §2(3), (b) [(a)]Alicensee maintaining a trust account shall retain for a period of four years a documentary record of each deposit or when those acts are performed for another and for compensation.] withdrawal from the account.[Licensees are not required to act as §535.148. Receiving an Undisclosed Commission or Rebate. escrow agents or to accept money belonging to others.] A licensee may not receive a commission, rebate, or fee in a (c) [(b)] If a licensee accepts money belonging to others, the transaction from a person other than the person the licensee represents licensee holds such money in a fiduciary capacity. If any or all of the without first disclosing to all parties to the transaction that the licensee parties to a real estate transaction make demand for the money, the intends to receive the commission, rebate or fee, and obtaining the licensee must, within a reasonable time, properly account for or remit consent of all parties. the money. "Reasonable time" means within 30 days after demand §535.154. Misleading Advertising. is made for an accounting or for remittance of money belonging to others. (a) For the purposes of this section, an "advertisement" is a written or oral statement which induces or attempts to induce (d) [(c)] "Properly account for or remit" means to pay the a member of the public to use the services of a real estate money to the party or parties entitled to the money if it can be licensee. The term "advertisement" includes, but is not limited to reasonably determined to which party or parties the money should all publications, radio or television broadcasts, all electronic media be paid. A licensee may pay the money into the registry of a court including E-mail and the Internet, business stationary, business cards, and interplead the parties if it cannot be reasonably determined to signs and billboards. The provisions of this section apply to all which party or parties the money should be paid. advertisements by a real estate licensee unless the context of a (e) [(d)] If, by written agreement of the parties to the real particular provision indicates that it is intended to apply to a specific estate transaction, the licensee holding money belonging to others has form of advertisement. Provided, however, a communication from a the right to require the receipt, release and authorization in writing licensee to a member of the public after the member of the public
25 TexReg 4692 May 26, 2000 Texas Register hassigned a written agreement [agreed] for the licensee to provide Earliest possible date of adoption: June 25, 2000 services is not an advertisement for the purposes of this section For further information, please call: (512) 465-3900 (b) - (c) (No change.) ♦♦♦ (d) [If a broker advertises under an assumed name, and that 22 TAC §§535.148, 535.150 - 535.152, 535.155, 535.157, assumed name]In any advertisement placed by a licensee that does 535.158 not readily identify thelicensee [broker] as a real estate agent, the [broker’s] advertisement must include an additional designation such (Editor’s note: The text of the following sections proposed for repeal as "agent," "broker" or a trade association name which serves clearly will not be published. The sections may be examined in the offices to identify the advertiser as a real estate agent. of the Texas Real Estate Commission or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) (e) (No change.) The Texas Real Estate Commission (TREC) proposes the (f) [Where a business name includes the name of a licensed repeal of §§535.148, 535.150-535.152, 535.155, 535.157, salesperson as well as a licensed broker, the broker’s name should 535.158, concerning various grounds for disciplinary action appear first to avoid the possibility that the public would be misled against real estate brokers and salespersons. The repeals are to believe that the salesperson is a broker; provided, however, that]A proposed as part of TREC’s on-going review of its rules. The [a] corporation or limited liability company licensed as a real estate affected sections merely restate various provisions of Texas broker may do business in the name in which it was chartered or Civil Statutes, Article 6573a, and are unnecessary. Repeal registered by the Secretary of State. of the sections would reduce the number of TREC rules and (g) - (j) (No change.) place appropriate emphasis on the law governing the conduct of real estate licensees. (k) An advertisement containing an offer to rebate to a principal a portion of a licensee’s commission must disclose that Mark A. Moseley, general counsel, has determined that for the payment of the rebate is subject to the consent of the party the licensee first five-year period the sections are in effect there will be no represents in the transaction . If payment of the rebate is contingent fiscal implications for the state or for units of local government upon a party’s use of a selected service provider, the advertisement as a result of enforcing or administering the repeals. There is also must contain a disclosure that payment of the rebate is subject no anticipated impact on small businesses, micro businesses to restrictions. If the advertisement offers, recommends or promotes or local or state employment as a result of implementing the the use of services of a real estate service provider other than the repeals. licensee and the licensee expects to receive compensation if a party Mr. Moseley also has determined that for each year of the uses those services, the advertisement must contain a disclosure that first five years the repeals as proposed are in effect the public the licensee may receive compensation from the service provider. benefit anticipated as a result of enforcing the repeals will be §535.156. Dishonesty; Bad Faith; Untrustworthiness. the elimination of unnecessary rules. There is no anticipated economic cost to persons who are required to comply with the (a) A licensee’s relationship with the licensee’s principal is proposed repeals. that of a fiduciary. A licensee shall convey to the principal all known information which would affect the principal’s decision on whether Comments on the proposal may be submitted to Mark A. or not to make, accept or reject offers; however, if the principal has Moseley, General Counsel, Texas Real Estate Commission, P.O. agreed in writing that offers are not to be submitted after the principal Box 12188, Austin, Texas 78711-2188. has entered into a contract to buy, sell, rent, or lease a property the The repeals are proposed under Texas Civil Statutes, Article licensee shall have no duty to submit offers to the principal after the 6573a, §5(h), which authorize the Texas Real Estate Commis- principal has accepted an offer. sion to make and enforce all rules and regulations necessary (b) - (d) (No change.) for the performance of its duties. §535.159. Failing to Properly Deposit Escrow Monies. The statute which is affected by this proposal is Texas Civil (a) - (d) (No change.) Statutes, Article 6573a. (e) It is permissible for a broker to establish a savings account §535.148. Failing to Specify Date of Termination of Listing Contract as an escrow account, provided said funds may be withdrawn at the or Other Contract for Services. appropriate time for disbursal. In the absence of an agreement to the §535.150. Acting in Dual Capacity. contrary signed by the person depositing the funds with the broker, any [Any] interest earned on a savings account must be distributed §535.151. Guaranteeing Profits. to the person or persons who are the equitable owners of the funds §535.152. Offering Property without Owner’s Consent. during the time the interest is earned. §535.155. Associating with Unlicensed Person; Conspiring to Vio- (f) - (k) (No change.) late Act. This agency hereby certifies that the proposal has been re- §535.157. Negligence; Incompetence. viewed by legal counsel and found to be within the agency’s legal authority to adopt. §535.158. Violation of Act. Filed with the Office of the Secretary of State, on May 12, 2000. This agency hereby certifies that the proposal has been re- viewed by legal counsel and found to be within the agency’s TRD-200003342 legal authority to adopt. Mark A. Moseley General Counsel Filed with the Office of the Secretary of State, on May 12, 2000. Texas Real Estate Commission TRD-200003343
PROPOSED RULES May 26, 2000 25 TexReg 4693 Mark A. Moseley ♦♦♦ General Counsel Texas Real Estate Commission Part 31. TEXAS STATE BOARD OF EX- Earliest possible date of adoption: June 25, 2000 AMINERS OF DIETITIANS For further information, please call: (512) 465-3900 ♦♦♦ Chapter 711. DIETITIANS The Texas State Board of Examiners of Dietitians (board) Subchapter Q. SUIT FOR COMPENSATION proposes amendments to §§711.1 - 711.14, 711.16, 711.17, 22 TAC §535.191, §535.192 and §711.19; the repeal of §711.15 and new §711.15 relating to the licensing and regulation of dietitians. (Editor’s note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices The amendments cover definitions, the board’s operation, the of the Texas Real Estate Commission or in the Texas Register office, profession of dietetics, academic requirements for licensure, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) experience requirements for examination, examinations for dietitian licensure, application procedures, determination of The Texas Real Estate Commission (TREC) proposes the eligibility, provisionally licensed dietitians, licensing, changes of repeal of §535.191, concerning prerequisites for filing a suit for name or address, license renewal, licensing of persons with a commission, and §535.192, concerning the requirement for a criminal backgrounds to be licensed and provisionally licensed written agreement to file a suit for a commission. The repeals dietitians, violations, complaints and subsequent board actions, are proposed as part of TREC’s on-going review of its rules. inactive status, continuing education requirements and informal The affected sections merely restate provisions of Texas Civil disposition. The repeal and new section cover formal hearings. Statutes, Article 6573a, and are unnecessary. Repeal of the sections would reduce the number of TREC rules and place The Appropriations Act of 1997, House Bill 1, Article IX, §167 appropriate emphasis on the law governing the conduct of real (§167) requires that each state agency review and consider estate licensees. for readoption each rule adopted by that agency pursuant to the Government Code, Chapter 2001 (Administrative Procedure Mark A. Moseley, general counsel, has determined that for the Act). Such reviews shall include, at a minimum, an assessment first five-year period the sections are in effect there will be no by the agency as to whether the reason for adopting or fiscal implications for the state or for units of local government readopting the rules continues to exist. Sections 711.18, as a result of enforcing or administering the repeals. There is 711.20 and §711.21 are simultaneously proposed for readoption no anticipated impact on small businesses, micro businesses without changes to the existing rules. These sections cover or local or state employment as a result of implementing the temporary license, default orders, and suspension of license for repeals. failure to pay child support. Mr. Moseley also has determined that for each year of the The board published a Notice of Intention to Review the sections first five years the repeals as proposed are in effect the public as required by Rider 167 in the February 12, 1999, issue of the benefit anticipated as a result of enforcing the repeals will be Texas Register (24 TexReg 999). No comments were received the elimination of unnecessary rules. There is no anticipated regarding this notice that was published. economic cost to persons who are required to comply with the proposed repeals. The board held workshops to conduct a preliminary review of its rules. As a result of these workshops, the board is Comments on the proposal may be submitted to Mark A. Mose- amending its existing rules located at 22 Texas Administrative ley, General Counsel, Texas Real Estate Commission, P.O. Box Code (TAC) Chapter 711 to; (1) satisfy the requirements of 12188, Austin, Texas 78711-2188. §167; (2) delete language no longer needed; (3) update existing The repeals are proposed under Texas Civil Statutes, Article rules to reflect changes in the names of organizations and 6573a, §5(h), which authorize the Texas Real Estate Commis- changes in the profession; (4) add two new fees; (5) eliminate sion to make and enforce all rules and regulations necessary descrepencies so the terms used in the rules agree with the for the performance of its duties. Licensed Dietitian Act; (6) amend rules according to changes pursuant to the codification of the Licensed Dietitian Act in the The statute which is affected by this proposal is Texas Civil new Texas Occupations Code, Chapter 701 (House Bill 3155, Statutes, Article 6573a. 76th Texas Legislature, Regular Session, 1999); (7) delete §535.191. Prerequisites. duplicative language and clarify, reorganize and simplify the rules; (8) update and strengthen the code of ethics, emulating §535.192. Written Agreement Required. that of the Commission on Dietetic Registration, as applicable to This agency hereby certifies that the proposal has been re- current methods and standards by which nutrition services are viewed by legal counsel and found to be within the agency’s provided to the public; (9) and make typographical corrections. legal authority to adopt. Ms. Donna Flippin, Executive Secretary, has determined, Filed with the Office of the Secretary of State, on May 12, 2000. that for each year of the first five-year period the sections as TRD-200003344 proposed are in effect, fiscal implications will result from the enforcement or administration of the sections proposed. The Mark A. Moseley effect on state government will be an estimated increase in General Counsel revenue to the state of approximately $500 per year. No fiscal Texas Real Estate Commission implications will be incurred by local government. Earliest possible date of adoption: June 25, 2000 For further information, please call: (512) 465-3900
25 TexReg 4694 May 26, 2000 Texas Register Ms. Flippin has also determined, that for each year of the (2) Act – The Licensed Dietitian Act, Texas Occupation first five years the sections as proposed are in effect, the Code, Chapter 701 [Texas Civil Statutes, Article 4512h]. public benefit anticipated as a result of the amendments, repeal (3) - (16) (No change.) and new rules will be the elimination of duplicative rules, the clarification of existing rules, and the updating of rules that (17) Nutrition [Nutritional] services – Assessing the will apply to current practice. Furthermore, public benefit is nutritional needs of individuals and groups and determining resources anticipated as a result of enforcing the sections as proposed and constraints in the practice; establishing priorities, goals, and to assure the appropriate regulation of dietitians and continue objectives that meet nutritional needs and are consistent with available to identify competent dietitians. There will be no effect on resources and constraints; providing nutrition counseling in health small businesses or micro businesses. No fee increases are and disease; developing, implementing, and managing nutritional proposed. Two new fees, for written verifications and returned care systems; or evaluating, making changes in, and maintaining checks, are proposed and should have no effect for small or appropriate standards of quality in food and nutritional care services. micro businesses. No new requirements are proposed upon (18) - (22) (No change.) licensed or provisionally licensed dietitians which would result in a business expense. There are no anticipated economic §711.2. The Board’s Operation. costs to persons who are required to comply with the sections as proposed, except for those persons who request written (a) - (m) (No change.) verifications or submit returned checks for licensure fees. There (n) Elections. is no anticipated impact on local employment. (1) At the meeting held after [nearest to] August 31 of Ms. Flippin has also determined, that for each year of the each odd-numbered year, the board shall elect by a majority vote of first five years the proposed sections are in effect, since there those members present and voting, a chairman and a vice-chairman. should be no effect on a local economy, local employment impact statement is required under Administrative Procedure (2) - (3) (No change.) Act, §2001.022. (o) - (r) (No change.) Written comments on the proposed amendments, repeal, new (s) Fees. section and readoption may be submitted in writing to Donna Flippin, Executive Secretary, Texas State Board of Examiners (1) (No change.) of Dietitians, 1100 W. 49th Street, Austin, Texas 78756-3183, (2) Schedule of fees for licensure as a dietitian, temporary phone: (512) 834-6601. Comments will be accepted for 30 licensed dietitian, and a provisional licensed dietitian: days after publication of this notice in the Texas Register. (A) - (E) (No change.) General changes to rule language: (F) application processing fee for preplanned profes- Citations to the Licensed Dietitian Act have been updated sional experience approval – $300 [$500]; to conform to the Texas Occupations Code throughout the sections. As unnecessary wording has been deleted and (G) inactive status fee – $20; [and] sections have been simplified or updated, sections of the rules (H) (No change.) have been changed to reflect the new section designations. Some text has been proposed for deletion as unnecessary (I) written verification of licensure fee – $25; and because the dates in the text no longer apply due to the passage (J) returned check fee – $25. of time. The amendments also correct typographical errors. (3) An applicant whose check for the application fee The board invites specific comments regarding the costs as- is returned marked insufficient funds, account closed, or payment sociated with and the benefits that will be gained by the im- stopped shall be allowed to reinstate the application by remitting to plementation of the proposed amendments. The board also the board a money order or check for guaranteed funds in the amount invites specific comments regarding the §167 requirement as of the application fee plus the returned check fee within 30 days of to whether the reason for adopting amendments or readopting the date of receipt of the board’s notice. An application will be the rule continues to exist. considered incomplete until the fee has been received and cleared 22 TAC §§711.1 - 711.14, 711.16, 711.17, 711.19 through the appropriate financial institution. The amendments are proposed under the Texas Occupations (4) An approved applicant whose check for the license Code, §701.151 and §701.152 which provides the Board with fee is returned marked insufficient funds, account closed or payment the authority to make and enforce rules reasonably required in stopped shall remit to the board a money order or check for the exercise of its general powers and jurisdiction. guaranteed funds in the amount of the license fee plus the returned check fee [fund] within 30 days of the date of receipt of the board’s The amendments affect the Texas Occupations Code, Chapter notice. Otherwise, the application and the approval shall be invalid. 701. (5) A licensee [license] whose check for the renewal fee §711.1. Definitions. is returned marked insufficient funds, account closed or payment The following words and terms, when used in this chapter, shall stopped shall remit to the board a money order or check for have the following meanings, unless the context clearly indicates guaranteed funds in the amount of the renewal fee plus the returned otherwise. check fee within 30 days of the date of receipt of the board’s notice. Otherwise, the license shall not be renewed. If a renewal card has (1) Accredited facilities – Facilities accredited by the already been issued, it shall be invalid. Joint Commission on Accreditation of Health Care Organizations [Hospitals].
PROPOSED RULES May 26, 2000 25 TexReg 4695 (6) Fees paid to the board by applicants and licensees are communication and/or records. A licensee shall protect confidential not refundable. information and make full disclosure about any limitations on his/her ability to guarantee full confidentiality. (7) - (8) (No change.) (G) A licensee shall not engage in sexual contact with (t) (No change.) a client. The term "sexual contact" means any type of sexual behavior §711.3. The Profession of Dietetics. described in the Texas Penal Code, Chapters 21, 22, or 43, and (a) - (b) (No change.) includes sexual intercourse. A licensee shall not engage in sexual harassment in connection with professional practice. (c) Provider of nutrition [nutritional] services. A person licensed by the board is designated as a health care provider of (H) - (J) (No change.) nutrition [nutritional] services. (K) A licensee shall provide sufficient information to (d) Code of ethics. These rules shall constitute a code of enable clients and others to make their own informed decision. ethics as authorized by the Licensed Dietitian Act (the Act), §701.151 (L) A licensee shall be alert to situations that might [§6(b)(1)]. cause a conflict of interest or have the appearance of a conflict. A (1) Professional representation and responsibilities. licensee shall make full disclosure when a real or potential conflict of interest arises. (A) A licensee shall conduct himself/herself with honesty, integrity and fairness [A licensee shall not misrepresent any (3) (No change.) professional qualifications or credentials]. (4) Billing information required; prohibited practices. (B) A licensee shall not misrepresent any professional (A) On the written request of a client, a client’s qualifications or credentials. A licensee shall not make any false guardian, or a client’s parent, if the client is a minor, a licensee or misleading claims about the efficacy of any nutrition [dietetic] shall provide, in plain language, a written explanation of the charges services or dietary supplements. for client nutrition [nutritional] services previously made on a bill or (C) A licensee shall not permit the use of his/her name statement for the client. This requirement applies even if the charges for the purpose of certifying that nutrition [dietetic] services have been are to be paid by a third party. rendered unless that licensee has provided or supervised the provision (B) (No change.) of those services. (5) Sanctions. A licensee shall be subject to disciplinary (D) - (E) (No change.) action by the board if under the Crime Victims Compensation Act, (F) A licensee shall maintain knowledge and skills Texas Code of Criminal Procedure, Article 56.31 [Civil Statutes, required for professional competence. A licensee shall provide nutri- Article 8309-1], the licensee is issued a public letter of reprimand, is tion services based on scientific principles and current information. assessed a civil penalty by a court, or has an administrative penalty A licensee shall present substantiated information and interpret con- imposed by the attorney general’s office. troversial information without bias. (e) (No change.) (G) A licensee shall not abuse alcohol or drugs in (f) Unlawful, false, misleading, or deceptive advertising. any manner which detrimentally affects the provision of nutrition [dietetic] services. (1) A licensee shall use factual information to inform the public and colleagues of his/her services. A licensee shall not use (H) - (L) (No change.) advertising that is false, misleading, or deceptive or that is not readily (M) A licensee shall not make any false, misleading, subject to verification. or deceptive claims in any advertisement, announcement, or presenta- (2) - (3) (No change.) tion relating to the services of the licensee, [or] any person supervised by the licensee or any dietary supplement. (g) (No change.) (N) A licensee shall conform to generally accepted §711.4. Academic Requirements for Licensure. principles and standards of dietetic practice which are those gener- (a) (No change.) ally recognized by the profession as appropriate for the situation pre- (b) General. sented, including those promulgated or interpreted by or under the association or commission, and other professional or governmental (1) - (6) (No change.) bodies. A licensee shall recognize and exercise professional judge- (7) Persons applying for licensure or provisional licen- ment within the limits of his/her qualifications and collaborate with sure must possess a baccalaureate or post-baccalaureate degree with others, seek counsel, or make referrals as appropriate. a major course of study in human nutrition, food and nutrition, nu- (O) (No change.) trition education, dietetics, or food systems management. (2) Professional relationships. (8) - (9) (No change.) (A) - (D) (No change.) §711.5. Experience Requirements for Examination. (E) A licensee shall provide nutrition [dietetic] ser- (a) (No change.) vices without discrimination based on race, creed, sex, religion, na- (b) General. Applicants for examination must have satisfac- tional origin, or age. torily completed an approved preplanned, documented professional (F) A licensee shall not violate any provision of experience program or internship in dietetics practice under the spon- any federal or state statute relating to confidentiality of client sorship [supervision] of a licensed dietitian or a registered dietitian.
25 TexReg 4696 May 26, 2000 Texas Register The program or internship and the sponsor [supervisor] must be ap- (3) [(B)] The sponsor, on behalf of the trainee, shall enter proved by the board or the association. A person who participates as into written agreements of affiliation with appropriate accredited or a trainee in a board-approved program or internship must be provi- certified and licensed organization(s). sionally licensed in accordance with §711.9 of this title (relating to (4) [(C)] The program shall be planned to extend over a Provisional Licensed Dietitians). period of not less than 12 months, nor more than two years. In the (1) An internship shall: event that any program extends over its planned time, the sponsor(s) shall submit progress reports to the program approval committee at the (A) be [either] a dietetic internship [approved by the planned completion date and annually thereafter until the program is board or the association], a coordinated undergraduate program in completed. The progress reports shall include the reason(s) for delay dietetics [approved by the association,] or a preprofessional practice and the anticipated date of completion of the program. program in dietetics approved by the association or by the board; and (5) [(D)] Admission requirements shall include academic (B) (No change.) requirements as set out in §711.4(b)(7) and (8) of this title (relating (2) A preplanned professional experience program shall to Academic Requirements for Licensure). be : (6) [(E)] The written agreement clarifying the terms of (A) [be] completed within three years after com- the program between the trainee and the sponsors shall include the mencement of the program; [, and shall be:] following: (B) [(i)] an individualized [preplanned professional [(i) a statement of which party is responsible for payment experience] program, beyond the undergraduate level approved by of the application processing fee;] the board or the association; and (A) [(ii)] a statement providing for periodic evaluation [(ii) an individualized planned work training pro- of the trainee’s performance, including criteria for continuation in or gram at a level of professional responsibility equivalent to that of an dismissal from the program; LD as set out in §711.3(b) of this title (relating to the Profession (B) [(iii)] a statement of the sponsor’s responsibility of Dietetics) following the completion of a post-baccalaureate degree for obtaining another sponsor, should the sponsor become unable to approved by the board or the association; or] fulfill his/her [his] commitments to the program for any reason .It [(iii) an individual graduate assistantship in the must include [, including] a provision that a written evaluation of field of dietetics in conjunction with a post-baccalaureate degree the trainee’s performance shall be completed and submitted to the approved by the board or the association; and] program approval committee and to the trainee by the sponsor(s) who is terminating the relationship; and (C) [(B)]be planned and sponsored by at least [have endorsements submitted from] one licensed or registered (C) [(iv)] a statement that recruitment and selection dietitian [who supervised the applicant’s experience program with of applicants and participation in all programs shall be made without the application]. discrimination based on race, creed, gender [sex], religion, national origin, or age. (3) - (5) (No change.) (e) [(3)]Sponsor guidelines [The faculty and staff guidelines (c) (No change.) are as follows]. (d) General guidelines [Guidelines specific to preplanned (1) [(A)] The sponsor shall be a licensed or registered professional experience programs beyond the undergraduate level]. dietitian who has had five years of full-time experience as a licensed [(1) The general guidelines are as follows.] or registered dietitian. [possess either:] [(A) This subsection covers guidelines which are [(i) master’s or Ph.D. degree in a discipline appropriate specific to preplanned professional experience programs beyond the to the area of program specialization and have had at least three years’ undergraduate level in the profession of dietetics as set out in full-time experience or 6,000 clock hours of experience as a licensed subsection (b)(2)(A)(I) of this section, and which shall be followed or registered dietitian; or] in order to obtain prior approval of the program approval committee.] [(ii) a baccalaureate degree in a discipline appropriate to [(B) The preplanned professional experience program the area of program specialization, and have had at least five years shall be an individualized planned professional education and expe- full-time experience or 10,000 clock hours of experience as a licensed rience program, beyond the undergraduate level, and shall be offered or registered dietitian.] for only one student.] [(B) At least one faculty dietitian, who has responsi- (1) [(C)] Students of the programs shall be referred to as bility for planning and evaluating the program, shall show evidence [dietetic] trainees and shall be provisionally licensed in accordance of having successfully completed either:] with §711.9 of this title (relating to Provisional Licensed Dietitians). [(i) faculty experience in a dietetic experience [(2) The organization and administration guidelines are program; or] as follows.] [(ii) college level course work in educational (2) [(A)] The sponsor(s) of the program shall be one methodology and/or learning theory; or] or more licensed dietitians who shall be employed by the facilities, [(iii) continuing education in educational method- agencies, or organizations utilized in the program. The sponsor shall ology and/or learning theory.] be employed either full-time, part-time, or on a consultant basis. All sponsor(s) shall observe and professionally assess the trainee’s (2) [(C)] A sponsor may not sponsor more than one performance and competence. program at a time [sponsor a maximum of two concurrent programs,
PROPOSED RULES May 26, 2000 25 TexReg 4697 provided that the total dietetic faculty of both programs equals a and sizes of foodservice systems, including at least one production minimum of three licensed or registered dietitians]. and service facility that requires managing a complete range of food- service subsystems. The remaining 10% of the curriculum shall be (f) [(4)]Curriculum guidelines [The curriculum guidelines planned to offer areas of specialization and/or career support selected are as follows]. by the trainee [student]. (1) [(A)] The curriculum of each program shall be (D) [(iv)] Community nutrition programs shall pro- planned and implemented primarily by the sponsoring dietetic faculty vide at least 40% of the curriculum in community nutrition, at least of the program. The trainee may assist in planning the curriculum. 10% of the curriculum divided between the education and consul- (2) [(B)] The curriculum offered shall be clearly defined tation areas of dietetics, at least 25% of the curriculum in clinical in writing, and shall include statements of: dietetics, and at least 15% of the curriculum in foodservice systems management. The primary sites for learning experiences shall include (A) [(i)] goals, competencies, and specific objectives federal, state, and locally funded community health agencies. The for all aspects of the program; remaining 10% of the curriculum shall be planned to offer areas of (B) [(ii)] dietetic learning experiences planned to meet specialization and/or career support selected by the trainee [student]. the objectives; and (6) [(F)] The program shall, following completion of (C) [(iii)] methods and procedures planned to evaluate the learning and work experiences, include rotation relief for three trainee [student] performance in meeting the objectives. weeks. Rotation relief shall provide an opportunity for the trainee to demonstrate professional proficiency in the area of specialization. (3) [(C)] Dietetic learning experiences and work experi- The sponsor, sponsoring [supervising] licensed dietitian, or another ences in all programs shall include opportunities for decision making, licensed dietitian shall be available at reasonable times. The trainee development of independent judgment and professionalism, and shall shall perform at the level of a licensed dietitian based on the area of require increasing levels of skill and responsibility. specialization. (4) [(D)] All programs shall include a variety of in- (A) [(i)] The rotation must be conducted between the structional methods and opportunities to strengthen the trainee’s hours of 6 a.m. and 8 p.m., Monday through Sunday with a minimum [student’s] communication skills. Planned instruction implemented of 20 clock hours per week. by the dietetic faculty shall be distributed throughout the program, and may be supplemented by classes offered by colleges and/or med- (B) [(ii)] The rotation must include one weekend day. ical centers and by dietetic seminars and workshops. (g) [(5)]Records guidelines [The records guidelines are as (5) [(E)] The curriculum shall include a minimum of follows]. 450 clock hours of work experience supervised, [and] directed, and (1) [(A)] A record of each trainee’s [student’s] activities, evaluated by a licensed or registered dietitian [work experience], as program plan, and evaluation instruments, including the number of set out in §711.9(a)(4) of this title (relating to Provisional Licensed hours spent fulfilling curriculum plans, shall be kept by the [each] Dietitians), at a level of professional responsibility equivalent to that sponsor, shall be preserved for five years, and shall be made available of a licensed dietitian, as set out in §711.3(b) of this title (relating to to examining boards and other appropriate agencies if requested. the Profession of Dietetics), plus a minimum of 450 clock hours of planned dietetic learning experiences with stated objectives divided (2) [(B)] A written report of the trainee’s activities shall to meet one of the following areas of specialization. All rotations be sent to the board. The trainee shall provide to the board, must be supervised, directed, evaluated and signed off by a licensed at six-month intervals, a written report approved by the sponsor dietitian or registered dietitian. describing the trainee’s activities [by the trainee at six-month intervals commencing with the approval of the program]. (A) [(i)] General dietetics programs shall provide at least 40% of the curriculum in foodservice systems management, at (3) [(C)] The sponsor(s) shall issue to each trainee least 40% of the curriculum in clinical dietetics, and at least 10% [student], upon successful completion of the program, a written of the curriculum divided among the community, education, and statement and/or certificate of accomplishment, and shall notify consultation areas of dietetics. The program shall offer a variety of the executive secretary in writing of the name(s) of the trainee(s) clinical services and a comprehensive range of foodservice systems [student(s)] who have completed the program and of the date the management functions. The remaining 10% of the curriculum shall be program was completed. planned to offer areas of specialization and/or career support selected [(e) Guidelines specific to individualized planned work by the trainee [student]. training programs following a postgraduate degree.] (B) [(ii)] Clinical dietetics programs shall provide at [(1) The general guidelines are as follows.] least 60% of the curriculum in clinical dietetics, at least 20% of the curriculum in foodservice systems management, and at least 10% [(A) This subsection covers guidelines which are of the curriculum divided among the community, education, and specific to an individualized planned work training program following consultation areas of dietetics. The program shall offer a variety a postgraduate degree in the profession of dietetics as set out in of clinical services, specializations, and subspecializations. The subsection (b)(2)(A)(i) of this section, and which shall be followed remaining 10% of the curriculum shall be planned to offer areas of in order to obtain prior approval of the program approval committee.] specialization and/or career support selected by the trainee [student]. [(B) The experience program following a post- (C) [(iii)] Management dietetics programs shall pro- baccalaureate degree shall be an individualized planned work vide at least 60% of the curriculum in foodservice systems manage- training program at a level of professional responsibility equivalent ment, at least 20% of the curriculum in clinical dietetics, and at least to that of a licensed dietitian, as set out in §711.3(b) of this title 10% of the curriculum divided among the community, education, and (relating to the Profession of Dietetics), and shall be offered for only consultation areas of dietetics. The program shall offer different types one student.]
25 TexReg 4698 May 26, 2000 Texas Register [(C) Students of the programs shall be referred to as [(B) At least one faculty dietitian, who has responsi- dietetic trainees.] bility for planning and evaluating the program, shall show evidence of having successfully completed either:] [(2) The organization and administration guidelines are as follows.] [(i) faculty experience in a dietetic experience program;] [(A) The sponsors of the program shall be one or more licensed dietitians who shall be employed by the facilities, agencies, [(ii) college level course work in educational or organizations utilized in the program. The primary sponsor shall methodology and/or learning theory; or] be employed either full-time, part-time, or on a consultant basis. [(iii) continuing education in educational method- All sponsor(s) shall observe and professionally assess the trainee’s ology and/or learning theory.] performance and competence.] [(C) A sponsor may sponsor a maximum of two [(B) The sponsor, on behalf of the trainee, shall enter concurrent programs, provided that the total dietetic faculty of both into written agreements of affiliation with appropriate accredited or programs equals a minimum of three licensed or registered dietitians.] certified and licensed organization(s).] [(4) The curriculum guidelines are as follows.] [(C) The program shall be planned to extend over a period of six months for full-time work experience (40 clock hours [(A) The curriculum of each program shall be planned per week) or 12 months for half-time work experience (20 clock hours and implemented primarily by the sponsoring dietetic faculty of the per week) at a level of professional responsibility equivalent to that program. The trainee may assist in planning the curriculum.] of a licensed dietitian, as set out in §711.3(b) of this title (relating to [(B) The curriculum offered shall be clearly defined the Profession of Dietetics). In the event that any program extends in writing, and shall include statements of:] over its planned time, the sponsor(s) shall submit progress reports to the program approval committee at the planned completion date [(i) goals, competencies, and specific objectives for and annually thereafter until the program is completed. The progress all aspects of the program;] reports shall include the reason(s) for delay and the anticipated date [(ii) dietetic learning experiences planned to meet of completion of the program.] the objectives; and] [(D) Admission requirements shall include academic [(iii) methods and procedures planned to evaluate requirements as set out in §711.4(b)(7) and (8) of this title (relating student performance in meeting the objectives.] to Academic Requirements for Licensure).] [(C) The program shall include a minimum of 500 [(E) The written agreement clarifying the terms of clock hours of supervised and directed work experience as set out in the program between the trainee and the sponsors shall include the §711.9(b)(2) of this title (relating to Provisional Licensed Dietitians), following:] plus a minimum of 400 clock hours of planned dietetic learning [(i) a statement of which party is responsible for experiences with stated objectives divided to provide either a general payment of the application processing fee;] dietetics curriculum or a specialized curriculum in clinical dietetics, management dietetics, or community nutrition; however, all programs [(ii) a statement providing for periodic evaluation shall include at least 15% of the curriculum in clinical dietetics and of the trainee’s performance, including criteria for continuation in or at least 15% of the curriculum in foodservice systems management.] dismissal from the program;] [(D) The program shall, following completion of [(iii) a statement of the sponsor’s responsibility for the learning and work experience, include rotation relief for three obtaining another sponsor, should the sponsor(s) become unable to weeks. Rotation relief shall provide an opportunity for the trainee fulfill their commitments to the program for any reason, including a to demonstrate professional proficiency in the area of specialization. provision that a written evaluation of the trainee’s performance shall The sponsor, the supervising licensed dietitian, or another licensed be completed and submitted to the program approval committee and dietitian shall be available at reasonable times. The trainee shall to the trainee by the sponsor(s) who is terminating the relationship; perform at the level of a licensed dietitian based on the area of and] specialization.] [(iv) a statement that recruitment and selection of [(i) The rotation must be conducted between the applicants and participation in all programs shall be made without hours of 6 a.m. and 8 p.m., Monday through Sunday with a minimum discrimination based on race, creed, sex, religion, national origin, or of 20 clock hours per week.] age.] [(ii) The rotation must include one weekend day.] [(3) The faculty and staff guidelines are as follows.] [(5) The records guidelines are as follows.] [(A) Each sponsor shall possess either:] [(A) A record of each student’s activities, program [(i) a master’s or Ph.D. degree in a discipline plan, and evaluation instruments, including the number of hours spent appropriate to the area of program specialization and have had at least fulfilling curriculum plans, shall be kept by each sponsor, shall be three years’ full-time experience or 6,000 clock hours of experience preserved for five years, and shall be made available to examining as a licensed or registered dietitian; or] boards and other appropriate agencies if requested.] [(ii) a baccalaureate degree in a discipline appro- [(B) A written report of the trainee’s activities shall priate to the area of program specialization, and have had at least five be sent to the board by the trainee at six-month intervals commencing years’ full-time experience or 10,000 clock hours of experience as a with the approval of the program.] licensed or registered dietitian.]
PROPOSED RULES May 26, 2000 25 TexReg 4699 [(C) The sponsor(s) shall issue to each student, upon to the trainee by the sponsor(s) who is terminating the relationship; successful completion of the program, a written statement and/or and] certificate of accomplishment, and shall notify the executive secretary [(iv) a statement that recruitment and selection of in writing of the name(s) of the student(s) who have completed the applicants and participation in all programs shall be made without program and of the date the program was completed.] discrimination based on race, creed, sex, religion, national origin, or [(f) Guidelines specific to graduate assistantship in the field age.] of dietetics.] [(3) The faculty and staff guidelines are as follows.] [(1) The general guidelines are as follows.] [(A) The sponsor shall possess either:] [(A) This subsection covers guidelines which are [(i) a master’s or Ph.D. degree in a discipline specific to graduate assistantships in the field of dietetics as set out in appropriate to the area of program specialization and have had at least subsection (b)(2)(C)(iii) of this section, and which shall be followed three years’ full-time experience or 6,000 clock hours of experience to obtain prior board approval of the program approval committee.] as a licensed or registered dietitian; or] [(B) The graduate assistantship in the field of dietetics [(ii) a baccalaureate degree in a discipline appro- shall be an individualized planned professional education and expe- priate to the area of program specialization, and have had at least five rience program in conjunction with a post-baccalaureate degree, and years’ full-time experience or 10,000 clock hours of experience as a shall be offered for only one student.] licensed or registered dietitian.] [(C) Students of the programs shall be referred to as [(B) More than one program may be offered concur- dietetic graduate assistants.] rently, provided that the total dietetic faculty of all programs equals a [(2) The organization and administration guidelines are minimum of one more licensed or registered dietitians than the num- as follows.] ber of students enrolled in the programs.] [(A) The sponsors of the program shall be an accred- [(4) The curriculum guidelines are as follows.] ited college or university as set out in §711.4(b)(1) and (2) of this [(A) The curriculum of each program shall be planned title (relating to Academic Requirements for Licensure), which offers and implemented primarily by the sponsoring dietetic faculty of post-baccalaureate degrees with a major course of study as specified the program. The graduate assistant may assist in planning the in §711.4(b)(7) and (8) of this title (relating to Academic Require- curriculum.] ments for Licensure).] [(B) The curriculum offered shall be clearly defined [(B) The sponsor, on behalf of the graduate assistant, in writing, and shall include statements of:] shall enter into written agreements of affiliation with appropriate accredited or certified and licensed organization(s).] [(i) goals, competencies, and specific objectives for all aspects of the program;] [(C) The program shall be planned to extend over a minimum period of nine months duration for half-time basis (20 [(ii) dietetic learning experiences planned to meet clock hours per week). In the event that any program extends over the objectives; and] its planned time, the sponsor(s) shall submit progress reports to the [(iii) methods and procedures planned to evaluate program approval committee at the planned completion date and student performance in meeting the objectives.] annually thereafter until the program is completed. The progress reports shall include the reason(s) for delay and the anticipated date [(C) The program shall include a minimum of 400 of completion of the program.] clock hours of supervised and directed work experience in teaching or research, as set out in §711.9(b)(2) of this title (relating to Provisional [(D) Academic requirements for licensing as set out in Licensed Dietitians), plus a minimum of 500 clock hours of planned §711.4(b)(7) and (8) of this title (relating to Academic Requirements dietetic learning experiences with stated objectives divided to meet for Licensure) may be met prior to, or in conjunction with, the one of the following areas of specialization.] graduate assistantship program. However, all undergraduate leveling courses required by the college or university shall be completed prior [(i) Teaching programs shall provide at least 35% to commencement of the dietetic learning experience portion of the of the curriculum in the teaching of college level courses in dietetic graduate assistantship program.] human nutrition, and nutrition, dietetics, and/or foodservice systems management. The graduate assistant’s teaching responsibilities shall [(E) The written agreement clarifying the terms of the be clearly defined, and shall include the name and description of each program between the graduate assistant and the sponsor shall include course to be taught. The remainder of the curriculum shall provide the following:] dietetic learning experiences divided among the clinical (at least 10% [(i) a statement of which party is responsible for of the curriculum), foodservice systems management (at least 10% payment of the application processing fee;] of the curriculum), community nutrition, and consultation areas of dietetics. The remaining 45% of the curriculum shall be planned [(ii) a statement providing for periodic evaluation to offer areas of specialization and/or career support selected by the of the trainee’s performance, including criteria for continuation in or student.] dismissal from the program;] [(ii) Research programs shall provide at least 35% [(iii) a statement of the sponsors’ responsibility for of the curriculum in research directly related to human nutrition, food obtaining another sponsor, should the sponsor(s) become unable to and nutrition, dietetics of foodservice systems management. The fulfill their commitments to the program for any reason, including a graduate assistant’s research activities shall be clearly defined, and provision that a written evaluation of the trainee’s performance shall shall include a description of the topic to be studied, research methods be completed and submitted to the program approval committee and
25 TexReg 4700 May 26, 2000 Texas Register to be used, and possible outcomes of the research. The remainder [(iii) possess a master’s or Ph.D. degree in a of the curriculum shall provide dietetic learning experiences divided discipline appropriate to the area of the program specialization among the clinical (at least 10% of the curriculum), foodservice and have had at least three years’ full-time experience or 6,000 systems management (at least 10% of the curriculum), community clock hours of experience as a licensed or registered dietitian; or a nutrition, education, and consultation areas of dietetics. The baccalaureate degree in a discipline appropriate to the area of program remaining 45% of the curriculum shall be planned to offer areas of specialization, and have had at least five years’ full-time experience or specialization and/or career support selected by the student.] 10,000 clock hours of experience as a licensed or registered dietitian.] [(5) The records guidelines are as follows.] [(B) The program shall have a minimum staff of two full-time licensed or registered dietitians, and at least one more full- [(A) A record of each student’s activities, program time licensed or registered dietitian than the number of interns in the plan, and evaluation instruments, including the number of hours spent program.] fulfilling curriculum plans, shall be kept by each sponsor, shall be preserved for five years, and shall be made available to examining [(4) The curriculum guidelines are as follows.] boards and other appropriate agencies if requested.] [(A) Planned instruction implemented by the dietetic [(B) A written report of the student’s activities shall faculty shall be distributed throughout the program, and may be be sent to the board by the student at six-month intervals commencing supplemented by classes offered by colleges and/or medical centers with the approval of the program.] and by dietetic seminars and workshops.] [(C) The sponsor(s) shall issue to each student, upon [(B) The curriculum offered shall be clearly defined successful completion of the program, a written statement and/or in writing, and shall include statements of:] certificate of accomplishment, and shall notify the executive secretary [(i) goals, competencies, and specific objectives for in writing of the name(s) of the student(s) who have completed the all aspects of the program; ] program and of the date the program was completed.] [(ii) dietetic learning experiences planned to meet [(g) Guidelines specific to dietetic internships.] the objectives; and] [(1) The general guidelines are as follows.] [(iii) methods and procedures planned to evaluate [(A) This subsection covers guidelines which are student performance in meeting the objectives.] specific to dietetic internships as set out in subsection (b)(1) of this [(C) The curriculum shall include a minimum of 450 section, and which shall be followed in order to obtain prior approval clock hours of supervised and directed work experience, as set out in of the program approval committee.] §711.9(b)(2) of this title (relating to Provisional Licensed Dietitians), [(B) The dietetic internship shall be an ongoing at a level of professional responsibility equivalent to that of a licensed planned professional education and experience program, beyond the dietitian, as set out in §711.3(b) of this title (relating to the Profession undergraduate level, and shall be offered for one or more students.] of Dietetics), plus a minimum of 450 clock hours of planned dietetic learning experiences with stated objective divided to meet one of the [(C) Students of the programs shall be referred to as following areas of specialization.] dietetic interns.] [(i) General dietetics programs shall provide at [(2) The organization and administration guidelines are least 40% of the curriculum in foodservice systems management, at as follows.] least 40% of the curriculum in clinical dietetics, and at least 10% [(A) The sponsor(s) of the program shall be an of the curriculum divided among the community, education, and organization, agency, institution, or facility which is accredited or consultation areas of dietetics. The program shall offer a variety of certified and licensed by appropriate agencies.] clinical services and a comprehensive range of foodservice systems management functions. The remaining 10% of the curriculum shall be [(B) Sponsor(s) may enter into written agreements of planned to offer areas of specialization and/or career support selected affiliation with other appropriate accredited or certified and licensed by the student.] organization(s).] [(ii) Clinical dietetics programs shall provide at [(C) The program shall be planned to extend over a least 60% of the curriculum in clinical dietetics, at least 20% of the period of not less than 12 months, nor more than 18 months.] curriculum in foodservice systems management, and at least 10% [(D) Admission requirements shall include academic of the curriculum divided among the community, education, and requirements as set out in §711.4(b)(7) and (8) of this title (relating consultation areas of dietetics. The program shall offer a variety to Academic Requirements for Licensure).] of clinical services, specializations, and subspecializations. The remaining 10% of the curriculum shall be planned to offer areas of [(3) The faculty and staff guidelines are as follows.] specialization and/or career support selected by the student.] [(A) The program director shall:] [(iii) Management dietetics programs shall provide [(i) be a licensed dietitian who is employed full- at least 60% of the curriculum in foodservice systems management, time by the sponsor;] at least 20% of the curriculum in clinical dietetics, and at least 10% of the curriculum divided among the community, education, and [(ii) shows evidence of having successfully com- consultation areas of dietetics. The program shall offer different types pleted either faculty experience in a dietetic experience program; col- and sizes of foodservice systems, including at least one production lege level course work in educational methodology and/or learning and service facility that requires managing a complete range of theory; or continuing education in educational methodology and/or foodservice subsystems. The remaining 10% of the curriculum shall learning theory; and]
PROPOSED RULES May 26, 2000 25 TexReg 4701 be planned to offer areas of specialization and/or career support of deficiencies from the program approval committee, and shall have selected by the student.] one year to correct the deficiencies cited. Provisionally approved programs shall request site inspection and pay another site inspection [(iv) Community nutrition programs shall provide fee following correction of deficiencies, if the program approval at least 40% of the curriculum in community nutrition, at least 10% of committee determines that the nature of the deficiencies warrants the curriculum divided between the education and consultation areas another site inspection. Provisionally approved programs may admit of dietetics, at least 25% of the curriculum in clinical dietetics, and interns for one year.] at least 15% of the curriculum in foodservice systems management. The primary sites for learning experiences shall include federal, state, [(C) Sponsor(s) of approved and provisionally ap- and locally funded community health agencies. The remaining 10% proved programs shall notify the executive secretary in writing of of the curriculum shall be planned to offer areas of specialization the names and enrollment dates of all interns admitted to the pro- and/or career support selected by the student.] gram.] [(5) The records guidelines are as follows.] [(7) Closing an internship guidelines are as follows.] [(A) A record of each student’s activities, program [(A) Sponsor(s) desiring to close a dietetic internship plan, and evaluation instruments, including the number of hours spent program shall notify the executive secretary and submit to the fulfilling curriculum plans, shall be kept by each sponsor, shall be program approval committee a written plan for terminating the preserved for five years, and shall be made available to examining program.] boards and other appropriate agencies if requested.] [(B) The dietetic internship shall continue to comply [(B) The sponsor(s) shall issue to each student, upon with all rules pertaining to dietetic internships and all board-approved successful completion of the program, a written statement and/or program plans for that dietetic internship until the last dietetic intern certificate of accomplishment, and shall notify the executive secretary transfers to another dietetic internship or completes the program.] in writing of the name(s) of the student(s) who have completed the [(C) A dietetic internship which has not enrolled program and of the date the program was completed.] dietetic interns for a period of two years is deemed a closed dietetic [(6) The application and approval procedures are as internship.] follows.] [(D) Sponsor(s) desiring to reopen a closed dietetic [(A) As part of the approval process, following review internship within five years after their last site inspection shall submit of the application by the program approval committee, the sponsor to the program approval committee changes in their program plans shall request an inspection of the program site and shall make with an application processing fee. Following the report of the arrangements for the inspection with the executive secretary.] inspection committee, the program approval committee may grant "approved," "provisionally approved," or "not approved" status to the [(i) The site inspection committee shall be ap- program.] pointed by the chairman of the board, and shall be composed of two licensed dietitians. One member of the committee shall be a member [(E) Sponsor(s) desiring to reopen a closed dietetic of the board and one member shall be a practicing licensed dietitian internship after five years from the last site inspection shall reapply from within this state who has had experience and/or training in site for program approval.] evaluation of internship programs.] §711.6. Examinations for Dietitian Licensure. [(ii) Prior to the site inspection, the sponsor(s) shall (a) - (b) (No change.) submit to the board a nonrefundable site inspection fee equal to: the travel expenses, including meals and lodging of the inspection com- (c) Applications for examination. mittee members, plus the consultant fee of the nonboard member (1) - (2) (No change.) inspection committee member. Site inspection fees shall not exceed $2,000.] (3) Any applicant who fails to apply for and take the licensure examination within a period of three years after an [(iii) The board may pay a consultant fee plus examination approval notice is mailed to the applicant [him] by the travel expenses, including meals and lodging, to the nonboard executive secretary, may have such approval withdrawn [by action of inspection committee member. The amount of the consultant fee the board]. paid will be determined by the board. The compensation for travel expenses shall be at the rate set by the legislature for state employees (d) - (f) (No change.) in the latest General Appropriations Act, for each day that the member (g) Failures. engages in the inspection. Consultant fees and travel expenses shall be paid from funds deposited in the Licensed Dietitian Act fund.] (1) - (2) (No change.) [(B) Following the report of the inspection committee, (3) An applicant who fails the examination three times the program approval committee may grant "approved," "provision- shall have his/her [his] application denied unless the applicant ally approved," or "not approved" status to the program.] furnished the board an official transcript from an accredited college or university indicating completed course work taken for credit with a [(i) Every five years approved programs shall passing grade in the area(s) of weakness determined by analysis of the submit to reapproval of program plans, shall request site inspection, previous examination(s). Before the applicant will be scheduled for and submit the required fees. To maintain board approval during the another examination, the applicant shall submit an official transcript five years, the sponsor(s) shall continue to meet the guidelines set out showing course work completed in the area of weakness after the in these sections.] date of the last examination taken by the applicant [The applicant [(ii) Provisionally approved programs shall be in must submit an official transcript within six months of the date of the substantial compliance with these guidelines, shall receive a report notice from the board which specifies the course work completed].
25 TexReg 4702 May 26, 2000 Texas Register (4) (No change.) provided for a provisional licensed dietitian (PLD) [dietitians]. The sponsor shall be a licensed dietitian. (h) (No change.) (1) Sponsorship [Supervision] contract. The PLD §711.7. Application Procedures. [applicant or provisional licensed dietitian] must submit a contract (a) Purpose. The purpose of this section is to set out the on board forms to the board prior to the date that sponsorship application procedures for examination and licensure, to establish [supervision] is to begin. The contract shall include: fitness of an applicant as one of the criteria for approval for licensure as provided for in the Licensed Dietitian Act (the Act),§701.151(3) (A) the name and signature of sponsor [supervisor] [§6(b)(2)], and to set forth the criteria by which the board shall and the name and signature of the PLD [supervisee]; determine the fitness of applicants required for approval for licensure. (B) the license number of sponsor [supervisor] and (b) Fitness of applicants for licensure. license number of the PLD [supervisee] if applicable; (1) In determining the fitness of an applicant for licen- (C) the primary location and address where nutrition sure, the board shall consider the following: [dietetic] services are to be rendered; (A) the skills and abilities of an applicant to provide (D) a description of nutrition [dietetic] services to be adequate nutrition [dietetic] services; and rendered by the PLD [supervisee]; (B) (No change.) (E) a statement that the sponsor [supervisor] and the PLD [supervisee] have read and agree to adhere to the requirements (2) (No change.) of this chapter; and (3) The substantiation of any of the following items (F) the date that the sponsor [supervisor] and the PLD related to an applicant may be, as the board determines, the basis [supervisee] signed the [board supervision] contract. for the denial of, or delay of, licensure of the applicant: (2) Termination. The sponsor [supervising licensed di- (A) lack of the necessary skills and abilities to provide etitian] must submit a written notification of termination of spon- adequate nutrition [dietetic] services; sorship [supervision] to the board and the PLD [supervisee] within (B) (No change.) 14 days of when sponsorship [supervision] has ceased. The PLD [provisional licensed dietitian] shall make a good faith effort to ensure (C) misrepresentation of nutrition [dietetic] services, that the sponsor [supervising licensed dietitian] submits the appropri- dietary supplements and the efficacy of nutrition [dietetic] services to ate notification. The board notification of termination of sponsorship clients; [supervision] shall include: (D) - (E) (No change.) (A) the name, license number, and signature of the (F) abuse of alcohol or drugs or the use of illegal drugs sponsor [supervisor] and the name and license number of the PLD of any kind in any manner which detrimentally affects the provision [supervisee]; of nutrition [dietetic] services; (B) a statement that sponsorship [supervision] has (G) - (H) (No change.) terminated; (c) (No change.) (C) (No change.) (d) Required application materials. (D) the date of termination of sponsorship [supervision]; and (1) The application form shall contain: (E) a statement indicating whether the sponsor (A) (No change.) [supervisor] and the PLD [supervisee] have complied with the (B) a statement that the applicant has read the requirements of this chapter. [Licensed Dietitian] Act and board rules and agrees to abide by them; (3) Changes. Any change in the sponsorship [board (C) - (G) (No change.) supervision] contract shall require submission of a new [supervision] contract. (2) - (8) (No change.) (4) Requirements of sponsorship [supervision]. §711.8. Determination of Eligibility. (a) - (d) (No change.) (A) The sponsor [supervisor] must have adequate training, knowledge, and skill to render competently any nutrition (e) The board may disapprove the application if the person [dietetic] services which the PLD [supervisee] undertakes. The spon- has: sor [supervisor] shall have discretion to refer the PLD [supervisee] (1) - (5) (No change.) for specific sponsorship [supervision] from another licensed dietitian. (6) been in violation of the [Licensed Dietitian] Act (B) The sponsor [supervisor] is responsible for deter- [(Act)]; mining the adequacy of the PLD’s [supervisee’s] ability to perform the nutrition services [dietetic tasks]. (7) - (9) (No change.) (C) The sponsor [supervisor] may not sponsor (f) - (h) (No change.) [supervise] more than three PLDs [supervisees] unless board §711.9. Provisional Licensed Dietitians. approval is provided in advance. (a) Sponsorship [Supervision]. The purpose of this section is to set out the nature and the scope of the sponsorship [supervision]
PROPOSED RULES May 26, 2000 25 TexReg 4703 (D) The PLD [supervisee] must clearly state the The provisional licensed dietitian is entitled to a formal hearing on sponsored [supervised] status to patients, clients, and other interested the proposed denial as specified in §711.8(f) of this title (relating to parties and must provide the name, address, and telephone number Determination of Eligibility).] of the sponsor [supervisor]. (2) [(5)]The PLDs [Provisional licensed dietitians] who (E) The sponsor [supervisor] may not be employed become registered by the commission shall submit proof of current by the PLD [supervisee], may not lease or rent space from the registration status with a written request to upgrade and submit the PLD [supervisee], and must avoid any dual relationship with the required fee for upgrade to a licensed dietitian.[The provisional PLD [supervisee] which could impair the sponsor’s [supervisor’s] licensed dietitian’s internship or preplanned professional experience professional judgment. program and examination accepted for registration by the commission shall be acceptable for licensure by the board. No further proof of (F) The sponsor [supervisor] must provide each PLD completion of an internship or preplanned professional experience [supervisee] with no less than one hour of regularly scheduled face- program and examination shall be required.] to-face meetings [supervision] weekly, regardless of the number of hours employed per week. Group meetings [supervision] may be (3) [(6)] The requirements of sponsorship [supervision] used as an adjunct to the face-to-face meetings [supervision] but not as defined in subsection (a)(4)(F) of this section, shall continue until as a substitute. A written record of the scheduled meetings must be the PLD [provisional licensed dietitian] becomes a licensed dietitian. maintained by the sponsor [supervisor] and include a summary of the (d) Time limits. A provisional license is valid for one year PLD’s [supervisee’s] work activities. The record shall be provided from the date it is issued and may be renewed annually not more than to the board at its request. twice [after September 1, 1993,] by the procedures set out at §711.12 (G) The sponsor [supervisor] must be available for of this title (relating to License Renewal). discussion of any problems encountered by the PLD [supervisee]at (e) Examination failures. An individual who fails the reasonable times in addition to the scheduled meetings [supervisory [commission’s] examination as set out in §711.6 of this title (re- sessions]. lating to Examinations for Dietitian Licensure) three times prior to (H) The sponsor [supervisor] will provide an alternate application or after licensure as a PLD [provisional licensed dietitian] licensed dietitian to provide sponsorship [supervision] for the PLD must meet one of the following requirements: [supervisee] in circumstances when the sponsor [supervisor] is not (1) meet with his or her sponsoring [supervising] licensed available for more than four continuous weeks. dietitian no less than two hours per week for regularly scheduled face- (5) Payment. A PLD [supervisee] may not pay for to-face meetings until the PLD passes the examination as set out in sponsorship [supervision]. §711.6 of this title (relating to Examinations for Dietitian Licensure) [supervision]; or (b) Required sponsor [supervisor]. A PLD [provisional licensed dietitian] must have a sponsoring [supervising] licensed (2) (No change.) dietitian at all times whether or not the PLD [provisional licensed §711.10. Licensing. dietitian] is actively employed. (a) (No change.) (c) Upgrading a provisional license. The purpose of this subsection is to set out the procedure to upgrade from PLD (b) Issuance of licenses. [provisional licensed dietitian] to licensed (1) The board[,] will send each applicant whose appli- (1) The PLD [provisional licensed dietitian]who has cation has been approved and who has passed the examination (if completed a board approved experience program in accordance with applicable) a license certificate and [license] identification card con- §711.5 of this title (relating to Experience Requirements for Exami- taining a license number. nation) shall submit to the board a letter from the sponsor indicating (2) (No change.) the date the PLD completed the program [properly completed expe- rience documentation form as set out in this section and in §711.5 of (c) (No change.) this title (relating to Experience Requirements for Examination) with §711.11. Changes of Name or Address. a written request to upgrade the license]. (a) - (b) (No change.) [(2) After review of all application materials, the execu- (c) Notification of address changes shall be made in writing tive secretary shall notify the provisional licensed dietitian in writing including the name, mailing address, and zip codes, and be mailed, of eligibility for examination prescribed by the board. Procedures for faxed or sent by electronic mail to the executive secretary. examination shall be those set out in §711.6 of this title (relating to Examinations for Dietitian Licensure).] (d) Before another license certificate and identification card will be issued by the board, notification of name changes must be [(3) The provisional licensed dietitian who successfully mailed to the executive secretary and shall include [a duly executed completes the licensing examination shall surrender to the board affidavit and] a copy of a marriage certificate, court decree evidencing the license certificate and license identification card, and submit the such change, or a social security card reflecting the new name. The license fee for upgrade of provisional licensed dietitian to licensed licensee shall [return any previously issued license certificate and dietitian.] identification card and] remit the appropriate replacement fee as set [(4) If the provisional licensed dietitian is not eligible out in §711.2(t) of this title (relating to Fees). for examination, the executive secretary shall notify the provisional §711.12. License Renewal. licensed dietitian in writing of the reasons for denial and the (a) (No change.) additional experience or documentation needed to meet the minimum requirements for examination and licensure as a licensed dietitian. (b) General.
25 TexReg 4704 May 26, 2000 Texas Register (1) - (3) (No change.) (B) the relationship of the crime to the purposes for licensure as a dietitian or provisional dietitian. The following felonies (4) Each licensee is responsible for renewing the license and misdemeanors relate to the license of a dietitian or provisional before the expiration date and shall not be excused from paying dietitian because these criminal offenses indicate an inability or additional fees or penalties. Failure to receive notification [from the a tendency to be unable to perform as a licensed dietitian or a executive secretary] prior to the expiration date of the license shall provisional licensed dietitian: not excuse failure to file for renewal or late renewal. (i) the misdemeanor of knowingly or intentionally (5) - (8) (No change.) acting as a licensed dietitian or provisional licensed dietitian without (c) License renewal requirements. a license under the Act, §701.451 [§15]; (1) (No change.) (ii) - (v) (No change.) (2) The license renewal form for all licensees shall (C) (No change.) require the provision of the preferred mailing address, primary (D) the relationship of the crime to the ability, employment address and telephone number, and misdemeanor and capacity, or fitness required to perform the duties and discharge the felony convictions. [The license renewal form for the provisional responsibilities of a licensed dietitian or provisional licensed dietitian. licensed dietitian shall be signed by the sponsoring supervising In making this determination, the board will apply the criteria outlined licensed dietitian and indicate whether the sponsor supervisor and in Texas Occupations Code, Chapter 53 [Civil Statutes, Article 6252- trainee supervisee have complied with this chapter.] 13c, §4(c)(1)-(7)], the legal authority for the provisions of this section. (3) The sponsorship contract for the provisional licensed §711.14. Violations, Complaints, and Subsequent Board Actions. dietitian shall be signed by the sponsoring licensed dietitian. The information provided on the form shall indicate whether the sponsor (a) (No change.) and the provisional licensed dietitian have complied with §711.9 of (b) Types of violations and prohibited actions. this title (relating to Provisional Licensed Dietitians). (1) (No change.) (4) [(3)] A licensee has renewed the license when the licensee has mailed the renewal form, the required renewal fee, (2) A person may not intentionally or knowingly repre- and the statement of continuing education to the executive secretary sent or imply that he or she has the title of "registered dietitian" or prior to the expiration date of the license. The postmark date shall use the letters "RD" or any facsimile of that title in any manner unless be considered as the date of mailing. The current license will be the person is registered [as a registered dietitian] by the Commission considered active for a period of 90 days from the date of expiration. on Dietetic Registration. (5) [(4)] The board shall issue to a licensee who has met (3) (No change.) all requirements for renewal a license certificate and identification (c) - (d) (No change.) card. (e) Actions by executive secretary. (d) - (e) (No change.) (1) The executive secretary alone or with the concurrence (f) Active duty. If a licensee fails to timely renew his or her of the complaint committee may take one or more of the following license [on or after August 1, 1990,] because the licensee is or was actions: on active duty with the armed forces of the United States of America serving outside the State of Texas, the licensee may renew the license (A) - (C) (No change.) in accordance with this subsection. (D) determine that a licensee has violated the Act or (1) - (3) (No change.) a board rule and that the violation did not affect the health, safety or welfare of any patient or person and therefore the complaint may be (4) A copy of the power of attorney from the licensee resolved informally by such means as compliance with a cease and shall be filed with the board [Texas State Board of Examiners of desist letter, a letter of concern, or a settlement agreement with the Dietitians] along with the renewal form if the individual having the committee. power of attorney executes any of the documents required in this subsection. (2) (No change.) (5) - (6) (No change.) (f) - (j) (No change.) §711.13. Licensing of Persons with Criminal Backgrounds To Be §711.16. Inactive Status. Dietitians and Provisional Dietitians. (a) A licensed dietitian may request that his or her license (a) (No change.) be declared inactive by written request to the board prior to the expiration of the license. The request must include the inactive status (b) Criminal convictions which directly relate to the profes- fee. Inactive status shall not be granted to persons whose licenses sion of dietetics. are not current. Inactive status periods shall not exceed five [two] (1) (No change.) years. [An additional inactive status fee must be paid on or before the end of the first year of inactive status to remain in inactive status (2) In considering whether a criminal conviction directly an additional year.] relates to the occupation of a licensed dietitian or provisional licensed dietitian, the board shall consider: (b) An inactive status period shall begin on the first day of the month following receipt of the request by the board [approval]. (A) (No change.) (c) If the licensed dietitian wishes to reactivate the license, the licensed dietitian must:
PROPOSED RULES May 26, 2000 25 TexReg 4705 (1) request to return to active status in writing on or (h) Activities unacceptable as continuing education for before the end of the five year maximum period; which the board may not grant continuing education credit are: (2) furnish proof of having earned, during the inactive (1) - (3) (No change.) period (minimum one year, maximum five [two] years) six approved (4) activities described in subsection (g) of this section continuing education hours. Proof is to be furnished at the time of which exceed the maximum allowed or which have been completed reactivation; and more than once during the continuing education period; (3) (No change.) (5) performance of duties that are [routine] job duties or (d) A license that is not reactivated within the five year [two- requirements; or year] period may not be renewed, and the license may not be restored, (6) (No change.) reissued, or reinstated thereafter, but that person may reapply for and obtain a new license if requirements of the Licensed Dietitian Act (i) Continuing education experiences shall be credited as (Act) are met. follows. (e) - (f) (No change.) (1) Completion of course work at or through an accred- ited college or university shall be credited for each semester hour on (g) A licensed dietitian may return to active status by written the basis of six [two] clock hours of credit for each semester hour request to[, and approval by,] the board postmarked, faxed or sent by successfully completed for credit or audit. electronic mail within the five year period after becoming inactive. Active status shall begin the first day of the month following receipt (2) (No change.) of the request by the board [approval]. (j) - (l) (No change.) (h) (No change.) §711.19. Informal Disposition. §711.17. Continuing Education Requirements. (a) - (c) (No change.) (a) The purpose of this section is to establish the continuing (d) The executive secretary shall decide upon the time, date education requirements a licensee shall meet to maintain licensure. and place of the settlement conference and provide written notice to The requirements are intended to maintain and improve the quality of the licensee or applicant of the same. Notice shall be provided no less services provided to the public by licensed dietitians and provisional than ten [10] days prior to the date of the conference by certified mail, licensed dietitians. Continuing education credit includes programs be- return receipt requested, to the last known address of the licensee or yond the basic preparation which are designed to promote and enrich applicant or by personal delivery. The ten [10] days shall begin on knowledge, improve skills, and develop attitudes for the enhancement the date of mailing or delivery. The licensee or applicant may waive of licensed dietitians and provisionally licensed dietitians, thus im- the ten [10]-day notice requirement. proving nutrition services provided [nutritional care] to the public. (1) The notice shall inform the licensee or applicant of (b) Proof of having earned a minimum of six clock hours of the following: continuing education credit shall be required at the time of renewal of each license [after September 1, 1994]. (A) - (C) (No change.) (1) - (2) (No change.) (D) that a board member [members] may be present; (c) (No change.) (E) - (H) (No change.) (d) The audit process shall be as follows. (2) (No change.) (1) (No change.) (e) (No change.) (2) All licensees selected for audit will furnish documen- (f) A member [Members] of the complaints committee may tation such as official transcripts, certificates, diplomas, [receipts,] be present at a settlement conference. agendas, programs, or an affidavit identifying the continuing educa- (g) (No change.) tion experience satisfactory to the board, to verify proof of having earned the continuing education hours listed on the continuing edu- (h) The licensee, the licensee’s attorney, committee member cation report form. The documentation must be provided at the time [members], and board staff may question witnesses, make relevant the renewal form is returned to the board. statements, present statements of persons not in attendance, and present such other evidence as may be appropriate. (3) (No change.) (i) The board’s legal counsel [or an attorney from the Office (e) - (f) (No change.) of the Attorney General] shall attend each settlement conference. The (g) Continuing education undertaken by a licensee for board member [members] or executive secretary may call upon the renewal shall be acceptable if the experience falls in one or more attorney at any time for assistance in the settlement conference. of the following categories: (j) (No change.) (1) - (6) (No change.) (k) Access to the board’s investigative file may be prohibited (7) books or articles published by the licensee in relevant or limited in accordance with the Administrative Procedure Act professional books and refereed [referred] journals. A minimum of (APA), and the Public Information Act, Texas Government Code, three continuing education hours will be credited for the publication; Chapter 552. or (8) (No change.)
25 TexReg 4706 May 26, 2000 Texas Register (l) At the discretion of the executive secretary or the Filed with the Office of the Secretary of State, on May 8, 2000. committee member [members], a tape recording may be made of TRD-200003228 none or all of the settlement conference. Patricia Mayers Krug (m) The committee member [members] or the executive Chair secretary shall exclude from the settlement conference all persons Texas State Board of Dietitians except witnesses during their testimony, the licensee, the licensee’s Earliest possible date of adoption: June 25, 2000 attorney, and board staff. For further information, please call: (512) 458-7236 (n) (No change.) ♦♦♦ (o) At the conclusion of the settlement conference, the com- The new section is proposed under the Texas Occupations mittee member [members] or executive secretary may make recom- Code, §701.151 and §701.152 which provides the Board with mendations for informal disposition of the complaint or contested the authority to make and enforce rules reasonably required in case. The recommendations may include any disciplinary action au- the exercise of its general powers and jurisdiction. thorized by the Licensed Dietitian Act (Act). The committee member [members] or executive secretary may also conclude that the board The new section affects the Texas Occupations Code, Chapter lacks jurisdiction, conclude that a violation of the Act or this chap- 701. ter has not been established, order that the investigation be closed, §711.15. Formal Hearings. or refer the matter for further investigation. The committee member [members] or executive secretary may also refer the matter for further (a) Purpose. This section covers the formal hearing proce- investigation. dures and practices that will be used by the board in handling sus- (p) - (v) (No change.) pensions, revocation of license, denial of licenses, probating a licesne suspension, and reprimanding a licensee. Such hearing will be con- (w) A licensee’s opportunity for an informal conference ducted pursuant to the contested case provisions of the Administrative under this section shall satisfy the requirement of the APA, Procedure Act (APA), Texas Government Code, Chapter 2001, and §2001.054(c). will be held by the State Office of Administrative Hearings. (1) If the executive secretary or complaints committee (b) Notice requirements. determines that an informal conference shall not be held, the executive secretary shall give written notice to the licensee or applicant of (1) Notice of the hearing shall be given according to the the facts or conduct alleged to warrant the intended disciplinary notice requirements of APA. action and the licensee or applicant shall be given the opportunity (2) If a party fails to appear or be represented at a hearing to show, in writing and as described in the notice, compliance with after receiving notice, the Administrative Law Judge may proceed all requirements of the [Dietitian] Act and this chapter. with the hearing or take whatever action is fair and appropriate under (2) (No change.) the circumstances. This agency hereby certifies that the proposal has been re- (3) All parties shall timely notify the Administrative Law viewed by legal counsel and found to be within the agency’s Judge of any changes in their mailing addresses. legal authority to adopt. (c) Right to counsel. Filed with the Office of the Secretary of State, on May 8, 2000. (1) Each party to a contested case is entitled to the TRD-200003229 assistance of counsel. Patricia Mayers Krug (2) A party may expressly waive the right to assistance Chair of counsel. Texas State Board of Examiners of Dietitians (d) Prehearing conferences. Earliest possible date of adoption: June 25, 2000 For further information, please call: (512) 458-7236 (1) In a contested case, the Administrative Law Judge, on his own motion or the motion of a party, may direct the parties ♦♦♦ to appear at a specified time and place for a conference prior to the 22 TAC §711.15 hearing for the purpose of: (Editor’s note: The text of the following section proposed for repeal (A) the formulation and simplification of issues; will not be published. The section may be examined in the offices (B) the necessity or desirability of amending the of the Texas State Board of Dietitians or in the Texas Register office, pleading; Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) (C) the possibility of making admissions or stipula- The repeal is proposed under the Texas Occupations Code, tions; §701.151 and §701.152 which provides the Board with the authority to make and enforce rules reasonably required in the (D) the procedure at the hearing; exercise of its general powers and jurisdiction. (E) specifying the number of witnesses; The repeal affects the Texas Occupations Code, Chapter 701. (F) the mutual exchange of prepared testimony and §711.15. Formal Hearings. exhibits; This agency hereby certifies that the proposal has been re- (G) the designation of parties; and viewed by legal counsel and found to be within the agency’s legal authority to adopt. (H) other matters which may expedite the hearing.
PROPOSED RULES May 26, 2000 25 TexReg 4707 (2) The Administrative Law Judge may have the minutes TRD-200003230 of the conference recorded in an appropriate manner and shall issue Patricia Mayers Krug whatever orders are necessary covering the said matters or issues. Chair (3) Any action taken at the prehearing conference may Texas State Board of Dietitians be reduced to writing, signed by the parties, are made a part of the Earliest possible date of adoption: June 25, 2000 record. For further information, please call: (512) 458-7236 (e) Assessing the cost of a court reporter and the record of ♦♦♦ the hearing. TITLE 28. INSURANCE (1) In the event a court reporter is utilized in the making of the record of the proceedings, the board shall bear the cost of the Part 1. TEXAS DEPARTMENT OF IN- per diem or other appearance fee for such reporter. SURANCE (2) The board may prepare or order the preparation of a transcript (statement of facts) of the hearing upon the written request Chapter 34. STATE FIRE MARSHAL of any party. The board may pay the cost of the transcript or assess the cost to one or more parties. Subchapter C. STANDARDS FOR STATE FIRE (3) In the event a final decision of the board is appealed MARSHAL INSPECTIONS to the district court wherein the board is required to transmit to the reviewing court a copy of the record of the hearing proceeding, or 28 TAC §§34.301-34.304 any part thereof, the board may require the appealing party to pay all The Texas Department of Insurance proposes amendments to or part of the cost of preparations of the original or a certified copy of §§34.301 - 34.304 concerning standards for state fire marshal the record of the board proceedings that is required to be transmitted inspections. These proposed amendments are necessary to to the reviewing court. update the currently adopted Life Safety Code, which is used (f) Disposition of case. Unless precluded by law, informal by the state fire marshal as standards for inspection of buildings disposition may be made of any contested case by agreed settlement and premises pursuant to Government Code §417.008. The order or default order. proposed amendments also implement legislation enacted by the 75th Legislature in Senate Bill 371. Senate Bill 371, in part, (g) Agreements in writing. No stipulation or agreement transferred the operations of the state fire marshal and all of the between the parties with regard to any matter involved in any powers, duties, rights, obligations, contracts, records, person- proceeding shall be enforced unless it shall have been reduced to nel, property, funds, and unspent appropriations of the Texas writing and signed by the parties or their authorized representatives, Commission on Fire Protection to the Texas Department of In- dictated into the record during the course of a hearing, or incorporated surance, effective September 1, 1997, and amended Chapter in an order bearing their written approval. This rule does not limit 417 of the Government Code to reference the Commissioner of a party’s ability to waive, modify, or stipulate away any right or Insurance. Accordingly, §§34.301 - 34.304, which refer to the privilege afforded by these sections. Commission, are amended to reflect the transfer of authority (h) Final orders or decisions. from that agency to the Commissioner of Insurance. Section 34.302 has been reformatted to number the definitions con- (1) The final order or decision will be rendered by the tained in that section and to add a definition. Section 34.303, board. The board is not required to adopt the recommendation which adopts by reference certain standards and recommenda- of the Administrative Law Judge and may take action as it deems tions of the National Fire Protection Association, is amended by appropriate and lawful. replacing the currently adopted Life Safety Code with the most (2) All final orders or decisions shall be in writing and recent version. The adoption of the most recent Life Safety shall set forth the findings of fact and conclusions required by law. Code is necessary because, as the technology for fire protection and prevention develops, the minimum standards of inspection (3) All final orders shall be signed by the executive also change. This results in better protection of the public from secretary and the chairman of the board; however, interim orders may fire by the application of the most recent standards and rec- be issued by the Administrative Law Judge. ommendations for inspection. Additionally, other units of gov- (4) A copy of all final orders and decisions shall be timely ernment in Texas are adopting these standards, and uniformity provided to all parties as required by law. of standards enable both the fire protection industry and the public to know what standards are applicable in all jurisdictions. (i) Motion for rehearing. A motion for rehearing shall be The National Fire Protection Association made changes to the governed by APA, Texas Government Code, §2001.146, and shall be standards in order to clarify existing requirements, eliminate re- addressed to the board and filed with the executive secretary. dundant language, and restructure the document for ease in (j) Appeals. All appeals from final board orders or decisions use. The 2000 edition of the Life Safety Code introduces a shall be governed by APA, Subchapter G, Texas Government Code, performance-based option that applies to life safety systems. and communications regarding any appeal shall be submitted to the The updated Life Safety Code also reformats the code for sub- executive secretary. stantial compliance with the National Fire Protection Associa- tion Manual of Style. Former Chapter 32 on special structures This agency hereby certifies that the proposal has been re- and high-rise buildings has been moved to Chapter 11 to join viewed by legal counsel and found to be within the agency’s the core chapters, i.e., the chapters that are not occupancy- legal authority to adopt. specific. The subject of interior finish, contents, and furnishings Filed with the Office of the Secretary of State, on May 8, 2000. has been moved to a separate new chapter. The day-care oc-
25 TexReg 4708 May 26, 2000 Texas Register cupancies chapters have been renumbered and positioned im- The following statutes are affected by the proposed section: mediately after the chapters for educational occupancies, and Government Code §417.008 the occupancy chapter numbers have also been renumbered §34.301. Purpose. and repositioned. The purpose of this subchapter [chapter] is to administer the law set G. Mike Davis, State Fire Marshal, has determined that for each forth in Government Code[,] §417.008, regarding right of entry and year of the first five years that the proposal will be in effect, there examination and correction of dangerous conditions. will be no fiscal implications for state or local government as a result of enforcing or administering the sections. Mr. Davis has §34.302. Definitions. also determined that there will be no adverse effect on local The following words and terms, when used in this subchapter employment or the local economy. [chapter], shall have the following meanings, unless the context Mr. Davis also has determined that for each year of the first five clearly indicates otherwise: years the proposed section is in effect, the anticipated public (1) Commissioner-The Commissioner of Insurance. benefit from enforcing and administering the section is the em- ployment of the most recent standards of inspection of buildings (2) NFPA-The National Fire Protection Association, a and premises in the state in order to examine whether condi- nationally recognized standards making organization. tions exist that are dangerous or are liable to cause or promote §34.303. Adopted Standards. fire or create danger for fire fighters, occupants, or other build- The Commissioner [Commission] adopts by reference the following ings or structures. Additionally, the public will be better pro- copyrighted standards and recommendations, except to the extent they tected from fire as a result of the adoption and enforcement of are in conflict with sections of this chapter or any Texas statutes the most current nationally recognized standards applicable to or federal law. The standards are published by and are available inspections of occupied buildings. Mr. Davis does not anticipate from the National Fire Protection Association, [Batterymarch Park,] any measurable additional costs resulting from these amend- Quincy, Massachusetts [02269]: NFPA 101-2000 [101-1994], Life ments because buildings and premises in the state within the Safety Code and cited references. jurisdiction of the state fire marshal are already subject to the standards previously adopted by the Commission on Fire Pro- §34.304. Severability. tection. The estimated cost to purchase the proposed updated If any provision of this subchapter [chapter] or the application thereof Life Safety Code is approximately $60 and will be the same cost to any person or circumstance is held invalid for any reason, the for all persons and companies, including small, large, and micro- invalidity shall not affect the other provisions or any other application businesses, who purchase the updated standards. The cost to of these rules which can be given effect without the invalid provisions a person or entity qualifying as a small or micro-business under or application. To this end, all provisions of this subchapter [chapter] the Government Code §2006.001 will be the same as the cost are declared to be severable. to the largest business because the cost is not dependent upon the size of the business but rather is the same price for all pur- This agency hereby certifies that the proposal has been re- chasers of the updated standards. The proposed amendments viewed by legal counsel and found to be within the agency’s may not be waived for a person or entity qualifying as a small legal authority to adopt. or micro-business under the Government Code §2006.001 be- Filed with the Office of the Secretary of State, on May 11, 2000. cause the use of these standards is prescribed by statute. In addition, it would neither be legal nor feasible to waive the re- TRD-200003323 quirements of the amendments since these standards enable Lynda Nesenholtz the state fire marshal to examine and correct dangerous condi- General Counsel and Chief Clerk tions and are therefore a matter of public safety. Texas Department of Insurance Earliest possible date of adoption: June 25, 2000 To be considered, all comments on the proposal must be submitted in writing no later than 5 p.m. on June 19, 2000, For further information, please call: (512) 463-6327 to Lynda H. Nesenholtz, General Counsel & Chief Clerk, ♦♦♦ Mail Code 113-2A, Texas Department of Insurance, P.O. Box 149104, Austin, Texas 78714-9104. An additional copy of Subchapter J. STOVETOP FIRE SUPPRESSION the comments must be submitted simultaneously to Mr. G. DEVICE APPROVAL Mike Davis, State Fire Marshal, Mail Code 108-FM, Texas Department of Insurance, P.O. Box 149221, Austin, Texas 28 TAC §34.1004 78714-9221. A request for a public hearing should be submitted The Texas Department of Insurance proposes an amendment separately to the Office of the Chief Clerk. to §34.1004 concerning residential stovetop fire suppression The amended sections are proposed pursuant to the Govern- device approval. This amendment is necessary to set forth the ment Code §417.008 and the Insurance Code §36.001. Gov- criteria which will allow insurers to offer a second category of ernment Code §417.008 allows the commissioner to adopt by insurance premium discount for a correctly installed residential rule any appropriate standard developed by a nationally rec- stovetop fire suppression device, as defined by statute, that ognized standards-making association under which the state has been approved by the state fire marshal through the fire marshal may enforce this section regarding right of entry commissioner and also adds requirements for all categories of and examination and correction of dangerous conditions. Insur- devices. Amendments to the Texas Personal Lines Manual are ance Code §36.001 authorizes the Commissioner of Insurance also being proposed regarding provisions for optional credits for to adopt rules for the conduct and execution of the duties and Homeowners and Dwelling policies for stovetop fire suppression functions of the Texas Department of Insurance only as autho- devices. The proposed amendment applies only to residential rized by statute. stovetop fire suppression devices in use on or after January
PROPOSED RULES May 26, 2000 25 TexReg 4709 1, 2000. The 76th Legislature enacted Senate Bill 139, which under Insurance Code Article 5.33C. Additionally, the public will amended Subchapter C, Chapter 5, by adding Article 5.33C to benefit from the adoption and enforcement of minimum product the Insurance Code. Article 5.33C provides that a policyholder performance and testing standards. The effect of the proposed of a single-family or multifamily dwelling, apartment owner, amendment on large, small, and micro-businesses results or condominium owner is eligible for a premium reduction for mostly, if not entirely, from the legislative enactment of Senate homeowner’s insurance coverage or fire or commercial fire Bill 139, 76th Legislature, which permits a reduction in premium insurance coverage if the policyholder has correctly installed for homeowner’s insurance coverage or fire or commercial on the covered property a stovetop fire suppression device fire insurance coverage to policyholders who correctly install, that has been approved by the state fire marshal through on the covered property, functioning residential stovetop fire the commissioner. Because the legislation contemplated that suppression devices that have been approved by the state it is the policyholder who installs the device and that the fire marshal. The cost of compliance with this proposed discount is granted for "a correctly installed and functioning amendment is the cost to manufacturers to have their product stovetop fire suppression device," the authority of the state fire tested by an approved testing laboratory to the specified marshal is limited solely to approval of the device to qualify performance standards. The total estimated cost for this testing for an optional premium discount on certain homeowner’s, fire, is dependent on the complexity of a specific suppression device and commercial fire insurance premiums. The current statute and will be an equivalent cost, depending on the equivalency and rules relating to fire extinguishers (Insurance Code Article of the devices, for all persons and companies, including large, 5.43-1; 28 TAC Chapter 34, Subchapters D and E) regulate, small, and micro-businesses, who engage in the business of among other things, the leasing, selling, installing, and servicing manufacturing residential stovetop fire suppression devices. of fire extinguishers, and prohibit the sale or use of all fire Based on the state fire marshal’s experience with testing extinguishers, equipment, and systems that are not labeled or laboratories, it is difficult to estimate with any specificity the listed by an approved testing laboratory pursuant to nationally cost involved because of the complex differences with types recognized or laboratory developed standards. As with that of systems, but it is estimated that a manufacturer developing statute and rules, the state fire marshal has developed criteria this product may expend a minimum of $100,000 to meet the for approving stovetop fire suppression devices, for purposes of performance standards. However, any manufacturer who has the premium discount, with reference to product certification by already complied with these standards will have no measurable nationally recognized testing facilities and methods. Currently, additional costs. Regarding the category of device that is not there is no single recognized national standard for residential intended to extinguish deep fat fires, the proposal requires stovetop fire suppression devices. The state fire marshal has labeling of the limitations of the device to be printed prominently utilized a combination of standards and test criteria developed on the device itself, in the installation manual, and conveyed by recognized product performance standards organizations in any sales literature or presentations. After consultation and that the state fire marshal believes would best demonstrate inquiry regarding the cost of such labeling, it is estimated that the integrity of the product, provide a minimum performance a manufacturer may expend approximately $173 per thousand capability, and afford the user a minimum level of safety in units in order to meet this requirement. It is also anticipated safeguarding lives and property. The amendment to §34.1004 that any increase in costs as a result of the proposal will covers a category of device that is not intended to extinguish be passed on to consumers and will ultimately be recouped deep fat fires; accordingly, the proposed approval criteria utilize by the manufacturer. The proposed amended section may applicable standards from the referenced publications from not be waived for manufacturers of residential stovetop fire Underwriters Laboratories that would apply to this type of suppression devices who qualify as a small or micro-business device. Concomitantly, the proposal requires labeling of the because the statute mandates approval of these devices in limitations of the device to be printed prominently on the device order for them to be eligible for the premium discount. In itself, in the installation manual, and conveyed in any sales addition, lesser standards would neither be legal nor feasible literature or presentations. The amendment further provides as the statute contemplates that the devices be adequate to that the manufacturer of any stovetop fire suppression device protect against hazards. will require the approved testing laboratory to send to the state To be considered, all comments on the proposal must be fire marshal’s office a certificate of compliance signed by a submitted in writing no later than 5 p.m. on June 26, 2000, registered engineer and that record copies of the test results to Lynda H. Nesenholtz, General Counsel and Chief Clerk, will be maintained and provided to the state fire marshal’s Mail Code 113-2A, Texas Department of Insurance, P.O. Box office upon written request. The other requirements of the 149104, Austin, Texas 78714-9104. An additional copy of the rule concerning a certification mark and instruction manual also comments must be submitted simultaneously to G. Mike Davis, apply to all stovetop fire suppression devices. State Fire Marshal, Mail Code 108-FM, Texas Department of G. Mike Davis, state fire marshal, has determined that for each Insurance, P.O. Box 149221, Austin, Texas 78714-9221. A year of the first five years the proposed section is in effect, there request for a public hearing should be submitted separately to will be no fiscal impact to state government. There will be no the Office of the Chief Clerk. fiscal implications for local government as a result of enforcing The amended section is proposed pursuant to the Insurance or administering the section, and no effect on the local economy Code Article 5.33C and §36.001. Article 5.33C provides that a or local employment. policyholder of a single-family or multifamily dwelling, apartment Mr. Davis also has determined that for each year of the owner, or condominium owner is eligible for a premium reduction first five years that the proposed amendment is in effect, the for homeowner’s insurance coverage or fire or commercial fire anticipated public benefit from enforcing and administering this insurance coverage if the policyholder has correctly installed section is an efficient and consistent approval process for on the covered property a stovetop fire suppression device the regulation of residential stovetop fire suppression devices that has been approved by the state fire marshal through the for purposes of the category of premium discount allowed commissioner and permits the commissioner to adopt rules
25 TexReg 4710 May 26, 2000 Texas Register necessary for the implementation of the article. Insurance Code (4) [(2)] It carries the certification mark of the approved §36.001 authorizes the Commissioner of Insurance to adopt testing laboratory; and rules for the conduct and execution of the duties and functions (5) [(3)] Installation, operation, recharge, inspection, and of the Texas Department of Insurance only as authorized by maintenance instruction manual(s), as submitted to the approved statute. testing laboratory, are provided with each device sold. The following statute is affected by the proposed section: This agency hereby certifies that the proposal has been re- Insurance Code Article 5.33C viewed by legal counsel and found to be within the agency’s §34.1004. Approval. legal authority to adopt. A stovetop fire suppression device will be considered approved by Filed with the Office of the Secretary of State, on May 15, 2000. the State Fire Marshal, for the purpose of this subchapter, upon the occurrence of the following [if]: TRD-200003364 Lynda Nesenholtz (1) It has been tested by an approved testing laboratory General Counsel and Chief Clerk and, at the time it was tested, meets the applicable approval criteria Texas Department of Insurance of the most recent edition of the product performance standards listed Earliest possible date of adoption: June 25, 2000 in the following subparagraphs: For further information, please call: (512) 463-6327 (A) For a Category 1 optional premium discount: ♦♦♦ (i) (A) UL 1254 "Standard for Pre-engineered Dry Chemical Extinguishing System Units" or UL 299 "Dry Chemical TITLE 31. NATURAL RESOURCES AND Fire Extinguishers", and CONSERVATION (ii) [(B)] UL Subject 300A "Outline of Investiga- tion for Extinguishing System Units for Residential Range Top Cook- Part 1. GENERAL LAND OFFICE ing Surfaces." Chapter 13. LAND RESOURCES (B) For a Category 2 optional premium discount: (i) UL 1254 "Standard for Pre-engineered Dry Subchapter F. APPLICATION TO PURCHASE Chemical Extinguishing System Units" or UL 299 "Dry Chemical OR LEASE VACANT AND UNSURVEYED Fire Extinguishers", and PUBLIC SCHOOL LAND (ii) UL Subject 300A "Outline of Investigation for Extinguishing System Units for Residential Range Top Cooking 31 TAC §13.79, §13.81 Surfaces", with the following deviations: The General Land Office proposes the repeal of §13.79 relating (I) The type and amount of oil in test numbers to the Appointment of Surveyor and §13.81 relating to the 1, 5, & 7 of Table 4.1 of UL Subject 300A shall be one-quarter inch Disqualification of a Surveyor and simultaneously proposes new of peanut oil in lieu of 1 inch; §13.79 relating to the Appointment of Surveyor and §13.81 relating to the Disqualification of a Surveyor. Tex. Nat. Res. (II) The type and amount of oil in test numbers Code §51.178 relating to Appointment of Surveyor requires 2, 8, 11 & 13 of Table 4.1 of UL Subject 300A shall be one-half inch the General Land Office to promulgate rules setting out the of vegetable oil in lieu of 1 inch; qualifications and method of selection of surveyors. The rules (III) Test numbers 3, 4, 9, 10, & 12 of Table 4.1 must provide the greatest practicable opportunity for all qualified of UL Subject 300A, shall not be required. surveyors to obtain appointment. Also the rules must provide procedures for an interested party to move for the removal of (2) For those devices qualifying for the Category 2 an appointed surveyor on the grounds of bias, prejudice, or optional premium discount, the following phrases shall be printed conflict of interest. The statute allows removal of an appointed prominently on the exterior of the agent container, in the installation surveyor only upon notice to the surveyor and all interested manual and conveyed in any sales literature or presentations: persons and after hearing. The current §13.79 and §13.81 do (A) This device is not intended to extinguish deep fat not fully explicate these statutory requirements and so the new fires; §13.79 and §13.81 are necessary to comply with the specific direction in Tex. Nat. Res. Code §51.178. (B) When activated, this device may cause grease fires to splash; and The General Land Office proposes new §13.79 relating to Appointment of Surveyor. The purpose of the proposed (C) If the heat source of an appliance containing a fire new §13.79 is to provide more detailed procedures for the is not immediately shut off after discharge of this device, the fire may appointments of surveyors. The proposed new §13.79 lists reignite. the necessary qualifications of surveyors and requires notice (3) The manufacturer of the device requires the approved to all qualified surveyors to ensure the greatest practicable testing laboratory to send to the State Fire Marshal’s Office, a opportunity for appointment. The General Land Office is Certificate of Compliance, signed by a registered engineer, that proposing a new §13.79 because the current §13.79 may certifies the tested device meets the applicable approval criteria of unnecessarily restrict appointments to those surveyors who this section and that record copies of the test results will be kept have experience in the particular geographic area and who on file and provided to the State Fire Marshal’s Office upon written are located closest the alleged vacancy. These criteria may request. unduly limit the number of eligible surveyors for any particular
PROPOSED RULES May 26, 2000 25 TexReg 4711 appointment. The proposed §13.79(a) follows the statutory §13.81(f) governs the scope of the hearing to remove an requirements for eligibility: the surveyor must be a licensed appointed surveyor. The scope is narrow because the questions state land surveyor or a county surveyor in the county where the raised should be narrow, i.e. is there sufficient evidence of claimed vacancy is located. Proposed §13.79(b) details the new bias, prejudice, or conflict of interest to warrant removal of method for appointment. The statute mandates the greatest an appointed surveyor? The hearing should not become a practicable opportunity for appointment and, to effectuate that discovery device or a preview of issues related to the ultimate command, proposed §13.79(b)(1) requires the General Land question, i.e. whether a vacancy exists. Similarly facts related Office to notify all currently licensed state land surveyors about to the surveyor’s general competence or the quality of his work the opportunities for appointment under the vacancy statute at are not relevant to bias, prejudice or conflict of interest. Such least once a year. This subsection allows the Commissioner, issues can be raised as impeachment matters at the hearing in his discretion, to provide for wider dissemination of the on the merits of the vacancy application. notices of available appointment by utilizing the services of Section 13.81(h) clarifies that there is no appeal from the Com- the Texas Board of Professional Land Surveying. Further, for missioner’s determination on the petition for removal. The each appointment, a specific notice and copy of the vacancy statute does not provide for an appeal from a surveyor disqualifi- application shall be sent to all licensed state land surveyors cation decision and a challenge to the decision can be raised in and eligible county surveyors. §13.79(b)(3). Any potentially an appeal of the final vacancy determination. In Logan v. Arm- eligible surveyor may, at his option, withdraw his name from strong, 694 S.W.2d 68, the Corpus Christi Court of Appeals, consideration for appointments §13.79(b)(2). The factors listed construing the previous vacancy statute, discussed the general at §13.79(b)(4) allow the Commissioner to consider a wider rule of "final administrative order." The Court noted that unless range of factors not tied to location of the surveyor and so an administrative order is final, there is no appeal; an order is provide greater opportunity for all eligible surveyors. The final when it leaves nothing open for future disposition. At the section lists possible bias, prejudice and conflict of interest time of a petition to remove an appointed surveyor, the vacancy as factor for consideration in an appointment. The General proceeding is in its earliest stages. Under the current statutory Land Office may be able to avoid future motions for removal scheme, the ultimate issue, inter alia, remains after the hearing of a surveyor by making this inquiry at an earlier stage of the on removal of a surveyor. Accordingly there is no appeal from vacancy proceeding. the interlocutory order regarding the removal of a surveyor. Proposed new §13.81 relating to the Disqualification of a Proposed new §13.81(i), (j), and (k) define prejudice, bias Surveyor provides detailed procedures for seeking removal of and conflict of interest by listing the kinds of facts that may an appointed surveyor because of bias, prejudice, or conflict lead to removal of an appointed surveyor. The lists are not of interest. The section also defines bias, prejudice and intended to encompass all possible situations so the rules conflict of interest. The procedures provide time limits for allow the Commissioner to consider other relevant factors, e.g. seeking removal §13.81(a); the form and contents of petitions §13.81(i)(3). The definition of "relative" used in §13.81(j)(3) for removal §13.81(b)(1) and §13.81(b)(2) and §13.81(b)(3); is taken from the General Land Office Employee Handbook and specific statements of fact to support an allegation of bias, relating to nepotism. The conflict of interest section, §13.81(k) prejudice or conflict of interest §13.81(b)(4). The General Land uses the term "significant" when referring to benefit and financial Office is requiring affidavits of fact so that the seriousness of interest, e.g. §13.81(k)(1) and (2). The term "significant" was the removal petition may be properly evaluated at an early intentionally not defined so that the sound exercise of discretion, stage of the proceeding §13.81(b)(4). Motions for removal of judgment and common sense are not inhibited. Adoption of a an appointed surveyor should not be filed routinely but only rigid percentage or dollar amount automatically constituting a upon sufficient factual information. The stringency of §13.81(b) conflict of interest may not be meaningful in the context of a is necessary to avoid delay and unnecessary expense in the specific vacancy and may permit an injustice considering the vacancy proceeding. unique circumstances of a case. Similarly an objectively small Section 13.81(c) and §13.81(d) contain additional procedural percentage can be a significant amount of money in the context rules for notices and replies to petitions. The §13.81(d) reply of a mineral interest. Therefore, the General Land Office will be requirements are designed to minimize the paperwork and to flexible when evaluating whether the alleged interest or benefit is consolidate all challenges to a particular appointment in one considered significant enough to constitute a conflict of interest. proceeding. Thus §13.81(d)(2) allows an interested person Tex. Nat. Res. Code §51.178 is affected by these proposed to urge additional grounds for removal instead of requiring new rules. a new petition and a separate proceeding. An interested person’s failure to reply to a petition for removal does not have These rules are being proposed under Texas Nat. Res. any adverse effect so unnecessary paperwork is eliminated Code §51.178 which requires the Commissioner to promulgate §13.81(d)(4). §13.81(d)(3) allows the appointed surveyor to rules setting out the qualifications and method of selection of voluntarily renounce his appointment thereby eliminating the surveyors and to provide for the greatest practicable opportunity need for a hearing. In the event of such renunciation, the for all qualified surveyors to obtain appointment and to provide Commissioner begins the appointment process anew. the opportunity for an interested person to move for the removal of a surveyor. Agency counsel has reviewed these proposed Proposed new §13.81(e), (f), (g) and (h) describe the legal rules and has determined that the adoption of these rules is nature of the hearing, limit the scope of the hearing to the within the jurisdiction and the authority of the General Land facts alleged in affidavits, require a written decision, and limit re- Office. opening of the issues raised in the petition for removal. These sections are designed to expedite the vacancy proceeding by C.B. Thomson, Chief Surveyor for the General Land Office, disallowing collateral appeals, §13.81(h), and focus the hearing has determined that for each year of the first five years the on only the statutory bases for removal of a surveyor §13.81(f). proposed rules are in effect, there will be no fiscal impact on
25 TexReg 4712 May 26, 2000 Texas Register state and local government. Similarly there will be no effect on The proposed repealed rules affect chapter 51 of the Tex. Nat. costs to state and local government. Under the chapter 51 of Res. Code. 31 TAC §13.79 and §13.81. the Tex. Nat. Res. Code, the costs of vacancy proceedings §13.79. Appointment of Surveyor. are generally borne by the applicant and state and local governments are not responsible for any costs. The General §13.81. Disqualification of a Surveyor. Land Office’s costs in administering the proposed rules will be subsumed into ordinary operating expenses. There may be an This agency hereby certifies that the proposal has been re- increase in mailing costs as the General Land Office provides viewed by legal counsel and found to be within the agency’s greater notice about appointments of surveyors; however these legal authority to adopt. slight additional costs will not have a significant impact and are Filed with the Office of the Secretary of State, on May 12, 2000. required to comply with the statutory mandate. Mr. Thomson has determined that these proposed rules will not have any TRD-200003337 impact on revenue for state or local governments. These rules Larry Soward detail processes required by law and their implementation and Chief Clerk enforcement are part of the normal operating expenses of the General Land Office General Land Office Surveying Division. The administration and Earliest possible date of adoption: June 25, 2000 enforcement of these rules will not have any foreseeable effect For further information, please call: (512) 305-9129 on the revenues of state or local government. ♦♦♦ Mr. Thomson has also determined that for each year of the first five years these rules are in effect, the public benefit anticipated The new sections are proposed under the Natural Resources as a result of enforcing these rules will be enhanced access to Code, §51.178 which provides the General Land Office with appointment for all eligible surveyors. Also there will be a public the authority to administer the selection and appointment benefit in the streamlined procedure for motions to remove an of surveyors and the procedures for seeking removal of an appointed surveyor for bias, prejudice or conflict of interest. The appointed surveyor. procedures should result in shorter hearings that will minimize The proposed new rules affect chapter 51 of the Tex. Nat. Res. the costs to all parties in a vacancy proceeding. An analysis Code. of the probable economic costs to persons required to comply with the rule is not particularly applicable to these rules, which §13.79. Appointment of Surveyor. relate to procedures for the General Land Office and for persons (a) Qualifications of Appointed Surveyor: A surveyor is seeking to remove an appointed surveyor. For persons seeking eligible for appointment if the surveyor is a licensed state land to remove an appointed surveyor, the streamlined procedures surveyor (LSLS) or a county surveyor for the county in which should lessen the costs of the vacancy proceeding. There will the alleged vacancy is situated, and is licensed pursuant to the be no adverse effect on small businesses or micro-businesses. Professional Land Surveying Practices Act, Article 5282c, Vernon’s There may be a benefit to surveying businesses that previously Texas Civil Statutes. did not have a practicable opportunity to participate in the General Land Office appointment process. There will be no (b) Method of Selection of an Appointed Surveyor. impact on local employment. (1) The Commissioner shall obtain the roster of all Comments on the proposed rules may be submitted to Ms. LSLS’ currently licensed with the Texas Board of Professional Melinda Tracy, Texas Register Liaison, General Land Office, Land Surveying and notify them annually of their eligibility for P.O. Box 12873, Austin, Texas 78711, within 30 days of pub- appointment pursuant to Tex. Nat. Res. Code 51.179. The lication in the Texas Register. Commissioner may seek the assistance of the Texas Board of Professional Land Surveying in providing the greatest practicable The General Land Office has prepared a takings impact assess- opportunity for all qualified surveyors to obtain appointment. ment for these proposed rules and has determined that the pro- posed rules do not constitute a taking of private real property (2) Any surveyor so notified may advise the Commis- within the meaning of chapter 2007, Government Code. For a sioner, by first class U.S. mail, that he is not interested in such ap- copy of the takings impact assessment, please send a written pointments and does not want future notices. request to Ms. Tracy. (3) The Commissioner shall notify, by first-class U.S. The proposed rules are not subject to consistency review under mail, all LSLS’, who have not declined appointments pursuant to the Texas Coastal Management Plan. Texas Nat. Res. Code subsection (b)(2), and any eligible county surveyors when a surveyor §33.2051 and §33.2051 list the state agency actions subject to is required for a vacancy application. A copy of the application shall consistency review and rules related to vacancy proceedings be included with the notice. are not among those actions. (4) The Commissioner will consider the following factors (Editor’s note: The text of the following sections proposed for repeal when appointing a surveyor: will not be published. The sections may be examined in the offices of the General Land Office or in the Texas Register office, Room 245, (A) the estimated dollar amount, including expenses, James Earl Rudder Building, 1019 Brazos Street, Austin.) of the proposal; The repeals are proposed under the Natural Resources Code, (B) the surveyor’s ability to meet statutory timelines; §51.178 which provides the General Land Office with the au- (C) the surveyor’s familiarity with historical surveys; thority to administer the selection and appointment of surveyors and the procedures for seeking removal of an appointed sur- (D) the surveyor’s prior experience conducting surveys veyor. of similar complexity or character;
PROPOSED RULES May 26, 2000 25 TexReg 4713 (E) whether the surveyor is a former employee of the urges additional grounds for removal shall comply with the affidavit General Land Office and subject to the restriction in Government requirements of §13.81(b)(4). Code §572.054; (3) Failure to submit a reply to the petition shall not be (F) whether the surveyor may be biased, prejudiced or deemed an admission of or agreement with any allegation in the have a conflict of interest as described in 31 TAC §13.81; and petition. The Commissioner shall not consider failures to reply in determining whether a surveyor should be removed. (G) any other factor the Commissioner deems relevant to the quality of the work required. (4) The appointed surveyor may renounce his appointment by notifying the Commissioner of the General Land Office who will (c) Notification of Appointment. The Commissioner shall then notify all interested persons. If the surveyor so renounces, the notify all interested persons of the appointment of a surveyor pursuant petition for removal is moot and the Commissioner shall appoint Tex. Nat. Res. Code §51.179. another surveyor pursuant to Tex. Nat. Res. Code §51.178. §13.81. Disqualification of a Surveyor. (5) A reply to a petition for removal of an appointed (a) Petition for Removal. surveyor shall be in the same form, and comply with the requirements for a petition set forth in subsections (b) and (c). (1) Any interested person may petition the Commissioner for the removal of an appointed surveyor because of bias, prejudice, (e) Hearing. A hearing conducted pursuant to Tex. Nat. or conflict of interest. Res. Code, §51.178 shall conform to the requirements of that section and the applicable provisions of the Texas Administrative Procedures (2) The petition must be post marked no later than the ten Act, Government Code, §2001.001 et seq., the General Land Office days after notice to interested persons under Tex. Nat. Res. Code hearing rules at 31 T.A.C. chapter 2, and any other applicable law. §51.179 is complete. (f) Scope of Hearing. The hearing shall be limited to matters (3) Any petition for removal of an appointed surveyor relevant to bias, prejudice or conflict of interest. Evidence is not must comply with the time limits in this section. The Commissioner relevant to bias, prejudice or conflict of interest and is not admissible will not consider petitions for removal or reply to petitions not timely at a hearing to determine whether the surveyor should be removed if received. it: (b) Form and Contents of Petition. A petition to the (1) relates to the surveyor’s professional competence or Commissioner for removal of an appointed surveyor shall be in judgment; writing and shall contain the following information: (2) relates to the substantive surveying issues in the (1) The name and address of the interested person and a vacancy proceeding; succinct statement of the basis of the person’s status as an interested person pursuant to the definition in Tex. Nat. Res. Code §51.172(5). (3) relates to the surveyor’s compliance with Article 5282c, Vernon’s Texas Civil Statutes or any technical standards (2) The style, including the number assigned by the promulgated thereunder; or General Land Office, of the pending vacancy application and the name of the surveyor. (4) relates to procedural irregularities in the appointment of the surveyor. (3) The petition shall be limited to fifteen standard 8 1/ 2 by 11 inch pages and shall be typewritten in font no smaller (g) Commissioner’s Determination. The Commissioner shall than 12 points. In addition to the affidavits required by subsection issue his written decision within sixty days of the close of the hearing (b)(4), other relevant documents and evidence may be appended to the and a copy will be sent, by first class, U.S. Mail, to the surveyor, the petition. The total number of appended pages, including affidavits, person seeking disqualification, and all other interested persons. shall not exceed twenty-five. The Commissioner may, upon request (h) Reconsideration and Appeal. No petition to remove a and for good cause, allow additional pages. surveyor shall be re-opened or re-urged unless the Commissioner (4) An allegation that the appointed surveyor exhibits bias, finds that relevant facts, which could not have been discovered timely is prejudiced or has a conflict of interest and the factual basis for through due diligence, compel re-opening or re-urging to avoid a such claim or claims. Each allegation shall clearly state whether it is gross injustice. The Commissioner’s decision regarding the removal founded on bias, prejudice or conflict of interest. Affidavits alleging of a surveyor is not a final administrative order and is not subject to facts in support of each allegation must be appended to the petition. appeal. The Commissioner may summarily deny any petition that does not (i) Prejudice. The Commissioner will consider the following include such affidavits. factors to determine whether an appointed surveyor should be (c) Notices. Interested persons seeking removal of the disqualified because of prejudice. surveyor shall provide a copy of the petition to the surveyor and all (1) The surveyor has made known to another person orally other interested persons by first class U.S. Mail sent simultaneously or in writing a personal animus against interested persons or against with the petition to the Commissioner. their position in the vacancy proceeding. (d) Reply to Petition. (2) The surveyor has made known to another person orally (1) The surveyor, any interested persons and the General or in writing a personal preference for interested persons or for their Land Office may reply to the petition within 20 days of the date of position in the vacancy proceeding. the notice of the petition. (3) Any other facts relevant to the prejudice alleged by an (2) A reply petition may be filed for the purpose of interested person seeking removal. joining in or urging further grounds for disqualification. A reply that
25 TexReg 4714 May 26, 2000 Texas Register (j) Bias. The Commissioner will consider the following performance of his services, including the rendition of an independent factors to determine whether an appointed surveyor should be judgment, under the appointment. disqualified because of bias. (2) The surveyor agrees to accept any significant benefit, (1) The surveyor has made known to another person orally financial or otherwise, or has accepted any significant benefit, or in writing an opinion, not based upon or supported by his work as financial or otherwise, from any person interested in the outcome a surveyor, regarding the existence of the vacancy at issue. of the survey. Neither the acceptance of an appointment nor receipt of funds from a person required to pay for the survey constitutes a (2) The surveyor is a relative of an interested person, conflict of interest requiring removal. the Land Commissioner or an employee of the General Land Office who participates in vacancy determinations. For purposes of (3) The surveyor is a relative of any person who has a this subsection, "participates" means decides, approves, disapproves, significant direct or indirect financial interest in the determination recommends, gives advice, investigates, influences or takes other of the vacancy application or in any project or enterprise dependent similar action. upon the final determination on the vacancy application. Relative is defined in §13.81(j)(3). (3) For purposes of this subsection a "relative" is: a person’s parent or child; (4) For purposes of this subsection, financial interest includes ordinary investments, real property interests, including (A) a person’s grandparent, grandchild, brother or contingent or conditional interests, and other ordinary interests which sister; a person’s great-grandparent, great-grandchild, uncle who is monetarily benefit the surveyor or his estate presently or in the a brother of a parent, aunt who is the sister of a parent, or a nephew reasonably foreseeable future. or niece who is the child of a sister or brother (person within the third degree of consanguinity (blood) kinship); or a person’s spouse, or the (5) Any other facts relevant to the conflict of interest spouse’s parent, child, grandchild, brother, or sister; or the spouse of alleged by an interested person seeking removal. anyone related to the person as specified above (person within the This agency hereby certifies that the proposal has been re- second degree by affinity (marriage) kinship). viewed by legal counsel and found to be within the agency’s (B) Adopted and stepchildren are treated as the natural legal authority to adopt. children of the adoptive parents. Filed with the Office of the Secretary of State, on May 12, 2000. (C) Any other facts relevant to the bias alleged by an TRD-200003338 interested person seeking removal. Larry Soward (k) Conflict of Interest. The Commissioner will consider the Chief Clerk following factors to determine whether an appointed surveyor should General Land Office be disqualified because of conflict of interest. Earliest possible date of adoption: June 25, 2000 (1) The surveyor has a significant financial or other For further information, please call: (512) 305-9129 interest in the outcome of a vacancy proceeding that may influence the ♦♦♦
PROPOSED RULES May 26, 2000 25 TexReg 4715 WITHDRAWN RULES An agency may withdraw a proposed action or the remaining effectiveness of an emergencyaction by filing a notice of withdrawal with the Texas Register. The notice is effective immediately upon filling or 20 days after filing as specified by the agency withdrawing the action. If a proposal is not adopted or withdrawn within six months of the date of publication in the Texas Register, it will automatically be withdrawn by the office of the Texas Register and a notice of the withdrawal will appear in theTexas Register. TITLE 7. BANKING AND SECURITIES State Securities Board has been automatically withdrawn. The amended section as proposed appeared in the October 29, Part 7. STATE SECURITIES BOARD 1999 issue of the Texas Register (24 TexReg 9447). Chapter 105. RULES OF PRACTICE IN CON- Filed with the Office of the Secretary of State on May 16, 2000. TESTED CASES TRD-200003406 ♦♦♦ 7 TAC §105.14 Pursuant to Texas Government Code, §2001.027 and 1 TAC §91.65(c)(2), the proposed amended section, submitted by the
WITHDRAWN RULES May 26, 2000 25 TexReg 4717 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 the rules adopted by the OAG. Section 2260.052(c) also directs the OAG and the SOAH to provide model rules for Part 3. OFFICE OF THE ATTORNEY negotiation and mediation that units of state government with rulemaking authority may voluntarily adopt or modify as they GENERAL deem appropriate and that units of state government without rulemaking authority may use as a practice guide. The model Chapter 68. NEGOTIATION AND MEDIATION rules have no force and effect in and of themselves and are OF CERTAIN CONTRACT DISPUTES merely offered as a framework for agencies with rulemaking authority to consider while drafting their rules. The model The Office of the Attorney General ("OAG") adopts new Chapter rules can be found by visiting the Site Index at the OAG’s 68, Subchapters A-C, §§68.1, 68.3, 68.5, 68.7, 68.21, 68.23, website, http://www.oag.state.tx.us. Additionally, the model 68.25, 68.27, 68.29, 68.31, 68.33, 68.35, 68.37, 68.47, 68.49, rules were published in the March, 31 2000, issue of the 68.51, 68.53, 68.55, 68.57, 68.59, 68.61, without changes to Texas Register (25 TexReg 2833). An interagency dispute the proposed text as published in the March 31, 2000, issue resolution working group, co-sponsored by the OAG and the of Texas Register (25 TexReg. 2728) relating to procedures Center for Public Policy Dispute Resolution at the University for the negotiation and mediation of certain breach of contract of Texas School of Law and consisting of representatives of claims asserted by contractors against the State of Texas state agencies, legislative offices, and institutions of higher pursuant to §9 of House Bill 826, 76th. Leg., R.S., Chapter 68 education and representatives of contractors and vendors who (1999)(codified at Government Code, Chapter 2260) and will do business with the state, assisted the OAG and SOAH with not be republished. the development of both sets of rules. Historically, the State of Texas has been immune from suit on The adopted rules provide a process sufficiently flexible to a contract on the basis of sovereign immunity. Contractors permit the parties to structure a negotiation or mediation in seeking to assert and recover damages on a breach of contract a manner that is most appropriate for a particular dispute claim had to obtain legislative consent to sue and a legislative regardless of such variables as the size or organization of appropriation to satisfy any resulting judgment. With the the contracting unit of state government, or the contract’s enactment of Chapter 2260, the legislature has established a complexity, subject matter, dollar amount, or method and time new and exclusive administrative process by which a contractor of performance. who enters into a written contract with a unit of state government for goods, services or projects, may pursue a breach of contract Adopted Chapter 68 is organized into Subchapter A, B, and claim for damages. Chapter 2260 requires a contractor who C. Subchapter A (General, §§68.1, 68.3, 68.5, and 68.7.) asserts a breach of contract claim and the contracting unit of Section 68.1 states that Chapter 68 governs the negotiation state government to attempt to resolve the contractor’s claim and mediation of claims of breach of contract asserted by a and any counterclaim through negotiation, and authorizes, but contractor against a unit of state government. Section 68.3 does not require, the parties to mediate their dispute. If defines terms as they relate to this chapter. Section 68.5 the contractor’s claim is not resolved in its entirety within the provides that the procedures in Chapter 68 are prerequisites to statutory time frame, the contractor may request a contested filing suit under Civil Practice & Remedies Code, Chapter 107 case hearing before the State Office of Administrative Hearings and Government Code, Chapter 2260. Section 68.7 advises ("SOAH"). Chapter 2260 authorizes the SOAH administrative that the state has not waived sovereign immunity to suit or to law judge to render a non-appealable decision ordering the unit liability. of state government to pay damages up to $250,000. If the Subchapter B, (Negotiation of Contract Disputes, §§68.21, contractor’s claim exceeds $250,000, Chapter 2260 requires 68.23, 68.25, 68.27, 68.29, 68.31, 68.33, 68.35, and 68.37.) the administrative law judge to issue a written report of his or Section 68.21 sets out the requirements and procedures of the her findings to the legislature, recommending that the legislature notice of claim of breach of contract that contractor must assert. either appropriate money to pay all or part of a valid claim or Section 68.23 sets out the requirements and procedures of the deny such appropriation and withhold consent to sue. counterclaim that the unit of state government must assert. Section 2260.052(c) requires that the OAG and the units of Section 68.25 announces that the parties must negotiate to state government with rulemaking authority adopt rules to settle the dispute. Section 68.27 provides a timetable as it establish negotiation and mediation provisions. The units relates the negotiations between the contractor and the unit of of state government without rulemaking authority must follow state government. Section 68.29 describes how the parties may
ADOPTED RULES May 26, 2000 25 TexReg 4719 conduct the negotiation. Section 68.31 addresses the parties’s The new Chapter 68 is adopted under Government Code, settlement approval procedures. Section 68.33 announces the Chapter 2260, Resolution of Certain Contract Claims against requirements of any resulting settlement agreement. Section the State, §2260.052, which authorizes the OAG to adopt rules 68.35 states how the costs of negotiations shall be handled by deemed necessary or advisable to effectuate Chapter 2260 the parties. In the event, the breach of contract claim is not and which requires the OAG, through coordinated efforts with resolved in its entirety, §68.37 specifies the process by which a the SOAH, to develop rules which shall govern each unit of contractor may seek resolution of the dispute by SOAH. state government without rulemaking authority and to develop model rules for negotiation and mediation under this chapter Subchapter C, (Mediation of Contract Disputes §§68.47, 68.49, for voluntary adoption by the units of state government with 68.51, 68.53, 68.55, 68.57, 68.59, and 68.61.) Section 68.47 rulemaking authority. sets the parameters for mediation by a neutral third party of breach of contract claims and counterclaims. Section The adopted new chapter affects Texas Government Code, 68.49 discusses the qualifications, immunities, and duties of Chapter 2260. a mediator. Section 68.51 pertains to the confidentiality of a This agency hereby certifies that the adoption has been re- mediation and any resulting final settlement agreement. Section viewed by legal counsel and found to be a valid exercise of the 68.53 states how the costs of mediation shall be handled by agency’s legal authority. the parties. Section 68.55 addresses the parties settlement approval procedures. Section 68.57 details the handling of any Filed with the Office of the Secretary of State on May 11, 2000. resulting settlement agreement. Section 68.59 states that a TRD-200003333 final settlement agreement must comply with the provisions of Elizabeth Robinson §68.33 of this chapter. Section 68.61 provides that if mediation does not resolve the dispute the contractor may request that Assistant Attorney General the claim be referred to SOAH in accordance with §68.37 of Office of the Attorney General this chapter. Effective date: May 31, 2000 Proposal publication date: March 31, 2000 No comments were received regarding adoption of these new For further information, please contact A. G. Younger at (512) 463- sections. 2110 Subchapter A. GENERAL ♦♦♦ 1 TAC §§68.1, 68.3, 68.5, 68.7 Subchapter C. MEDIATION OF CONTRACT The new Chapter 68 is adopted under Government Code, Chapter 2260, Resolution of Certain Contract Claims against DISPUTES the State, §2260.052, which authorizes the OAG to adopt rules 1 TAC §§68.47, 68.49, 68.51, 68.53, 68.55, 68.57, 68.59, deemed necessary or advisable to effectuate Chapter 2260 68.61 and which requires the OAG, through coordinated efforts with the SOAH, to develop rules which shall govern each unit of The new Chapter 68 is adopted under Government Code, state government without rulemaking authority and to develop Chapter 2260, Resolution of Certain Contract Claims against model rules for negotiation and mediation under this chapter the State, § 2260.052, which authorizes the OAG to adopt rules for voluntary adoption by the units of state government with deemed necessary or advisable to effectuate Chapter 2260 rulemaking authority. and which requires the OAG, through coordinated efforts with the SOAH, to develop rules which shall govern each unit of The adopted new chapter affects Texas Government Code, state government without rulemaking authority and to develop Chapter 2260. model rules for negotiation and mediation under this chapter This agency hereby certifies that the adoption has been re- for voluntary adoption by the units of state government with viewed by legal counsel and found to be a valid exercise of the rulemaking authority. agency’s legal authority. The adopted new chapter affects Texas Government Code, Filed with the Office of the Secretary of State on May 11, 2000. Chapter 2260. TRD-200003332 This agency hereby certifies that the adoption has been re- Elizabeth Robinson viewed by legal counsel and found to be a valid exercise of the Assistant Attorney General agency’s legal authority. Office of the Attorney General Filed with the Office of the Secretary of State on May 11, 2000. Effective date: May 31, 2000 TRD-200003334 Proposal publication date: March 31, 2000 Elizabeth Robinson For further information, please contact A. G. Younger at (512) 463- Assistant Attorney General 2110 Office of the Attorney General ♦♦♦ Effective date: May 31, 2000 Subchapter B. NEGOTIATION OF CONTRACT Proposal publication date: March 31, 2000 For further information, please contact A. G. Younger at (512) 463- DISPUTES 2110 1 TAC §§68.21, 68.23, 68.25, 68.27, 68.29, 68.31, 68.33, ♦♦♦ 68.35, 68.37 TITLE 16. ECONOMIC REGULATION
25 TexReg 4720 May 26, 2000 Texas Register Part 3. TEXAS ALCOHOLIC BEVER- The Texas Alcoholic Beverage Commission adopts amend- ments to §50.2 with changes to the text as originally published AGE COMMISSION in the March 24, 2000, edition of the Texas Register, (25 TexReg 2510-2511). This rule relates to definitions of terms used in the Chapter 50. ALCOHOL AWARENESS AND commission’s rules regulating seller-server training programs in EDUCATION Texas. Amendments to §50.2(a)(2) and (a)(2)(B) were adopted solely to conform references to other statutes in the rule to re- 16 TAC §50.1 cent changes in those statutes. Amendment to §50.2(a)(5) was The Texas Alcoholic Beverage Commission adopts amend- adopted to conform the language of that provision with the new ments to §50.1 without changes to the text as originally pub- language of §50.2(a)(4). lished in the March 24, 2000, edition of the Texas Register,(25 Paragraph 50.2(a)(4) was amended to define "employee" rather TexReg 2510). than "seller or server." The definition was expanded so that im- The adopted amendments substitutes the word "employees" for mediate supervisors, as well as the actual servers of alcoholic the word "sellers" to more accurately conform the statement beverages, are included within the scope of the commission’s of purposes for subsequent rules to amendments to those rules relating to seller-server training programs. The effect of rules contemporaneously adopted. The amendment particularly this definition is that in order to obtain the defense to adminis- conforms the language of this rule to that of new §50.2(a)(4). trative prosecution and civil dram shop liability as provided in The amendments also add a more accurate statement of the §106.14 of the Alcoholic Beverage Code, retail dealers of alco- purposes underlying the commission’s rules relating to server holic beverages must secure training for both supervisors and training programs. servers. There were no comments received regarding these amend- Information before the commission indicates that the establish- ments. ments most successful at avoiding sales to minors and intoxi- cated patrons are those in which a strong and informed com- These amendments are adopted under Alcoholic Beverage mitment to avoid unlawful sales exists in both management and Code, §5.31 and §106.14, which provides the commission with staff. One way to provoke this commitment is through partici- the authority to prescribe and publish rules necessary to carry pation in seller-server training programs. The commissioners, out the provisions of the Alcoholic Beverage Code. therefore, concluded that requiring supervisors and servers to Cross Reference: Alcoholic Beverage Code, §106.14, is af- attend training courses is a reasonable way to minimizing the fected by this rule. number of unlawful sales of alcoholic beverages in the state. §50.1. Purpose. The Texas Package Stores Association suggested that the rule should be amended to allow retailers to designate to the com- The purpose of this subchapter is: mission which employees should be considered "immediate su- (1) to establish the minimum substantive and procedural pervisors" thereby avoiding disputes over which employees are requirements for approval of seller training programs as authorized appropriate subjects of training. The commission disagreed with by the Texas Alcoholic Beverage Code, §106.14; this suggestion for two reasons. First, in the great majority of cases, there is little dispute about which employee qualifies as (2) to establish eligibility, requirements, and procedures an "immediate supervisor." Therefore, the designation proce- for conducting seller training programs; dure suggested is an unnecessary complication to administra- (3) to establish eligibility, requirements, and procedures tion of the body of regulations. Second, under that procedure, for certification of trainers and employees by the commission; it would be possible for retailers to designate as "immediate su- pervisors" employees who actually have little interaction with the (4) to establish requirements and procedures calculated to provision of alcoholic beverages. The commission concluded modify behavior of trainees; and that the best approach is to allow retailers to determine which (5) to establish requirements calculated to deter future employees are subject to server training rules, that determina- violations of the Texas Alcoholic Beverage Code by the licensees tion being subject to challenge in contested case procedures. or permittees. Prior to publication of these proposed amendments, the com- This agency hereby certifies that the adoption has been re- mission informally published proposed amendments to inter- viewed by legal counsel and found to be a valid exercise of the ested parties. These proposals extended to definition of "em- agency’s legal authority. ployees" to all employees of a retailer. A number of trade asso- ciations objected to this proposal, pointing out that such a rule Filed with the Office of the Secretary of State on May 10, 2000. would require persons with no connection to the provision of al- TRD-200003278 coholic beverages to attend server training schools. The com- Doyne Bailey mission found these objections to be well taken and amended Administrator its definition to extend only to sellers and serves of alcoholic Texas Alcoholic Beverage Commission beverages and their immediate supervisors. Effective date: May 30, 2000 Paragraph (c) of the rule was adopted in order to give the Proposal publication date: March 24, 2000 industry, regulated schools and commission staff a reasonable For further information, please call: (512) 206-3204 time to become familiar with, and make accommodation for, the ♦♦♦ amendments to this rule. The Alcoholic Beverage Training, Will Train Will Travel and 16 TAC §50.2 TABSS/Metroplex Companies commented in favor of the rule.
ADOPTED RULES May 26, 2000 25 TexReg 4721 These amendments are adopted under Alcoholic Beverage For further information, please call: (512) 206-3204 Code, §5.31 and §106.14, which provides the commission with ♦♦♦ the authority to prescribe and publish rules necessary to carry out the provisions of the Alcoholic Beverage Code. 16 TAC §50.3 Cross Reference: Alcoholic Beverage Code, §106.14, is af- The Texas Alcoholic Beverage Commission adopts amend- fected by this rule. ments to §50.3 with changes to the text as originally published in the March 24, 2000, edition of the Texas Register, (25 TexReg §50.2. Definitions and Construction. 2511-2514). This rule relates to the required content of seller- (a) The following words and terms, when used in this chapter, server training programs and the procedures for obtaining the shall have the following meanings, unless the context clearly indicates approval of the commission for such programs. otherwise. Several provisions of the rule were amended to change the (1) Customer–A person, patron or member of an estab- phrase "seller-server" to "employee." This was done in order to lishment where the certified trainee is an agent or employee. The harmonize the language of this rule with the definition provided term is not limited to persons who have been sold or served alcoholic in §50.2(a)(4). Other provisions of the rule were added to allow beverages by an agent or employee of the establishment. various determinations previously made by the administrator to be made by the administrator or his/her designee. This (2) Intoxication–As that term is defined in the Texas Penal amendment allows for more efficient and timely handling, by the Code, §49.01, to wit: commission staff, of the determinations in question. Paragraph (A) not having the normal use of mental or physical (i)(4) of the rule was amended to reflect a more accurate faculties by reason of the introduction of alcohol, a controlled reference to relevant provisions in the Texas Transportation substance, a drug, or a combination of two or more of those Code. No comments were received about these amendments. substances into the body; or Paragraph (e) of the rule was amended to alter the text of (B) having an alcohol concentration of 0.08 or more. the rule as originally published in the Texas Register. This (Alcohol concentration means: the number of grams of alcohol per amendment was adopted to remove restrictions limiting the 100 milliliters of blood; the number of grams of alcohol per 210 kind of trade association that can provide server training to liters of breath; or the number of grams of alcohol per 67 milliliters its members. The commission concluded that the restrictions of urine.) removed from the rule were not necessary to further the public interest. No comments were received about this amendment. (3) Program–Seller training program, as that term is used in the Texas Alcoholic Beverage Code, §106.14. Paragraph (h) was amended to change the required study, observation and practice teaching time for program trainers (4) Employee–One who sells, serves, dispenses or delivers from eight to 12 hours. Several commenters agreed with alcoholic beverages under the authority of a license or permit, this amendment, although one suggested that further definition including persons who immediately manage, direct, supervise, or should be given of the type of study required of trainers. The control the sale or service of alcoholic beverages. Employee does not commission concluded this suggestion was unnecessary in that include officers of a corporate permittee/licensee who do not manage, schools regulated by this rule may best determine what type of direct, supervise or control the sale or service of alcoholic beverages. study best prepares its trainers to carry out the provisions of (5) Student or trainee An employee attending or partici- this chapter. pating in a seller training program. Paragraph (i) of the rule was altered to add various items to the (b) Each word and term used in this chapter shall have the content of server training courses, such as an explanation of the meaning given to it by: effects of alcohol poisoning, the social costs of alcohol abuse, the administrative sanctions that may be applied to retailers (1) a definition in this chapter; or and their employees, methods of monitoring and intervening (2) a definition in the Texas Alcoholic Beverage Code; or in cases of drink tampering. The requirement that schools offer instruction about alcoholism was omitted from the rule. (3) a definition in the Texas Penal Code, Titles 1, 2, or 3; or The commission determined that the study of alcoholism as a disease was not necessary to the primary goal of server (4) the common dictionary definition. training which is to teach members of the alcoholic beverage (c) The amendments to this rule adopted on April 24, 2000, industry how to avoid unlawful sales and service to minors shall become effective on September 1, 2000. and intoxicated persons. Similarly, the items added to the required course content directly address problems faced by This agency hereby certifies that the adoption has been re- those engaged in selling or serving alcoholic beverages to viewed by legal counsel and found to be a valid exercise of the consumers. Instruction about the social costs of alcohol agency’s legal authority. abuse and the administrative sanctions that may be levied Filed with the Office of the Secretary of State on May 10, 2000. against retailers and their employees is calculated to promote ongoing commitment by trainees to avoid unlawful sales in their TRD-200003279 establishments. Doyne Bailey Administrator Several commenters suggested that instruction about drink tam- Texas Alcoholic Beverage Commission pering was not productive. The commission disagreed. Drink tampering may happen between patrons of an establishment. Effective date: September 1, 2000 Evidence of such activity may well become apparent to the em- Proposal publication date: March 24, 2000
25 TexReg 4722 May 26, 2000 Texas Register ployees of that establishment so that steps may be taken to (d) A licensee or permittee may be a member of an advisory avoid the dangerous consequences of this conduct. board, but not the governing board of a nonprofit agency which sponsors a seller training program. One commenter suggested that the required course content be increased to include instruction regarding the law of driving (e) A bona fide state retail trade association qualified under while intoxicated and driving under the influence of alcohol this section may train personnel of its own regular membership by a minor. The commission disagreed with this suggestion and non-members of the retail alcoholic beverage industry. For because, beyond instruction about the statutory definition of the purposes of this subsection, package stores which hold local intoxication, such topics are beyond the scope of server training distributor’s permits, and private clubs, shall be considered to be courses. Comment was further made that instruction should be retailers. State retail trade associations may also train individual provided in several types of practices, designed to minimize members of the general public. To qualify under this subsection unlawful sales, that may be employed by retailers. The a retail trade association must: commission found this unnecessary in as such instruction (1) be an organization whose retail members employ at is frequently provided by server training schools. Further, least 150 persons at anyone time during the calendar year who sell, individual retailers are in the best position to determine which serve, or prepare alcoholic beverages; internal policies best suit their business. Finally, a retailer’s failure to adopt responsible policies may result in denial of (2) not be composed of more than 50% of the retail the defense to administrative and civil liability under the terms members of a particular retail chain; of §50.10(d). The commission concluded that this provides (3) not be composed of more than 50% of the trainable incentive to retailers to develop responsible policies. employees from a particular retail chain. Paragraph (j) of the rule was amended to raise the fee for (f) Persons engaged in the manufacturing or wholesaling of original applications for program approval to $1,000.00, with alcoholic beverages for national distribution may contribute to the subsequent renewal fees being $500.00, from $250.00. Several development of a curriculum of seller training being developed for commenters objected to this increase as too high, although national use; provided, that any such contribution or involvement shall several supported it as a method of excluding poorly equipped not be directly or indirectly tied to the actual offering of training to and prepared training providers. The commission concluded employees of any retailer, group of retailers, or the general public. that the increase was necessary to recoup increased staff Such involvement by an alcoholic beverage manufacturer shall be and overhead costs related to administering the server training in a primarily noncommercial manner consistent with the spirit and program. intent of the provisions of the Texas Alcoholic Beverage Code and Finally, the commission added paragraph (o) to the rule. This the rules of the commission prohibiting the tied-house and prohibiting amendment was not reflected in the proposed amendments as the furnishing of things of value to a retailer of alcoholic beverages. originally published in the Texas Register. This amendment was (g) No licensee, permittee, or other person engaged in the adopted to allow time for the members of the server training manufacturing or wholesaling level of the alcoholic beverage industry, industry to learn of, and adapt to, changes in this rule. or any agent, servant, or employee of any of those, may directly or These amendments are adopted under Alcoholic Beverage indirectly conduct or sponsor a seller training program for retail level Code, §5.31and §106.14, which provides the commission with employees or members of the general public. the authority to prescribe and publish rules necessary to carry (h) Each application shall be accompanied by a full and out the provisions of the Alcoholic Beverage Code. complete copy of the curriculum, including a copy of all materials Cross Reference: Alcoholic Beverage Code, §106.14, is af- to be used therewith, including workbooks, videos, handouts, and fected by this rule. examinations as required by the commission. The curriculum and other materials shall be indexed and labeled in detail to indicate the §50.3. Application for Program Approval. location of all of the requirements for program approval specified in (a) Application for program approval shall be made by the this chapter. The amount of time allocated to cover each segment person, corporation or other entity who will administer and supervise of the curriculum shall be specified with a minimum of 200 minutes the actual teaching of the program to Texas employees. The of instruction required excluding breaks and the exam. Programs commission specifically finds that the training entity or school is utilizing a different format from lecturing will be evaluated case an inseparable part of the seller training program. The integrity by case. Each application shall also be accompanied by a trainer and ability of the people directly engaged in the administration, development program which includes a minimum of 12 hours of study supervision and training of the curriculum to seller trainees are an time, 12 hours of observation and 12 hours of practice teaching in integral part of the program contemplated by the Texas Alcoholic front of an audience. The initial trainer for a school-program may Beverage Code, §106.14. Therefore, a curriculum, alone, is not substitute the 12 hours of observation for an additional 12 hours of eligible for approval. practice teaching (with or without a live audience). (b) Application for approval shall be made on forms provided (i) The program shall include: by the commission. (1) §50.2(a)(2) of this title (relating to the Definition of (c) No licensee or permittee, or his spouse, agent, servant, Intoxication); or employee, or any subsidiary or affiliate, may directly or indirectly (2) the law pertaining to intoxicated persons. Each ap- conduct, sponsor, or support a seller training program approved under proved seller training program shall review and explain all provisions this chapter except as provided in the Texas Alcoholic Beverage Code, of the Texas Alcoholic Beverage Code pertaining to intoxicated per- §106.14(c) and (d). sons and provisions of the Texas Penal Code pertaining to public intoxication and shall include a discussion of any significant court decisions or opinions of the attorney general of Texas which the
ADOPTED RULES May 26, 2000 25 TexReg 4723 administrator or administrator’s designee may from time to time de- (i) the development of any indicator of intoxication termine to be appropriate; other than the smell of alcoholic beverages on the breath; (3) the law pertaining to minors. Each approved seller (ii) any continuing argument or physical confronta- training program shall review and explain all provisions of the Texas tion with any person; Alcoholic Beverage Code relating to the sale or service of alcoholic (iii) any rapid or pronounced change in mood or beverages to minors, the provisions of the code relating to purchase, emotional state such as excessive euphoria, sadness, confusion, possession or consumption of alcoholic beverages by minors and the excitability or aggressiveness. provisions of the code relating to a person making alcoholic beverages available to a minor or permitting a minor to possess or consume (7) physiology. alcoholic beverages and shall include a discussion of any significant (A) Each approved seller training program shall in- court decisions or opinions of the attorney general of Texas which clude a basic explanation of how the human body reacts to the inges- the administrator or administrator’s designee may from time to time tion of beverage alcohol. It shall use simple language and concepts. determine to be appropriate; It shall explain the effect of variables including body weight and type, (4) the law pertaining to proper identification. Each ap- gender, muscle/fat ratios, type and timing of food consumption, fa- proved seller training program shall review and explain the Texas tigue, and common diseases or disorders. It shall explain how alcohol laws pertaining to false, counterfeit, or deceptively similar identi- can interact with many types of medicines and other drugs. fication documents including, specifically, the Texas Transportation (B) Each program shall include a basic discussion of Code, §§521.121, 521.123, 521.451, 521.453, 521.454, 521.456 and the types and amounts of social costs caused by alcohol abuse. 521.461, and shall include a discussion of any significant court deci- sions or opinions of the attorney general of Texas which the admin- (C) Each program shall describe the Know Your Lim- istrator or administrator’s designee may from time to time determine its Chart developed by the Distilled Spirits Council of the United to be appropriate; States, Inc., or a similar chart, and provide a copy of the chart. (5) detection of intoxication. (D) Each program shall include information concern- ing alcohol poisoning as a danger. (A) Each approved seller training program shall ex- plain how to detect possible intoxication. It shall describe the com- (8) detection of minors. mon indicators including, but not limited to, slurred speech, mental (A) Each approved seller training program shall ex- confusion, impaired balance, impaired motor ability, bloodshot eyes, plain techniques for determining if a customer is a minor. It shall the smell of alcoholic beverages on the breath, dishevelment, nausea explain the common signs of underage status including lack of phys- and signs of lost control of bladder or bowels. The program shall ical maturity. It shall stress that most minors are mature in physical note that an intoxicated person may sometimes display none of the appearance before the age of 21, and that signs of physical maturity common indicators. It shall describe ways to detect an atypical intox- are not a reliable guide. icated person through methods such as drink counting, conversations calculated to reveal emotional stability or common indicators which (B) Each program shall describe and explain conduct might not otherwise be manifest. and mannerisms which might raise a suspicion of status as a minor. It shall include: (B) Students shall be made aware that serious illness can masquerade as intoxication. All students shall be instructed (i) a discussion of current fads and fashions in to recognize bracelet and necklace emblems of the Medic Alert clothing, accessories, and grooming among minors; Foundation and the significance of such identification; (ii) a description, based upon authoritative sources, (6) monitoring customer behavior. of behavior patterns characteristic of minors; (A) Each approved seller training program shall de- (iii) an explanation of how to look for suspicious scribe techniques for monitoring customer behavior for the purpose behavior such as: of implementing timely intervention pursuant to paragraphs (10) and (I) a group of young-appearing persons pooling (11) of this subsection (relating to Intervention Pertaining to Minors; their money and giving it to the oldest- appearing member; and Intervention Pertaining to Intoxication). It shall describe meth- ods to obtain appropriate information in a commercially acceptable (II) a youthful appearing person waiting in the manner, including: background away from the point of purchase or service while an adult obtains more than one serving; and (i) observing customer response during any conver- sations with the seller; (III) prior observation that a particular adult has purchased for a youthful appearing person. (ii) observing customer interaction with third par- ties; (9) identification. (iii) observing the customer’s initial mood and (A) Each approved seller training program shall de- general conduct; and scribe valid driver’s licenses and identification certificates issued by the Texas Department of Public Safety. (iv) observing any change in any of the customer behavior previously mentioned. (B) Each approved seller training program shall ex- plain how to detect invalid identification documents presented in an (B) Each program shall describe and explain typical attempt to establish proof of adult status. This shall include coun- warning signs that customer behavior may be degenerating toward terfeit and altered official documents. It shall also include unofficial illegal behavior. Such warning signs shall include: documents which are deceptively similar to official documents. Em-
25 TexReg 4724 May 26, 2000 Texas Register phasis shall be placed on driver’s licenses and identification cards (E) The student shall be made aware of the obligation issued by the state of Texas and other states. Each program shall to notify law enforcement authorities in the event that intervention describe the most common types of counterfeiting and alteration and attempts fail. shall describe warning signs such as erasures, cut-and-paste numer- (12) sanctions for employee violations. Each approved als, substandard or inconsistent graphics and substandard lamination. seller training program shall explain the requirements of §50.9 of (10) intervention pertaining to minors. this chapter. (A) Each approved seller training program shall de- (13) additional program content. scribe and explain techniques of intervention to prevent or terminate (A) The administrator or administrator’s designee is illegal sale, service, possession, or consumption regarding a minor. hereby delegated the authority to modify or add requirements for (B) Such techniques shall include, when appropriate the content of approved seller training programs in addition to the to the circumstances: requirements specified in this chapter. (i) ask for and carefully examine an identification (B) Any approved seller training program may contain card; any additional material except material which the administrator or administrator’s designee finds under the circumstances tends to be: (ii) removal of the alcoholic beverages in a non- aggressive manner from the reach or sight of the offender; (i) a substantial detraction from the effectiveness of the minimum program requirements; or (iii) an explanation that the demeanor of the em- ployee should never be such that is likely to provoke violence; (ii) a substantial detriment to the health, safety, or welfare of the general public or any segment thereof. (iv) an explanation of the obligation to notify law enforcement authorities in the event that intervention attempts fail; (C) Approved programs are encouraged to exceed the minimum requirements of program content and to develop new (v) specific examples of words and conduct which methods and techniques designed to fulfill the intent of the Texas may be used in an attempt to avoid or terminate illegal activity Alcoholic Beverage Code, §106.14. amicably. (D) Approved programs may describe and explain how (11) intervention pertaining to intoxication. to monitor and intervene in cases of drink tampering: (A) Each approved seller training program shall ex- (i) describe the types and effects of drugs used in plain effective techniques of intervention with persons who are in- drink tampering; toxicated or who appear to be becoming intoxicated. This part of the program is of considerable importance to the public peace and safety (ii) describe monitoring methods; and and shall therefore receive due emphasis. The program may take into (iii) describe intervention methods. account the fact that permittees, licensees, and their employees will generally desire to avoid alienating a customer whenever possible. (14) appropriate testing of trainees in a form and manner Therefore, the program shall describe specific language and conduct adequate to demonstrate the effectiveness of the training program of the employee which is calculated to terminate or avoid illegal be- shall be required. havior of the customer as amicably as possible. (j) Each application for an original program approval shall be (B) Such techniques shall include, when appropriate accompanied by a payment in the amount of $1,000. Each subsequent to the circumstances: renewal of a program is $500. (i) an explanation that the demeanor of the em- (k) Programs found to be acceptable under this chapter ployee should never be such that is likely to provoke violence; shall be approved in writing by the administrator or administrator’s designee in such form as he may deem to be appropriate. (ii) removal of the alcoholic beverages in a non- aggressive manner from the reach or sight of the offender; (l) Approval shall be valid for a period of three years unless earlier revoked. (iii) specific examples of words and conduct which may be used in an attempt to avoid or terminate illegal activity (m) A person commits an offense under the Texas Alcoholic amicably; Beverage Code, §101.61, if he falsely represents to any person that a program has been approved by the commission or administrator (iv) an explanation of how to slow down service of or administrator’s designee, or misleads any person into believing alcoholic beverages; that a program is approved by the commission or administrator or (v) a suggestion that food, snacks or alternative administrator’s designee when, in fact, it is not. beverages be served and an explanation of the types of food most (n) The developer of a curriculum, or his authorized agent, likely to slow or reduce intoxication. may for marketing purposes in the normal course of business represent (C) The student shall be made aware that coffee and that the basic curriculum is part of a Texas Alcoholic Beverage other caffeine-containing products do not reduce intoxication, but may Commission approved program, provided such representation is, in misleadingly appear to do so. fact, truthful. (D) The student shall be made aware of designated (o) The amendments to paragraphs (a), (e), (h), (i), (j), (k), driver programs and shall be encouraged to provide such special (m) and (n) of this rule, adopted on April 24, 2000, shall become services and courtesies to a designated driver as may be allowed effective on September 1, 2000. by the student’s employer.
ADOPTED RULES May 26, 2000 25 TexReg 4725 This agency hereby certifies that the adoption has been re- such risk would, in fact, exist. However, the possibility of viewed by legal counsel and found to be a valid exercise of the fraudulently manufactured certificates exists, regardless of what agency’s legal authority. system of certificate issuance is adopted. Further, the activity of the schools and the integrity of their records is subject to Filed with the Office of the Secretary of State on May 10, 2000. close monitoring and regulation by the commission. Thus, TRD-200003280 an appropriate enforcement mechanism exists to detect and Doyne Bailey sanction individuals or schools issuing false certificates. Finally, Administrator the benefits of efficiency and convenience provided by the Texas Alcoholic Beverage Commission system adopted outweigh the risk of fraud presented. Effective date: September 1, 2000 Finally, the commission adopted paragraph (t) in order to allow Proposal publication date: March 24, 2000 members of the industry, regulated schools and the commission For further information, please call: (512) 206-3204 staff to become familiar with, and prepared to accommodate, ♦♦♦ the changes adopted to this rule. 16 TAC §50.4 These amendments are adopted under Alcoholic Beverage Code, §5.31 and §106.14, which provides the commission with The Texas Alcoholic Beverage Commission adopts amend- the authority to prescribe and publish rules necessary to carry ments to §50.4 with changes to the text as originally published out the provisions of the Alcoholic Beverage Code. in the March 24, 2000, edition of the Texas Register, (25 TexReg 2514-2515). This rule regulates the activities of schools autho- Cross Reference: Alcoholic Beverage Code, §106.14, is af- rized to provide training to members of the alcoholic beverage fected by this rule. industry under §106.14 of the Alcoholic Beverage Code and the §50.4. Program Administration. rules of the commission. (a) The Texas Alcoholic Beverage Commission shall receive Paragraph (a) of the rule was amended to allow schools to written notification, including electronic notification, from each provide the agency with electronic, as well as written notification school to schedule sessions. At least three-fourths of the session of scheduled class sessions. This amendment was made in notices shall be received at least three business days prior to the order to allow for notification that is easier, faster and more session date for classes held each month. One-fourth of the session economical for schools subject to the regulation. notices may be received less than three business days but no later than the next business day after the session is held. Schools which Paragraph (b) of the rule was amended to add the requirement average four or less sessions per month may not exceed the one- that class participants could not consume alcoholic beverages fourth of the session notices being late over any fiscal year quarter, during the class sessions. Information before the commission September through August. Said notice shall include the date, time, indicated that, on occasion, participants in some previous class and location of each class and shall be received in the headquarters sessions had consumed alcoholic beverages. The commission of the Texas Alcoholic Beverage Commission, P.O. Box 13127, concluded that this conduct is potentially disruptive and not Austin, Texas 78711 or local field office on forms prescribed by conducive to focused learning during the class. the commission. The commission must be notified by phone or fax Although one commenter was in favor of this provision of of session cancellations prior to the actual session date except when the rule, another opposed it, pointing out that the rule would cancellation cannot be anticipated before the session’s scheduled start. make school personnel enforcers rather than trainers. The When cancellation cannot be anticipated, the commission must be commission disagreed with this comment on the belief that notified by the tenth day of the month for each session cancelled effective trainers can and should establish and maintain control during the previous month. of a classroom so as to ensure an environment free from (b) All training facilities shall meet the requirements of the distractions. Americans with Disabilities Act (ADA) and contain: Prior to amendments, certificates of class completion were (1) adequate seating facilities for all students; issued to trainees by the commission based on reports from schools. This system proved to create unnecessary delay (2) appropriate space to ensure that visuals can be seen between class attendance and certification. This delay was from all seating positions; particularly inconvenient in light of the fact that many trainees (3) private space to limit distractions; require proof of certification in order to keep and maintain employment. To resolve this problem, paragraph (r) was (4) access to a restroom; and adopted to allow the class trainer to issue certificates directly to (5) alcoholic beverages cannot be consumed by anyone students on successful completion of the training program. attending the class instruction sessions or breaks. In order to provide for direct issuance of certificates, paragraph (c) Sessions may be monitored unannounced to evaluate the (f) was added, requiring trainers to verify the identity of each program content, trainer presentation and the classroom environment. class participant and paragraph (s) was added to establish pro- cedures for the issuance of certificate forms to the schools; ac- (d) Programs approved for licensees/permittees or hotel man- ceptable methods of payment for those forms and requirements agement companies shall be limited to employees of the said licensee, for return of unused certificates. permittee, or hotel management company. Several commenters pointed out that this proposed system (e) No class may exceed 50 trainees. Trainees who arrive of certificate issuance presented risk of the fraudulent sale more than 15 minutes after the start of the program session shall be of certificates as has, in fact, happened in other government denied admission to the session. regulated training programs. The commission recognized that (f) The identity of each trainee must be verified by the trainer.
25 TexReg 4726 May 26, 2000 Texas Register (g) The classroom presentation must be consistent with the multiples if necessary to conform with changes in the method of approved program. production of certificates. (h) Discussion must be pertinent to responsible alcoholic (1) Any payment under this subsection which is dishon- beverage sale and service. ored must immediately be replaced by a cashier’s check, certified check or United States postal money order. (i) Each program session will be presented in a continuous block of instruction. While instruction may be interrupted for brief (2) Any training entity or school which has two dishon- breaks, these should be limited in number and duration. The program ored payments within a 12 month period must make subsequent pay- must be presented in its entirety to each student in a language ments of this fee by a cashier’s check, certified check or United States approved for use by the instructor. postal money order until 12 months have elapsed since the last pay- ment was dishonored. (j) Each trainee is to be tested immediately following the conclusion of instruction at the program session he or she attends. (3) No refunds will be made on voided certificates. Testing of session participants at any other place or time is prohibited Certificates can only be used by the school to which they were issued unless previously approved as a part of the program. by the commission. (k) Each trainee must correctly answer at least 70% of the (4) All seller training schools which have gone out of questions found on the test administered to him. Schools are business shall surrender all unused certificates for a refund. This encouraged to set higher completion standards. Trainees who receive request shall be on a form prescribed and provided by the commission. failing scores may be immediately retested once. Otherwise, trainees (5) The copies of all certificates issued shall be kept for must repeat the course in full. a period of four years. (l) All tests shall be administered on a closed book basis. (t) The amendments to paragraphs (a), (b), (f), (o), (p), (q), (m) At the trainer’s discretion the test may be offered in a (r) and (s) of this rule, adopted on April 24, 2000, shall become language best understood by the trainee. Bilingual instructors may, effective on September 1, 2000. in response to direct inquiries, clarify test questions using another This agency hereby certifies that the adoption has been re- language. viewed by legal counsel and found to be a valid exercise of the (n) Each test must be maintained by the school for a period agency’s legal authority. of at least four years and be made available to the commission upon Filed with the Office of the Secretary of State on May 10, 2000. request. TRD-200003281 (o) Reports of Seller Training shall be made by the training Doyne Bailey entity or school to the commission. Reports must be delivered or postmarked within 30 calendar days of the date on which the session Administrator was held upon forms prescribed and approved by the administrator Texas Alcoholic Beverage Commission or administrator’s designee. Effective date: September 1, 2000 Proposal publication date: March 24, 2000 (p) Each Report of Seller Training shall contain the certifi- For further information, please call: (512) 206-3204 cate number, test score, name, social security number and date of birth of each student in that class who has successfully completed ♦♦♦ the training program and has passed the required test. 16 TAC §50.5 (q) The certified trainer who actually conducted the program The Texas Alcoholic Beverage Commission adopts amend- shall personally sign the Report of Seller Training verifying that each ments to §50.5 with changes to the text as originally published designated student has successfully completed the program approved in the March 24, 2000 edition of the Texas Register, (25 TexReg by the commission on the date indicated and shall verify such other 2515-2517). The rule governs conditions under which sanctions facts as the administrator or administrator’s designee may from time may be imposed on schools providing training to members of to time direct. the alcoholic beverage industry under §106.14 of the Alcoholic (r) The certified trainer who actually conducted or adminis- Beverage Code and rules of the commission. tered the program shall personally sign the certificate and verify that Paragraphs (a) and (b) of the rule were amended to allow the all information entered on the certificate is correct. The certificate administrator or his/her designee to deny a school’s application shall be issued to the appropriate trainee only after successful com- for program approval, or to cancel or suspend a prior approval pletion of the seller training program. Failure to comply with this if an agent of the program has, within the preceding three requirement is grounds for revoking or suspending approval of the years, served a sentence resulting from a conviction or deferred trainer’s certificate and seller training program administered by that disposition of, an offense involving the abuse of alcoholic school. beverages or controlled substances. (s) The certificates shall not be issued to a school by the The commission concluded that the purpose of server training commission until the commission has received advance remittance of programs is to encourage temperance and responsibility in the $2.00 per certificate. Certificates shall be issued by the commission consumption of alcoholic beverages and to provide trainees the upon written request of a school on forms provided by the commission knowledge, skills and motivation to do so. An individual who has together with the proper remittance. The commission shall issue demonstrably engaged in the behaviors this training is designed certificates to any approved school only in quantities of at least 50 to prevent is apt to be a poor exemplar of the goals of the server certificates at one time. If larger quantities are requested, the same training program generally and, consequently, a poor trainer. shall be issued only in multiples of 50; provided, however, that the The commission received no comments about this aspect of administrator’s designee is hereby empowered to authorize different the rule.
ADOPTED RULES May 26, 2000 25 TexReg 4727 Paragraph (b) was amended to allow for revocation or suspen- sentence imposed as a result of the conviction or deferred disposition; sion of program approval on violation by the program of any or order entered by the administrator or his/her designee entered (4) any agent of a privately sponsored program or his/her under this rule. This amendment allows the commission rea- spouse is an alcoholic beverage licensee or permittee; or sonable means of enforcing its orders of denial, suspension or revocation. The commission received no comments about this (5) any agent of the program violates this chapter or the aspect of the rule. Alcoholic Beverage Code, 106.14. Paragraph (e) was amended to allow schools 21 days, rather (b) The administrator or administrator’s designee may, after than the previous 10 days, to request a hearing on the com- notice and opportunity for hearing, revoke or suspend approval of any mission’s proposal to deny approval of, or cancel or suspend program upon a finding that: a program. The commission concluded that the new provision (1) the manner in which the program is being, or has provided schools a more reasonable time to consider charges been, administered has substantially impaired the effectiveness of the presented by the commission and the best response to be made program; or to those charges. The commission received no comment about this amendment. (2) any agent of the program has made a false or misleading statement, report, or representation to the commission Paragraph (e) of the rule was amended to allow the administra- regarding the conduct or administration of the program; or tor or his/her designee to sanction a violating school by impo- sition of a civil penalty in lieu of a suspension of the school’s (3) any agent of the program has been convicted of or activities. The commission recognized that a number of schools granted deferred disposition for, a felony, or a misdemeanor related regulated by this rule conduct training sessions on an irregu- to theft, fraud or the abuse of alcoholic beverages or controlled lar schedule. Thus, imposition of a period of suspension as a substances and three years have not passed since the discharge of any sanction does not necessarily operate as a deterrent to future sentence imposed as a result of the conviction or deferred disposition; behavior. Further, suspension of a school’s program results, or in specific instances, in denial of needed training for members (4) the program has failed to make a timely report or of the alcoholic beverage industry. Thus, a suspension may has failed to communicate any information to the Texas Alcoholic sanction third parties not involved in the violation to which the Beverage Commission required by this chapter; or sanction is addressed. (5) any agent of a privately sponsored program or his/her The adopted amendment requires the commission to consider spouse is an alcoholic beverage licensee or permittee; or stated factors in determining the amount of a civil penalty. These factors involve the size and, therefore, economic capacity (6) the program or any agent of the program has failed to of the program to be sanctioned, as well as the nature of the timely pay any fees due under this chapter or the Alcoholic Beverage violation and the history of the program. These considerations Code; or inform the commission’s assessment of an appropriate sanction (7) the program or any agent of the program has made for a particular violation and help impose sanctions that operate payment for any fees due under this chapter or the Alcoholic Beverage as a true deterrent to future violations. Code by personal or business check that was dishonored when The commission received several comments in support of this presented for payment; or aspect of the rule. (8) any agent of the program violates this chapter or the Finally, the commission adopted paragraph (g) in order to Alcoholic Beverage Code, §106.14; or provide the industry, regulated schools and commission staff (9) violation of any order entered by the administrator or a reasonable time to become familiar with, and prepare to administrator’s designee under this rule. accommodate, the amendments adopted. (c) The entity administering the program has the right to These amendments are adopted under Alcoholic Beverage request a hearing within 21 days after receipt of the notice of denial, Code, §5.31 and §106.14, which provides the commission with revocation or suspension. the authority to prescribe and publish rules necessary to carry out the provisions of the Alcoholic Beverage Code. (d) A person whose school-program certification is revoked under this section may not apply for another certificate under this Cross Reference: Alcoholic Beverage Code, §106.14, is af- chapter until one year has elapsed from the date of revocation. fected by this rule. (e) The administrator or administrator’s designee may assess §50.5. Denial, Revocation or Suspension of Program Approval. a civil penalty in lieu of suspension of the program. The amount of (a) The administrator or administrator’s designee may deny the civil penalty shall be made with consideration of the following approval of any program upon a finding that: factors: (1) the program does not meet the minimum course (1) the number of trainee certifications issued by the requirements set out in this chapter; or program during the 12 months immediately preceding the violation for which the penalty is to be assessed; (2) the Application for School-Program Certification is not correct or complete; or (2) the nature and severity of the violation for which the penalty is to be assessed; (3) any agent of the program has been convicted of or granted deferred disposition for, a felony, or a misdemeanor related (3) any aggravating or ameliorating circumstances relating to theft, fraud or the abuse of alcoholic beverages or controlled to the violation for which the penalty is to be assessed; substances, and three years have not passed since the discharge of any
25 TexReg 4728 May 26, 2000 Texas Register (4) the record or past violations by the program or its concluded that the cost of continuing education was minimal in agents. light of the benefit to be gained by a knowledgeable body of trainers. Further, the commission determined that the determi- (f) Notice of denial, revocation or suspension shall be served nation of what topics of continuing education best helps trainers at the main offices of the applicant or its registered agent for service in their work is a judgment best left to the schools and trainers, either by certified mail or by personal service upon any adult agent themselves, subject to the commission’s general oversight exer- or employee of the applicant at the said main offices. cised through informal advice, the application renewal process (g) The amendments to this rule adopted on April 24, 2000, and contested administrative case litigation. take effect on September 1, 2000. Paragraph (f) of the rule was amended to raise the application This agency hereby certifies that the adoption has been re- fee from $5.00 to $50.00. Several commenters objected to this viewed by legal counsel and found to be a valid exercise of the as too much of an increase with a consequent fiscal hardship agency’s legal authority. on trainers and schools. The commission determined that the increase was necessary in light of increased costs of processing Filed with the Office of the Secretary of State on May 10, 2000. applications, due primarily to test administration and notification TRD-200003282 of continuing education completion. Doyne Bailey The commission adopted paragraph (i) in order to allow the Administrator industry, regulated trainers and commission staff a reasonable Texas Alcoholic Beverage Commission time to become familiar with, and prepared to accommodate Effective date: September 1, 2000 the amendments to this rule. This amendment did not appear Proposal publication date: March 24, 2000 in the proposed rule as originally published. For further information, please call: (512) 206-3204 These amendments are adopted under Alcoholic Beverage ♦♦♦ Code, §5.31 and §106.14, which provides the commission with 16 TAC §50.6 the authority to prescribe and publish rules necessary to carry out the provisions of the Alcoholic Beverage Code. The Texas Alcoholic Beverage Commission adopts amend- ments to §50.6 with changes to the text as originally published in Cross Reference: Alcoholic Beverage Code, §106.14, is af- the March 24, 2000 edition of the Texas Register, (25 TexReg fected by this rule. 2517). The rule governs the standards applicable to trainers §50.6. Application for Trainer Certification. working in server training programs operating under the author- ity of §106.14 of the Alcoholic Beverage Code and rules of the (a) Only trainers holding currently valid certification under commission. this section shall be eligible to teach an approved seller training program. This requirement is not intended to prohibit the use of Paragraph (d) of the rule was amended to require original an uncertified guest instructor who has special expertise in the field applicants for trainer certification, applying after September which he/she teaches. The certified trainer shall be present during 1, 2000, to pass a test administered by the commission as guest instruction and shall remain responsible for training quality. a condition of approval. Several commenters suggested that this amendment would work a fiscal hardship on trainers who (b) Application for trainer certification shall be made by the might have to travel to the test site and on schools in that person to be certified on forms provided by the commission. the requirement would make it more difficult for schools to hire (c) Each application shall include certification by an approved trainers. seller training program entity or school that the applicant is qualified The commission disagreed with these comments on the belief and competent to teach that seller training program. The renewal that the success of an individual school and of the server applications shall include documentation of the required continuing training program in Texas, generally, rests in large part on education hours. the quality of instructors. In order to be effective, instructors (d) An original trainer applicant must have first successfully should, at a minimum, possess a basic core of knowledge completed an examination administered by the Texas Alcoholic commonly shared by other members of the industry. Successful Beverage Commission, with a minimum correct score of 80%. completion of a standardized examination is a reasonable and Trainers who have been approved prior to September 1, 2000 shall accepted way to insure this minimum competence. Further tests be exempt from this initial testing requirement. may be administered at the commission’s offices throughout the state to minimize inconvenience to applicants. (e) No licensee or permittee, or his spouse, agent, servant or employee may conduct a seller training program approved under this Paragraph (h) of the rule was amended to require trainers chapter except as provided in the Texas Alcoholic Beverage Code, to successfully complete 12 hours of continuing education in §106.14(c) and (d). related courses or seminars every three year period. Paragraph (c) was amended to make this requirement a condition of (f) Each application shall be accompanied by a payment in certification renewal. This amendment was adopted because the amount of $50. of the commission’s belief that, like other professions, trainers (g) Trainers found to be acceptable under this chapter shall be subject to this rule must maintain current knowledge of changing approved in writing by the administrator or administrator’s designee information and techniques related to their field in order to be in such form as he may deem to be appropriate. effective. (h) Approval shall be valid for a period of three years unless Several commenters objected to the expense caused by con- earlier revoked provided that the trainer has successfully completed tinuing education and suggested that the rule should further a minimum of 12 clock hours of continuing education in related specify acceptable topics of such education. The commission
ADOPTED RULES May 26, 2000 25 TexReg 4729 subject courses and/or seminars within the previous three years prior to the factors stated in the rule, allows the form and extent of to renewal. a sanction to be tailored to the circumstances of a particular case so that the punishment can be better calculated to have a (i) The amendments to paragraphs (d), (f), (g) and (h) of this deterrent effect on future conduct. rule, adopted on April 24, 2000, shall become effective on September 1, 2000. The commission adopted paragraph (f) in order to allow the in- dustry, regulated trainers and the commission staff a reasonable This agency hereby certifies that the adoption has been re- time to become familiar with, and prepare to accommodate the viewed by legal counsel and found to be a valid exercise of the amendments to this rule. This amendment did not appear in agency’s legal authority. the proposed amendments as ordinally published in the Texas Filed with the Office of the Secretary of State on May 10, 2000. Register. TRD-200003283 These amendments are adopted under Alcoholic Beverage Doyne Bailey Code, §5.31 and §106.14, which provides the commission with Administrator the authority to prescribe and publish rules necessary to carry Texas Alcoholic Beverage Commission out the provisions of the Alcoholic Beverage Code. Effective date: September 1, 2000 Cross Reference: Alcoholic Beverage Code, §106.41, is af- Proposal publication date: March 24, 2000 fected by this rule. For further information, please call: (512) 206-3204 §50.7. Denial, Revocation or Suspension of Trainer Approval. ♦♦♦ (a) The administrator or administrator’s designee may deny 16 TAC §50.7 approval of, revoke, or suspend any trainer upon a finding that: The Texas Alcoholic Beverage Commission adopts amend- (1) the applicant for a privately sponsored program or his/ ments to §50.7 with changes to the text as originally published her spouse is an agent of an alcoholic beverage licensee or permittee; in the March 24, 2000 edition of the Texas Register, (25 TexReg or 2517-2518). The rule relates to the denial, suspension or revo- cation of approval for individual trainers working in server train- (2) the Application for Trainer Certification is not correct ing programs authorized under §106.14 of the Alcoholic Bever- or complete; or age Code and the rules of the commission. (3) the applicant has been convicted of or granted deferred Paragraph (a) of the rule was amended to allow denial, revo- disposition for, a felony, or a misdemeanor related to theft, fraud or cation or suspension of the certification if a trainer has, within the abuse of alcoholic beverages or controlled substances, and three the previous three years, served a sentence resulting from a years have not passed since the discharge of any sentence imposed conviction or deferred adjudication arising from the abuse of al- as a result of the conviction or deferred disposition; or coholic beverages or controlled substances. The commission (4) the trainer has violated a provision of this chapter, adopted this amendment because the purpose of server train- §106.14 of the Alcoholic Beverage Code, or has failed to take ing programs are to encourage temperate behavior and compli- reasonable steps to prevent such violations in classes or programs ance with the law. In order to be effective as a trainer in such under his/her direction or control. a program, individuals ought to be exemplars of such behavior. Therefore, persons with a demonstrated disregard for such laws (b) The administrator or administrator’s designee may, after are apt to be less effective as trainers. notice and opportunity for hearing, revoke approval of any trainer upon a finding that: One commenter suggested that the laws referenced in this amendment ought to be specified in the rule. The commission (1) the seller training program entity no longer authorizes concluded this was unnecessary in that laws relating to alcohol the trainer to teach their seller training program; or and substance abuse are clearly identifiable by the terms of the (2) the trainer no longer qualifies as a trainer under laws themselves. subsection (a) of this section. Paragraph (a) was also amended to allow denial, suspension (c) The trainer has the right to request a hearing within 21 or revocation of a trainer’s certification if the trainer violates days after receipt of the notice of denial, revocation or suspension. §106.14 of the Alcoholic Beverage Code, rules of the commis- sion relating to server training or fails to take reasonable steps (d) Notice of the denial, revocation or suspension of a trainer to prevent such violations in classrooms under his/her control. certificate or a copy of the revocation shall also be provided to the This amendment was passed in order to insure that trainers main offices of the seller training program or the registered agent. comply with the laws and rules of the commission and that (e) The administrator or administrator’s designee may assess trainers maintain classroom environments conducive to focused a civil penalty in lieu of suspension of the trainer. The amount of learning. the civil penalty shall be made with consideration of the following Paragraph (e) of the rule was amended to allow the administra- factors: tor or his/her designee to sanction violating trainers by imposi- (1) the number of trainee certifications issued by the tion of a civil fine in lieu of a suspension. The rule requires the program or the trainer during the 12 months immediately preceding amount of the civil penalty to be assessed by consideration of the violation of which the penalty is to be assessed; factors stated in the rule. Many trainers conduct classes accord- ing to an irregular schedule. Thus, imposition of a suspension (2) the nature and severity of the violation for which the as sanction does not necessarily have a deterrent effect on fu- penalty is to be assessed; ture conduct. Imposition of a civil fine, determined by reference
25 TexReg 4730 May 26, 2000 Texas Register (3) any aggravating or ameliorating circumstances relating All required information shall be completed on the certificate prior to the violation for which the penalty is to be assessed; to issuance to the trainee for their possession. (4) the record of past violations by the trainer. (b) Each certificate shall be valid for two years. (f) The amendments to this rule, adopted April 24, 2000, (c) The commission shall require an additional $5.00 for each shall be effective September 1, 2000. duplicate certificate issued by the commission. Schools shall not issue replacement certificates. This agency hereby certifies that the adoption has been re- viewed by legal counsel and found to be a valid exercise of the (d) The commission shall maintain a list of currently certified agency’s legal authority. seller trainees by name, social security number, and date of birth. Filed with the Office of the Secretary of State on May 10, 2000. (e) The amendments to paragraphs (a), (c) and (d) of this TRD-200003284 rule, adopted on April 24, 2000 shall become effective September 1, 2000. Doyne Bailey Administrator This agency hereby certifies that the adoption has been re- Texas Alcoholic Beverage Commission viewed by legal counsel and found to be a valid exercise of the Effective date: September 1, 2000 agency’s legal authority. Proposal publication date: March 24, 2000 Filed with the Office of the Secretary of State on May 10, 2000. For further information, please call: (512) 206-3204 TRD-200003285 ♦♦♦ Doyne Bailey 16 TAC §50.8 Administrator Texas Alcoholic Beverage Commission The Texas Alcoholic Beverage Commission adopts amend- Effective date: September 1, 2000 ments to §50.8 with changes to the text as originally published Proposal publication date: March 24, 2000 in the March 24, 2000 edition of the Texas Register, (25 TexReg 2518-2519). The rule relates to issuance of certificates to stu- For further information, please call: (512) 206-3204 dents successfully completing server training programs operat- ♦♦♦ ing under the authority of §106.14 of the Alcoholic Beverage 16 TAC §50.9 Code and rules of the commission. The Texas Alcoholic Beverage Commission repeals §50.9 as Under the prior rule, certificates for successful completion of initially proposed in the March 24, 2000 edition of the Texas training were issued by the commission on reports from the Register (25 TexReg 2519). The rule governed the conditions school. This system resulted in unnecessary delays between under which licensees and permittees could be exempt from the time a student attended class and the time that student certain types of administrative action. received proof of successful completion of the class. This delay was particularly inconvenient in light of the fact that many This rule was repealed to allow for adoption of a new §50.9 students require proof of class attendance for employment. adopted contemporaneously with this repeal. The repeal of this Paragraph (a) of the rule was amended to allow schools to issue rule shall become effective on September 1, 2000. certifications directly to students on successful completion of the No comments were received on the proposed repeal of §50.9. program, thereby, eliminating this delay. This repeal is adopted under Alcoholic Beverage Code, §5.31 Paragraph (c) was amended to raise the cost of replacement and §106.14, which provides the commission with the authority certificates from $2.00 to $5.00 in reflection of increased costs to prescribe and publish rules necessary to carry out the of processing requests for such certificates by commission staff. provisions of the Alcoholic Beverage Code. Paragraph (d) was amended to omit unnecessary language Cross Reference: Alcoholic Beverage Code, §106.14, is af- and the statement that "social security numbers shall not be fected by this action. a public record." The amenability of social security numbers to public disclosure is determined by reference to the Texas Open This agency hereby certifies that the adoption has been re- Records Act and not by rule of the commission. viewed by legal counsel and found to be a valid exercise of the agency’s legal authority. Paragraph (e) of the rule was added after initial publication in order for the industry, regulated schools and commission staff Filed with the Office of the Secretary of State on May 10, 2000. to become familiar with, and prepared to accommodate, the TRD-200003286 amendments to this rule. Doyne Bailey These amendments are adopted under Alcoholic Beverage Administrator Code, §5.31 and §106.14, which provides the commission with Texas Alcoholic Beverage Commission the authority to prescribe and publish rules necessary to carry Effective date: September 1, 2000 out the provisions of the Alcoholic Beverage Code. Proposal publication date: March 24, 2000 Cross Reference: Alcoholic Beverage Code, §106.14, is af- For further information, please call: (512) 206-3204 fected by this rule. ♦♦♦ §50.8. Trainee Certification. The Texas Alcoholic Beverage Commission adopts a new §50.9 (a) Upon successful completion of an approved seller training with changes to the text as originally published in the March 24, program, the trainer shall issue an official certificate to each trainee.
ADOPTED RULES May 26, 2000 25 TexReg 4731 2000 edition of the Texas Register (25 TexReg 2519-2520). The legislative intent underlying §106.14 of the Alcoholic Beverage rule governs the suspension or revocation of the certification of Code and, therefore, beyond the authority of the commission to completion of server training issued to certain members of the adopt as a rule. The commission disagreed with this contention. alcoholic beverage industry. The legislature has expressed its intention that the commission "regulate every phase of the business of...selling...alcoholic Members of the retail tier of the alcoholic beverage industry may beverages" and that the commission adopt such rules as are choose to require that their employees successfully complete necessary to that responsibility. Further, these duties are to a course of training by a school certified by the commission. be undertaken with a view toward "protection of the welfare, Retailers who adopt this requirement are entitled to a defense health, peace, temperance and safety of the people of the from administrative and civil liability for unlawful sales made state. Alcoholic Beverage Code, §§5.31, 1.03. For the reasons by their employees to minors or intoxicated persons, subject to described above, the commission concluded that this rule the provisions of §106.14 of the Alcoholic Beverage Code and furthers those ends. §50.10 of the commission’s rules. Finally, the commission adopted paragraph (c) of this rule to The commission recognized that a number of unlawful sales allow a reasonable time for the industry, regulated servers of alcoholic beverages made in this state are made by servers and commission staff to become familiar with, and make who have attended server training. In general, the commission accommodation for, the provisions of this rule. This paragraph attributes this to two factors: the failure of the server to absorb did not appear in the text of the proposed rule as originally the lessons of seller training and the failure of the server to published. assume the responsibilities that are part of providing alcoholic beverages to members of the public. The second factor is due, This rule is adopted under Alcoholic Beverage Code, §5.31 in part, to the fact that, under the prior rule, certified servers and §106.14, which provides the commission with the authority who violated the law could continue working in the alcoholic to prescribe and publish rules necessary to carry out the beverage industry without administrative consequence for either provisions of the Alcoholic Beverage Code. the server or the server’s licensee/permittee employer. Cross Reference: Alcoholic Beverage Code, §106.14, is af- The commission concluded that a reasonable way to address fected by this rule. this problem is to require certified servers who violate the law §50.9. Revocation or Suspension of Trainee Certification. to reattend server training, thereby increasing the likelihood that the lessons of that training will be absorbed by the server. The (a) The commission may revoke a trainee certification of an rule is drafted so that on the first unlawful sale, the server must employee if it is found that: be recertified within 30 days. If the server violates the law twice (1) the employee has committed a first offense of selling within 12 months, the server may not be recertified for 90 days or serving an alcoholic beverage to a minor or intoxicated person and, on a third offense, within 12 months, the server may not and the employee has not been recertified. The employee must be be recertified for one year. The commission concluded that this recertified within 30 days. Recertification includes attending and escalating program of suspension will serve to motivate both passing an approved seller training program. the employee and the employing retailer to act carefully so as to avoid unlawful sales in that suspension of an employee’s (2) the employee has committed a second offense, within certification will jeopardize the employee’s ability to work in the 12 months, of selling or serving an alcoholic beverage to a minor alcoholic beverage industry or the retailer’s ability to claim the and/or intoxicated person. The employee cannot be recertified for a exemption from liability for unlawful sales. period of 90 days. Recertification includes attending and passing an approved seller training program. The commission therefore concluded that adoption of this rule would serve to minimize the number of unlawful sales of (3) the employee has committed a third offense, within 12 alcoholic beverages to minors and intoxicated persons. The months, of selling or serving an alcoholic beverage to a minor and/ rule, therefore, furthers the interest of the public welfare, or intoxicated person. The commission may revoke the seller-server temperance and safety, and so lies within the regulatory certification for a period of one year. authority of the commission pursuant to §1.02 and §5.31 of the (4) the employee provided false identification consisting Alcoholic Beverage Code. of, but not limited to, name, social security number, or birth date. The Alcoholic Beverage Certification Training Company, Texas (5) the employee did not successfully complete a seller A&M Center for Alcohol and Drug Education Studies, TABSS/ training program. Metroplex, the Dram Shop School and Alliance for Education Services commented in favor of adoption of the rule. (b) The employee has the right to request a hearing within 21 days after the receipt of the notice of revocation or suspension. An earlier version of this rule, informally published to interested parties prior to publication in the Texas Register was crafted so (c) This rule shall become effective September 1, 2000. as to require the supervisor of a violating employee to be recer- This agency hereby certifies that the adoption has been re- tified and, after a stated number of violations, to permanently viewed by legal counsel and found to be a valid exercise of the bar recertification. The Texas Package Stores Association, Fi- agency’s legal authority. esta Mart, Inc. and the Texas Petroleum Marketer’s and Con- venience Stores Association objected to these provisions on Filed with the Office of the Secretary of State on May 10, 2000. various grounds. The commission concluded that these objec- TRD-200003287 tions were well founded and the rule was modified accordingly. Doyne Bailey The Texas Entertainment Association objected that revocation Administrator of or suspension of server’s training certificates is beyond the Texas Alcoholic Beverage Commission Effective date: September 1, 2000
25 TexReg 4732 May 26, 2000 Texas Register Proposal publication date: March 24, 2000 practices and take other steps to prevent unlawful sales within For further information, please call: (512) 206-3204 their establishment, thereby, furthering the public interest in ♦♦♦ the general welfare, temperance and safety. This is a primary objective for which the commission is authorized to adopt rules 16 TAC §50.10 under §1.03 and §5.31 of the Alcoholic Beverage Code. The Texas Alcoholic Beverage Commission adopts a new The Texas Restaurant Association commented in favor of §50.10 with changes to the text as originally published in the adoption of §50.10(d). The A&M Center for Alcohol and March 24, 2000 edition of the Texas Register (25 TexReg 2520). Drug Education Studies noted that the rule should require The rule governs the conditions under which licensees and servers to attend training before beginning employment serving permittees may claim exemption from civil and administrative alcoholic beverages. The commission disagrees with this liability for unlawful sales made to minors and intoxicated suggestion because such a rule would operate to impose often persons. unpredictable delays between hiring and beginning work. This would create an economic hardship for most retailers. This This rule is an amended and renumbered version of the hardship is unnecessary in that new employees are frequently commission’s old §50.9, repealed contemporaneously with this subject to close supervision and instruction. This is more likely adoption. to be so in light of the fact that, should an employee make In order to claim exemption from liability for unlawful sales, an unlawful sale prior to attending training, the retailer is not licensees and permittees must satisfy the three criteria stated entitled to exemption from liability for that act. in §106.14(a) of the Alcoholic Beverage Code. Paragraph (a) The Texas Entertainment Association objected that the criteria of the rule requires retailers claiming the exemption to provide of §50.10(d) would impair a retailer’s ability to defend a civil proof of entitlement by affidavit. The commission has found, suit brought under Chapter 2 of the Alcoholic Beverage Code through past practice, that this provides a quick and inexpensive and was beyond the agency’s authority of regulation. The method of determining the issue in most instances. commission disagreed with the comment believing for the One statutory requirement for the exemption from liability is reasons stated above, that adoption of this rule serves the public that the retailer require its employees to attend server training safety, temperance and welfare for which the commission is schools. The commission has determined that a reasonable entitled to regulate. consequence of requiring employees to attend such training In the version of the rule as originally published, paragraph is that the employees receive the training within 30 days of (d)(3) of the rule allowed an inference that the retailer had employment, absent good cause in individual cases. Paragraph encouraged violations of law by failing to maintain a signed (h) of the rule is adopted to further this requirement. acknowledgment, by each employee, that their employee had The third requirement for entitlement to the exemption from read and understood the retailer’s policies regarding sales to liability is that the retailer not "directly or indirectly" encourage minors and intoxicated persons. The Texas Package Stores violations of the law. Alcoholic Beverage Code, §106.14(a)(3). Association, the Texas Restaurant Association and the Texas The commission has learned from its experience in contested Petroleum Marketer’s and Convenience Stores Association cases, that such encouragement, where it exists, must usually objected on the grounds that this provision might subject be proved through circumstantial evidence. Repeated violations retailers to loss of the exemption from liability because of mere by employees of a retailer is some evidence from which a clerical error or oversight. The commission found this objection reasonable person could conclude that the retailer is in some to be well taken and modified the rule accordingly. way encouraging such violations. Paragraph (c) of the rule The commission adopted paragraph (e) of the rule in order to is adopted to allow such conclusion to be made, subject to allow regulated members of the industry and the commission rebutting evidence by the retailer. staff a reasonable time to become familiar with, and make The commission has concluded, based on its contested case accommodation for, the provisions of the rule. and enforcement experience, that a retailer may indirectly This rule is adopted under Alcoholic Beverage Code, §5.31 encourage violations of law by its employees by failing to and §106.14, which provides the commission with the authority adopt and pursue certain responsible and prudent business to prescribe and publish rules necessary to carry out the practices. For example, failure to insure that employees provisions of the Alcoholic Beverage Code. maintain current server training certification so as to remain knowledgeable about new techniques and information in the Cross Reference: Alcoholic Beverage Code, §106.14, is af- field of responsible hospitality is a way to encourage violations fected by this rule. of law by allowing service of alcoholic beverages by persons §50.10. Licensee/Permittee Exemption from Administrative Action. who are less capable than they might be. Similarly, failure to adopt policies and procedures designed to prevent unlawful (a) The commission shall require each licensee/permittee sales and to communicate those polices in an understandable who claims exemption from administrative action under the Texas way to employees is calculated to encourage violations of law by Alcoholic Beverage Code, §106.14, to produce evidence by affidavit producing a workforce without the commitment or tools to avoid indicating that the licensee/permittee met the three criteria outlined unlawful sales. Paragraph (d) of the rule is adopted to allow in §106.14(a). these factors to be considered, in conjunction with rebutting (b) The licensee/permittee shall not be deemed to require its evidence from the retailers, in the determination of whether the employees to attend a commission approved seller-server training retailer is entitled to the exemption from liability. program unless employees are required to attend such program within The commission concluded that adoption of this rule would 30 days of their initial employment and each employee’s certification serve to encourage retailers to adopt responsible business has not expired, been suspended or revoked. The administrator or administrator’s designee may relax the requirements of this paragraph
ADOPTED RULES May 26, 2000 25 TexReg 4733 in individual cases for good cause shown by the licensee/permittee scribed in paragraph (b) of the rule, present an ongoing threat claiming exemption. to the public safety, temperance and welfare. (c) Proof by the commission that an employee or agent of The commission is authorized to regulate in the public interest a licensee/permittee sold, delivered or served alcoholic beverages in such situations by virtue of §1.03 and §5.31 of the Alcoholic to a minor or intoxicated person, or allowed consumption of same Beverage Code. The commission concluded that a reasonable by a minor or intoxicated person, more than twice within a 12- response to the type of violating retailer described above is month period, shall constitute prima facie evidence that the licensee/ to allow the administrator or his/her designee the discretion to permittee has directly or indirectly encouraged violation of the require such retailers to participate in a server training program relevant laws. until such time as the retailer achieves a sustained period of lawful operation. (d) The following practices constitute prima facie evidence of indirect encouragement of law within the meaning of §106.14(a)(3) The commission adopted paragraph (e) of the rule in order to of the Alcoholic Beverage Code: provide the industry and commission staff a reasonable time to become familiar with, and make accommodation for, the terms (1) subject to the provisions of paragraph (b) above, the of this rule. licensee/permittee fails to insure that all employees possess currently valid certificates of training issued and maintained in conformity with The A&M Center for Alcohol and Drug Education, the Dram this chapter; Shop School, the Alliance for Educational Services, Lone Star Certification and the Petroleum Marketer’s and Convenience (2) the licensee/permittee fails to adopt, and post within Stores Association commented in favor of adoption of this rule. view of its employees, policies and procedures designed to prevent the sale, service or consumption of alcoholic beverages by or to minors This rule is adopted under Alcoholic Beverage Code, §5.31 and intoxicated persons, and that express a strong commitment by the and §106.14, which provides the commission with the authority licensee/permittee to prohibit such sales, service or consumption; to prescribe and publish rules necessary to carry out the provisions of the Alcoholic Beverage Code. (3) the licensee/permittee fails to insure that employees have read and understood the licensee/permittee’s policies and Cross Reference: Alcoholic Beverage Code, §106.14, is af- procedures regarding sales, service or consumption of alcoholic fected by this rule. beverages by or to minors or intoxicated persons. §50.11. Mandatory Participation in Server Training. (e) This rule shall go into effect September 1, 2000. (a) This rule is adopted pursuant to the commission’s author- This agency hereby certifies that the adoption has been re- ity to enact such rules as are necessary for the public health, peace, viewed by legal counsel and found to be a valid exercise of the safety, temperance, and morals as this authority is expressed in §1.03 agency’s legal authority. and §5.31 of the Alcoholic Beverage Code. Filed with the Office of the Secretary of State on May 10, 2000. (b) The administrator or administrator’s designee may require TRD-200003288 by written order that specific licensees/permittees participate in a server training program as created and enacted by §106.14 of the Doyne Bailey Alcoholic Beverage Code and the provisions of this chapter. Such Administrator requirement may be imposed on licensees/permittees that: Texas Alcoholic Beverage Commission Effective date: September 1, 2000 (1) have violated a provision of the code or rules relating Proposal publication date: March 24, 2000 to the sale, service, dispensing or delivery of alcoholic beverages to a minor or intoxicated person more than once in a twelve month period; For further information, please call: (512) 206-3204 or ♦♦♦ (2) has been found, by administrative order or court 16 TAC §50.11 of competent jurisdiction, to have engaged in conduct directly or The Texas Alcoholic Beverage Commission adopts a new indirectly encouraging violations of law within the meaning of §50.11 with changes to the text as originally published in the §106.14(a)(3) of the Alcoholic Beverage Code. March 24, 2000 edition of the Texas Register (25 TexReg 2520- (c) An order issued under this rule shall remain in effect until 2521). The rule states the conditions under which a retail such time as the licensee/permittee has established 24 continuous member of the alcoholic beverage industry may be compelled months of operation from the date of the last violation without to participate in a server training program operating under the violation of a provision of the code or rules relating to the sale, authority of §106.14 of the Alcoholic Beverage Code and rules service, dispensing or delivery of alcoholic beverages to a minor or of the commission. intoxicated person. Retail members of the alcoholic beverage industry may normally (d) A licensee/permittee shall, on request, be granted a choose whether or not to participate in the server training au- hearing prior to the issuance of an order authorized by this rule. thorized by §106.14 of the Alcoholic Beverage Code. However, information developed from the commission’s enforcement ac- (e) This rule shall go into effect September 1, 2000. tivities indicates that those retailers whose employers receive This agency hereby certifies that the adoption has been re- server training are somewhat less likely to make unlawful sales viewed by legal counsel and found to be a valid exercise of the of alcoholic beverages than those retailers whose employees agency’s legal authority. do not receive such training. The commission, therefore, con- cluded that those retailers that do not receive such training, and Filed with the Office of the Secretary of State on May 10, 2000. that demonstrate a pattern of irresponsible operation, as de- TRD-200003289
25 TexReg 4734 May 26, 2000 Texas Register Doyne Bailey For further information, please call: (512) 490-4032 Administrator ♦♦♦ Texas Alcoholic Beverage Commission Effective date: September 1, 2000 Chapter 309. RACETRACK LICENSES AND Proposal publication date: March 24, 2000 OPERATIONS For further information, please call: (512) 206-3204 ♦♦♦ Subchapter C. HORSE RACETRACKS Part 8. TEXAS RACING COMMISSION Division 1. RACETRACKS 16 TAC §309.202 Chapter 303. GENERAL PROVISIONS The Texas Racing Commission adopts an amendment to Subchapter D. TEXAS-BRED INCENTIVE §309.202 concerning the specifications for a horse racetrack. The amendment is adopted without changes to the proposed PROGRAMS text published in the March 10, 2000 issue of the Texas Regis- ter (25 TexReg 1932) and the text will not be republished. The Division 2. PROGRAMS FOR HORSES amendment was presented to the Commission as a petition 16 TAC §303.92 for rulemaking under 16 Texas Administrative Code §307.33 by the Texas Horsemen’s Partnership, LLP, the organization The Texas Racing Commission adopts an amendment to recognized by the Commission to represent horse owners and §303.92 concerning the rules for the Texas Bred Incentive trainers. Program for thoroughbred horses. The amendment is adopted without changes to the proposed text published in the March According to the petition, the amendment is necessary to 10, 2000 issue of the Texas Register (25 TexReg 1931) and the provide increased racing opportunities for owners and trainers text will not be republished. The amendment was presented to of all breeds. The amendments to subsections (a), (b), (c), and the Commission as a petition for rulemaking under 16 Texas (d) make changes to the track length requirements and provide Administrative Code §307.33 by the Texas Thoroughbred for a back chute for all racetracks in order to ensure access to Association. all breeds of horses and accommodate races of the length and distance commonly run by breeds other than quarter horses. According to the petition, the amendment is necessary to provide for the orderly and constitutional administration of the Oral comments supporting the amendment were received from awards program. The amendment to subsection (c) requires a representative of the Jockey Guild, who stated the amendment the participants in the awards program to notify the Texas would require a larger racetrack that would be safer for jockeys. Thoroughbred Association in writing of any changes in payee Oral and written comments supporting the amendment were identity or addresses. The amendment adding subsection (d) received from the Texas Thoroughbred Association, who stated provides for disciplinary proceedings relating to misconduct the amendment would provide more racing opportunities for by participants in the accreditation program. The proposed thoroughbreds at popular distances. Oral and written comments proceedings provide for notice and an opportunity to be heard, supporting the amendment were received from Retama Park, consistent with the constitutional requirements for due process. who stated the amendment would help all horsemen find races of desired distances and help the racetracks provide No comments were received regarding the adoption of this those races. Written comment supporting the amendment was amendment. received from Austin Jockey Club, Ltd., which stated providing The amendment is adopted under the Texas Civil Statutes, races of the most desired distances will help promote quality Article 179e, §3.02, which authorizes the commission to adopt racing in Texas. rules for conducting racing with wagering and for administering Written comments opposing the amendment were received from the Texas Racing Act; §6.08, which authorizes the Commission Manor Downs, an existing Class 2 horse racetrack regarding to adopt rules relating to the accounting, audit and distribution the adoption of this amendment. The commenter opposed the of all amounts set aside for the Texas Bred Incentive Programs; amendment because the track would be required to acquire and §9.01, which authorizes the Commission to approve and additional real property to be able to comply with the larger adopt rules developed by the breed registries. track requirements. The commenter requested that the amend- The amendment implements Texas Civil Statutes, Article 179e. ment have no retroactive application to existing racing facilities. The Commission disagrees with the comments in that the Texas This agency hereby certifies that the adoption has been re- Racing Act, V.T.C.S. Article 179e, §6.06(e), permits the Com- viewed by legal counsel and found to be a valid exercise of the mission to condition the continued holding of a racetrack license agency’s legal authority. on compliance with Commission rules as amended. Commis- Filed with the Office of the Secretary of State on May 8, 2000. sion Rule 16 Texas Administrative Code §309.1(c) conditions the continued holding of a racetrack license on compliance with TRD-200003240 Commission rules as amended. The amendment will provide Paula C. Flowerday not only safer racetracks, but also racetracks that will afford Executive Secretary racing opportunities to more horses and more horse owners, Texas Racing Commission thereby permitting more citizens to obtain the benefits of Texas Effective date: June 1, 2000 pari-mutuel racing. To accommodate the circumstances of ex- Proposal publication date: March 10, 2000 isting racing facilities which do not comply with the rule as
ADOPTED RULES May 26, 2000 25 TexReg 4735 amended, the Commission has established an effective date ♦♦♦ of the amendment of June 1, 2001. Division 2. OPERATIONS The amendment is adopted under the Texas Civil Statutes, Article 179e, §3.02, which authorizes the commission to adopt 16 TAC §309.361 rules for conducting racing with wagering and for administering The Texas Racing Commission adopts the repeal of §309.361, the Texas Racing Act; §6.06, which authorizes the Commission concerning kennel accounts. The repeal is adopted without to adopt rules on all matters relating to the operation of changes to the proposal published in the February 11, 2000, racetracks. issue of the Texas Register (25 TexReg 1018). The amendment implements Texas Civil Statutes, Article 179e. The rule established a process for paying purses at greyhound This agency hereby certifies that the adoption has been re- racetracks. The rule was originally adopted at a time when viewed by legal counsel and found to be a valid exercise of the all greyhound racetracks in Texas conducted live races year agency’s legal authority. round. Currently, one greyhound racetrack conducts live races for only a portion of the year, but generates purse money from Filed with the Office of the Secretary of State on May 8, 2000. simulcasting year round. To establish a procedure to address TRD-200003241 this new circumstance, §309.361 is repealed and replaced by Paula C. Flowerday a new §309.361, the adoption of which is also published in this section of the Texas Register. Executive Secretary Texas Racing Commission No comments were received regarding the proposal. Effective date: June 1, 2000 The repeal is adopted under the Texas Civil Statutes, Article Proposal publication date: March 10, 2000 179e, §3.02, which authorizes the commission to adopt rules For further information, please call: (512) 490-4032 for conducting racing with wagering and for administering the ♦♦♦ Texas Racing Act; §6.06, which authorizes the Commission to adopt rules on all matters relating to the operation of racetracks. Subchapter D. GREYHOUND RACETRACKS The repeal implements Texas Civil Statutes, Article 179e. Division 1. FACILITIES AND EQUIPMENT This agency hereby certifies that the adoption has been re- viewed by legal counsel and found to be a valid exercise of the 16 TAC §309.309 agency’s legal authority. The Texas Racing Commission adopts an amendment to Filed with the Office of the Secretary of State on May 8, 2000. §309.309 concerning lockout kennels. The amendment is adopted without changes to the proposed text published in the TRD-200003243 March 10, 2000 issue of the Texas Register (25 TexReg 1933) Paula C. Flowerday and the text will not be republished. Executive Secretary The amendment is necessary to ensure the greyhounds racing Texas Racing Commission at Texas racetracks will be in a safe environment. The Effective date: June 1, 2000 amendment to subsection (b) changes the specifications for the Proposal publication date: February 11, 2000 crates in the lockout kennel to improve the safety and prevent For further information, please call: (512) 490-4032 injury to the greyhounds. ♦♦♦ No comments were received regarding the proposal. The Texas Racing Commission adopts new §309.361, concern- The amendment is adopted under the Texas Civil Statutes, ing greyhound purse and kennel accounts. The new rule is Article 179e, §3.02, which authorizes the commission to adopt adopted without changes to the proposal published in the Febru- rules for conducting racing with wagering and for administering ary 11, 2000, issue of the Texas Register (25 TexReg 1018) and the Texas Racing Act; §6.06, which authorizes the Commission will not be republished. to adopt rules on all matters relating to the operation of The new rule is adopted to ensure a clear system exists for racetracks. accounting for all purse funds generated at greyhound race- The amendment implements Texas Civil Statutes, Article 179e. tracks. The new rule establishes a process for accounting and safeguarding money earned by an association from simulcast This agency hereby certifies that the adoption has been re- wagering during a period when the greyhound racetrack is not viewed by legal counsel and found to be a valid exercise of the holding a live race meet. It also establishes a process to en- agency’s legal authority. sure the proper and timely payment of purses at greyhound Filed with the Office of the Secretary of State on May 8, 2000. racetracks during its live meet. The new rule also allows for TRD-200003242 input from the designated greyhound association. Paula C. Flowerday No comments were received regarding the proposal. Executive Secretary The new rule is adopted under the Texas Civil Statutes, Article Texas Racing Commission 179e, §3.02, which authorizes the commission to adopt rules Effective date: June 1, 2000 for conducting racing with wagering and for administering the Proposal publication date: March 10, 2000 Texas Racing Act; §6.06, which authorizes the Commission to For further information, please call: (512) 490-4032 adopt rules on all matters relating to the operation of racetracks.
25 TexReg 4736 May 26, 2000 Texas Register The new rule implements Texas Civil Statutes, Article 179e. Part 9. TEXAS LOTTERY COMMIS- This agency hereby certifies that the adoption has been re- SION viewed by legal counsel and found to be a valid exercise of the agency’s legal authority. Chapter 401. ADMINISTRATION OF THE Filed with the Office of the Secretary of State on May 8, 2000. STATE LOTTERY ACT TRD-200003244 Subchapter D. LOTTERY GAME RULES Paula C. Flowerday Executive Secretary 16 TAC §401.305 Texas Racing Commission The Texas Lottery Commission adopts amendments to 16 TAC Effective date: June 1, 2000 §401.305, concerning "Lotto Texas" on-line game rule, without Proposal publication date: February 11, 2000 changes to the proposed text as published in the March 31, For further information, please call: (512) 490-4032 2000 issue of the Texas Register (25 TexReg 2740). ♦♦♦ The amendments change the way Lotto Texas is played by adding four additional balls, changing the direct prize category Chapter 313. OFFICIALS AND RULES OF percentages for each of the prize categories, increasing the HORSE RACING guaranteed fourth prize amount from $3.00 to $5.00, increasing the prize pool from 50% to 55%, and increasing the odds of Subchapter D. RUNNING OF THE RACE winning. See Figure: 16 TAC §401.305(e)(1). The amendments also clarify that a retailer may enter the number selections via Division 1. JOCKEYS the terminal keyboard if a player is unable to complete a playslip and that the prize reserve fund may be used only for the Lotto 16 TAC §313.409 Texas game. Other amendments are "clean up" changes to The Texas Racing Commission adopts an amendment to eliminate obsolete language or typographical errors. §313.409, concerning jockey mount fees. The amendment Lotto Texas sales have continued to decline. The amendments is adopted without changes to the proposal published in the that change the way Lotto Texas is played by adding additional March 10, 2000, issue of the Texas Register (25 TexReg 1934) balls, changing the direct prize categories, increasing the and will not be republished. guaranteed fourth prize amount from $3.00 to $5.00, increasing The amendment is adopted to ensure jockeys are paid fairly the prize pool from 50% to 55%, and increasing the odds of for their services. The amendment was presented to the winning are intended not only to stop the decline in sales but Commission as a petition for rulemaking under 16 Tex. Admin. also to increase sales. Lotto Texas sales are jackpot driven. Code §307.33 by the Jockey Guild. The amendment to This means that the higher the jackpot, the higher the sales are. subsection (c) increases one minimum payment for a third-place Currently, player research indicates Lotto players want higher finishing jockey and the minimum payment for losing jockeys in jackpots. Since Lotto Texas jackpots have not reached these all races with purses of $2,000 or more. higher levels in recent years, players are buying fewer tickets and, as a result, sales have declined. Also, Lotto Texas is Oral comments were received by the Texas Horsemen’s Part- experiencing "jackpot indifference syndrome". When a jackpot nership, LLP in support of the proposal. The commenter stated plateau is hit, sales traditionally are a little bit lower the next the rule was consistent with similar rules in other racing juris- time at the same jackpot level. For example, years ago, a dictions. jackpot of $4 million, $7 million, or $10 million was a significant The amendment is adopted under the Texas Civil Statutes, jackpot. Today, a jackpot has to reach $40 million or $50 million Article 179e, §3.02, which authorizes the commission to adopt in some states, and, in other states, $100 million to experience rules for conducting racing with wagering and for administering an exponential lift in sales. the Texas Racing Act; §6.06, which authorizes the Commission Additionally, Texas border states, New Mexico and Louisiana, to adopt rules on all matters relating to the operation of participate in a multi-state game that is designed to have racetracks. mega-jackpots. As a result, Texans cross the borders to play The amendment implements Texas Civil Statutes, Article 179e. the multi-state games, especially when the jackpots are high. The amendment to increase the number of balls from 50 to This agency hereby certifies that the adoption has been re- 54 is intended to increase the jackpot amounts which will be viewed by legal counsel and found to be a valid exercise of the comparable to these jackpot amounts in the multi-state games agency’s legal authority. with the expectation that players will play Lotto Texas rather than Filed with the Office of the Secretary of State on May 8, 2000. travel to play the multi-state games. TRD-200003245 The amendments also increase the guaranteed fourth prize Paula C. Flowerday amount from $3.00 to $5.00. Currently, the greatest numbers Executive Secretary of Lotto Texas winners are the ones that match 3 of 6 balls. Texas Racing Commission Player research indicates that players want more than $3.00 at Effective date: June 1, 2000 the lower prize level. Increasing the guaranteed amount from $3.00 to $5.00 is in response to player requests. Proposal publication date: March 10, 2000 For further information, please call: (512) 490-4032 Additionally, the amendments increase the prize pool from 50% ♦♦♦ to 55%. Increasing the prize pool is a benefit for the players
ADOPTED RULES May 26, 2000 25 TexReg 4737 because an additional 5% of sales will be available to pay prizes Albertson 78 Hwy, 591 EZ Mart, 5H, 60359 Exxon, 67 Express, to players. Further, the combined effects of increasing the prize 69911 Exxon, 7 Days Groceries, 7-11, 7-11 414, 7-11 #26906, pool and increasing the number of balls will increase sales, and, 7-11 #27374, 7-Eleven, 936 DS, A & A Stop Shop, A & L One as a result, additional revenue will be transferred to the state. Stop, A&J Fairmont Texaco, A1 Liquor, Absolute Liquor, Ace 505, Ace Pawn, Adams, Air Cash, Al’s Food Mart, Al’s Mobil, The amendments also change the direct prize category per- Albertsons, Albertsons #4264, Ale, Ali’s Food Mart, Allsup’s centages for each of the prize categories. Increasing the direct #321, Allsups, Am Food Mart, ARD’s, Arians, Atascosa Groc, prize categories for each of the prize categories will have the fol- Auto Marine Parts, Aycock Oil Co. Inc., B Parm Mart, B&B lowing effect. Based on an annual projection of 52 weeks, 104 Drive In, B&J’s Wholesale, Bandara Ice House, Bandera Rd draws, overall sales projected for Lotto Texas are $736 million. Texaco, Bargain Liquor #107556, Bay City One Stop, Bayside Today, the trend is approximately $570 million. The overall sales Groceries, Benny’s, Big, Big Bear Bev, Big D, Big Dia. #14, Big increase is approximately $166 million. On a tier-by-tier basis, Diamond #1007, Bill’s, Bingo Convenience 114832, Bookoor, on Match 6 (6 of 6), 29 winners are expected annually. The Bottle Shop, Brahma Express, Broadway, Buddy’s, Burk’s Food average expected jackpot prize, on a 25 year payout basis, is Mart, C Mart, C. Mart 308, C.M. Grocery, Capt’s, Cash King, $19 million. Currently, the expected jackpot prize is $11 million Chevron, Cig for Less, Circle 7, Circle B, Circle S, Circle Z, but $9 million is the actual average jackpot amount. Currently, CJ Texaco, C-Mart, Coastal, Coastal Mart, Inc 3850, Conoco, on a Match 5 (5 of 6), the payout is approximately $1,500. By Conoco #43048, Cool’s Liquor #1, Corner Stop, Country Store, increasing the direct prize category percentages, the payout on Countryside, Cowart Store, Cowboy Q. Stop, Crossroad Mkt., a Match 5 will be approximately $2,500. On a Match 4 (4 of 6), Curve Drive, D & D Country Food Store, D & DS, D&E the increase is from $100 to $105. Finally, the Match 3 (3 of 6) Appliances, D. Shamrock, Daily Quick, Dalworth, Dambras, amount increases from $3.00 to $5.00. Dana Co’s, Delaware Food Mart, Diamond Dougs, Diamond The changes to the Lotto Texas matrix also benefit the retailers. Mini Mart, Diamond Mini Mart #172, Diamond Mini Mart 121, The Texas Lottery anticipates an additional $8 million in sales Diamond Shamrock, Diamond Shamrock #91, Diamond W, commissions to the retailers based upon the projected sales. Dick’s Food, Dickinson Conoco, Discount, DLS 991, Don’s & The Texas Lottery also anticipates an added benefit to the Ben’s, Don’s Food, Don’s Handy Mart, Dons & Bens, Dons & retailers will be an increase in store traffic on Wednesdays and Bens 4494, DS 1366, DubyDeli, Dyess, Eagleton’s Gro., Eastex Saturdays as a result of higher jackpots. In the past, when Lotto Exxon, Easy Stop, El Barrio Food Mart, ES Mart, Etter Grocery, Texas jackpots were high, retailers experienced an increase in Everday 5239, Everyday, Everyday #523, Express #1, Express store traffic on draw days. Lane #1, Exxon, Exxon Express Market, EZ Food Store 117436, EZ Mart, EZ Mart #208, EZ Mart #320, EZ Mart 120, E-Z Mart At the time the amendments were proposed, the Texas Lottery 276, E-Z Mart 546, E-Z Shop, EZT Food, Fiesta TX, Fina, Fina was aware of recent experience by Florida in connection with Mart, Fina Popeyes, Five Points, Flentge Drug, Food King, Food changing Florida’s Lotto matrix. The information from Florida Playa, Gabriel, Gas & Go #1, Gas Go, Gas-N-Go, Glad Mart, was helpful to the Texas Lottery because it provided the Texas Good Time Store #46, Goodoil #3, Grab All, Greenville Travel, Lottery with recent information on the impact of a Lotto matrix H&M, Hackney Food, Hada Enterprises, Handi Plus #43, Handi change which involved adding additional balls. In October Stop #12, Handi Stop #28, Handiplus, Happy Grocery, Hard 1999, Florida changed its matrix from a 6 of 49 to 6 of 53. Stop, HEB 230, Hill Brothers Food, Hill Country Stop, Hitchcock, From an odds perspective, the change in Florida is similar to Holfmann, Hop N Shop #25, Insta-Cash, Insti Cash, J & H Main the change in Texas. As of March 2000, Florida experienced Stop, J & J, Jack’s Grocery, Jalisco Grocery, Jamarove Food, a 26% increase in sales and a 29% increase in the jackpot James Food Mart, Jamies Food Store, Jess Orr’s Store, J-N- amount. Additional information indicates that Florida projected B Quinn Shop, Joe’s Finamart, Johnny Quick, JP’s Qwik Stop, reaching $100 million in incremental sales over a period of a JP’s Super Stop, Junior’s #4, K&S Drive Inn #103928, KC Oil year. However, Florida reached $98 million in four months. The #7, Kens Food Mart, King’s, Kings Liquor, KK’s, Kmart, Korner Texas Lottery is aware that at the time Florida changed its matrix Grocery, Kountry Food #4, Kroger, Kroger #604, Kroger 109, it also increased its number of draws per week from one to two. Kroger 214, Kroger 337, Kroger 344, Kroger 996, KW Shell, While the increase in sales, to some extent, is because of the Kwik Pantry, Kwik Stop, Kwik Stop #5, Kwik Way #1, La Familia increase in draws per week, it appears that the primary reason Mkt, Laikes Big Store, Lake Hills Ice House, Landing Liq., Last for the increase in Florida Lotto sales is the matrix change. Drop Liquids, Libby’s Market, Liquor Max, Lucky Food, Lucky During the comment period, the Commission received written Liquor, Lucky Mart, M & M, M & R Liquors VII, M&G, Mae’s, comments as well as oral comments. Oral comments were Magic Mart, Market Plan 134, Marshall Grocery Store, Mc Carl received at the April 13, 2000 Commission meeting and the April Texaco, Memorial City Shell, Merlin Mart, Metro Mart, Miller 19, 2000 public rulemaking comment hearing. The Commission Hardware, Mini Mart, Mini Mart #12, Mini Mart #5, Mini Mart received comments against the adoption of the amendments as 10, Mini Mart 102, Mini Mart 103, Minyard, Mobil, Mr. A. Beer, well as comments for the adoption of the amendments. Mr. G. Foodstore, Mr. J’s, Mr. Joe Food Store, Mr. Mercury, MS, Ms Express, MS Express #1013, Navigation Exxon, Neals, Groups or associations that are against the adoption of the New Angels, New Lawrence, Nick’s #2, Nick’s Grocery, Nicks, amendments are: IBS Lotto Group, Texand Corporation, APC NuWay #245, One Stop, One Stop #57, Outback, P & P, Pak Holdings, IAH Airport Lotto Players, Bolls Distributing Co., A Sack #3, Pak A Sak, Palmer Chev., Parkway, Pasadena Houston Woods & Waters Lotto Pool, Lotto Report, Arbor Liquor, Payless, Payless Food Market, Payless Liquor, Payless House, Century Business Equipment, Investors & Individuals, Supermarket, Pearl’s, Petro Pantry #11, Petro Pantry #9, Hajoca Corporation, Courtesy Mart, The Garland Economic Phillips 66, Pic N Pak, Pic Stop #5, Pico #10, Pico #11, Pic- Development Partnership, #22557 7-11, #3 Mini Mart, #4036 Up Mail #1158819, Pik Nik #22, Piknik #26, Pine Sap Shell, Vista, #572 E-Z Mart, 108 Sprint 24, 122 Carnival #228909, Pit Stop, Pleak Korner, Pruitts Texaco, Quality Liquor, Quick 185 DS, 255 Diamond Shamrock, 3 Way Gro, 4 Way Kwik, 405 Grocery, Quick Pick, Quick Sak, Quick Way #30, Quick Way
25 TexReg 4738 May 26, 2000 Texas Register Food Store 102152, Race Trac, Race Trak #476, Ralph’s, Ram 3790 C-Mav, 3793 Maverick, 4 Corners, 4 Less, 40 Foods, 401 Store #14, Randall’s #66, Randall’s 36, Randall’s 39 421604, Friend, 4084 Albertson’s, 440 Diamond Shamrock, 452 Dia- Razorback, RB Liquor, Red Coleman’s #17, Refuge General, mond Shamrock, 4th St Fina, 5 Points Quick Stop, 5 Star Food Ries Drive Inn, Right Time, Rindler Groc., Rio Grande Grum Mart, 5 Star Texaco, 5 Wints, 5083 Pump N. Shop, 577 EZ Co-op, Rios #2, Rite Price Liquor, Riverwalk Mrt, Robert Cut Mart, 608 #717, 6-11 Fuel Store, 6-12 Food Store, 7 Days, 7 Rate, RPM #1, RPS Discount Tabacco, Sac N Pac #504, Sack Eleven, 7 Star Enter, 7-11 #116, 7-11 #124, 7-11 #1662, 7- N Save, SageBrush, Sak N Sav, Salems Mart, Sam’s Grocery, 11 #16802, 7-11 #27441, 7-11 #57620, 7-11 #601, 7-11 #613, Sam’s Quick Way, Samco, Santa Fe Junction #444601, Save 7-11 #621, 7-11 #624, 7-11 #629, 7-11 #631, 7-11 #635, 7- N Go, Save Way, Savey, Scott’s One Stop, Shamrock, Shell, 11 #641, 7-11 #642, 7-11 #648, 7-11 #804, 7-11 105, 786 Shelly’s Liquor, Shew, Shop go, Shop N Go, Shop N Go #2, Truck Stop, 7-Eleven, 7-Eleven #603, 7-Eleven #606, 7-eleven Shop N Save #10, Shop N. Drive, Shopper #14, Shoppers Mart, #607, 7-Eleven #614, 7-Eleven #615, 7-Eleven #617, 7-Eleven Short Stop, Shp N. Go, Shyam’s Exxon, Sieglers, Skinny’s, #618, 7-Eleven #627, 7-Eleven #628, 7-Eleven #630, 7-Eleven Skinny’s #38, Skinny’s #42, Skinny’s #76, Skiny’s, Smiley’s #633, 7-Eleven #634, 7-Eleven #636, 7-Eleven #638, 7-Eleven Food Store, Smokey, Sommers Texaco, South Island, Speedy #640, 7-Eleven #644, 7-Eleven #645, 7-Eleven #646, 7-Eleven Stop #1, Speedy Stop #2, Speedy Stop #40, Spinn Mkt, Sprint #649, 813 Seven Eleven, 86 Diamond Shamrock, 865 Diamond 24 #301, Star Stop #7, Stephanie Liquor, Stoneham Grocery, Shamrock, 8th Ave Texaco, 9325 Kmart, 957 Kroger, 9642 Cir- Stop & Go, Stop and Save, Stop Go 2150, Stop Grocery, Stop cle K, 9th Avenue Food Store, 9th St. Groc., A & A, A & B N Buy, Stop N Go, Stop N go #02605, Stop N Go #2125, Stop N Food, A & B Food Mart, A&BFoodStore, A & E Liquor, A & K Go 2584, Stop No, Stop One, Stop-N-Go, Studen Korner, Sun Food Store, A & M Liquor, A & T G. Mart, A & V Lopez, A Plus Down, Sundown, Sundown Market, Sundown Mkt, Sunglo Inc. Beer, A&A food Mart McGrgor, A&R Town & Cit, A&W, A. Garza #38, Sunmart, Sunny Chevron, Sunny’s Food Store, Sunrise Exxon Store, A. Z. Mart, A.J. Liq, A+Grocery, A-1, A-1 Check, Superstop, Super Food, Super Kwik, Super S 309, Super Sak A-1 Grocery Store, A-1 Liquors, A-1 Mity Mart, AA Food Mart, #3, Super Serve Food and Ice Store, Super Shop, Taylor Petro, AB Petroleum Co, Ace #102, Ace #514, Ace #526, Ace 1320, Terry Texaco, Terry’s Food, TETCO, Tetco #215, TETCO #33, Ace 316, Ace 512, Ace Ash 267, Ace Cash, Ace Cash #5175, Tetco 221, TETCO 260, Tetco 46, Tetco 636, Texaco, Texaco Ace Cash #703, Ace Cash Express, Ace Cash Express #1418, 3030, Texaco on Valen Rd, Texaco Sealy, Texas Cooler #2, Ace Express, Ace Mart 2, Ace Store, ACS of Rogers, ADH Texas Food, Texas Tobacco, Tex-Mart 4, THA Food Store, Thalji Food Mart, Airport Liquor, AJ’s Place, Al’s Food, Al’s Gro #2, Ent, The Back Box, The Chuckwagon, The Filling Station, The Al’s Kash N. Karry, Alamo Food, Alba Food Mart, Albertson, Al- Ice Box Store, The Little Store, The Store I, The Trading Post, bertson #2758, Albertson 2702, Albertson 4054, Albertson 933, Thrift Stop Liquors, Thrifti Korner, Tiger, Tiger Tote #21, Tiki Albertson Fuel, Albertson Store 4209, Albertson’s, Albertson’s Food, Time Out, Time Out Grocery, Timewise, Timewise 3201, #2721, Albertson’s #4025, Albertson’s #932, Albertson’s #934, Timewise 4501, TJ’s Package Store, TMA, TNT 78, Today’s Albertson’s 401, Albertson’s 4073, Albertsons 4064, Albertsons News, Toms EZN, Tony’s F.M., Total, Town & Country Chevron, 4082, Albertsons 4287, Ali Texaco, Allsup #58, Allsup #65, All- TR’s Quick Stop, Troy’s, Tx Slam, UDS #2029, Uvalde Suprette, sup’s, Allsup’s #127, Allsup’s #156, Allsup’s 289, Allsups #14, Valley Ck, Valley Liquor, Valley Mart, Villager, Vista Del Sol 66, Allsups #17, Allsups #19, Allsups #231, Allsups #26, Allsups Vivraux, VM #8, Wag-A-Bag #3, Walnut Bear, War Lee Food, #27, Allsups #283, Allsups #43, Allsups #72, Allsups #78, All- Weatherford KOA, West Prah Food Store, Westbrooks Food & sups #82, Allsups #85, Allsups 163, Allsups 166, Allsups 244, Fuel, Western Bev, Western Beverages #95, Winn Dixie, Witte Allsups 3, Allsups 332, Allsups #7, Allsups 92, Als #2, Als Gro Food Mart 106824, Zoom IN #11. #1, Alvarado’s Food Mart, AM PM Mkt, AM Twin Stop, A-Mart #3, Amato Food Mkt, Amburn Food, American & Or., Americas Groups or associations that are for the adoption of the amend- Cash Plus, Amigo Food Mart, Amigo Food Way, Amigo Texaco, ments are: Robinson Public Warehouse Co., Jasper Oil Co., Amigos, Amigos #1, Amigro #1, Amistad Drive Inn, Amy’s, Ana Joe’s Grocery & Ice, C Store, Zip in 107, Easy Shop#3, Jecks Shell, Anderson Food, Andy’s, Andy’s Groc., Andy’s Quick Stop, Macgregor Fastime, Triangle Drive In, Quix 460, Tetco #208, Andys Texaco, Angel Gas, Angel’s #4, Angels, Angels #1, ANV Town & Country, Lakeshore Store, Payless 62, Big TX, Inc., The Quick Stop, AOK Camper Park, AP’s Drive Thru, Appletree, Toddy House, Get N Go, Austin, DS 1308, Korner Food Store, Aptus Drive, AR’s Food Store, Arcadia Liquor, Arlans, Arling- Melvin’s Drive In, Diamond Shamrock #1381, Gen Dandy #9, ton Mart, Armadillo, Armadillo #14, Armadillo Food Mart, Arp Jiffy Mart, Georgetown, Sam’s Groceries, Smith Brothers Food Food Store, Arp SS #3, Arthur City, Arts Mobil, Arturo’s Cash Stores, TMCS, Texas Food Industry Association, Texas Associ- Gro, AS Grocery, Asaraf Enterprises, Ashford Texaco, Athens ation of Lottery Retailers, Ultramar Diamond Shamrock, Shop Shell, Autry’s, Ayers City Stop, AZ Food Store, Aziz, Azle Di- & Go Grocery, Vice Stop, Melek Corporation, Fiesta Mart, Inc., amond Food Inc., B & B Conv, B & B Grocery, B & B Shell, Country Center, TMT, Inc. dba Whip In, Rudy’s Stop & Shop, B & C Quik, B & L Grocery, B & L Liquor, B & M Stamps, B Hughs Auto Parts, Jackies Exxon, Tetco Stores, Tool n Totum Diamond, B J Mini Mart, B&B Food Store, B&G’s Grocery Sup- Food Stores, Adrian’s Drive In Gro., Fast Food Holding, Dave’s ply, B&H Quik Stop, B&R Bait & Tackle, Bacliff Gro, Balcones Ski & Tackle, Country Side Grocery, Melvin’s 19th Street Drive Height Chevron, Ballard Exxon, Bandera Exxon, Bar B Travel, In, West T Go Conv. Stores, Lucky’s Food Mart #1 Express Bardwell Food Mart, Bargain Groc, Barrel House Conv, Barretts Food, #10 Good Times, #2 Kidd Jones, #4 Petro Pantry, #43 Un- Gro, Bartlett Food, Basse, Bates, Bay Area Exxon, Bay Side cle Sams, #5128, #809 7-11, #91 Akeya, #91 Quick, (5) Times Express, Bay Texaco, Bay View, Bayou Good, BDJ’s, Beasley Market, 007 Grocery, 1 Stop, 106-214, 14 Texaco, 1631 Texas Foods, Bee Caves Car Wash, Beer Mart, Bel Hi, Bell Mart, Bel- Star, 1st Choice Food, 1st Stop Beverage Barn, 1st Stop Neigh- lalt’s One Stop, Belly Food, Belt Line Mobil, Belton Fast Stop, bor, 1st Stop of Texas, 1st Stop Store, 2 N 2 Drive Inn, 2000 Beltway Food, Ben, Ben Short Stop #11, Ben’s Grocery, Ben’s Food Store, 21 Food Mart, 21‘, 22 Enter., 2305 Stop N Go, Mobil, Bennetts, Berkman Food, Berry Creek Food Mart, Bert 2375 V.C.C., 24 Market, 26235 7-11, 268 EZ Mart, 2-Fast, 2Y, Wheeler, Best Check Cashing, Best Food #2, Best Stop, Betty 300 Short Stop, 304 DMM, 3079-Maverick, 310 Coastal Mart, Liquor, Betty’s Quik Stop, Beverage Express, Big 8 Foods, Big
ADOPTED RULES May 26, 2000 25 TexReg 4739 Apple Comics, Big D Inc #979, Big Daddy’s, Big Diamond, Big #3127, Coastal #3347, Coastal #3455, Coastal #3456, Coastal Diamond #1351, Big Diamond 1270, Big Diamond 1369, Big #3459, Coastal #3754, Coastal 3055, Coastal 3082, Coastal Diamond Inc, Big Mikes, Big Tex #4, Big Texas #3, Big Z, Bill’s 312, Coastal 3128, Coastal 3342, Coastal 3804, Coastal 387, Drive Inn, BJ’s Food & Fuel, BJ’s Food Store, BJ’s Quick Food, Coastal Mart, Coastal Mart 302, Coastal Mart 314, Coastal BJ’s Quik Stop, Blanco Jr., Blessing County Store, Blessing Marverick 3134, Coastal Maverick, Coastal Maverick #3039, Drive In, Blue Bonnett Store, Blvd Spirits, Bobby McGee Gro- Coastal Mkt #2753, Coastal Mkt #3463, Coastal Mkt 3342, cery, Bomadt, Inc., Bomort, Bonaire Food Mart, Boots Liquor, Cofford at Graery, Cogblan Grocery, Cohn Wash 14, Coley’s Boyd IGA, Brander 76, Brannan’s, Brazos Bend Home & Ranch, Corner, Collins Food, Colony Express, Colony Lakes Wine & Bread & Butter Stop, Break IGA #2, Breckenridge IGA, Briar Hall Spirits, Columbus Chevron, Come N Buy, Come N Go, Comet Groc, Bright Star Oil, Brinkman Food, Broadway, Broadway Fast Liquor, Commercial, Compodres Perez, Conoco, Conoco #5, Stop, Bromer Counts, Bromers, Brook/Conarroe Apple Springs, Conoco 4300, Conoco Food, Conoco Food Mart, Convenient Brook /Conarroe Jacksonville, Brooks & Conacoe, Brown Trail Food Mart, Cooks Pt., Coons, Cooper Food Mart, Coppell Groc, Brownies, Brownsville Beauty Supply, Bryan Drive-In, Mobil Mart, Corner Express, Corner Food Mart, Corner Mar- Bryan’s #3, Bryon’s Conv., BTCS, Bubba’s #316, Bubba’s 304, ket, Corner Mini Mart, Corner Stop Food Mart, Costal #3450, Bubba’s Fuel Stop, Bubbas, Bubbas #3, Bubbas 360, Bucca- Costal Mar #3460, Coulder Key, Coulter’s Video, Counerys, neer Food Stores, Buckets, Buddies Grocery, Buddy’s, Buddy’s Country Side Groc., Country Bags, Country Boy Store, Coun- Pkg Store, Budget Mart, Buena Vista, Buma Jiffy Mart, Busy try Center, Inc., Country Corner, Country Crossroads, Coun- Mart, BZ Mart, C & B One Stop, C & J Grocery, C & L Market, try Food Store, Country Junction, Country Kwik Stop, Country C & R #6, C & S Food, C & W, C & W #11, C & W #3, C & Liq., Country Peddler, Country Store, Countryside, County Seal W #9, C & W One Stop, C & W. Mini Mart, C & Y Food, C Gro, County Side, County Store, Cowboy’s, Cowboys, Cowboys Star, C&L Food, C&P #1, C&P Grocery, C&R #3, C&R #8, C. #2, Cozby’s Conv., Cracker Barrel, Cracker Barrel #5, Craw- C. Store, C. Mart 322, C. Store, C.C.’s, C.S. food, Cada Dia, ford’s #4, Crawfords #2, Crestwood Chevron, Crones, Crosby Cady Cove, Calmont Quick Stop, Camco Mart, Camino Super Texaco, Cross Roads Truck, Crossroads Express, Crossroads Mkt, Campsey Food & Fuel, Candy Barrel, Canton Travel Plaza, Shamrock, Crystal, CSI, CSI #654, CSI #664, CSI 1290, CSI Cap Quick Stop, Carden Chevron, Cardenas Produce, Carl Rd. 648, CSI 650, C-Store, C-Store #110, C-Store Texaco, Culebra, Shell, Carl’s Liquor, Carlo Diamond, Shamrock, Carlo’s Store, Cullen Stop N Go, Culleyvile Mobil, Curtis, Cuseway Marina, Carmona’s, Carnieceria la Modena, Carnival, Carol’s, Carousel Cushing Grocery, Cypress Point Inc., D & D One Stop, D J Liq, Conv. Store, Carr’s Gro, Carrera’s Gro., Carter Gro, Carter’s D J One Stop, D Shamrock, D&N, D. J. Chevron, D.C. Garza Country Store, Carver E Mart, Cash Food Mart, Cash It Here, Ent., D.S. #45, D.S. 1328, Da & Ben’s, Dairy Mart, Dairy Mart Cash It Here #12, Cash It Here #2, Cash It Here #6, Cash #5, Dalin, Dalton’s Conv., Dan B Jiffy Mkt, Dan’s Texaco, Daniel N Cash, Cash N Dash, Cash N Dash #17, Cash N Dash #2, Food, Danny’s Citgo, Dannys #3, Dans & Bens, Darby, Daves Castro Texaco, Cata’s, Cateway Store, Cavazos Grocery, Cave- Conoco, Dawson Super, Day-Night #3, Day & Night #24, DC, ness Groc., CC Food Mart, CC Shamrock, CC’s Food Mart, Deacory, Debb’s Liquor, Decent Food Stop, Delta Food Store, Cedar Valley Gro, Central Texaco, Centre Convenience, Cesar’s Den Mart #3, Den’s #5, Denton F/M, Depot Liquor, Detroit Su- Airport, CFC Store, Chacha’s Grocery, Chalos, Chamm Corp, perette, Diamond, Diamond #1032, Diamond #2137, Diamond Champ’s #4, Champion Liq, Chavor 2 Food, Che’s Texaco, Mart, Diamond Mini Mart #303, Diamond Mini Mart #312, Dia- Checkers, Checkers #2, Checks Cashed, Cheers, Chevron, mond Mini Mart 307, Diamond Shamrock, Diamond Shamrock Chevron #122, Chevron 1242, Chevron 446301, Chevron Con- #1015, Diamond Shamrock #100, Diamond Shamrock #1003, venience, Chevron Food Mart, Chevron Inc, Chevron Mart, Diamond Shamrock #104, Diamond Shamrock #1043, Diamond Chevron One Stop, Chichuahu, Chick’s, Chico Mart, Chiefs Shamrock #117, Diamond Shamrock #1255, Diamond Sham- Food Mart, Chihuahua Pump N. Shop, China Mkt, Chris’s Park rock #1262, Diamond Shamrock #1264, Diamond Shamrock #1, Chuck, Chuck Wagon #2, Chuck’s, Churchills IGA Food #1273, Diamond Shamrock #1350, Diamond Shamrock #1354, Store, Chuy Mart, Cielo Vista Chevron, Cigarette & More, Ci- Diamond Shamrock #1355, Diamond Shamrock #1356, Dia- igo Mart, Circle 7, Circle 7 #2, Circle 786, Circle 9629, Cir- mond Shamrock #1359, Diamond Shamrock #1360, Diamond cle 9636, Circle A, Circle J, Circle K, Circle K 2151, Circle K Shamrock #1362, Diamond Shamrock #1371, Diamond Sham- #9677, Circle K #9679, Circle K #9857, Circle K #0006, Circle rock #1375, Diamond Shamrock #2129, Diamond Shamrock K #1257, Circle K #1482, Circle K #1624, Circle K #1641, Circle #225123, Diamond Shamrock #2295, Diamond Shamrock #27, K #20, Circle K #2124, Circle K #2146, Circle K #43, Circle K Diamond Shamrock #36, Diamond Shamrock #425, Diamond #481, Circle K #5306, Circle K #5312, Circle K #5313, Circle Shamrock #459, Diamond Shamrock #510, Diamond Shamrock K #8515, Circle K #8516, Circle K #8775, Circle K #890, Cir- #514, Diamond Shamrock #943, Diamond Shamrock 1036, Di- cle K #9553, Circle K #9628, Circle K #9675, Circle K #9692, amond Shamrock 177, Diamond Shamrock 43, Diamond Sham- Circle K #9847, Circle K #9870, Circle K 1508, Circle K 153, rock Master Oil, Diamond Shrock 2079, Diamond Store #184, Circle K 2127, Circle K 2128, Circle K 2144, Circle K 2149, Diane JR’s, Dickenson Food, Diers Drive In, Dillard’s, Dimple Circle K 2158, Circle K 26, Circle K 9203, Circle K 9393, Cir- Quick Stop, Discount Mini, D-K Food Store, DK’s Quick Stop, cle K 9394, Circle K 9432, Circle K 96?1, Circle K 9646, Circle DMM #106, DMM #404, DMM 311, Dokes #35, Dollar Bills, K 9648, Circle K 9656, Circle K 9662, Circle K 9762, Circle K Dominy’s, Don #3, Don’s, Don’s & Ben’s, Don’s & Ben’s #34, 9773, Circle K 9793, Circle K 9831, Circle N. Store, Circle S Don’s & Ben’s Liquor, Donna’s Place, Donny’s, Donny’s Citgo, Food, Circle S Food Mart, Circleville Store, Citgo, Citgo Mart, Doomis Citgo, Double T, Dow #5, Downtown DKC 124819, City Market #4, City Star Texaco, CJ’s Convenience Store, Cj- Dram 401, DRG Pantry Food, Drigges Gas, Dripping Springs rooms, CJS Mini Mart, Classic Laundry, Clayton’s, Clayton’s Grocery, Drivers, Druggen, DS #1372, DS #19, Duke’s, Dukes Mini North, Clear L Shell, Cleo’s Convenience, Cleo’s Texaco, #2, DW Shell, E & R Convenience, E 2 Shop, E Mart 443, Click Food Store, Cline’s Corner, Clint Exxon, Clints, Clute E Z Mart, E.D., E.M.S. Supply, Eagle C Store, Eagle Pass Fuel Stop, Cmart, C-Mart, C-Mart #234, C-Mart #3795, C-Mart Exxon, East Mart, East Tex Exxon, Eastside Check Cashers, 306, CMMS #75, Coastal, Coastal #3, Coastal #3055, Coastal Eastside Gro, Eastwood Chevron, Easy Shop, Easy Spring,
25 TexReg 4740 May 26, 2000 Texas Register Echo Ent. Inc, Econ Liquor, Econo Mart, Econo Mkt, Economy 8, Gerlunds #70, Get N Go, Gifts from the Sea, G-Market, Go #294, Economy #635, Economy #637, Economy #719, Econ- Check Cashing, God Dan Many Mart, Gold Fashions, Gonzales omy 284, Economy 607, Economy Drive In, Economy Oil, Ed’s Grocery, Good City #2, Good Neighbor Store, Good tiem Store Country Store, Ed’s Drive In, Eddie’s Grocery 436903, Eham- #41, Good Time, Good Time #11, Good Time #117, Good Time rok Liquor, EL Chaparrel, El Paso Truck Term, El Rendio Gro, #24, Good Time #26, Good Time Store, Good Time Store #1, El Roncherit, El Slabo Brownsville, El Tigre Exxon #3, El Tigre Good Time Store #14, Good Time Store #22, Good Time Store I, Elkins Cut Rate, Ellis Super Mkt, Elmer’s, Elmers #1, Elmers #25, Good Time Store #27, Good Time Store #29, Good Time #7, Empire Central Beverage, Erasmo’s Liquor Store, Esparza Store #34, Good Time Store #35, Good Time Store #37, Good Grocery, Esquina Mart, ETM, Eve’s Exxon, Evergreen, Every Time Store #39, Good Time Store #40, Good Time Store #43, Day Store, Every Thing 1 Plus, Everyday, Everyday #5220, Ev- Good Time Store #44, Good Time Store #45, Good Time Store eryday 5253, Everything 99¢, EX Mart, Exit 8, Express Busi- #6, Good Time Store #62, Good Times, Good Times #2, Good ness, Express Food, Express Lane, Express Lane #300, Ex- Times #30, Good Times #65, Goodtime Store #38, Goodtime press Mart, Express Mart #10, Express Mart #2, Express Mart Store #49, Gordon’s Bait Tackle, Grand Discount, Grandad’s #5, Express Mart #6, Express Truck Stop, Express Way, Ex- Junction, Green Top Fina, Greenbriar, Greta’s Shell Cashing, press Way Food, Exxon, Exxon-Martinez, Exxon #2009, Exxon Griffin Groc, Gromger Food Mart, Groveton One Stop, Grub #60031, Exxon 61417, Exxon-67938, Exxon Comaland, Exxon Sack, GTS #15, GTS #20, GTS #21, GTS #31, Guerra’s In- Express Mkt, Exxon Food Store, Exxon Post Vak, Exxon Tiger ternational, Guffey’s Grocery, Gulf Bank Grocery, H Mall, Hah Market, Exxon Tiger Mart, Exxon Tigermarket, Exxon Tiger- Gas, Haley’s One Stop, Halfmann’s General Store, Hamiton mart, Exxon/BK, EZ, EZ Mart, E-Z Mart, E-Z Mart #1, EZ Mart Chevron, Han D Pak, Handi Plus, Handi Plus #35, Handi Plush #239, E-Z Mart #275, E-Z Mart #297, E-Z Mart #300, EZ Mart #61, Handi Stop, Handi Stop #5, Han-D-Shop, Handy Andy, #318, E-Z Mart #325, E-Z Mart #326, E-Z Mart #327, EZ Mart Handy Andy #726, Handy Andy #750, Handy Andy 745, Handy #328, E-Z Mart #458, E-Z Mart #459, EZ Mart #463, EZ Mart Foods, Handy Mart, Handy Mart #1, Handy Pantry, Handy Stop, #5, EZ Mart #559, EZ Mart #594, EZ Mart #68, E-Z Mart 127, Haney Food, Hanson Hanks, Hap’s, Happy, Happy Hill, Harmon E-Z Mart 159, EZ Mart 162, EZ Mart 29, EZ Mart 310, E-Z Mart & Creed, Harp City Store, Harris Food Store, Harrisburg Food, 352, E-Z Mart 464, EZ Mart 570, EZ Mart 589, E-Z Shop, EZ Haskell Foods, Hasty, Hasty #37, Hasty Liquor, Hatahoe, Hatton Stop, E-Z Store #6, EZ Way, F. O. C. #1, Fairview Farms Gen- RR Cut-Rate, Hawell Exxon, Heartigs, HEB, HEB #292, HEB eral Store, Falcon Farm, Family Corner, Family Food, Family #84 CC #5, HEB 403, HEB G Town, Heights Meats, Helmer Food Mart, Family Mart, Family Mart #1, Family Mini Mart, Far- Food Store, Hendricks Texaco, Henry’s Pack, Henry’s Quikstop, Pac, Fast Break, Fast Cash, Fast Con, Fast Lane, Fast Lane Hernandez Drive Inn Gro, HI Class, Hi-C Food Store, Highland #5, Fast Mart, Fast Mart, Inc., Fast Stop, Fast Stop #1, Fast Food, Hill Cost Drive Inn, Hill’s #4, Hillcrest Grocery, Hills #2, Stop Mart, Fast Way food Store, Fastex Food Mart, Fastlane #7, Hills #4, Hilltop, Hinby E Foods, Hitchin Post, Hitching Post, Hi- Fastlane #9, Fastop #3, Fastop #4, Fastop Foosd #3, Fast-Stop, way One Stop, HLD Food, Hoath Market, Holiday Liquor, Home Fastway Food Mart, Feldman’s #2, FFP #228, FFP Marketing, Town, Homeboys Mobil, Hondo Texaco, Honey Dew, Honey Fidel’s Grocery, Fiesta #29, Fiesta #46, Fiesta Food Mart, Fi- Stop, Honey Stop #1, Honey Stop #10, Honey Stop #29, Honey esta Groc, Fiesta Mart, Fiesta Mart #7, Fina, Fina Food Mart, Stop #3, Honey Stop #5, Honey Stop 22, Honey Stop 4, Hop Fina Mart, Fina Vista 4014, First & Last Stop Liquor, First Con- N Shop #6, Hop N Shop 1, Hop N. Shop #17, Hopias Mini venience, First Stop, First Stop Food Store, Five Star Foods, Mart, Hop-n-Shop #14, Horizon, Horizon #4, Horizon #5 Tiny FL Shop, FM 1764 Shell, FMF Mart, FOC, FOC #10, FOC Thom, Horizon Big 8, Horizon Store, Horizon Vista, Houdy #8, #11, FOC #2, Follet Oil, Food & Gro, Food Bag, Food Bas- Housco Tech, Housham Mart, Howdy Citgo, Howdy’s, Howdy’s ket, Food Basket #8, Food City #1, Food City #5, Food Fast, #1, Howdy’s #2, Howdy’s #3, Howdy’s #9, Howdy’s Joe Bat- Food Fast #100, Food Fast #101, Food Fast #102, Food Fast tle, Hughson’s Texaco Mart, Hurel’s Gro, Hussaim, Hwy 19 #103, Food Fast #50, Food Fast #51, Food Fast #52, Food Fast Chevron, Hwy 271 Chevron, Hwy 271 Texaco, HWY 51, Hy- #53, Food Fast #54, Food Fast #55, Food Fast #56, Food Fast cock, I 35 Pump N Shop, I30 Chevron, I-30 Fast Mart, Inc., #57, Food Fast #58, Food Fast #59, Food Fast #60, Food Fast Icon Drive In #2, Ideal Food Store, IGA #400, IGA Family Food, #61, Food Fast #62, Food Fast #63, Food Fast #64, Food Fast Igloo, In & Out, Inderjit, Industrial Shell, In-N-Out, In-N-Out Food #65, Food Fast #67, Food Fast #68, Food Fast #69, Food Fast Mart, Interstate Fast Snack, Interstate Stop Mart, Inwood 66 #70, Food Fast #71, Food Fast #72, Food Fast #73, Food Fast Phillips 66, Irnvington Conoco, Island Mkt., J & C Mobil, J & J, #74, Food Fast #75, Food Fast #76, Food Fast #77, Food Fast J & J Food Mart, J & J Food Mt, J & J Grocery, J & L Liquor, #79, Food Fast #80, Food Fast #81, Food Fast #82, Food Fast J & R #2, J A M, J P, J&B, J&M, J. Cowboy Super Express, #85, Food Fast #86, Food Fast #89, Food Fast #95, Food Fast J. Food Mart, J’s Food, Jack’s Grocery, Jack’s Midway Stop, #96, Food Fast #97, Food Fast #98, Food Fast #99, Food Fast Jacks, Jacks #102, Jacquez Grocery, Jake Salim Pkg, Jake’s, 100, Food Fast 103, Food Fast 62, Food King, Food Mart, Food Jalomo’s Gro., Janies Country Store, Jansen Super Mkt, Jarrell Rite, Food Spot, Food Store, Food Town, Food Valley, Foots Liquor Store, Jasper Jiffy, JC, JD’s 282 Texaco, Jeanies Corner, Liquor, Fort Stockton B45 Terminal, Four Corners Exxon, Four Jeff Co, Jeff Stop, Jenie’s, Jensen Coastal, Jerry Drive Inn, Points Stop, Four Way Stop, Frenchy’s Beverage Barn, Friend’s Jerry’s, Jesse’s Liquor, Jessie’s Food Store, Jessie’s Liquor, #322, Friendly Gro, Friendly Shell, Friendly’s, Friends, Friends Jetters, JG’s #228, Jif E Mart, Jife Mart #3, Jiffy Mart #6, Jiffy #404, Friends 410, Frio Canyon Gro, Frio Self Serv, Frontier Mart #9, Jim B. Lee, Jim’s Foodmart, Jim’s Quick Stop, Jimmy’s Country Store, Frost Store, Fuel City, Fuel Mart, Full Service Corner Store, JJ #271, JJ 105, JJ 107, JJ 211, JJ Fastop, JJ’s, Inc., Furr’s #946, Furr’s 945, Furrs, Furrs 933, Furrs 967, Furrs JJ’s #210, JJ’s #212, JJ’s #217, JJ’s #260, JJ’s Video, JJ’s Fas- 993, Furs #937, Fuzzy’s, Fuzzy’s 1 Stop, G & G Gro, G & H trac, JJ’s Fastrac 110, JOC #5, JOC #9, JOC 6, Joc Bob’s, Joe Texaco, G.H. Texaco, Gabriels, Galene Store, Garza’s Quick Country Store, Joe King Disct Mkt, Joes Grocery, John’s Handi Stop, Garza’s Ser Sta, Gas & Go #2, Gas Go, Gas Go 11, Gas Plus, Jonahtan’s #3, Jonathan’s Shop, Jones, Jones Cowboys, Go Mkt, Gas Gro kt, Gas Stop, Gem Dandy’s #102, Gen Dandy Jones Food Mart, Jones Mini Mart, Jordan’s Cigarette Store, #14, Gene’s HQ, George West Truck Stop, GeorgeDeter Big- Joshua Fina, Jr Food Mart, JR Quickee, Jr. Food Mart, JR’s,
ADOPTED RULES May 26, 2000 25 TexReg 4741 JR’s Gro., Jr’s Grocery, Jr’s Supermarket, Jromers, JS Food Lynzy’s Short Stop, Lytle One Stop, M & D Food, M & M, M & Mart, Juanito’s Liquor Store, Jud’s #1, Juds Food Store #5, M Fast Food, M & M Gro, M & M Lucky Lady, M & M Market, M Jumpin Jaus Inc., Junction Express, Juniors Drive Inn & Meat C Food Mart, M S Express, M&M #1, M&M Food Store, M&M Market, Just A $1.00, K & B Liquor, K & M Grocery, K & S Liquor, M&M One Stop, M.C. Corner, M.P. Travel #2, M.P. Travel Jiffey Mart #1, K-Jims, K Mart, K Mart 3835, K. J #15, K. W. 1, M.S. Express, Mac’s Drive by, Macarana, Macs Mini Mkt, Express, K.J. Liquor, K.K. Food Marts, Kastis, Kate’s Fina Mart, MaGee’s, Magic Food Mart, Magic Mikes, Magon Store #2, Mai Kates Fina, Katies, Katies Pantry #907, Kay’s Convenience, KC Chi Market, Majestic, Majestic 16, Major Gas, Malik Food, Malik Oil #12, Ken #11, Kent, Kent #206, Kent 203, Kent 312, Kent Fuel, Mama Mkt, Mandy’s, Mann #2, Manning’s, Mansell Gro, Kwik, Kent Kwik #312, Kent Kwik 3096, Key Food Express, Marcarture Texaco, Mario’s Mkt, Marios, Market, Market Citgo, KeyFood, Khan Shell, Kiby Valle Gro, Kicks 66, Kid Jones, Kidd Market Place, Market Place #22, Market Place #7, Marshall’s Jones, Kidd Jones #1, Kidd Jones #11, Kidd Jones #12, Kidd Grocery, Martae’s, Martals Pump N Shop, Marter Food Mart, Jones #2, Kidd Jones #3, Kidd Jones #4, Kidd Jones #5, Kidd Massey’s, Mat #4, Mata Gro, Mathis Country, Matus Supermar- Jones #6, Kidd Jones #6 Whitehouse, Kidd Jones #9, Kidd ket, Max, Max #5, Max E Mart, Max E Mart #2, Max E Mart #4, Jones Brownsboro, Kidd Jones Chandler, Kidd Jones Chevron, Max Food Mart, Max Texaco, Max-E-Mart #3, Max-E-Mart #6, Kidd Jones ESE Loop 323 Tyler, Kidd Jones Murchison, Kidd Maxi Mart, MB Joe Food, McArthur’s, McCombs Corner Store, Jones WSW Loop Tyler, Kiko’s Meat Mkt., Kim’s #1, Kim’s #24, McCullough Grocery, McKies Food Store, McPherson Produce, Kim’s #3, Kim’s 4, Kimbols, Kims, King Bros., King Food Mart, McPherson Pump N. Shop, MCW Enterpresor, Meadow Food, King Mini, King Mini Market #2, Kings Court #3, Kings Food & Meadowbrook Food Store, Measquet Food Mart, Medical Drive Gas, Kings Liquor, Kirby Bullard Shamrock Bullard, Kirby Food Texaco, Medico #5, Medico #6, Medico #7, Medico Health, Mart, Kirby Front St. Tyler, Kirby Gresham Shamrock Tyler, Melek 07, Melek Service Center, Meletz, Mellip, Menzie’s Inc., Kirby Henderson Shamrock Henderson, Kirby Hwy. 64 Tyler, Merry Land Food, Metro Mart, Metroplex, Mickey #2, Mickey Kirby Kilgore Shamrock Kilgore, Kirby North Dixie Tyler, Kirby #5, Mickey’s #3, Mickey’s 23, Mickeys #16, Mid Valley Ex- Oil, Kirby Oil Co., Kirby Oil Overton, Kirby Overton Shamrock press, Middlta, Midpoint Travel, Midtown Exxon, Midway, Mid- Overton, Kirby S Broadway Tyler, Kirby South Jackson Jack- way Gro, Mike Liquor, Mike’s Market, Mike’s Pit Stop, Milby, sonville, Kirby South Loop Tyler, Kirby Troup Hwy. Tyler, Kirby Military Mart, Miller Height Mini Mart, Milton Food Mart, Milts Troup Shamrock Troup, Kirby West Loop, Kirby Westloop Tyler, Mini Mart, Mimis Country Store, Ming Food, Mini Food Mart, Kirk’s Handy Way, Kirkwood Mart, KJ, Kmac’s #1, Kmac’s #3, Mini Mart, Mini Mart #1, Mini Mart #16, Mini Mart #2, Mini Kmac’s #4, Kmac’s #7, Kmac’s 5, Kmart, K-Mart, Kmart 3919, Mart #6, Mini Mart #66, Mini Mart #7, Mini Mart Texaco, Mini KMK, Knox Fuel #, Knox Palmer, Kold Spot, Korner F. Store, Ko- Stop, Minimart, Minimax, Minit Stop, Minyard #60, Minyards, rner Food Mart, Korner Market, Korner Market #2, Korner Stop, Miracle Mart, Mireles Groc & Veg, Mirror Lake Texaco, Miskay, Korner Store, Kountry Food, Kountry Food #3, Kountry Kon- Mitchell’s, Mitchells Thrift Mart, Mizell Superette, MLK 66, MLS venience Center, KP 907, KP Store, Kraft’s, Kramers, Kroger, #1012, Mobil, Mobil Mart, Mobil Mkt, Mocks Grocery, Model Kroger #108, Kroger #201, Kroger #250, Kroger 197, Kroger Market, Mohawk Inc, Mont. Oaks, Montana Vista Gro., Mon- 526, Kroger Store, Kureshee’s, KV Country Store, Kwik Chek, tavos Texaco, Monterrey Food, Moon Lite Market, Moon Mart, Kwik Discount, Kwik Korner, Kwik Mart, Kwik Pantlher, Kwik Moonlight Grocery, Moore’s Chevron 102151, Moreno’s, Morn- Pantry, Kwik Pantry #5101, Kwik Pantry #5157, Kwik Pantry ing News, Movie Palace, Movie Shoppe, Mr Cartender #2, Mr. #5165, Kwik Pantry #5173, Kwik Pantry #663, Kwik Pantry B, Mr. Cart Citgo, Mr. Cart Mart #3, Mr. Cartender, Mr. Cut 5130, Kwik Pic, Kwik Shop, Kwik Stop, Kwik Stop Discount Rate, Mr. D’s, Mr. Dollar, Mr. Jakes Food Mart, Mr. Jim’s, Gas, Kwik Trip Food, Kwik Way II, Kwik-Stop, Kyle’s Kwik Stop, Mr. Kwik, Mr. Kwik #1, MS Express, MS Express 709, MS K-Z Mart #393, L & M, L & P Market, L Loupes, L&E Grocery, Xpress, MS Xpress #110, Multi Mart #8, Mundy mart #2, Munoz La Aztecca, La Esquinta, La Feria, La Feria #936, La Fiesta Seru Sta, Munoz Store, Murphy Food Mart, MVA Entr, My Store #14, La Hacienda, La Pasada Exxon, La Tejana Meat Mkt, La food, My T-Quick, N & B Texaco, N. Timberland Lufkin Polk Oil Tienda #3, Ladd’s Grocery, Lagarto Store, Lake Kiowa Trad- #16, Nasa Texaco, Nassua, National Truck Stop, Navarro Mills ing Post, Lake Side, Lakeport Grocery, Lakeshore, Lakeside Gen.Store, NB Exxon, NC Foodmart, NCH One Stop #32, Neal Big-8, Lakeside Foodmart, LakesideGrocery, Lakeview, Lake- #1, Neal #18, Neal Fuel, Neal Inc #10, Neal Inc., Neal Inc. way Groc, Lakeway Mini Mart, Lane S. #80, Lanes, Laredo Mini #5, Neal One Stop, Neal Tac #50, Ned Q Stop, Neighborhood, Mart, Larry’s Liquor, Las Vegas Groc, Lasses Food, LaVernia Neighborhood Mini Mart, Neon’s, Neumann Food Store, Neu- One Stop, Lawn Dale, Lawrence IGA, League City, Lee’s Drive mart, New Angels, New Avalon Store, New King Food Store, In, Lee’s Grocery, Lee’s Mobil Mart, Lemarket, Len’s Texaco, New Quick Stop, New Way, New Wheeling Food Shop, Newark Leo’s Drive In, Leo’s Food Mart, Leo’s Self Serv, Leos Food Food Mart, Newark IGA Foodliner, News Plus, Nick’s, Nicky’s Mart #2, Level’s Food Ceneter, Levels Meridian, Lezano’s Store, Food, Nina Mart, Niro’s, NLR Cut Rate, N-N Out Convenience, Liberty, Lil General, Lili, Lim’s One Stop, Linares Gro., Lindsay Nolanville Grocery, Nolanville Texaco, Noor Pantry, North Cor- Gro, Liq World, Liquid Town, Liquor Barn, Liquor Town, Little ner Store, North Line, North Park Shamrock, Northgate Texaco, Red’s, Little World #105530, Live Corner Gro, LJ’s Food Store, Northridge, Northshore Marina, Northside, Northstore, North- LM Food Store, LMS Exxon, Logan Sport, Loma Bonita Gro- west Food, Norwood Quick Food, Nu King, Nu Way @277, Nu cery, Lone Star Market, Lone Star Stop #1, Lone Star Stop #2, Way 271, Nu Way 272, Nunar Oil #583, Nuway #226, Nuway Longhorn Liquor, Loop Liquor, Lopez, Lopez Food Store, Lopez #227, Nu-Way #250, Nu-Way #276, NuWay #314, NuWay 300, Super Mkt #1, Lorena Fastime, Loretta, Loretta’s, Lorrie’s, Lotte NuWay 905, N-W Liquor, Oak Hill, Oak Hill Center, Oak Hill Liq, Food Mart, Louis Food Store, Lous Gro, Love Field, Loves 250, Oak Island, Oak’s Food Mart, OATES, Oats Petroleum, Ocean Lowe’s, LS Express #100, L-Stop, Lucky #23, Lucky 1, Lucky 7, Food Store, Ocean Mini Mart, Ochoa’s Groc., OK Supermarket, Lucky 7 F-Mart, Lucky Food, Lucky Food Mart, Lucky Grocery, Okay #27, Okay 2, Okay Food #26, Old Mill, Old Timen, Old Lucky Lady, Lucky Lady #24, Lucky Mini Market, Lucky One Tyme, Olvery Fuel, On Stop, On Video Plus Food Mart, One Stop, Lucky Seven, Lucky Star, Lucky Star Food, Lucky Stop, Rock Stop, One Star, One Stop, One Stop #15, One Stop #2, Lucky Store, Lucky’s, Lumps 1, Lynn’s, Lynn’s Check Cashing, One Stop #53, One Stop 103, One Stop Food Store, One Stop
25 TexReg 4742 May 26, 2000 Texas Register Foods, Onestop, Onestop #6, Onion Creek Liq, Opra. Rieville Runner Food, Roadrunner Food Mart, Roadside 2, Robert’s Store, Osbunns #11, OU Way #306, Out Past, Outpost, P & L’s Drive Inn, Roberts, Rock Bottom, Rock Creek, Rocket Mart, Superstop, P and N Big 8, P&S, P. J’s, P. M. I., P.D.Q. Fast Rockwall Onestop, Rod’s Quick Stop, Rodeo Country 107502, Stop, P/S 2092, Pace Trac #499, Pack Cratenship, Paisano Rogelio’s Corr. Penn., Roger’s Exoxn #2, Roger’s Exxon #1, Beverage, Paks, Paks Food Store, Palacios Dr. Inn, Palmer Rogers Groc, Rojoj Mkt, Rolandos Liquor, Roman’s Texaco, Food, Palmers, Palo Alto Super Market, Pantry, Pantry Place, Rominy Drive Inn, Ron’s Food Mart, Rosa Co Inc, Rosedale Papa’s Market, Pappy’s, Paradise Corner, Pardners Conv Stop, Texaco, Rosharon Superette, Roweltt Shell, Roxy Tiger Mart, Paris Food, Park Pump N Shop, Park N Buy, Park Place Conv. Roxys Tiger Mart, Royal Oak & Drive, Rsie Upholstery, Ruben’s, Store, Park Way Chevron, Parker Food Mart, Parks Conv Ctr, Rubens Gro, Rudy’s Country Store & Bar-B-Q, Rudys BBQ, Parkway Gro., Partners, Partners #2, Partners #5, Party Time Ruiz Martah, Ruiz Meats, Rusi R Diesel, S & K Food Mart, S II, Paso Del Davalos, Pat, Patsys Place, Pay #2, Payan’s, Pay- & N 99¢ Store, S & R Liquor, S & S Texaco, S and S Big 8, less, Payless #602, Payless #64, Payless Super, PDQ Drive S&P Kwik Stop, S&S Citgo, S&S Liquor, S. Liquor, S. Timber- Inn, Pecan Food Mart, Pecan Grocery, Pecan Grove, Pecan land Lufkin Polk Oil #15, Sabine Food, Sable Mart, Sac N Pac, Tree, Pedigos, Pepe Drive Thru, Pepes, Peppers, Peppers 2, Sac-N-Pac, Sac-N-Pac #201, Sadie Hawkins I, Salim Discount Peppers Conv. Store, Per-Mart, Perez Produce, Perez Station, Liq, Salinas Food Store, Sam’s, Sam’s Liquor, Sam’s Market, Perrin Pantry, Pete’s Ser Ste, Petes Drive In, Petro Express, Sammy, San Antonio Smokes, San Juan Foodmart, San Pe- Petro Express 116, Petro Pantry #12, Petro Pantry #14, PFI dro Groc, Sand’s Liquor, Sandy Beach, Sandy Creek Drive In, #7, Phase Phil’s #5, Phillip 66, Phillips 60, Phillips 66, Phillips Sandy’s Food Store, Sansing Food Store, Santo Cay Store, Sar- Express, Pic & Go, Pic & Pac #11, Pic N Go 33, Pic N Go2, gent Country Store, SARI, Sari Food Mart, Satch’s Con Store, Pic N Pac, Pic N Pay, Pic Stop, Pick N Go, Pick-Up, Pic-N-Pac Saunders Pump N Shop, Saunders Texaco, Save A Step, Save #10, Pic-N-Pac #9, Pico #13, Pico #15, Pico #16, Pico #17, Time Food Mart, Save Tx Mkt, Saver, Saver Food Store, Sav- Pico #19, Pico #2, Pico #20, Pico #21, Pico #3, Pico #7, Pico M #147, Sav-Mart, Scarboroug’s, Scobee’s Minimart, Scotties, #8, Pico #9, Pic-Pac Food, Pik N Pac, Pik Nic, Pik Nik #29, Scottsdale Big 8, See N Stop, Seller DI, Sellers #1, Seven Pik Nik Food #1, Pik Wik #3, Pik-Nic #7, Pik-Nik, Pik-Nik #28, Days Drive In, Seven Eleven, Seven Eleven #231082, Seven- Pilot, Pilot #273, Pilots, Pinewood Groc, Pineywood, Pinkie’s Eleven #616, Sevens, Shain Gas, Shamrock, Shamrock Ma- #72, Pinkies, Pinkies #71, Pinky’s, Pit Stop, Pit Stop #14, Pit rina, Shatime, Shawn, Shell, Shell @ Hidden Meadows, Shell- Stop #15, Pit Stop #6, Pit Stop #7, Pit Stop Gro., Pittman’s food, Shelly’s, Shepherd Food, Sherwood Way Exxon, Shipps, Qwik Mart, PJ Liquor, Plantation Mart, Plantation Net., PMI #9, Shirley’s Corner, Shivani’s, Shop & Groc, Shop & Save, Shop E PNI Star City, POC Shamrock, Pocket Change, Polk Oil #14, Save 9, Shop Mart, Shop N Drive, Shop N Go, Shop N Go #4, Polk Oil #5, Polk Oil Pick It Up #16, Polk Oil Polk Pick It Up #2, Shop N Save, Shop Rite, Shop-Mart, Shop-N-Go #5, Shop-N- Polk Oil Polk Pick It Up #3, Polk Pick It up #3, Polk Pick It Up Save, Shopper & Mart, Shopper Mart #34, Shoppers Mart #6, #6, Polk Pick It Up #7, Polk Pick It Up #8, Poncho’s, Poochie Shore Stop #1, Shore Stop #10, Shore Stop #11, Shore Stop #2, Poochies #11, Poochies #14, Poochies #17, Poochies #24, #12, Shore Stop #13, Shore Stop #14, Shore Stop #15, Shore Poochies 23, Pop One Stop, POWA #1, Powell’s, Power Mart, Stop #16, Shore Stop #17, Shore Stop #18, Shore Stop #19, PR’s Country Store, Prime Outlets, Prime Time Drive Inn, Prime Shore Stop #2, Shore Stop #20, Shore Stop #21, Shore Stop Travel, Primo Food Store, Primo’s, Prince, Prince Food Mart, #22, Shore Stop #23, Shore Stop #24, Shore Stop #25, Shore Pronto, Pronto #15, Pronto #4, Pronto #8, Pronto Supermarket, Stop #26, Shore Stop #3, Shore Stop #4, Shore Stop #5, Shore Pronto’s #1, Prontos #4, Pump Pantry #5, Pure Country Inn, Q- Stop #6, Shore Stop #7, Shore Stop #8, Shore Stop #9, Short Express, Q Stop, QFM #3, QM 269, Q-Trip, Quail Valley Shell, Stop, Short Stop #19, Short Stop #23, Short Stop #25, Short Quality #507, Quality Food Mart #3, Quality Liquor #2, Quick Stop #26, Short Stop #4, Short Stop #7, Short Stop Food Mart, 2 Save, Quick Check, Quick Food, Quick Mart, Quick Pantry, Short Stop Food Store, Short’s, Shot’s #5, Shots #10, Sierra’s Quick Pick, Quick Pick #7, Quick Pickie Oak Hill, Quick Sak Quick Stop, Sikano, Silva’s Mini #3, Silva’s Supermarket, Si- #17, Quick Shop, Quick Stop, Quick Stop #2, Quick Stop Food mons, Sing Food Store, Singleton Store, Six Pack Corner, SJ’s Mart, Quick Store, Quick Way #26, Quick-N-Save, Quickway Fast, Skimp 89, Skinners, Skinny #70, Skinny’s, Skinny’s #97, 2, Quik, Quik 471, Quik 480, Quik Pik, Quik Saver, Quik Way, Skinny’s 101, Skinny’s 127, Skinny’s 17, Skinny’s 18, Skinny’s Quix, Quix #476, Quix 404, Quix 857, Qwik Stop, R & B Liq, 44, Skinny’s 52, Skinny’s 83, Skinny’s 88, Skinny’s 90, Skinnys R & M Quick Stop, R & S Drive Thru, R&R Mini Mart, R/C 63, #112, Skips, Skyway Food, Slims, Smart Shop Exxon, Smart Race, Race Trac, Race Trac #15, Race Trac #378, Race Trac Stop, Smile Food Mart, Smiley’s Ice House, Smily’s, Smith Bros. 606, Racetrac, RaceTrac #560, Racetrac #626, Racetrac 324, Dive In Groc., Smith Bros. Red & White Food Store, Smith’s, Raceway, Raco Conv. Store, Rahman, Rain or Shine, Rain- Smith’s #516, SN Mart, Snack & Tackle, Snack Mart, Snappy bow Plalza, Rainbow Plazette, Rally #8, Ralston, Ram #10, #3, Snappy #5, Snappy Food, Snappy Foods #4, Snappy Foods Ram #17, Ram #3, Ram #4, Ram #7, Ram 11, RAM Mkt #18, #6, Snook Drive In, Snyder One Stop, Sodelak’s Grocery, Sol- Ram Store #12, Ram Store #19, Ranalls 490, Ranchester Food, ley’s Inc, Sonic, Sonny’s Drive Inn, Sorrell Star, South Fourth Rand Food Store, Rand oil, Randall’s, Raul’s Comal Mexican Gro, South Lakewood, Souther Liquor, Southern Mart, South- Food, R-B-M, RDM #3, Reardi, Reck’s Supermarket, Red 65, lake Wood, Southland Exxon, Southton C-Store, Southwest Liq, Red Coleman #53, Red Coleman’s, Red Coleman’s 54, Red E. Spanish Shield #1, Spartan Liquor, Special Liquor, Speedy, Mart #35, Red Seven Country Store, Red’s Fast, Red-Coleman, Speedy Mart, Speedy Mini Mart, Speedy Stop, Speedy Stop Redi-Go, Redman Market, Regalados Exxon, Rekahns, Remah #12, Speedy Stop #2, Speedy Stop #24, Speedy Stop #27, Texaco, Remer Program Inc, Reuben’s, Reyna’s Food Store, Speedy Stop #3, Speedy Stop #37, Speedy Stop #51, Speedy RIB Grocery, RIB II, Ricebird Drive In, Rick, Rick’s, Ricks Drive Stop #7, Speedy Stop 20, Speedy Stop 38, Speedy Store In, Rigsby Food Mart, Rio Bravo Grocery, Rios #4, Rite Drive #11, Spillway Bait, Spin & Market, Spin N Market, Split Sec- In 1, Inc., Rite Stop, Ritz #2, Ritz #4, River #3, River Stop, ond, Sportman Liquor, Sportsman Mkt, Sportsman’s, Sports- River View Family Center #2, Riverview, Riverview Family Cen- mans One Stop, Spring Texaco, Spring Times Mart, Springer ter, R-J’s Stop, RNR Super Mart Mkt, Road Runner, Road- Chevron, Sprint 24, Squeak’s Conv., Sratek’s, Sryene Mobil,
ADOPTED RULES May 26, 2000 25 TexReg 4743 SS, SS #6, SS#14, SS#2, SS8/Circle K, SSP Circle K 9644, Other Store #3, The Pit Stop, The Point, The Six Pack Stop, The SSPK 9623 Circle K, Sstop N Go, St. Mary’s Food Mart, Stage- Store, The Tote 29, The Wright Stop #1, Thelma Food Store, coach Stop, Stanley #12, Stanley’s Ice #2, Stanley’s Ice Station, Thibs Pkg, Thomas Food Mart, Thompson Oil #3, Three Ami- Stanleys, Stanlyes, Stanlys, Star Food, Star Market, Star Mart gos, Thrif Tee Super Mart, Thriftee Food, Thrifty, Thuy Hoank, #2, Star Stop, Star Stop #12, Star Stop #14, Star Stop #2, Star Tiger Land Quick Stop, Tiger Mart, Tiger Mart #24, Tiger Mart Trac #3, Starkey’s 1, Starr, Starr Gro., Steak House Mt. M., Step #4, Tiger Tote, Tiger Tote #1, Tiger Tote #15, Tiger Tote #2, N Go, Step N Go #2, Step N Save, Steve Ice House, Stone T-24, Tiger Tote #7, Tiger Tote #9, Tigerland Express, Tigermart Stop & Drive, Stop & Drive Store, Stop & Get, Stop & Go, Stop 21, Tigers Stop, Tigre #2, Time Mart, Time Save Food Store, & Go #2452, Stop & Go 2442, Stop & Shop, Stop & Shop Groc., Time Saver, Times Market, Times Market #105, Times Market Stop a Minit, Stop Amigo, Stop Fast Marina, Stop Go, Stop Go #21, Times Market 101, Times Mkt, Times Mkt #102, Time- 2371, Stop Go 2597, Stop In Go, Stop Mart, Stop N (x), Stop N wise 260, Timpson Quick Stop, TJ #105, TK Quick Stop, TMAC All, Stop N Buy, Stop N Drive, Stop N Fey, Stop N Go, Stop N #3, T-Mac’s, Tmac’s #2, Tmac’s #3, Tobacco Cheaper, Tobac- Go #2275, Stop N Go #2489, Stop N Go #4, Stop N Go 2036, comart, TOC, Tod’s Shop Exxon, Today’s News, Todo, Tom Stop N Go 204717, Stop N Go 2196, Stop N Go 2205, Stop N Thumb, Toma Food Store, Tommy’s, Tommy’s #7, Tommy’s 15, Go 2314, Stop N Go 2327, Stop N Go 2340, Stop N Go 2750, Tommy’s Groc., Tonny 126556, Tony Food, Tony’s Food Store, Stop N Save, Stop N Shop, Stop N Stop, Stop One, Stop Shop Tony’s Pit Stop, Tony’s Smack Shop, Toot’n Totum, Total, Total Exxon, Stop to Save, Stop-N-Bye, Stop-N-Fly, Stop-N-G0, Stop- #4523, Total 4528 ODS, Total 4531, Tote 29, Toteabag, Totol, N-Go 2114, Stop-N-Point, Stop-N-Save, Store Keepers, Store Town & Country #1108, Town & Country #38, Town & Country Real #3, Strawberryhill, Sugar Hill 107375, Sun Food, Sun Mart, #4, Town & Country #5, Town & Country #6, Town & Coun- Sun Mart #102, Sun Mart #133, Sun Mart #304, Sun Mart 168, try 188, Town & Country 207, Town & Country Laundry, Town Sun Rise Mini Mart, Sunbelt Jewelry & Loan, Sunglo, Sunglo East Exxon, Townley Food Market, Tran’s Food, Travel Mart, #10, Sunglo #15, Sunglo #18, Sunglo #22, Sunglo #29, Sunglo Travel Mart #14, Travelmart Exxon, Triangle Station Inc., Trinity #34, Sunglo #39, Sunglo #5, Sunglo Inc #36, Sunmart, Sunmart Food Mart, Trinity Store, Triple R, Triple Sun, Tropicana, TRS, #129, Sunny, Sunny Fast Groc., Sunny Food Mart, Sunny Super TSJISJ, Tuckers, Tuckers Texaco 106422, Tuxas Star 164, Twin Market, Sunny’s, Sunny’s Food Mkt, Sunny’s Food Store, Sun- Hills, Twin Stop #4, Twin Towers, Twister’s Exxon, Tx 1-Stop, Tx rise, Sunrise Conoco, Sunrise Foods #4, Sunrise Gro, Sunrise Star #163, Tx. Express, Tyler Truck, Tyree Park Groc, U.D.S., Grocery, Sunrise Market, Sunrise Mart, Sunrise Mkt, Sunrise U.D.S. #1256, U.S.A. Checks Cashed, UDS #1370, UDS 883, Mkt #2, Sunrise R.V. Ctr., Sunrise Super, Sunshine, Sunshine UDS 90, UFO Liquor, UL, Uncle P Drive In, Uncle Sam, Uncle Mkt, Sup Food, Sup-Save Beer and Wine, Super Circle, Super Sam’s, Uncle Sam’s #103, Uncle Sam’s #14, Uncle Sam’s #19, Circle 7#5, Super Discount Package, Super Food, Super Food Uncle Sam’s #20, Uncle Sam’s #23, Uncle Sam’s #24, Uncle #35, Super Food 13, Super Food Mart #18, Super Food Mart Sam’s #26, Uncle Sam’s #32, Uncle Sam’s #4, Uncle Sam’s #5, #3, Super Foods 302, Super Handy Inc., Super Inc., Super K Uncle Sam’s #8, Uncle Sams, Uncle Sams #11, Uncle Sams 4926, Super K 7296, Super K C Store, Super Kmart, Super #21, Uncle Sams #28, Uncle Sams #29, Uncle Sams 40, Un- Mart, Super Mart #23, Super Pak, Super Plus, Super S, Super cle Sams 45, Uncles, Uncles #76, Uncles #81, Uncles 201, S #347, Super S Foods, Super Sack #5, Super Save, Super United Drive In, United Enterprises, United Rive In #2, Univ. Serv, Super Stop, Super Stop #1, Super Stop #2, Super Stop 66, Unv. Chevron’s Morgan Oil Co., UPS 2256, Urban Grocery, #4, Super Stop Food Mart, Super T Store, Superette, Super- Urbanek Store, US Food Mart, US Super Mkt, USA Checks, fresh Super Market, Superior Mart, Sur Stop, Swif T Texaco, T USA Checks 2503, USA Checks Cashed, USA Checks Cashed & J Crowley, T Country, T J’s, T S Texaco Trefny, Inc., T Y Mar- #2386, USA Food, USA Food Mart, Utopia General Store, Val- ket, T. C. Conv., T. C. Exxon, T. C. Food, T. W. Shell, T. Woods, divia, Valley Check, Valley Check Cashiers, Valley Mart, Valley Ta Sins Jew, Tac #216, TAI Groc, Take A Break, Take Away Mart #5, Valley Mart #7, Valley Mart 1, Valley Shamrock, Val- #1, Talty Store, Tatum #9 Short Stop/Food Fast, Tawaroni Stop, ley Shamrock #06, Valley Shamrock #11, Valley Shamrock #14, Taylor, 120, Taylor FFP 5163, Taylor Food Mart #3146, Tay- Valley Shamrock 21, Valley View Exxon, Valley View Mobil, Valu lor Food Mart #511, Taylor Mart, Taylor’s Food Mart, Taylor’s Liquor, Vanita, Variety, VAS#2419, Vasek Drive In, VCC 2514, Petroeum #40, Taylors #49, Taylors 5132, Taylors’ #64, TBTC Venus Country Store, Venus Texaco, Vic’s, Vic’s Cut Rate, Vic- #2 418, TCOC, Ted’s Shop II, Tegle Den, Tejano Mart #2, Te- tor’s Citgo, Video Exchange, Video Loco, Village Creek Mobil, jano Mart 1, Tejas, Telge Chevron, Telge Food Mart, Terry’s Village Mkt, Village North Mobil, Village Stop, Vishu Enter, Vi- Corner, Tet Conaco, Tetco, Tetco #201, Tetco #204, Tetco #21, sion Video #12, Vision Video #7, Vista, Vista 4046, Vista Food Tetco #216, Tetco #254, Tetco #35, Tetco #56, Tetco #633, Mart, Vista Food Mart 410, Vista Hills Car Wash, Vista Stores, Tetco #811, Tetco 1104, Tetco 1105, Tetco 206, Tetco 210, Vs #5, W C Video, W. Oil Texaco, Wades, Wag #11, Wag a Bag, Tetco 256, Tetco 265, Tetco 603, Tetco Mobil #61, Tex Best, Wag A Bag #2, Waga Bag 1, Waked at Citgo, Walker’s Food, Tex Best Travel, Tex Mart, Tex Mart #1, Tex Mart #11, Tex Mart Walkers Liq., Wallnut Food, Wally’s Liquor, Walters, Wand’a #2, Tex mart #24, Tex Mart 34, Tex Pac Beverage, Tex’s T, Kountry Korner, Water hole 83, Watson’s Big Creek Grocery, Texaco #103, Texaco #2585, Texaco #3, Texaco #3031, Tex- Watson’s City, Watson’s One Stop, Watts Grocery, WD Miller aco #35, Texaco #5, Texaco @ Crestway, Texaco 2397, Texaco #4, Welcome Stop, Wencho’s Food, Wendy’s, Wes T 84 #23, 281/#410, Texaco at Nahoma, Texaco Food, Texaco Food Mart, West Bel 1153, West Rover Mobil, West Way Foods, Wes-T-60, Texaco I35, Texaco Motiva, Texan Kwik Stop, Texan Mart, Texas West-60 #4, Westbrooks, Western Beverage, Western Bever- Bev Mart, Texas Conv Store, Texas Conv., Texas Country Inc, age #8, Western Beverage #97, Western Food, Wes-T-Go #1, Texas Express, Texas Fill Up, Texas Food & Fuel, Texas Gro- Wes-T-Go #97, West-T-Go #26, Whi-In, Whip In 102, Whip- cery, Texas HQ, Texas Liquor #10, Texas Market, Texas Mart, In, Whoa ’N’ Go, Willbanks, Willco Petroleum, Wil-Max Gilmer, Texas Mart #18, Texas Mkt, Texas PlU, Texas Star, Texas Way, Winn Dixie, Winn Dixie 2438, Winn Dixie 2442, Winn Dixies, Tex-Mart #31, Tex-Mart #9, Tex-Mart 33, The Barn, The Bottle Witcher Shell, Witts Liq., Wm Lopez Supermarket, Wolff, Wolfin Shop, The Cork, The Depot, The Liguor Store, The Little Store, Square Texaco, Womack’s Food Store, Wonder F.S. #8, Won- The Money Market, The Other Store, The Other Store #2, The der Food Store, Wood Ridge Shell, Wooden Rcl. Quick Stop,
25 TexReg 4744 May 26, 2000 Texas Register Wright Stop, Wright Stop #361, Wright Stop #521, Wright Stop Comment: Several commenters indicated that Cash 5 should #531, Wright Stop #532, Wright’s Drive Inn, Wyatt’s Super C, go back to drawings twice a week. Wylie Fina, Y Drive Inn, Yarbrough Chevron, Yonkers, You and Response: The Commission does not believe the comment is I Food, Youngblood’s, Youself, Zaragosa, Zaragosa Discount relevant to the proposed amendments on the Lotto Texas rule. Liquor, Zaragosa Food Mart, Ziggy’s Mart, Zip-N, Zip In, Zipps, Zippy J’s #1, Zippy J’s #3, Zoom Food Mart, Zoom In, Zoom Comment: Several commenters suggested that the Commis- Zooms, Zosuh. sion should increase the amount of winners and increase the amount of the jackpot. The following is a summary of the comments received during the comment period from persons who indicated they were opposed Response: The proposed matrix change is designed to in- to the proposed amendments but offered additional comments: crease sales and to result in higher jackpots. Comment: Many commenters indicated that they did not want Comment: Several commenters indicated that Texas should the odds to go to 1 in 25 million and if the change is made, have Powerball. these commenters will not play. Response: The Commission disagrees with the comment. Lotto Response: The Commission recognizes the commenters’ op- Texas sales have declined and the Commission believes it position in connection with increasing the odds; however, the should address this problem first. Commission understands the Lotto game to be jackpot driven. Comment: Some commenters suggested that the numbers When jackpots are high, more people buy tickets. The Com- should be decreased from 50, not increased. mission understands that it may lose some players because of the increase in the odds of winning; however, the Commission Response: The Commission disagrees with the comment believes higher jackpots will bring players to the game, and, as because current Lottery research shows that 81% of people a result, offset the loss of players who will not play because of polled said they wanted multimillion dollar jackpots and 60% the increase in the odds of winning. would accept more difficult odds for a bigger grand prize and better chances to win smaller prizes. Comment: Many commenters suggested that there should be more winners with lower jackpots. Comment: A few commenters indicated that players should be able to choose cash option or annuity at the time the ticket is Response: The Commission disagrees with the comments claimed. because player research indicates that most players play Lotto Texas to win high jackpots and do not play when the jackpots are Response: The Commission understands the comment but at low levels. Actual sales information for recent years supports believes the comment is irrelevant to the reasons why the this statement. Commission proposed the amendments-declining Lotto Texas sales. Comment: Many commenters indicated that the odds of winning should be decreased for the players, not increased. Comment: One commenter asked the question: How are decreasing the odds from 1:15M to 1:25M better for the player? Response: The Commission disagrees with the comment because decreasing the odds of winning would generate lower Response: The Commission has conducted player research jackpots and thereby reduce sales amounts. that indicates 81% of people polled said they wanted multimillion dollar jackpots and 60% would accept more difficult odds for a Comment: Many commenters do not want four extra balls. bigger grand prize and better chances to win smaller prizes. Response: The Commission understands the comment but The Commission, by proposing the amendments, is responding believes that adding four balls will generate higher jackpots to player requests. and, in turn, higher sales. Player research indicates that Lotto Comment: A few commenters said there should be a 4 number players want higher jackpots and play this particular game for daily lotto game. the chance to win high jackpots. Sales history supports this contention because when jackpots reach high amounts, more Response: The Commission disagrees with the comment tickets are sold than at lower jackpot levels. insofar as the proposed amendments are concerned since the comment is irrelevant to issue at hand, declining Lotto Texas Comment: Several commenters indicate that there are too sales. Whether the Commission introduced a 4 number lotto many different Lottery games and that the Commission should game would not increase Lotto Texas sales and may adversely eliminate Texas Million, Cash 5, and Pick 3. affect sales because of cannibalization. Response: The Commission disagrees with the comment Comment: A few commenters want to add a bonus ball to because each of the Lottery online games was designed to increase the chances of winning. meet the different requests of the players. For example, Lotto Texas offers higher jackpots, Texas Million offers at top prize Response: The Commission disagrees with the comment of $1 million with lower odds, Cash 5 offers pari-mutuel larger because amendments to the Lotto Texas rule were proposed prizes and Pick 3 offers smaller prizes with daily drawings. earlier this year to add a bonus ball to Lotto Texas. During the comment period, player comments were opposed to this Comment: Several commenters indicated that the "Lotto game proposal. is not broken, please don’t try to fix it." Comment: A few commenters suggested the Commission give Response: The Commission disagrees with the comment retailers a higher monetary incentive. because sales history information indicates that Lotto Texas sales have declined.
ADOPTED RULES May 26, 2000 25 TexReg 4745 Response: The Commission understands the comment but Response: The Commission agrees with the comment and the believes it is irrelevant to the issue at hand and what the proposed amendments reflect an increase from 50% to 55% proposed amendments are intended to address, declining sales. payout. Comment: One commenter suggested selling tickets outside Comment: One commenter stated that people do not play the State of Texas. because there aren’t enough winners. Response: Currently, to sell Texas Lottery tickets outside Texas Response: The Commission disagrees with the comment would require entering into a compact with the state in which because as of April 5, 2000, there have been 398 jackpot Texas Lottery tickets would be sold. The State of Texas has not winners out of 778 drawings and Lotto Texas sales are still entered into such a compact, nor does it contemplate doing so. declining. Comment: Some commenters want the Commission to cut Comment: A few commenters indicated that the prize money marketing and advertising to save money to put into the lotto. should be increased to attract more players. Response: The Commission disagrees with the comment. Response: The Commission agrees with the comment and the Riders in the Commission’s legislative appropriation prohibit the proposed amendments reflect an increase from 50% to 55% use of advertising dollars for other operating expenses. Further, payout which will increase the prize money to the players. the money that goes to players in prizes from Lotto Texas is Comment: A few commenters indicated that they will not play generated from ticket sales and is distributed according to the Powerball. current game rule. Response: The Commission disagrees with the comment Comment: A few commenters indicated that players should get insofar as the proposed amendments are concerned because 2 plays for a $1. the proposed amendments do not contemplate participation Response: The Commission disagrees with the comment in Powerball or any other multi-state game. The proposed because giving players 2 plays for $1 would increase the amendments provide for changes to the Lotto Texas game only. number of plays per game but not help to offer higher prizes Comment: Some commenters want to drop the 3 of 6 payout or larger jackpots. and increase the 4 and 5 of 6 greatly. Comment: Several commenters indicated that they will only play Response: The Commission agrees with the comment, in part, the large jackpots if the change is made to 54 balls. and disagrees, in part. The increased 55% payout will increase Response: The proposed rule matrix change which increases the payout at the 4 of 6, 5 of 6, and 6 of 6 levels. The the number of balls from 50 to 54 statistically will create larger Commission disagrees with the suggestion to drop the 3 of 6 jackpots. payout because the Commission believes players want to win at lower levels as well as win the jackpot. Comment: Some commenters indicated the Commission needed better marketing and advertising. Comment: Some commenters suggested that Lotto Texas should be a once a week drawing instead of two. Response: The Commission disagrees with the comment be- cause the comment is not relevant to the proposed amend- Response: The Commission disagrees with the comment ments. The Commission’s marketing and advertising efforts because conducting drawings once a week would not make address all its products. If the commenters believe the reason an impact on efforts to pay players higher prizes and larger Lotto Texas sales have declined is because of poor marketing jackpots which is primary focus of the proposed amendments. and advertising, all Texas Lottery products’ sales would be in a Comment: One commenter wants to bring back Scratchman. decline which is not the case. Response: The Commission disagrees with the comment be- Comment: A few commenters indicated that retailers need cause bringing back Scratchman would not necessarily increase friendlier and better trained clerks. For example, clerks do not Lotto Texas sales. ask if a person wants lotto tickets and some clerks complain when a person asks for certain scratch cards. Comment: One commenter asked the question: "What happens to all of the money?" Response: The Commission disagrees that the solution to declining Lotto Texas sales is friendlier and better trained clerks. Response: Currently approximately 57% goes back to players If sales were declining as a result of unfriendly and untrained in prizes, 5% goes to Lottery retailers for sales commission, 7% clerks, all Lottery products sales would be declining which is is used for Lottery operations, and 31% goes to the Foundation not the case. School Fund. Comment: Some commenters suggested that overhead of the Comment: One commenter suggested matching numbers from lottery should be cut to reduce costs, rather than change the any line on a five line ticket to win. game. Response: The Commission disagrees with the comment Response: The Commission disagrees with the comment because this type of play style would require a minimum $5.00 because reducing the Commission’s operating expenses would purchase which the Commission does not believe Lotto Texas not stop Lotto Texas sales from declining. players would be willing to spend at lower jackpot levels. Also, this suggestion would change the proposed matrix to allow Comment: Some commenters indicated that the current pay- a player to have 30 possible numbers from which to have 6 outs are too low. numbers match the 6 drawn from the 54 balls. The Commission believes this approach would result in lower jackpots. Player research indicates that players want higher jackpots.
25 TexReg 4746 May 26, 2000 Texas Register Comment: One commenter stated that public meetings should Comment: Several commenters asked the question: "Why be held in all major cities because not everyone can go to mess with something that already works?" Austin. Response: Lotto Texas is not working if fewer players are Response: The Commission disagrees with the comment playing and sales continue to decline. because it is not relevant to the proposed amendments. Further, Comment: A few commenters stated that the Commission has with regard to providing comment on a rulemaking, interested spent money going around the state asking for public opinion persons may submit written comment. but knowing that their minds are made up. Comment: One commenter indicated that the winning numbers Response: The Commission disagrees with the comment should be picked only from the tickets sold so that each drawing because until the Commission receives comment, considers has at least one winner. comment, and takes formal action, no action has been taken. Response: The Commission disagrees with the comment Comment: A few commenters indicated that "you have to spend because if every drawing had a winner the jackpot would never money to make money." rise above $4 million. Depending on sales, the Commission may have to reduce the jackpots to even lower amounts. Also, Response: The Commission doesn’t understand the signifi- current Lottery research indicates that 81% of people polled cance of the comment. said they wanted multimillion dollar jackpots. Comment: A few commenters indicated that they will go out of Comment: One commenter wants to lower the starting jackpot the State to purchase lottery tickets if the changes are made. amount. Response: The Commision understands the comment. The Response: The Commission disagrees with the comment proposed game changes statistically result in jackpot amounts because player research indicates that players want higher higher than those available in some other states except jackpots jackpots, not lower jackpots. However, if sales continue to in connection with muti-state games. Having higher Lotto Texas decline the starting jackpot may need to be lowered from $4 jackpots as a result of the proposed amendments will allow the million to $3 million. Commission’s jackpots to be comparable to those in multi-state games. Comment: A few commenters want the Commission to continue to draw numbers until there is a winner and make 104 million- Comment: Some commenters stated that there is not enough aires a year. advertising to create interest and the Commission should show more winners and have more hoopla. Response: The Commission disagrees with the comment because current Lottery research shows that 81% of people Response: The Commission disagrees with the comment if the polled said they wanted multimillion dollar jackpots. If the comment is to suggest not to change the rule but to have more Commission continues to draw numbers until there is a winner, advertising in the manner indicated. The Texas Lottery’s ad- the jackpot amount will always be at low levels. vertising budget is used to promote all its games. To advertise statewide there are 20 designated market areas to cover. In ad- Comment: One commenter suggested capping the jackpot at a dition to television, radio and newspaper advertising, this money certain amount and save the excess money for the next jackpot. is spent on outdoor billboards, signage, in-store point-of-sale Response: The Commission disagrees with the comment be- materials and other forms of mass media. The Commission cause player research indicates that players want multimillion advertises all its products appropriately; however, Lotto Texas dollar jackpots. sales are declining while the other products do not appear to be. Comment: One commenter stated that players want to have either 48 or 49 numbers or charge $1.25 per play to increase Comment: A few commenters asked the question: "Why is the income. Commission complaining about so many winners in a row?" Response: The Commision disagrees with the comment be- Response: The Commission is concerned with the decline cause having fewer numbers would increase the number of jack- in sales as a result of the inability to generate high jackpot pots won at the starting jackpot levels. Recent Lottery research amounts. shows that 81% of people polled want multimillion dollar jack- Comment: A few commenters indicated that the Commission pots. Increasing the cost of playing may appear to generate should hire an experienced supervisor of gambling and lottery more sales, but players would have to be willing to spend more operations and get someone who knows how to give the public money per play and Lotto Texas sales are already declining due what they want–better odds and bigger payoffs. to a decline in the number of people playing. Response: The Commission disagrees with the comment if the Comment: Several commenters indicated that the usual cus- comment is intended to have the suggestion be an alternative tomers will play less in the end. to changing the Lotto Texas game. Research is conducted with Response: The Commission disagrees with the comment Lottery players to get their input and opinion on Lottery products. because player research indicates that players want higher For example, monthly tracking studies, annual segmentation jackpots. The proposed amendments are intended to generate studies, mini-labs and focus groups are conducted throughout higher jackpots and therefore the Commission believes it will the state. Such research indicates that players want higher have more players, not less. Additionally, Lotto Texas core jackpots. Hiring a person such as the one described in the players (usual players) are already playing less with the current comment will not accomplish the commenters’ desired result. game, based on sales information at the lower jackpot levels. Comment: One commenter suggested allowing more advanced drawing purchases to 26 or 52.
ADOPTED RULES May 26, 2000 25 TexReg 4747 Response: The current Lotto Texas game and the proposed 778 Lotto Texas drawings. The proposed amendments are in amendments do not offer advanced draws. The multi-draw response to player requests for higher jackpots. More winning feature is available currently and is not being proposed to be possibilities will result in low jackpot levels. Player research deleted as part of the proposed amendments. indicates that players want higher jackpots, not lower. Comment: One commenter stated that for each $5 purchase, Comment: One commenter suggested that people will not play a player should be able to purchase insurance for $1 to pay the lower jackpots because of the increased difficulty in winning. Federal Income tax if the player wins. Response: The Commission disagrees with the comment Response: The Commission disagrees with the comment because players have already reduced their playing at the because the suggestion would not appear to increase sales or lower jackpot levels. Lottery research shows that players are result in higher jackpots. more concerned with higher jackpot amounts than chances of winning. Additionally, the odds of winning at high jackpot levels Comment: One commenter suggested the Commission "leave are the same as at lower jackpot levels. the Lotto alone and live with in your budget, we do." Comment: One commenter suggested that there are fewer big Response: The Commission disagrees with the comment to winner scratch cards because the sales are spread over too the extent the comment is suggesting that the Commission many games. could supplement Lotto Texas sales or the revenue derived from such sales through savings from the Commission’s operating Response: The proposed amendments are on the Lotto Texas budget of 7% of sales. The sales from all products set the rule and do not address scratch games. Therefore, the Commission’s operating budget. The issue presented by the comments are not relevant to the proposed amendments. proposed amendments is not a question of "living within a Comment: One commenter indicated that the Commission budget". Instead, it is a question, in part, of addressing player should increase the retailers’ commission to help promote requests for higher jackpots. Finally, the Commission has lottery in their outlets. historically remained within its operating budget. In fact, each year, it has returned money from its budget to the State of Texas. Response: The Commission disagrees with the comment to the extent the comment is intended to suggest that increasing Comment: One commenter wants the Commission to offer retailers’ incentives will provide for higher jackpots. "bonus tickets" which give 11 numbers for $10, 22 numbers for $20, etc. Comment: One commenter stated: "We have been a better than average outlet for Lotto and don’t want anything to change Response: The Commission disagrees with the comment that. Please consider this proposed change with more foresight because this type of discounting will not address player requests than when the scratch cards were changed." for higher jackpots. Response: The purpose of the proposed amendments is to Comment: One commenter suggested splitting the total jackpot increase Lotto Texas sales and create higher jackpots. The to pay 40% on Wednesday and 60% on Saturday, shifting the purpose of proposing amendments is to receive public comment incentive to buy Friday, which is payday. so the Commission can fully consider the issues presented. Response: The Commission disagrees with the comment Comment: One commenter suggested the Commission lower because the jackpot cannot be split between draws since the its cost by cutting its staff of high paid executives that don’t do estimated jackpot amounts are based on the sales for each anything. draw. Also, if the jackpot was won on Wednesday, there would be nothing left for Saturday. Additionally, to the extent the Response: The Commission disagrees with the comment to comment is suggesting that the Commission focus on "payday" the extent the comment is suggesting that Commission staff as the day people are most likely to have more money than other "don’t do anything". Additionally, the Commission disagrees days, and, therefore, the best opportunity for the Commission to with the comment because lowering its cost by a staff reduction sell tickets, the Commission disagrees. The Commission wants will not result in higher jackpots. The proposed amendments people to play responsibly and spend only what they can afford. are intended to address player requests of higher jackpots. Comment: One commenter suggested establishing a minimum Comment: A few commenters indicated that "officials are taking number of tickets that one can buy. money away from the jackpot." Response: The Commission disagrees with the comment Response: The Commission disagrees with the comment because the Commission does not want a player to buy because the money for the jackpot comes from the sales for more tickets than a player believes he/she can afford. The the game. No money is taken from the jackpot amount with the Commission wants people to play the Lottery responsibly. exception of taxes at the time the prize is claimed. Comment: One commenter indicated that if the Lotto changes Comment: One commenter suggested keeping the balls at 50 the commenter will buy tickets out of state. and pay a set amount for 3 of 6, 4 of 6, and 5 of 6. Response: The purpose of the proposed amendments is to Response: The Commission disagrees with the comment increase the jackpots to higher amounts. At times, the jackpot because it would have an impact on the jackpot amount. The amounts may be higher than those in other states. 3 of 6 prize amount is currently the only one with a guaranteed prize amount of $3. The 4 of 6 and 5 of 6 prize levels pay out Comment: One commenter suggested that if there were more on a pari-mutuel basis, each representing a percentage of total winning possibilities there would be more players. prize pool. Response: The Commission disagrees with comment because as of April 5, there have been 398 jackpot winners out of
25 TexReg 4748 May 26, 2000 Texas Register Comment: One commenter wants the Commission to advertise Comment: One commenter indicated that with the cash option how much money a million dollars really is for people. one has to wait for the jackpot to be over 10 million to play because of the low payout. Response: The Commission has advertised this message in the past. Therefore, while the Commission agrees with the Response: With the proposed changes, statistically the Com- suggestion, the Commission does not believe it addresses mission should reach higher jackpots more quickly. player requests for higher jackpots. Comment: One commenter indicated that the balls are not Comment: One commenter suggested making all lotto pay- mixed thoroughly because there are repetitious numbers. ments cash to reduce administrative costs. Response: The Commission disagrees with the comment. Response: The Commission disagrees with the comment Prior to the drawings the Commission’s Security staff and because some players want to have payments over time. independent auditors conduct a series of test of nearly 300 The Commission wants the players to have control over this checkpoints to ensure the randomness, security and integrity of decision. Further, reducing administrative costs do not address the games are maintained. This includes testing of the drawing player requests for higher jackpots. machines to make sure that are operating properly. Comment: Many commenters wants to keep the game the same Comment: One commenter suggested having a live drawing and lower the odds of winning. with 6 blind-folded people, each will draw a ball and someone calls out the numbers. Response: The Commission disagrees with the comment because player research shows that players prefer to play at Response: The Commission disagrees with the comment. the higher jackpots. Lowering the odds would result in more This method of drawing would not be secure because the frequent winners at the lower jackpot levels. Commission would be relying on 6 people instead of the tested performance of the drawing machines. Comment: One commenter suggested increasing payouts to increase revenue. Comment: One commenter indicated that players are getting tired of constant non-winning tickets. Response: The proposed amendments increase the prize payout from 50% to 55%. Response: The Commission disagrees with the comment because there are many winners in each drawing of Lotto Texas. Comment: One commenter stated: "It seems that a high instance of big Jackpots are won in the southern portion of the Comment: One commenter indicated that if people won occa- State. It seems that quick pick winners are concentrated in the sionally, they would play more. Houston area." Response: The Commission disagrees with the comment to the Response: The number of winners in a given area is relative to extent it suggests people are not winning because people are the population of people playing in that area. winning. However, the proposed amendments are intended to address player requests for higher jackpots. Comment: One commenter stated: "I will only play the large pots if the changes take place." Comment: A few commenters suggested dropping the 3 of 6 number payout. Response: The commenter’s statement is representative of player requests for higher jackpots. Response: The Commission disagrees with the comment because player research suggests that players want to win at Comment: One commenter suggested budgeting the money for the lower lever as well as have higher jackpots. the Lottery on the amount previously earned, not on anticipated funds. Comment: One commenter suggested redirecting the money the lottery earns into funds people support. Response: The Commission does not understand the com- ment. If the comment is intended to indicate that a budget Response: The Commission disagrees with the comment should be based solely on historical information and not on ex- because all Lottery proceeds go to the Foundation School Fund pected sales, the Commission considers all relevant information and any redirection of Lottery proceeds is a policy decision for when it creates its budget. However, the comment is irrelevant the State to decide, not the Commission. to the proposed amendments. Comment: One commenter indicated that the average person Comment: One commenter indicated that people will spend doesn’t have the money that they had in 1992 to spend on the their money in the casinos in Louisiana. lottery with expenses increasing and salaries decreasing. Response: The Commission acknowledges the competition for Response: The Commission wants players to play responsibly discretionary dollars. However, the purpose of the proposed and only spend what they can afford. amendments is to respond to player requests for higher jackpots Comment: One commenter suggested having Lotto on Satur- and to increase Lotto Texas sales. day only. Comment: One commenter asked the question: "What are the Response: The Commission disagrees with the comment be- odds of the numbers coming up in consecutive order?" cause only having one drawing per week, a Saturday drawing, Response: The question is irrelevant to the proposed amend- would lessen the players’ opportunity to play and adversely im- ments. However, the Commission has not conducted a statisti- pact sales and affect jackpot amounts. cal analysis on this question. Comment: One commenter indicated that Lotto should be competitive with free on-line sites.
ADOPTED RULES May 26, 2000 25 TexReg 4749 Response: The Commission disagrees with the comment that if the comment is correct, all Lottery products sales would because the Commission is to generate revenue for the State be in a decline, which is not the case. of Texas. If there were no cost associated with playing there Comment: One commenter asked the question: "Does it cost would be no revenue or prizes to return to the players. too much to air the drawings on the news?" Comment: One commenter believes that any money the State Response: It is expensive to use paid advertising to show the receives from the Lottery is free money. drawings. The drawings are still filmed live and broadcast via Response: The Commission disagrees with the comment satellite for the TV stations to broadcast. It is the choice of each because pursuant to state law proceeds from Lottery sales go station to broadcast the drawings and fit them into their airtime. to the Foundation School Fund. Comment: One commenter wants to decrease the amount paid Comment: One commenter indicated that the more the Com- to the Lobbyist. mission messes with the game, the more the public loses trust. Response: The Commission disagrees with the comment Response: The Commission, by proposing the amendments, because the Texas Lottery Commission pays no lobbyist. is attempting to respond to player requests as well as increase Comment: One commenter indicated that the media sometimes sales. prints the wrong numbers and the Lottery does not correct it. Comment: One commenter suggested posting the winners on Response: The drawing numbers are verified and faxed to the internet after each drawing and the next drawing amount the media. The newspapers are responsible for publishing the right away. correct numbers. Response: Winning numbers are posted on the Lottery’s Comment: One commenter indicated that if there are no website at www.txlottery.org. Information on actual winners is winners, there are no players. not known until players claim their prize. Response: The Commission agrees with the comment. Comment: One commenter suggested giving 5 free quick picks for 3 of 6 numbers. Comment: One commenter indicated that the state is becoming greedy. Response: The Commission disagrees with the comment. Player research indicates that players want money, not Quick Response: The Commission disagrees with the comment Picks. However, the proposed amendments offer an increased because the proposed amendments are intended to address prize of $5 from the current $3 prize for matching 3 of 6. This player requests for higher jackpots as well as increase sales. would give players the option of buying $5 worth of Quick Picks Comment: One commenter suggested modeling Lotto Texas if the player chose to do so. after the Canadian Lottery. Have larger pay outs for 5 of 6 Comment: One commenter suggested giving away a million numbers and leave the number of balls at 50. Let people dollars a day, six days a week tax free and have better odds. enter more than 6 numbers on a draw. A 7 number ticket lets customers believe that they have a higher chance of winning. Response: The Commission disagrees with the comment Charge more for tickets and let people buy 7, 8, and 9 numbers because the funding is not available. combinations, raising the price more for each. Comment: One commenter suggested advertising the winners Response: The Commission disagrees with the comment more. For example, there were no ads showcasing Hollywood. because the proposed amendments offer a higher payout of Response: Winners have the option not to participate in pub- prizes at all levels. Amendments were proposed in the past that licity. suggested a 7th bonus number and received negative comment from players. Charging more for the tickets and adding Comment: One commenter indicated that taxes have already different combinations would make for a more complicated been paid on the money in the Lottery, why pay them again. game and comments received in connection with past proposed Response: The Commission disagrees with the comment amendments indicated a desire not to complicate it. because taxes have not been paid on the money until a winner Comment: One commenter stated: "The pots will be slow is determined and the prize is paid. growing with the changes. I will save my money on the lower Comment: One commenter indicated that increasing the odds pots and only play the large ones." to 1:25 million will lose more players. Response: The comment is representative of how players are Response: The Commission disagrees with the comment be- playing Lotto Texas today. With sales declining as fewer people cause the Commission is losing players with the current game. play, jackpots remain smaller. Lottery research shows that players want higher jackpots. The Comment: One commenter suggested having the drawing at increased odds will allow for jackpot growth. The proposed 6:00 p.m. on the news, so they will carry it live. amendments should bring lapsed players back into the game. Response: The Commission cannot mandate a station broad- Comment: One commenter indicated that eight-liners are cast the drawing. Commission: One commenter suggested sell- causing Lotto sales to slump. ing tickets 24 hours a day. Response: The Commission, by proposing the amendments, is, Response: The Commission disagrees with the comment in part, responding to player requests for higher jackpots. The because there must be a draw break after each drawing takes Commission disagrees with the comment to the extent that the place for the system to recognize whether a ticket with the comment suggests the play of eight-liners is the sole or primary winning numbers has been sold. The retailer’s ability to sell cause of the decline in Lotto sales. The Commission believes
25 TexReg 4750 May 26, 2000 Texas Register tickets is based mostly on the retailer’s business hours. There Comment: One commenter suggested that the store clerks are not enough retailers who are open 24 hours a day to warrant should be rewarded for selling tickets to encourage them to sell. keeping the system up through the night. Response: The Commission conducts clerk incentive promo- Comment: One commmenter suggested that people have tions occasionally. stopped buying tickets because the 3 of 6 number payout is Comment: One commenter suggested eliminating the small to low. prizes and decrease the odds and let players win and split the Response: The proposed amendments offer an increased prize big prize. amount of $5 from $3 on the 3 of 6 prize. Response: The Commission disagrees with the comment Comment: One commenter stated: "We don’t have California’s because player research indicates that players not only want to population to increase the odds 1:25 million." have the opportunity to win at lower levels but also want higher jackpots. Response: The Commission proposed the amendments to increase sales and have higher jackpots. The design of the Comment: One commenter stated: "It didn’t work in California, proposed matrix was not based on a comparison of California’s New York and is not working in Florida, so why will it work in population. Texas?" Comment: One commenter stated: "If Texas is hurting that Response: The Commission is aware of the experience in much for money, why not have a state income tax that will allow these states. The Lotto game changes in California and New Governor Bush, Linda Cloud and the Texas Lottery Commission York were different than what has been proposed in connection to play after all, the Lottery is nothing more than a self imposed with Lotto Texas. Additionally, the Commission is aware that tax." very recently, California made a matrix change to its Lotto game. While it is premature to know whether the change is Response: The Commission disagrees with the comment successful, the act alone by California to change its Lotto matrix because the proposed amendments are intended to address is instructional, especially given California’s past experience player requests for higher jackpots as well as increase sales. with changing its Lotto matrix. Also, the experience in Florida Also, the Commission has no authority to impose a tax. appears to indicate an increase in Lotto sales based on a Comment: One commenter asked the question: "Does the change in Florida’s Lotto game. The changes in Florida’s Lotto State have a graph of Lotto sales by day and/or week since game are similar to the changes proposed in the Lotto Texas its inception?" game. Response: The Commission has sales information but not in Comment: One commenter indicated that retailers need a graph form. reason to push sales in the stores. Comment: One commenter asked the question: "Why are the Response: The Commission believes that the proposed amend- sales and jackpots graph presented in such a way as to imply ments will benefit retailers because retailers are paid 5% in that the Lottery is losing money? It is deceitful and dishonest." sales commissions. As a result of the proposed amendments, sales should increase. Therefore, retailers should experience Response: The Commission and, more importantly, the state an increase in income from the increase in sales. is not losing money. The Commission continues to return to the state a significant amount of money for the Foundation Comment: One commenter asked the question: "What will the School Fund. However, sales are declining because players minimum starting Jackpot be?" are spending less and playing less frequently. Response: Currently, the minimum jackpot is four million dollars. Comment: One commenter asked the question "Why don’t However, this amount is subject to change should it become Cash 5 dollars roll like Lotto?" necessary to do so. Response: The question is irrelevant to the proposed amend- Comment: One commenter stated: "In the beginning, we were ments. However, each Lottery game is designed differently to led to believe that the money was going to the schools and it’s appeal to a different segment of Lottery players. not. These changes will only help the Texas Lottery make more money for itself." Comment: One commenter suggested having lifetime winners who get $1000 per week. Response: The Commission disagrees with the comment that the changes will only benefit the Commission. The Commission Response: The commission disagrees with the comment be- anticipates players and retailers as well as the State of Texas cause the suggestion would not result in high jackpots. How- to benefit. At the start of the Lottery all proceeds went to the ever, the Commission does have an instant game that offers General Fund. As a result of legislative changes, all proceeds $1000 week for 20 years. now go to the Foundation School Fund. Comment: One commenter indicated that the pot will rise slowly Comment: One commenter suggested that if a player gets 2 of and if someone from out of state wins, Texans will be inclined 6 numbers, a free play should be given if the player buys a $5 to play less. ticket. Response: The Commission disagrees with the comment Response: The Commission disagrees with the comment because the more people play, the more quickly the jackpots because free plays are still a prize expense and would have will increase. Having a winner from out of state could happen to be deducted from the total prize pool for that draw. at any time, now or if the game is changed. Comment: One commenter suggested selling 3, 6, 9 month and yearly advance tickets at a discount.
ADOPTED RULES May 26, 2000 25 TexReg 4751 Response: The Commission disagrees with the comment. Of- Response: The Commission disagrees with the comment fering this option would require the development of a subscrip- because taking the suggested action will not result in higher tion database. The Commission has researched this concept jackpots. by reviewing other states’ experience. It appears that it is cost Comment: One commenter suggested cutting 5 balls, not prohibitive and would require additional staff without results to adding 4, cutting the ball sets to four and machines to two. support it. Response: The Commission disagrees with the comment Comment: One commenter indicated that it is obvious that the because it would not result in higher jackpots and increased contractor is having an influence in this decision. sales. Response: The Commission relies on its vendors for their Comment: One commenter wants to keep Lotto 6 of 50, pay expertise and knowledge. The Commission’s vendors are $5 for 3 numbers and increase the prize from $4 to $5 Million. required contractually to propose ideas to keep the Lottery Instead of Texas Million, play a special 6 of 50 Lotto Friday night games healthy. However, the Commission is unaware of undue and sell $2 tickets, the prizes will be: 3 of 6 pays $50, 4 of 6 influence by its vendors in connection with the Commission’s pays $1,000, 5 of 6 pays $10,000. decision to propose the amendments. Response: The Commission disagrees with the comment Comment: One commenter suggested increasing profit by because player research indicates that players want higher "increasing volume, have a sale!" jackpots. Response: The Commission disagrees with the comment to Comment: One commenter wants the Commission to make a the extent the comment is to "have a sale" on long term basis. deal with Texas Cable News Network to televise the drawings The Commission would not be in a position to pay high jackpots at 9:59 pm and have another show at 10:59 pm to announce if since jackpots are sales driven. Occasionally, as a promotion, there was a winner. It is the Texas Lottery Commission’s job to the Commission does offer 2 for 1 purchases or buy 5, get 1 keep the interest up. free. Response: The Commission disagrees with the comment. Comment: One commenter suggested having scanners at Lotto Lottery drawings are filmed live and broadcast via satellite. It is locations for people to scan their own tickets to see if they are the individual television station’s choice to pick up the drawings winners. and broadcast them. Response: Industry technology has designed prototypes of Comment: One commenter indicated that there are a certain such hardware, but it is expensive and would require additional number of people who gamble, and no more and the player efforts on the behalf of Lottery retailers also. base is saturated. Comment: One commenter suggested looking at other lotteries Response: The Commission disagrees with the comment to see what works before increasing the odds. because Lottery research shows that players would play if the Response: The Commission monitors other lotteries to watch jackpots were higher. for trends. For example, the successful change Florida made to Comment: One commenter wants the Commission to do away its Lotto game has been instructional for the proposed changes with all the scratch offs and have one card only. in Lotto Texas. Response: The comment is not relevant to the proposed Comment: One commenter indicated that the reason people amendments. However, players want more than one instant stop playing the Lotto is that the TLC keeps changing the rules. game available. Response: The Commission disagrees with the comment. Comment: One commenter indicated that "it is almost impossi- Texas is the only state that has gone this long, from inception, ble to really win a lottery, unless the controller wants a winner. without changing its Lotto matrix. As a result, Lotto Texas sales They choose when and where (and many times who)." have declined and Texas is not experiencing the high jackpots it once did. Response: The Commission disagrees with the comment. Lottery drawings are random and a series of nearly 300 Comment: One commenter stated: "What part of NO don’t you checkpoints are conducted each draw to ensure the security understand?" and integrity of the games. Response: The Commission disagrees with the comment Comment: One commenter suggested reviving the Texas because the Commission believes the proposed amendments Lottery by reducing it to five numbers and let there be a winner will increase sales and result in higher jackpots. one out of three. Comment: One commenter suggests the Commission restore Response: The Commission disagrees with the comment the original parameters, 20 annual payments and a 65% return. because Cash 5 is the Commission’s 5 digit online game. Response: The original parameters did not include a 65% prize Comment: One commenter stated: "I would like to know if the payout. It has always been at 50%. The Commission disagrees total from all the games is about the same as just having the with the comment because restoring the annual payments to 20 Lotto Texas and scratch off games." Response. The total sales will not result in higher jackpots. from all games is not the same as the combined sales from Comment: One commenter indicated that one solution is to "get Lotto Texas and instant games. rid of Kiplin, the Lottery Commission needs some new blood." Comment: One commenter suggested having 10 plays on a card.
25 TexReg 4752 May 26, 2000 Texas Register Response: The Commission will consider this suggestion in the The Commission believes advertising positive changes, i.e., future. Currently, there is not enough physical space on one "change of life" advertisements, as a result of winning the Lotto Texas playslip for 10 different sets of numbers. Lottery could be considered undue influence. Comment: One commenter suggested having machines in Comment: One commenter suggested having a weekly drawing stores for people to scan their own tickets to see if they are of $1 million, tax-free and give away $52,000 per year. winners, instead of having lines for the clerks. Response: The Lotto Texas game was intended to address Response: The Commission will consider this suggestion in players’ request for high jackpots. This suggestion is not the future. While the Commission is aware that lottery vendors consistent with the purpose of Lotto Texas. The game designed are working on such hardware, the technology is not currently to address players’ request for a weekly $1 million draw is the available to the Commission. Texas Million game. The Texas Million game offers a top prize of $1 million to meet player’s requests. However, the Commission Comment: One commenter suggested trying a game show. cannot offer a tax free prize because federal tax law requires Response: The Commission disagrees with the comment that taxes be paid on all prizes $600 and above. because the suggestion will not result in higher jackpots in Lotto Comment: Some commenters indicated that the television and Texas. Player research indicates players want higher jackpots. radio stations do not announce the numbers. Comment: One commenter suggested that the 3 of 6 should Response: Lotto Texas drawings are filmed live and broadcast pay out $5.00, 4 of 6 pay out in the thousands, and the 5 of 6 via satellite for television stations to air. It is the choice of should pay out in the tens of thousands. each individual station as to whether it will carry the drawings. Response: The Commission disagrees with the comment The Commission cannot mandate to the stations to carry the because funding the suggested prize levels would require taking drawings. money from the jackpot level. Player research indicates players Comment: One commenter asked the question: "Why not let want higher jackpots, not lower. the winners choose annuity or cash option at the time of claim?" Comment: One commenter indicated he/she doesn’t "win when Response: The Commission purchases its investments to fund the Commission, school foundation and retailers make more the prize which is paid out over time the day after the drawing. money." It would not be financially prudent for the Commission to sell Response: The proposed amendments increase the prize pool its investments shortly after the purchase. Further, whether the from 50% to 55%. Commision afforded its players the flexibility to elect this option at the time the player claimed the prize would not increase Lotto Comment: One commenter suggested leaving Lotto alone and Texas sales. starting the jackpot at $2 or $3 million. Comment: Some commenters stated that there are too many Response: The Commission disagrees with the comment games. because player research indicates players want higher jackpots and the proposed amendments are intended, in part, to result Response: Each of the Lottery online games were designed in higher jackpots. to meet the requests of our players; Lotto Texas offers higher jackpots, Texas Million offers at top prize of $1 million with lower The following are comments received during the comment odds, Cash 5 offers higher prizes at lower levels and Pick 3 period from persons who did not specify if they were for or offers smaller prizes with daily drawings. Eliminating some of against the proposed changes: the games would not necessarily increase Lotto Texas sales. Comment: Several commenters suggested changing the pay Comment: Some commenters suggested that draws should be out over time to 15 or 20 years. once a week. Response: The Commission disagrees with comment because Response: The Commision does not believe that reducing this change would not increase Lotto Texas sales. drawings to once a week would address player requests Comment: Some commenters want to raise the prize amounts regarding higher jackpots. In fact, it would have the opposite for all numbers. effect. Response: The proposed amendments include an increase Comment: Some commenters indicated that players should get in the direct prize category percentages which will provide for 2 picks for a $1. higher prizes at the 3 of 6, 4 of 6, 5 of 6 and 6 of 6 prize levels. Response: Giving players 2 plays for $1 would increase the Comment: One commenter wants to increase retailer compen- number of plays per game but not help to offer higher prizes sation for more of an incentive. or larger jackpots which is what player research indicates Lotto players want. Response: The Commission believes that the proposed amend- ments will result in increased compensation to the retailers be- Comment: A few commenters indicated that the amount the cause as sales increased, the dollar amount based on the 5% retailer receives should be capped at $200,000. commission will also increase. Response: The Commission does not believe that capping the Comment: A few commenters want to have positive changes amount retailers receive as incentive is relevant to the proposed advertised in the Lottery. changes Response: The Commission is careful to avoid advertising that would unduly influence a person to participate in the Lottery.
ADOPTED RULES May 26, 2000 25 TexReg 4753 Comment: One commenter wants jackpots to be described in Response: The Commission disagrees with the comment terms of so much money a month or a week so that people can because increasing the starting jackpot to $5 million would relate it to the amount they have now. require an increase in sales to support a higher starting jackpot. Increasing the price of a ticket to $1.50 would not compensate Response: The Commission does not believe characterizing for increased jackpot amount. At the rate of current sales, the jackpot amounts in such a way will have an impact on Lotto starting jackpot may have to be reduced from $4 million to $3 Texas sales. However, the Commision has produced point-of- million or lower. sale materials in the past that show the breakdown of jackpot amounts; such as, "$4 million is not Chicken Feed", and "$4 Comment: Some commenters suggested improving existing million is more than $13,000 a month". games. Comment: Several commenters want to increase the 3, 4 and Response: The proposed amendments are designed to im- 5 of 6 percentage of the prizes. prove the existing Lotto Texas game. Comment: The proposed matrix has a higher prize payout of Comment: A few commenters suggested decreasing overhead. 55% which will allow for higher prizes at the 3 of 6, 4 of 6, 5 of Response: Whether the Commission decreases its operating 6 and 6 of 6 prize levels. expenses is irrelevant to the reason the Commission proposed Comment: A few commenters want to have more winners of amendments to the Lotto Texas game. The Commision, by smaller $2 million jackpots. proposing the amendments, is attempting to stop declining Lotto Texas sales. Response: The Commission disagrees with the comment because current Lottery research indicates that 81% of people Comment: A few commenters suggested improving the image polled said they want multimillion dollar jackpots. of the Commission. Comment: One commenter indicated that the Commission Response: The integrity, security, and honesty of the Lottery are should pay the tax on the jackpot. the Commission’s primary focus. At no time, has the integrity, security, and honesty of the Lottery been questioned. However, Response: The Commission disagrees with the comment be- the Commission reviews player research routinely to address cause the Commission’s operating expenses are approximately perceived image issues, if the players raise them. 7% of total sales and the Commission is not in a position, fi- nancially, to pay taxes on jackpot prizes. Comment: Some commenters suggested dropping some games. Comment: One commenter suggested raising the pay out on 3 of 6 to $10. Response: The Commission disagrees with the comment because current Lottery research shows that 81% of people Response: The Commission does not agree with the comment polled said they want multimillion dollar jackpots. Dropping to raise the 3 of 6 to $10 because eof the cost involved. some Lottery games will not address these players’ requests. However, the Commision is responding to player requests Additionally, each game appeals to a different category of regarding an increase in the payout amount at the 3 of 6 level. players. The proposed amendments reflect an increase from $3 to $5 for the 3 of 6 prize. Comment: Some commenters stated that local television does not show the drawings and that the Commission should adver- Comment: Several commenters suggested having smaller pay tise more. outs with more chances to win. Response: The comment is irrelevant to the proposed amend- Response: The Commission disagrees with the comment be- ments. However, Lotto Texas drawings are filmed live and cause decreasing the percentage of payout results smaller broadcast via satellite for television stations to air. It is the prizes to win, without increasing the player’s chance to win. choice of each individual station to decide to broadcast the Comment: A few commenters suggested increasing the per- drawings. The Commission can not mandate a station broad- centage of pay out on the cash option. cast the drawings. Response: The Commission disagrees with comment because Comment: Some commenters want to join Powerball and leave the cash value option is based on the sales for that particular Lotto Texas alone. draw. The cash value option is approximatey 50% of the Response: The Commission disagrees with the comment advertised Lotto jackpot. because the Commission believes it should improve its Lotto Comment: One commenter suggested having a mini-Powerball. Texas game regardless of whether it should participate in another game. Response: The proposed amendments are intended to make the Lotto Texas game healthy. Having a mini-Powerball will not Comment: Some commenters indicated the pay out on 5 of 6 help in improving Lotto Texas game. numbers should be substantially higher. Comment: One commenter wants the odds lowered in order to Response: The proposed amendments are designed, in part, make everyone in Texas a millionaire. to increase the 5 of 6 prize level from $1,500 to $2,500. Comments: A few commenters want to reduce the jackpot and Response: The Commission disagrees with the comment increase the odds of winning. because player research indicates that players want higher jackpots. Response: The Commission disagrees with the comment because current Lottery research shows that 81% of people Comment: One commenter wants to increase the starting pot polled said they want multimillion dollar jackpots. to $5 million and charge $1.50 a ticket.
25 TexReg 4754 May 26, 2000 Texas Register Comment: One commenter wants to have 40 $100,000 winners fers a game which offers $1 million prizes at the top level, Texas instead of 1 $4 million winner. Million. Response: The Commission disagrees with the comment Comment: Several comments suggested having advertising because current Lottery research shows that 81% of people that features more winners. polled said they want multimillion dollar jackpots. Response: The Commission disagrees with the comment be- Comment: One commenter wants people to have a real chance cause it does not respond to player requests for higher jack- at being a winner. pots. However, the Commission produces a player newsletter Winning showing recent winners and is distributed through li- Response: The Commission disagrees with the comment censed Lottery retailers. Winner information can also be found to the extent the comment is suggesting that the proposed on the Commission’s website at www.txlottery.org amendments will not give people a "real chance at being a winner". The proposed matrix does not indicate this statement Comment: Several commenters want to give the winners more to be correct. Further, as of April 5, there has been 398 Lotto money. jackpot winners out of 778 draws. Along with Lotto Texas, the Response: The proposed amendments are intended to give Commission offers other games with various odds of winning winners more money by increasing the prize payout from 50% a prize at different levels. Current Lottery research shows that to 55% which results in increasing all four prizes levels; 3 of 6, 81% of people polled said they want multimillion dollar jackpots. 4 of 6, 5 of 6, and 6 of 6. Comment: A few commenters suggested adding a bonus Comment: Several commenters want to drop the amount of number. numbers from 50 to 49 to allow more winners. Response: The Commission disagrees with the comment Response: The Commission does not agree with the comment because past proposed amendments to Lotto Texas featured because it would not result higher jackpots which are what a bonus and comments from players were not in favor of this player research shows players want. type of game. Comment: Some commenters suggested giving incentives for Comment: One commenter suggested the following: Reduce playing, such as buy 5 get 1 free. $4 million to: 1 million 1st prize $500,000 x 4 2nd prize, $100,000 x 10 3rd prize, for a total of 15 winners. Response: The Commission disagrees with the comment because the suggestion is irrelevant to the purpose of the Response: The Commission disagrees with the comment proposed amendments. However, the Commission has offered because current Lottery research shows that 81% of people such promotions through coupon distribution either to invite trial polled said they want multimillion dollar jackpots. or cross promote two games. Comment: One commenter suggested choosing 8 numbers Comment: Some commenters want to return to the original instead of 6 to allow more chances to win. payout percentage. Response: The Commission disagrees with the comment Response: The Commission disagrees with the comment because having 8 numbers would not increase the chances to because the current prize payout for Lotto Texas is 50% and has win. not changed since the introduction of the game. The proposed Comment: One commenter wants to go back to live drawings amendments increase the prize payout to 55%. showing one ball at a time. Comment: A few commenters suggested reducing the number Response: The comment is irrelevant to the proposed amend- of scratch off tickets to save money because they are expensive ments. However, Lotto Texas drawings are filmed live and to print. broadcast via satellite for television stations to air. It is the Response: The Commission disagrees with the comment be- choice of each individual station to decide to broadcast the cause reducing the number of scratch games has no relevance drawings. The Commission cannot mandate a station broad- to declining Lotto Texas sales and the proposed amendments. cast the drawings. However, the average number of scratch games that retailers Comment: One commenter wants to increase 3 of 6 to $50 carry is 20. Player research indicates that players like the fresh- payout. ness of new games and new ways to win. Response: The Commission disagrees with the comment Comment: One commenter indicated that when they called the because increasing the prize level to this amount would have a 800# and asked questions concerning the rules, the personnel significant impact on other prize levels in the game. at the Commission got very defensive. Comment: Some commenters want to have the ability to play Response: The Commission appreciates the comment. This Lotto Texas over the Internet. should not be the attitude of Commission personnel. Response: The Commission is prohibited under current law Comment: One commenter indicated that the Lottery is a from selling tickets via the Internet. voluntary tax. If the Lottery pays out more of the prize money and decreases the "tax", more people would play. Comment: One commenter suggested drawing 4 sets of numbers for 4 $1 million winners. Response: The proposed amendments increase the prize payout from 50% to 55%. Response: The Commission disagrees with the comment be- cause current Lottery research shows that 81% of people polled Comment: One commenter suggested having a once a month said they want multimillion dollar jackpots. The Commission of- Super Jackpot of $15 million to $20 million and having the
ADOPTED RULES May 26, 2000 25 TexReg 4755 other weekly drawings of 5 winners of $600,000 or 8 winners Response: The Commission disagrees with the comment of $500,000. because it is not a true statement. GTECH is currently paid 3.361% of sales. Response: The Commission disagrees with the comment because current Lottery research shows that 81% of people Comment: One commenter stated: "When I first started playing, polled said they want multimillion dollar jackpots. I won a little and now I still play a lot and I don’t win at all." Comment: One commenter indicated making Lotto picks bought Response: The Commission disagrees with the comment if the during a week be good for all the following week and have 5 comment is intended to suggest that the odds of winning have draws per week. decreased. The odds of winning on the current Lotto game have not changed since the game was introduced. Response: The Commission disagrees with the comment because this suggestion would not help increase sales or Comment: One commenter indicated that when "advertising increase the size of the jackpot. the odds of winning, it is certainly deceptive advertising, if not an out and out lie to call a ticket that sells for a dollar that is Comment: One commenter suggested having a set jackpot of redeemed for a dollar, a winner." $20 million and selling the tickets until the Commission has enough to pay and then have the drawing. Response: The Commission disagrees with the comment because there is not a one dollar prize amount in the Lotto Response: The Commission disagrees with the comment Texas game. The least amount a person can win is by matching because this suggested type of game would not result in higher 3 of 6 numbers for a prize of $3. jackpots and player research indicates players want higher jackpots. Comment: A few commenters indicated that the wording in the proposed amendment is inaccurate because the proposal Comment: One commenter stated that the media doesn’t tell indicates that the changes will increase odds, when the odds what the jackpot amount is for the next draw. will be decreased. Response: The Commission disagrees with the comment be- Response: The Commission disagrees with the comment cause the Commission produces radio jackpot alerts and 10 because the odds of winning are increased when the odds of second metro reads that advertise the jackpot amounts. Many winning increase from approximately 1 in 15 million to 1 in 25 of the newspapers publish the drawing results along with the million. estimated jackpot for the next draw. Some television com- mercials have been tagged with the jackpot amount. Addition- Comment: One commenter stated: "We were "promised" higher ally, eighty outdoor billboards showing the jackpot amount are jackpots when you changed the pay out from 20 to 25 years." placed throughout the state. Response: The Commission disagrees with the comment Comment: One commenter suggested having a big wheel because the payout over time was changed to 25 years but drawing on TV or some location and allows people to buy not the percentage of prize payout. chances to win smaller prizes. Comment: One commenter stated: "There are more winners in Response: The Commission disagrees with the comment east Texas than west Texas." because television game shows are very expensive to produce Response: The Commission disagrees with the comment and funding has to be available for the prizes. Further, such because the number of winners in any given area is relative a suggestion would not increase Lotto Texas sales or create to the population of players participating in the games from that higher jackpots. area. The drawings for all Texas Lottery games are random Comment: A few commenters stated that the Commission only and the Commission Security Division goes through a checklist allows winners from large cities. of nearly 300 steps for each drawing to ensure the integrity, security and fairness of the games is maintained. Response: The Commission disagrees with the comment because the number of winners in any given area is relative Comment: One commenter suggested showing which winners to the population of players participating in the games from that are quick picks and which are not because people don’t feel the area. The drawings for all Texas Lottery games are random Lottery is run honestly. and the Commission Security Division goes through a checklist Response: The Commission disagrees with the comment to of nearly 300 steps for each drawing to ensure the integrity, the extent comment indicates that the Lottery isn’t run honestly. security and fairness of the games is maintained. Also, winners Lottery information indicates that the distribution of players come from all sizes of cities. picking their own numbers or playing Quick Pick is about 50/ Comment: One commenter suggested that if the Federal 50. The selection of Quick Pick continues to be the option of Government would only take 14%, the State could keep the the player. other 86%. Comment: One commenter indicated that the Commission is Response: The Commission disagrees with the comment the not making as much money because of all of the illegal gambling Commission cannot change federal income tax law. Further, available to the public. the comment is not relevant to the proposed amendments. Response: The Commission agrees that other forms of gaming, Comment: One commenter stated that "GTECH is sucking the whether legal or illegal, may have an impact on Lottery sales; State dry at roughly 33% each and every drawing." however, the Commission disagrees with the comment to the extent the comment is intended to suggest that other forms of gambling are the cause for the decline in Lotto Texas sales. If
25 TexReg 4756 May 26, 2000 Texas Register comment is correct, the Commission would be experiencing a Comment: One commenter indicated that in east Texas it is decline in sales for all its games and it is not. easy to drive to Louisiana for Powerball tickets. If the Texas Lotto could mirror the Powerball, players might buy more tickets Comment: One commenter suggested modeling Lotto Texas here. after the successful German Lottery. Response: The proposed amendments do not mirror Powerball Response: The Commission is not familiar with Germany’s but are intended to result in higher jackpots. Past proposed Lotto game. However, from a review of the information Lotto Texas amendments mirrored to some extent Powerball contained in the comment it appears that the German Lotto and player comments were opposed to the proposed changes. includes a bonus ball and increased number of prize categories. The Commission proposed amendments to the Lotto Texas Comment: One commenter indicated that five numbers in rule which included a bonus ball and increased number of Powerball pays $100,000. categories. Comments received concerning the use of a bonus Response: The Commission does not understand the signif- ball and increase in the number of categories were negative. icance of the comment except to the extent the comment is Additionally, recent player research indicates that the majority suggesting increasing the 5 of 6 prize amount in the Lotto Texas of players want multimillion dollar jackpots which is not the case game. The proposed amendments do increase the prize level with the German Lottery. Also, like the German Lottery, the for the 5 of 6 tier; however, not to this suggested amount. If the Commission produces a player newsletter. Commission accepted the suggestion, the money would have Comment: One commenter suggested drawing 2 sets of to come from another prize level, such as the 6 of 6 level which numbers when the Lotto goes over 10 million. If there is only would result in lower jackpot levels. Player research indicates one winner, he/she gets all the money. If there are more players want higher jackpots, not lower. winners, it is split evenly. People will buy more tickets because Comment: One commenter suggested that the Lottery should their chances of winning increase. not be so secretive. People in big stores who purchase tickets Response: The Commission disagrees with the comment do not win. The Lottery is run by computers and the people because jackpots are already split when there is more than know immediately the exact location and time the ticket was one winner. Also, drawing two sets of numbers in the manner purchased. The winners should not be protected by secrecy, suggested will not result in higher jackpots. they should be glad they won. Comment: One commenter suggested capping the prize at 10 Response: The Commission is subject to the Open Records million, have a second drawing for the excess instead of letting Act. Certain information about a winner is public information. it roll to a new jackpot. However, certain information, such as the winner’s home address and telephone number, is exempt from disclosure. Response: The Commission disagrees with the comment Additionally, winners have the option to participate in publicity because player research indicates that players want higher at the time the winner claims the prize. jackpots. Comment: One commenter suggested reducing the prize of 6 Comment: One commenter suggested reminding the public of 6 numbers to $1 million, increasing the amount of funds in what 4 million dollars is. reserve for 5 of 6 numbers to $1.5 million (higher payoffs for Response: The Commission has conducted advertising cam- those who win), increasing the amount of funds in the reserve paigns to carry this message. for 4 of 6 numbers to $500,000 (higher payoffs for those who win), and increasing the prize amount for 3 of 6 numbers to $4. Comment: One commenter indicated that the average person The cost of implementing this change will not be as great. For has no idea how much money goes into education. most players, a million dollar prize is enough. Response: The Commission produces a pamphlet showing the Response: The Commission disagrees with the comment. breakdown, by percent, of where the money goes. However, Player research indicates that 81% of people polled said they the revenue generated by the Lottery for the Foundation School want multimillion dollar jackpots. Fund is a fraction of the education budget. It is not the Commission’s role to inform the public about the education Comment: One commenter asked the questions: "Does Cash budget. 5 and Texas Million take away from Lotto sales? Could it be that adding new on-line games has detracted from the primary Comment: One commenter indicated that if the economy were game?" better, people would play more. Response: The Commission expects some cannibalization with Response: The Commission disagrees with the comment new game introduction. Such cannibalization is considered at because the economy does not appear to be better or worse the time a new game is proposed. The Commission relies on than it was in past years. The Commission believes that players player research which indicates that each of the on-line games want higher jackpots and will not play at lower jackpot levels as appeals to a different category of players. much as they once did. Comment: One commenter suggested the following: Leave the Comment: One commenter suggested having only one drawing Jackpots and numbers the same, instead of giving $3 for 3 per week because most people want a chance at bigger numbers, give a free ticket. Raise the amount of money for 4 Jackpots. numbers to $5000 and raise the amount of money for 5 numbers Response: The Commission disagrees with the comment to $25,000 or as high as possible. because having one drawing per week will not result in higher jackpot levels.
ADOPTED RULES May 26, 2000 25 TexReg 4757 Response: The Commission disagrees with the comment Comment: Many commenters want to see the 3, 4, and 5 of 6 because it would have an adverse impact on the jackpot prize levels pay higher. amount, so it could not be left the same. Response: The proposed amendments are intended to achieve Comment: One commenter indicated that the New York Lottery higher prize levels. just decreased the number of balls to increase sales. Comment: Many commenters indicated they agree with the Response: The Commission disagrees with the comment to matrix change. the extent the comment intends to indicate that decreasing the Response: The Commission proposed the amendments to number of balls will increase sales. Decreasing the number respond to player requesters such as these comments. of balls should result in lower jackpot levels. Player research indicates that players want higher jackpots. Comment: Many commenters stated they want bigger jackpots. Comment: One commenter indicated that the "Lotto was doing Response: The proposed amendments are intended to result just fine until some anti-lottery commission members were in higher jackpots. elected to the board. The advertising for the Lottery decreased Comment: Some commenter indicated that the odds are (I can’t remember the last time I saw a TV commercial), the odds impossible anyway so why not have bigger jackpots. of winning were reduced, as a result people started playing." Response: The proposed amendments are intended to result Response: The Commission disagrees with the comment in higher jackpots. because Lotto Texas sales have been declining for some time and player research indicates players want higher jackpots. The Comment: One commenter suggested paying for pairs in Pick Commission’s advertisement is at approximately the same level 3 to increase its popularity. it has been in the past. Response: The proposed amendments only relate to Lotto Comment: One commenter indicated that the Commission’s Texas. Paying pairs in Pick 3 would change the payout for other greatest adversary is the "Law of Diminishing Utility". combinations. Response: The Commission does not understand the com- Comment: One commenter indicated that notification of the ment. numbers drawn on the website is not timely. Comment: One commenter indicated that if the Commission Response: The Commission will raise this its issue with the reduced the initial jackpot, the marginal players will drop out of appropriate staff. the market until the jackpot gets bigger. Comment: One commenter indicated that bigger jackpots will Response: The Commission proposed the amendments to attract out of state players. increase jackpots and, as a result, avoid having to reduce the Response: The Commission proposed the amendments to minimum jackpot level. respond, in part, to player requests for higher jackpots. Comment: One commenter stated: I don’t believe the money Comment: One commenter suggested increasing the number should only support schools. I’d prefer for some money to go of advance draws from 10 weeks. to animal rights groups, environment, etc. On scratch-offs, you should be able to redeem tickets for items (t-shirts, key chains, Response: The Commission will consider this suggestion in the more tickets) to help the environment and prevent tickets from future. being thrown on the ground." Comment: Several commenters indicated that "it’s about time" Response: The Commission does not decide how lottery the changes were made to the game. revenue is used. With regard to possible prizes for instant Response: The Commission proposed the amendments to tickets, players indicated they want money. increase sales and to respond to player requests for higher Comment: One commenter suggested letting people from other jackpots. states buy our lottery that would increase our pots and only Comment: One commenter indicated that "it keeps me going to letting them choose the 25 year payment option and the interest win a little every now and then." is the Commission’s to use. Response: The proposed amendments increase the guaran- Response: The Commission disagrees with the comment teed 3 of 6 payout from $3.00 to $5.00. because people from other states can buy Texas Lottery tickets now. However, the interest in the 25 year payment option makes Comment: One commenter suggested that with the increased up the total jackpot amount won over time. There is no interest number of balls, the Commission should pay $1.00 for 2 of 6 gained by the Lottery. numbers. Comment: One commenter wants to combine his own picks Response: The Commission disagrees with the comment with random picks. For example, combine his birthday (11-3) because paying at this level would affect the other prize levels with 4 random numbers. and would result in lower jackpot levels than what is expected as a result of the proposed changes. Player research indicates Response: The current software technology does not make that players want higher jackpots. such a suggestion possible. Comment: One commenter indicated that Lotto allows a chance The following is a summery of the comments received during the at the big jackpot with the opportunity to win smaller ones at the comment period from persons who indicated they were in favor same time. of the proposed amendments but offered additional comments:
25 TexReg 4758 May 26, 2000 Texas Register Response: The proposed amendments are intended, in part, to with Lotto Texas that involved a similar concept. Public result in higher jackpots. comment was opposed to the idea. Comment: A few commenters indicated that funding for educa- Comment: One commenter suggested eliminating the 3 of 6 tion will increase. prize. Response: The proposed amendments are intended to result Response: The Commission disagrees with the comment in higher jackpots as well as an increase in Lotto Texas sales. because player research indicates that not only do players want An increase in sales should result in an increase in revenues to higher jackpots but they also want to win at the lower levels. the State for the Foundation School Fund. Comment: One commenter indicated that the changes will Comment: One commenter suggested the Commission picking benefit everyone and more people will play. 6 balls when the jackpot is under $15 million and 7 or 8 balls Response: The Commission believes the proposed amend- when the jackpot is over $15 million. ments will result in what the commenter suggests. Response: The Commission proposed amendments to the Comment: One commenter wants the Commission to notify Lotto Texas game in the past that contemplated picking more players as soon as possible where the winning ticket was sold. than 6 balls. The comments received in connection with the past rulemaking were opposed to this type of concept. Response: The Commission makes the information available as to where the 6 of 6 ticket was sold as soon as possible after Comment: One commenter wants the scanning ink darkened. the drawing. Response: The Commission will bring this comment to its Comment: One commenter suggested decreasing the number vendor’s attention. of scratch games. Comment: One commenter suggested that after the jackpot Response: The proposed amendments relate only to Lotto reached $20 million, it should be distributed between 2 or 3 Texas. However, the Commission offers the number of scratch people. games it does because players have requested variety. Response: The Commission is uncertain as to how the "2 or Comment: A few commenters indicated that the changes will 3 people" would be selected if they did not have tickets with create more excitement. numbers that matched the 6 numbers drawn. The 6 of 6 is already parimutual and players with matching 6 of 6 already Response: In the past, high jackpot amounts created excite- must split the jackpot. ment. The proposed amendments are intended, in part, to re- sult in higher jackpots which may also result in creating more Comment: Some commenters suggested that payouts should excitement. be higher. Comment: One commenter indicated that sales will increase Response: The proposed amendments are intended to result with the changes. in higher payouts at all prize levels. Response: The proposed amendments are intended, in part, to Comment: One commenter indicated that people from all over result in increased sales. will play with bigger jackpots. Comment: One commenter indicated that the changes will Response: The proposed amendments are intended to result improve Lotto Texas. in higher jackpots and increased Lotto Texas sales. Response: The proposed amendments are intended to improve Comment: One commenter wants live television drawings. Lotto Texas. Response: The Commission places its drawings on satellite for Comment: One commenter indicated that he/she will play television stations to be able to broadcast the drawings live. anyway. However, the Commission can not compel a television station to broadcast the drawings. Response: The Commission wants the game to be played by all who want to play but still want people to play responsibly. Comment: One commenter wants the public perception of the Lottery improved. Comment: One commenter indicated that the decline in Lotto sales is the current matrix. The commenter stated: "Review of Response: The Commission conducts research routinely to the sales data shows that peer capita participation ranges from ascertain the public’s perception of the Lottery and makes $.25 to $.50 for jackpots from $3 million to $25 million. It is not adjustments in response to such feedback. until the jackpots get larger than the $25 million that per capita Comment: A few commenters indicated that more money will spending increase to levels that build sales." The commenter come into Texas instead of going to Powerball. indicated that the matrix needs to be adjusted to increase the likelihood of the jackpot rolling to levels above $25 million. The Response: The proposed amendments are intended, in part, commenter referenced the Florida Lotto changes and indicated to respond to player requests for higher jackpots. One result of Florida has realized a 30% increase in sales year-to-year since higher jackpots is that players may opt to play Lotto Texas rather the change was implemented last fall. than travel to a border state that participates in Powerball. Response: The Commission agrees. Comment: One commenter suggested having a bonus ball. The Commission conducted a hearing on April 19, 2000 to Response: The Commission disagrees with the comment. The receive public comment on the proposed amendments. The Commission proposed amendments in the past in connection following is a summary of the comments received at the hearing:
ADOPTED RULES May 26, 2000 25 TexReg 4759 Comment: A few commenters indicated that the proposed on getting retailers to approve the plan so when presented to changes will increase enthusiasm for Lotto Texas and be more the Commissioners, Commission staff could have the power to fun for the players as it generates more revenue for the State. convince the Commissioners that staff has support for adding the four balls. In addition, the commenter offered comments Response: The proposed amendments are intended to result in regarding a survey to retailers. The commenter indicated that higher jackpots and increased sales. Increased sales will result the problem she has with the retailer survey is information in in increased revenue to the State. Higher jackpots should create the retailer survey that states that "similar changes in New York increased enthusiasm. and Florida brought marked increases in sales and dramatically Comment: A few commenters indicated more money will be boosted player interest in those states." The commenter stated brought into the State and that their customers are for the that this information "is a lie". The commenter indicated changes because of the bigger jackpots. that she received information from New York regarding every change that New York has made and stated that New York Response: The proposed amendments are intended, in part, to dropped the number of balls from six in 54 to six in 51 and result in higher jackpots. that New York is happy now. The commenter also discussed Comment: One commenter indicated that the changes will bring California’s experience and indicated that "California did the more people to the game. same thing": The commenter stated that "California came back and lowered their balls and it only took them a year Response: The proposed amendments are intended, in part, or two." The commenter suggested that making it harder for to result in higher jackpots. Higher jackpots should bring more people to win will make people quit playing. The commenter people into the game. indicated the retailer survey left out that the changes in New Comment: One commenter suggested that the Commission be York and California failed. The commenter suggested that the more honest in its responses when math errors are pointed out Texas Association of Lottery Retailers (TALR), GTECH, and the to the Commission. In making this suggestion, the commenter Commission, in a group effort, did the retailer survey. The referred to a past rulemaking and does not refer to the current commenter believes this because the TALR only has 200 or rulemaking. The commenter also suggested increasing the 300 members but 4,000 surveys were sent. The commenter jackpot to 55% while keeping the game at 6 of 50 balls and also indicated that she disagreed with the statement in the eliminating the $3.00 prize. The commenter indicates that this proposed rulemaking that there will be no adverse effect on suggestion will increase the projected jackpot by 36% without small businesses because if the Commission put them out of decreasing dramatically the probability of anyone winning it. business that would be an adverse effect. The commenter The commenter also indicated that the proposed changes will also indicated that the Commission knows and has known change the probability of winning a prize greater than the that the retailers are unhappy and have been begging for minimum prize which the commenter feels at $3.00 and $5.00 is some way to increase sales. The commenter also criticized insignificant. The commenter suggest that nobody buys a Lotto the Commission for having a statistician from A&M come to ticket to win $3.00 or $5.00. The commenter also indicated the March 14, 2000 Commission meeting and explain why that his students are surveying players and asking them if they there were six winners in a row because the Lotto game is would be willing to give up a $3.00 prize to have a 36% increase to be won. The commenter also criticized GTECH telling the in the jackpot. The commenter indicates that according to his Commissioners that "Texas only had a cold" and that part of students’ survey, many players did think that they preferred the sales pitch was Texas losing a lot of money to border the commenter’s suggestion of giving up $3.00 to have a 36% states. The commenter disagrees with the statements based increase in the jackpot. on information she obtained from North American Association of State and Provincial Lotteries (NASPL). The commenter Response: The Commission disagrees with the suggestion of suggested looking at Delaware, and, in particular, Delaware’s eliminating the 3 of 6 level. Player research indicates that while per capita spending. The commenter does not believe Texas players want higher jackpots, players also want the opportunity is losing money to other states and Texas should not begrudge to win at the 3 of 6 level. competition. The commenter criticized Texas using Florida’s Comment: One commenter indicated that sales are down and Lotto change experience to support the proposed changes. The when sales are down, the Commission should look to see why commenter indicated Florida increased their draws from once a sales are down. The commenter indicated that retailers are week to twice a week which should automatically double their not making enough money and do not want to "push lotto". The sales. The commenter also indicated that Florida sales were commenter also indicated that the retailers "absolutely have got up and now they are down. The commenter brought to the problems with their money, their five percent". The commenter hearing comments divided into two piles. One pile represented indicated that the retailers are unhappy when eight-liners were comments from people against the proposed amendments and discontinued because "everybody who played the eight-liners indicated that pile had 2,500 to 3,000 names. The other pile also spent their winnings on the Lotto." The commenter also represented people in favor of the proposed amendments and suggested that the retailers are unhappy with the Commission’s it had 8 names. The commenter also criticized the Commission theft policy for their scratch off tickets. The commenter indicated for not issuing a press release and asking people to come that she wants sales to go up. The commenter suggested that to the public hearing while through the previously mentioned the Commission abandoned its past Lotto Texas rulemaking retailer survey Commission staff was "getting retailers to come in order to come back with a better plan and a better way forward." The commenter read excerpts from correspondence to present it to convince the Commissioners to do it. The she received into the record at the hearing. The comments commenter indicated that her first thought is to add the four balls she read were all opposed to the proposed amendments. The because the Commission would fail and the commenter could commenter also stated that she was upset because she learned tell the Commission "I told you so". The commenter indicated that the Commission already purchased the 54 balls. that she believed Commission staff had already been working
25 TexReg 4760 May 26, 2000 Texas Register Response: The Commission agrees with the commenter that recently, California made a matrix change to its Lotto game. the Commission should look to see why sales are down when While it is premature to know whether the change is success- sales are down. Based on its research, the Commission be- ful, the act alone by California to change its Lotto matrix is lieves that sales are down because people are not playing as instructional, especially given California’s past experience with much as they used to play. Player research indicates that play- changing its Lotto matrix. As to the comment regarding the ref- ers want higher jackpots. The proposed amendments are in- erence that there will be an adverse effect on small businesses, tended to result in higher sales and higher jackpots. The Com- the Commission disagrees. The proposed amendments are mission disagrees with the comment to the extent the comments intended to result in increased sales. As sales increase, the suggest that Lotto Texas sales are down because of a relation- retailers’ income based on the 5% commission will increase. ship to eight-liners. If this statement was a true statement, the Therefore, the effect on small businesses (retailers) will be pos- Commission would experience a decline in sales of all prod- itive. Regarding the comment that GTECH provided inaccurate ucts. Other Lottery products are not experiencing a decline information to the Commission in connection with Texas los- in sales like Lotto Texas. The Commission disagrees with the ing a lot of money to border states and that the Commission comment that retailers are unhappy with the Commission’s theft should not begrudge competition, the Commission believes Tex- policy for instant game tickets. The proposed amendments re- ans play border states’ games, particularly multi-state games, late solely to Lotto Texas and are intended, in part, to address when the jackpots are higher than Lotto Texas jackpots. Further, the decline in Lotto Texas. In fact, instant ticket sales appear the Commission does not "begrudge" competition. However, to be increasing. The Commission disagrees with the comment the Commission must stay competitive and make appropriate that the Commission abandoned its past Lotto Texas rulemak- changes to its products when such changes are warranted. The ing simply to "come back with a better plan and a better way to commenter suggested the Commission look to Delaware’s per convince the Commissioners" to adopt changes to Lotto Texas capita spending. The Commission disagrees with the comment at a later date. The Commission indicated at the time the past because the Commission believes it is more helpful to look at rulemaking was withdrawn that it may have to consider changes states with comparable population. However, the Commission to Lotto Texas in the future if sales did not improve. Sales have reviews other states’ experience for insight when appropriate. not improved since the withdrawal of the past rulemaking. In- As to the comment’s criticism regarding what the commenter sofar as the commenter has suggested that Commission staff perceives as a failure to notify the public about the Commission was making efforts during the interim time between the past meeting and public comment hearing but notifying retailers, the rulemaking and the present rulemaking to convince retailers Commission notified all persons through its website as well as to approve the changes, the Commission is unaware of such the required notice in the Texas Register. The Commission is efforts by Commission staff. Regarding the comments made interested in hearing comment from all interested persons. The about the retailer survey issued by TALR, Commission staff re- Commission is aware of action by GTECH to notify retailers of viewed a draft of the survey prior to its issuance. TALR notified the meeting. However, the Commission is not aware of any ac- Commission staff of its intention to issue the retailer survey to tion by GTECH to tell retailers what to comment. As to the com- TALR members and offered to allow Commission staff to review ments by other people the commenter read into the record, such it. After the Commission staff’s review, TALR issued the survey comments have been summarized herein and responses have to its members. The Commission is aware that after the survey been provided herein. As to the comment that she was upset was issued; GTECH contacted TALR to suggest making the sur- because the Commission had already purchased the 54 balls, vey available to all retailers. GTECH delivered the same survey the Commission has purchased the additional balls prior to the to lottery retail locations and picked up the surveys once they adoption of these amendments. However to the extent the com- were completed. GTECH provided TALR with the completed ment suggests that adoption of the proposed amendments was surveys. TALR provided the surveys to the Commission at its a "fait accompli", the Commission disagrees. Commission staff April 13, 2000 meeting. With regard to the commenter’s claim ordered 5 ball sets, numbers 1 through 54, in the Fall. When the that the survey’s reference to other states Lotto game change proposed rulemaking was withdrawn the order of balls numbers experience is inaccurate, the information provided to the Com- 51 through 54 was canceled. However, two sets had already mission in connection with Florida’s experience indicates that been manufactured and were sent to the Commission. In ad- Florida’s Lotto change has increased Lotto sales. The Com- dition to these two sets, the Commission took possession of 3 mission is aware that Florida increased the number of drawings sets of balls numbers 1 through 50. Notwithstanding the issue per week from one to two. However, the Commission does not of ball numbers 51 through 54, the Commission needed new believe the change accounts for the marked increase in Lotto ball sets because the old sets were the originals and were due sales. The Commission believes the primary reason for the in- to be replaced. Commission staff purchased the 3 sets of ball crease in sales is attributed to the matrix change. Lotto’s sales numbers 51 through 54, in order to be ready, from a time per- are jackpot driven. As the jackpot grows, sales grow. Addition- spective, to use the balls in the event the Commission adopted ally, as the odds of winning the jackpot remain the same regard- the proposed amendments. Commission staff was aware that less of the number of drawings per week. As to the reference it would take 30 days from the time of placing the order to re- in the survey regarding New York, the Commission agrees that ceiving the balls. After receiving the balls, considerable testing the indication in the survey that New York experienced similar of the balls must occur and the Commission’s statistician must changes and the changes boosted sales dramatically is inaccu- complete his analysis to ensure that the balls will function ran- rate. Based on the information the Commission has regarding domly before the statistician can certify to the Commission that New York’s Lotto game changes, the changes were not similar. the balls may be put in rotation for the draw. Each ball costs The Commission, in proposing the amendments, did not rely on approximately $200. The approximate total cost is $4,000. On New York’s experience as a basis for its decision to propose the balance, Commission staff spent $4,000 versus not being pre- amendments. Further, the Commission is not now relying on pared to implement these proposed amendments as soon as information regarding New York. As to the commenter’s infor- possible and lose a far greater revenue to the State. There- mation regarding California, the Commission is aware that very fore, the purchase of the balls should not be indicative that the
ADOPTED RULES May 26, 2000 25 TexReg 4761 adoption of the proposed amendments was a "fait accompli" but signatures were not written by different people. The concerns instead should be considered a reasonable business decision raised by the commenter appear to go to some 90 surveys; by Commission staff. Finally, in summary, with regard to the a total of 4,600 surveys were submitted. The Commission will issues surrounding the survey, the Commission recognizes the consider the commenter’s concern and give the retailer surveys import of such issues and has considered such issues when the appropriate weight in the Commission’s reliance on those making its decision. surveys. At the April 13, 2000 and May 12, 2000 Commission meetings, Comment: One commenter discussed GTECH’s role in dis- the Commission received public comment on the proposed seminating the retailer surveys and addressed the other com- amendments. The following is a summary of the comments menter’s contention that the surveys were not accurate or au- received at the meetings which is not redundant, repetitive, thentic. The commenter stated that he knew of no concern or duplicative to comment already received, summarized, and regarding the authenticity of the retailer surveys. He stated that considered by the Commission: GTECH had identified one representative that did not following certain procedures in gathering the surveys; however, that act Comment: One commenter indicated that his association sent still did not cause him to question the underlying survey results. out a survey to retailers. The response out of 3,973 returned surveys was 3,505 in favor of the proposed amendments and Comment: One commenter discussed GTECH’s role in dis- 468 opposed to the proposed amendments. The commenter seminating the retailer surveys and addressed the other com- indicated the percentage breakdown to be: 88% in favor and menter’s contention that the surveys were not accurate or au- 12% opposed. The commenter also indicated that the changes thentic. The commenter stated that he knew of no concern will breathe new life into the Lottery and maybe the changes regarding the authenticity of the retailer surveys. He stated that will generate interest and sales will increase. GTECH had identified one representative that did not following certain procedures in gathering the surveys; however, that act Response: The Commission proposed the amendments to still did not cause him to question the underlying survey results. result in higher jackpots and increase sales. Response: The Commission appreciates the clarification given Comment: One commenter indicated that he had opposed regarding the retailer surveys. the proposed changes in connection with the past Lotto Texas rulemaking; however, the commenter indicated that he had The amendments are adopted under Texas Government Code done some research and polled customers and is in favor of §466.015, which gives the Texas Lottery Commission the the proposed amendments. The commenter indicated that the authority to adopt all rules necessary to administer the State Florida Lottery had sent him information on sales figures since Lottery Act and rules governing the establishment and operation Florida made the matrix change and sales have increased. The of the lottery; and, under Texas Government Code §467.102 commenter indicated that if the jackpot is higher, sales are which gives the Commission the authority to adopt rules for higher. the enforcement and administration of the laws under the Commission’s jurisdiction. Response: The Commission proposed the amendments to result in higher jackpots and increase sales. Texas Government Code, Chapter 466 is affected by the amendments. Comment: One commenter indicated that bigger jackpots in- crease the "traffic in the stores". This agency hereby certifies that the adoption has been re- viewed by legal counsel and found to be a valid exercise of the Response: The Commission anticipates that higher jackpots agency’s legal authority. will increase sales and the retailers will experience an increase in "traffic in their stores". Filed with the Office of the Secretary of State on May 12, 2000. Comment: One commenter set out the activities surrounding TRD-200003351 the retailer survey and the process implemented by TALR in Kimberly L. Kiplin conducting the surveys and input TALR received from Commis- General Counsel sion staff regarding the surveys. Texas Lottery Commission Response: The Commission appreciates the commenter’s Effective date: June 1, 2000 clarification of the process. Proposal publication date: March 31, 2000 Comment: One commenter indicated that she had obtained For further information, please call: (512) 344-5113 copies of the retailer surveys and had reviewed the surveys ♦♦♦ herself and had obtained private analysis of the surveys for purposes of determine their authenticity. The commenter TITLE 19. EDUCATION read portions of the reports prepared for her by two different reviewers, which essentially suggested that it was "highly Part 2. TEXAS EDUCATION AGENCY probable" certain specific surveys were not written by different people. The commenter stated that she had delivered about Chapter 102. EDUCATIONAL PROGRAMS 566 surveys for analysis and had received one report of 64 pages, mostly copies of the suspect one-page surveys and the Subchapter BB. COMMISSIONER’S RULES other report of 26 pages, mostly copies of the suspect surveys. CONCERNING THE MASTER READING Response: The Commission understands the commenter to be TEACHER GRANT PROGRAM suggesting that some of the surveys are not authentic, insofar as she is relying upon the reports that suggest that some 19 TAC §102.1011
25 TexReg 4762 May 26, 2000 Texas Register The Texas Education Agency (TEA) adopts new §102.1011, Agency Response. In accordance with the policy of local concerning the Master Reading Teacher Grant Program with control, the agency has not specified a breakdown of the duties changes to the proposed text as published in the March 17, by primary and secondary functions nor set limits on when 2000, issue of the Texas Register (25 TexReg 2260). The these functions would be performed. School districts should new section establishes the definitions, requirements, and pro- assess the needs of their students and teachers and make cedures relating to the implementation of the Master Reading appropriate decisions, in accordance with local policy, that will Teacher Grant Program as authorized by Texas Education Code lead to greater achievement in reading. (TEC), §21.410, added by House Bill (HB) 2307, 76th Texas Comment. TCTA also expressed concern that the master Legislature, 1999. reading teacher stipend would not be paid until the end of the HB 2307, 76th Texas Legislature, 1999, created the new school year nor would teachers know until that time whether Master Reading Teacher Grant Program. The commissioner they would receive a stipend. of education is authorized to make grants to school districts to Agency Response. The payment schedule is set by statute, pay stipends to selected certified master reading teachers who which specifies a year-end stipend. The agency, however, has teach at high-need campuses as defined in the new rule. The revised the rules to indicate that districts must file applications commissioner is authorized to adopt rules for implementation of with the commissioner of education in accordance with the cor- the new grant program. responding instructions. It is envisioned that the application in- The following changes have been made to the section since structions would have districts specify the teachers expected to published as proposed. be the master reading teachers, provided that all requirements are met. Language in subsection (b)(1)(A) was added to clarify that the percentage of students reported as passing the TAAS is to be The new section is adopted under the TEC, §21.410, as derived from the past three school years for which data are added by House Bill 2307, 76th Texas Legislature, 1999, which available. authorizes the commissioner of education to adopt rules to implement the Master Reading Teacher Grant Program. Language in subsection (b)(1)(B) that adds content and modi- fies existing language was included to clarify which campuses The new section implements the Texas Education Code, may be deemed high-need campuses for purposes of the mas- §21.410, as added by House Bill 2307, 76th Texas Legislature, ter reading teacher grant program. The format of this subsection 1999. was adjusted to accommodate the changes. §102.1011. Master Reading Teacher Grant Program. Language in subsections (b)(5)(A) and (b)(5)(B)(iii) requiring the completion of "a course approved by the State Board for (a) Under Texas Education Code (TEC), §21.410, a school Educator Certification (SBEC)" has been clarified to read "a district may apply to the commissioner of education for grants for course of instruction approved by SBEC." high-need campuses identified by the commissioner to be used to pay stipends to certified master reading teachers, in accordance with Language in subsection (b)(5)(B) referring to "a person who the provisions of this section. holds a teaching certificate in reading" has been revised to "a person who holds a teaching certificate." (b) The following terms apply to each school district appli- cant seeking stipends under the Master Reading Teacher Grant Pro- Language in subsections (e) and (g) has been modified to al- gram: low the commissioner of education to require that applications be filed in accordance with instructions issued with the applica- (1) High-need campus. A high-need campus: tions. (A) is a campus where the percentage of students Additional technical changes were made throughout the sub- reported passing the Texas Assessment of Academic Skills (TAAS) sections to clarify the rule. in reading averages less than or equal to a percentage designated by the commissioner over the past three school years for which data are The following comments were received regarding the adoption available, not including the school year in which the stipend is to be of the sections. paid; and Comment. A staff member from Region 12 Education Service (B) does not include: Center asked for clarification on the teaching certification requirement cited in proposed new subsection (b)(5)(B). (i) a charter school; Agency Response. The agency has revised the rules to clarify (ii) an alternative education program operated under that a certified master reading teacher can be a person who TEC, §37.008, and registered for the alternative accountability system holds a teaching certificate who has at least three years of for the 1998-1999 school year; teaching experience, has satisfactorily completed a course of (iii) a juvenile justice alternative education pro- instruction approved by the SBEC, and has successfully per- gram; and formed on the master reading teacher certification examination. (iv) a campus where fewer than 30 students took Comment. The Texas Classroom Teachers Association (TCTA) the TAAS in reading over the past three school years for which data requested that the rules require that a majority of the primary are available, not including the school year in which the stipend is to duties of the master reading teacher consist of teaching reading be paid. and that a secondary function consist of mentoring. In addition, TCTA asked for clarification about whether the master reading (2) Primary duties. The primary duties of a master teacher would perform duties outside the regular school day. reading teacher are: (A) teaching reading; and
ADOPTED RULES May 26, 2000 25 TexReg 4763 (B) serving as a reading teacher mentor to other (e) Applications must be filed with the commissioner during teachers. the school year in which a stipend is to be paid in accordance with the application instructions. (3) Teaching reading. Teaching reading is performed when a teacher: (f) A school district approved for a grant to pay a stipend on a specific high-need campus is not required to reapply for this grant (A) applies knowledge of the interrelated components for two consecutive years following the initial year of the grant if the of reading from early childhood through Grade 12 and uses expertise district: at the primary, intermediate/middle, or high school level to plan, implement, and monitor reading instruction; (1) continues to pay the stipend as provided in subsection (d) of this section; and (B) selects and administers appropriate reading assess- ments and uses the results to design reading instruction; (2) notifies the commissioner, in a manner prescribed by the commissioner, that the circumstances on which the grant was (C) applies knowledge of primary and secondary lan- based have not changed. School districts are not required to notify guage acquisition, reading difficulties, and dyslexia and related read- the commissioner if, according to local school district policy, the ing disorders to facilitate and promote literacy; and school district continues to pay the stipend to the teacher for the (D) designs and implements instruction based on the remaining two years even if the campus is no longer a high-need Texas Essential Knowledge and Skills (TEKS) in reading at the campus. The stipend must continue to be paid for the primary duties appropriate grade level. of teaching reading and serving as a reading teacher mentor as defined in subsection (b)(2) of this section. (4) Reading teacher mentor. A reading teacher mentor: (g) If a school district’s grant circumstances change in the (A) uses strategies to ensure research-based reading second or third year, a notification pertaining to the second and third instruction through communication and collaboration with other year must be filed in accordance with the application instructions. teachers; (h) Annual stipends to certified master reading teachers must (B) coaches and consults with other teachers; and be paid by local school districts no later than 30 days after receipt of (C) provides professional development. the grant by the school district. (5) Certified master reading teacher. A certified master This agency hereby certifies that the adoption has been re- reading teacher is: viewed by legal counsel and found to be a valid exercise of the agency’s legal authority. (A) a person who holds a reading specialist certificate and has satisfactorily completed a course of instruction approved by Filed with the Office of the Secretary of State on May 12, 2000. the State Board for Educator Certification (SBEC) for the purpose of TRD-200003348 becoming a master reading teacher; or Criss Cloudt (B) a person who holds a teaching certificate who: Associate Commissioner, Policy Planning and Research (i) has at least three years of teaching experience; Texas Education Agency Effective date: June 1, 2000 (ii) has satisfactorily completed a course of instruc- Proposal publication date: March 17, 2000 tion approved by the SBEC for the purpose of becoming a master For further information, please call: (512) 463-9701 reading teacher; and ♦♦♦ (iii) has successfully performed on the master read- ing teacher certification examination prescribed by the SBEC. TITLE 22. EXAMINING BOARDS (c) A school district may apply to the commissioner for grants for each high-need campus as defined in subsection (b)(1) of Part 2. TEXAS STATE BOARD OF this section to be used to pay year-end stipends to certified master BARBER EXAMINERS reading teachers whose primary duties include: (1) teaching reading; and Chapter 51. PRACTICE AND PROCEDURE (2) serving as a reading teacher mentor to other teachers Subchapter A. THE BOARD for the amount of time and in the manner established by the school district in conformance with the definitions set forth in subsection 22 TAC §51.3 (b) of this section. The application must contain a certification by The Texas State Board of Barber Examiners adopts new the school superintendent that the grants will be used only for the §51.3, concerning Administrative Fines, without changes to the purpose set forth in this section. proposed text published in the March 10, 2000, issue of the (d) School districts with identified high-need campuses hav- Texas Register (25 TexReg 1934). ing a large student population as determined annually by the com- The new §51.3 Administrative Fines is adopted as a result of missioner may receive grants to pay stipends to two certified master the 76th Legislative Session, and the passage of Senate Bill reading teachers per high-need campus. School districts with high- 846, to include all rules enforced by the board. need campuses having a small student population as determined an- nually by the commissioner may receive a grant to pay a stipend to There were no comments received on the proposed new rule. one master reading teacher per high-need campus. The proposal is adopted under former Texas Barber Law, Texas Civil Statutes, Article 8407a, Section 24 A-M, (repealed) now
25 TexReg 4764 May 26, 2000 Texas Register recodified by House Bill 3155 as Chapter 1601.155 OCCUPA- draws or interrupts his or her training the school or college TIONS CODE (1999), which provides the board with the au- has seven days to return the student certificate to the board. thority to impose administrative penalties to protect the public’s The proposed amendment to §51.25 Reenrollment Notification health and safety. changes the title of the rule to Reenrollment or Transfer, places the responsibility of filing the enrollment, reenrollment applica- This agency hereby certifies that the adoption has been re- tion and transfer notification on the school or college owners. viewed by legal counsel and found to be a valid exercise of the The proposed amendment to §51.26 Student Progress Reports agency’s legal authority. changes the wording from "acquired" to "accrued" in addition to Filed with the Office of the Secretary of State on May 8, 2000. changes the required forms prescribed by the board to requir- TRD-200003238 ing the information listed in §51.38. The proposed amendment to §51.30 changes the hours in anatomy, physiology, and his- Will K. Brown tology from 80 to 50; the hours of Texas Barber Law from five Executive Director to 35; change the wording from "boys’" to "children’s" haircut- Texas State Board of Barber Examiners ting; the hours of manicuring from 25 to 1; professional ethics Effective date: May 28, 2000 hours are changed from 10 to 22, and barber shop management Proposal publication date: March 10, 2000 hours from 10 to 22. The proposed amendment to 51.39 Bar- For further information, please call: (512) 305-8475 ber Refresher Course removes the words "or country" from the ♦♦♦ requirements for the refresher course and changes the haircut- ting hours from 150 to 160, and removes the manicuring hours. Subchapter B. BARBER COLLEGES, This amendment also adds the requirement of adding the stu- dent in the barber refresher course to the monthly progress re- SCHOOLS, AND STUDENTS port. The proposed amendments to 51.40 All Other Businesses 22 TAC §§51.13, 51.15-51.21, 51.23-51.26, 51.30, 51.39, Prohibited in a Barber College allows the placement of vending 51.40 machines and retail products directly relating to hair care. The board’s adoption of the rules is in accordance with the board’s The Texas State Board of Barber Examiners adopts amend- Rule Review Plan adopted pursuant to Article IX, 167of the Ap- ments to §§51.13; 51.15; 51.16; 51.18; 51.19; 51.20; 51.21; propriation Act. 51.23; 51.24; 51.25; 51.26; 51.30; 51.39; and 51.40, concern- There were no comments received on the proposed amend- ing Barber Colleges, Schools, and Students without changes ments. to the text published in the April 7, 2000, issue of the Texas Register (25 TexReg 2899). Since §51.17 was proposed with The amendments are adopted pursuant to Texas Barber Law, duplicate text under paragraphs (2) and (3), it is being adopted former Texas Civil Statutes, Article 8407a, §28(a) (repealed) with changes to correct that problem. now recodified laws House Bill 3155 as Chapter 1601 OCCU- PATIONS CODE (1999) which vest the board authority to make The amendments to §51.13 Change of Ownership of Barber and enforce all rules and regulations necessary for the perfor- School specifies that the new owner should notify the board mance of its duties, to establish standards of conduct and ethics of the change no later than the 10th day. Naming whom will for all persons licensed or practicing under the provision of the inspect the new owner’s school, and after the new owner com- Texas Barber Law, and to regulate the practice and teaching of pletes the new contract and returns it with the new fee, the barbering in keeping with the intent of the Texas Barber Law board will issue a new permit within 20 days. The proposed and to ensure strict compliance with the Texas Barber Law. amendment to §51.15 Barber Chairs per Student changes the wording clinic floor to practical floor. The proposed amendment §51.17. Specialty Equipment. to §51.16 Equipment for Students requires the school to furnish each student with a current hand book containing the Barber Each barber school or college shall have: Laws, and list the tools the school or college must ensure each (1) for each student in attendance on the practical floor, student is equipped with. The proposed amendment to §51.17 enrolled in a manicurist course outlined in 51.31, one complete Specialty Equipment states each student enrolled the school or manicure table, one complete set of manicuring implements for plain college will have enough equipment. The proposed amendment and sculptured nails, and one textbook with complete instructions; to §51.18 Classroom Consultants requires the school or college to have a valid Texas barber teacher teaching at all times. The (2) an adequate supply of permanent wave rods; proposed amendment to §51.19 Absence of Teachers is adding (3) a minimum of two canvas-type wig blocks; no student shall accrue hours for either practical or theory for the duration of the absence of a teacher. The proposed amendment (4) two mannequins, one long-haired and one short- to §51.20 Applying for Enrollment states all records are subject haired; to inspection by the board or any of its officers or employees and (5) a minimum of one wig, one hairpiece, and one the school or college is responsible for submitting the student hairwoven piece; application. The proposed amendment to §51.21 Enrollment Application Deadline changes the deadline the application for (6) clock; enrollment must be sent to the office within seven days of the (7) bulletin board; date on the physician certificate. The proposed amendment to §51.23 Student Certificate states the student certificate is not (8) fire extinguisher with current inspection report; and valid without a photograph attached and changes the student (9) teacher’s desk in classroom. certificate to expire every 12 months. The proposed amend- ment to §51.24 Interruption of Attendance when a student with-
ADOPTED RULES May 26, 2000 25 TexReg 4765 This agency hereby certifies that the adoption has been re- Shop and Beauty Parlor eliminates a rule that has become viewed by legal counsel and found to be a valid exercise of the obsolete. The proposed repeal of §51.93 Inspection Report will agency’s legal authority. remove the form from the board’s formal rules, thereby allowing greater flexibility for the board to change it forms from time to Filed with the Office of the Secretary of State on May 8, 2000. time without the requirement of a rulemaking proceeding to do TRD-200003232 so. The board’s repeal of the rules is in accordance with the Will K. Brown board’s Rule Review Plan adopted pursuant to Article IX, §167 Executive Director of the Appropriation Act. Texas State Board of Barber Examiners There were no comments received on the proposed repealed Effective date: May 28, 2000 sections. Proposal publication date: April 7, 2000 The repeals are adopted under former Texas Barber Law, For further information, please call: (512) 305-8475 Texas Civil Statutes, Article 8407a, Section 28a (repealed) now ♦♦♦ recodified by House Bill 3155 as chapter 1601 OCCUPATIONS 22 TAC §§51.22, 51.36, 51.37 CODE (1999) which vest the board to make and enforce all rules and regulations necessary for the performance of its duties. The State Board of Barber Examiners adopts the repeal of §§51.22; 51.36; and 51.37, concerning Barber Colleges, This agency hereby certifies that the adoption has been re- Schools, and Students, without changes to the text published viewed by legal counsel and found to be a valid exercise of the in the April 7, 2000, issue of the Texas Register (25 TexReg agency’s legal authority. 2904). Filed with the Office of the Secretary of State on May 8, 2000. The justification for this repeal is the elimination of obsolete TRD-200003235 and unnecessary text. The repeal of §51.22 Date of Enrollment Will K. Brown eliminates a rule that has become obsolete due to the proposed Executive Director amendment to §51.21. The proposed repeal of §51.36 and Texas State Board of Barber Examiners §51.37 will remove forms from the board’s formal rules, thereby Effective date: May 28, 2000 allowing greater flexibility for the board to change its forms from Proposal publication date: April 7, 2000 time to time without the requirement of a rulemaking proceeding to do so. The board’s repeal of the rules is in accordance with For further information, please call: (512) 305-8475 the board’s Rules Review Plan adopted pursuant to Article IX, ♦♦♦ 167 of the Appropriation Act. Chapter 51. PRACTICE AND PROCEDURE There were no comments received on the proposed repealed sections. The Texas State Board of Barber Examiners adopts amend- ments to §§51.92; 51.95; and 51.97, concerning Barber Shops The repeals are adopted under former Texas Barber Law, Texas and §51.101, concerning Advertising, without changes to the Civil Statutes, Article 8407a, Section 28(a) (repealed) now text published in the April 7, 2000, issue of the Texas Register recodified by House Bill 3155 as Chapter 1601 OCCUPATIONS (25 TexReg 2906). CODE (1999) which vest the board to make and enforce all rules and regulations necessary for the performance of its duties. The amendments to §51.92 Barber Pole (Symbol of Barbering Since Ancient Days) (a) changes the traditional barber pole This agency hereby certifies that the adoption has been re- colors to red, white and the optional blue. In (b) adds or any viewed by legal counsel and found to be a valid exercise of the phrase containing the word "Barber" and removes (c) in its agency’s legal authority. entirety. The amendments to §51.95 No Other Businesses in Filed with the Office of the Secretary of State on May 8, 2000. a Barber Shop or Specialty Shop changes (a) adding the word "consumption" and that all food and drink must be disposed of TRD-200003233 in a closed container. This amendment also removes (d) in Will K. Brown its entirety. The amendments to §51.97 Booth Rental Permit Executive Director clarifies if the barber pays their own withholding taxes, have Texas State Board of Barber Examiners no proof or documentation of employment they are required to Effective date: May 28, 2000 have a booth rental permit. The amendments to §51.101 Barber Proposal publication date: April 7, 2000 Advertisements states only a barber school or a licensed barber For further information, please call: (512) 305-8475 may advertise in the yellow pages in a telephone directory under ♦♦♦ "Barber." The board’s adoption of the rules is in accordance with the board’s Rules Review Plan adopted pursuant to Article IX, Subchapter D. BARBER SHOPS 167 of the Appropriation Act. 22 TAC §51.91, §51.93 There were no comments received on the proposed amend- ments. The Texas State Board of Barber Examiners adopts the repeal of §51.91 and §51.93, concerning Barber Shops, without Subchapter D. BARBER SHOPS changes to the text published in the April 7, 2000, issue of the 22 TAC §§51.92, 91.95, 51.97 Texas Register (25 TexReg 2904). The amendments are adopted pursuant under Texas Barber The justification for this repeal is the elimination of obsolete and law, former Texas Civil Statutes, Article 8407a, §28(a) (re- unnecessary text. The repeal of §51.91 Separation of Barber pealed) now recodified laws House Bill 3155 as Chapter 1601
25 TexReg 4766 May 26, 2000 Texas Register OCCUPATIONS CODE (1999) which vest the board with the Supervision; Unlicensed Personnel to Whom Tasks are Dele- authority to make and enforce all rules and regulations neces- gated by Other Licensed Practitioners; Nursing Students Work- sary for the performance of its duties, to establish standards ing as Unlicensed Personnel; Nursing Tasks That May Not Be of conduct and ethics for all persons licensed or practicing un- Delegated; Administration of Medications; Specific Nursing Task der the provision of the Texas Barber Law, and to regulate the Which May Be Delegated; Nursing Tasks That May Not Be Rou- practice and teaching of barbering in keeping with the intent of tinely Delegated; Exclusion from Rules. The repeal is adopted the Texas Barber Law and to ensure strict compliance with the without changes to the proposal published in the February 18, Texas Barber Law. 2000 issue of the Texas Register (25 TexReg 1240). This agency hereby certifies that the adoption has been re- The repeal allows for the adoption of new sections published viewed by legal counsel and found to be a valid exercise of the herein. agency’s legal authority. No comments were received concerning the repeal. Filed with the Office of the Secretary of State on May 8, 2000. The repeal is adopted under the Nursing Practice Act, (Texas TRD-200003236 Occupational Code §301.151) which provides the Board of Will K. Brown Nurse Examiners with the authority and power to make and Executive Director enforce all rules and regulations necessary for the performance Texas State Board of Barber Examiners of its duties and conducting of proceedings before it. Effective date: May 28, 2000 This agency hereby certifies that the adoption has been re- Proposal publication date: April 7, 2000 viewed by legal counsel and found to be a valid exercise of the For further information, please call: (512) 305-8475 agency’s legal authority. ♦♦♦ Filed with the Office of the Secretary of State on May 9, 2000. Subchapter E. ADVERTISING TRD-200003261 Katherine A. Thomas, MN, RN 22 TAC §51.101 Executive Director The adoption under Texas Barber Law, former Texas Civil Board of Nurse Examiners Statutes, Article 8407a, §28(a) (repealed) now recodified laws Effective date: May 30, 2000 House Bill 3155 as Chapter 1601 OCCUPATIONS CODE (1999) Proposal publication date: February 18, 2000 which vest the board with the authority to make and enforce For further information, please call: (512) 305-6811 all rules and regulations necessary for the performance of ♦♦♦ its duties, to establish standards of conduct and ethics for all persons licensed or practicing under the provision of the Chapter 218. DELEGATION OF SELECTED Texas Barber Law, and to regulate the practice and teaching of barbering in keeping with the intent of the Texas Barber Law NURSING TASKS BY REGISTERED PROFES- and to ensure strict compliance with the Texas Barber Law. SIONAL NURSES TO UNLICENSED This agency hereby certifies that the adoption has been re- PERSONNEL viewed by legal counsel and found to be a valid exercise of the agency’s legal authority. 22 TAC §§218.1-218.11 Filed with the Office of the Secretary of State on May 8, 2000. The Texas Board of Nurse Examiners (BNE or the Board) TRD-200003237 adopts the new chapter 218, §§218.1-218.11, relating to Del- egation of Selected Nursing Tasks by Registered Professional Will K. Brown Nurses to Unlicensed Personnel, with changes to the proposed Executive Director text as published in the February 18, 2000 issue of the Texas Texas State Board of Barber Examiners Register (25 TexReg 1241). Effective date: May 28, 2000 Proposal publication date: April 7, 2000 The Appropriations Act of 1997, House Bill 1, Article IX, §167 (§167), required that each state agency review and consider For further information, please call: (512) 305-8475 for readoption each rule adopted by that agency pursuant to ♦♦♦ the Government Code, Chapter 2001 (Administrative Procedure Act). Such reviews shall include, at a minimum, an assessment Part 11. BOARD OF NURSE EXAMIN- by the agency as to whether the reason for adopting or readopting the rule continues to exist. The BNE, at the April ERS 1999 Board meeting, voted to establish a Task Force to review the delegation rule beginning in September 1999. The Task Chapter 218. DELEGATION OF SELECTED Force recommended revised language to the Board at the NURSING TASKS January 20, 2000 Board meeting. On January 20, 2000, the BNE voted to publish proposed new Chapter 218 for a comment 22 TAC §§218.1-218.11 period of 30 days and the proposed repeal of current Chapter The Board of Nurse Examiners adopts the repeal of Chapter 218. 218, §§218.1-218.10 concerning Delegation of Selected Nurs- The proposed new rules were published in the Texas Register ing Tasks by Registered Professional Nurses to Unlicensed Per- on February 18, 2000. The 30 day comment period ended on sonnel; Purpose; Definitions; General Criteria for Delegation; March 20, 2000.
ADOPTED RULES May 26, 2000 25 TexReg 4767 Comments were received from: The Honorable Glen Maxey and or significant other meet the requirements of the rule, then RN the Honorable Elliott Naishtat, State Representatives; ADAPT delegation of tasks under §218.8 is allowed. of Texas; Advocacy, Incorporated; Texas Association for Home Comments from ADAPT, TRRN, Advocacy Inc., and Texas Care; Texas Council for Developmental Disabilities; Texas Council for Developmental Disabilities: These groups would like Department of Human Services; Texas Department of Mental some procedure (appeal) to be developed in situations where Health and Mental Retardation; Texas Nurses Association; there is disagreement between the client and RN. Texas Respite Resource Network; Neil Allen, L. Lynn LeBouef, Duanne Halford, Andrea Harrison, Joe Horn, Norma McBley, BNE Response: An appeals process for disagreements with Ofodile Ogwika, Jane Osmond, Angelo Pineda, Zlatko Priji, nursing judgments is not addressed by this rule. However, David C. Shelledy, Vandi Thrall, and Marta Tingdale,. as with any other practice issue involving compliance with the Nursing Practice Act (NPA) and/or Board rules, a party may file Positive Comments concerning the reorganization of the rule a written and signed complaint against the RN with the BNE. were received from: The Honorable Glen Maxey, State Repre- sentative; ADAPT of Texas; Advocacy, Incorporated; the Texas Comments from ADAPT, TRRN, Advocacy Inc. and Texas Council for Developmental Disabilities; the Texas Department Council for Developmental Disabilities: These groups would of Human Services; the Texas Department of Mental Health also like to propose to the BNE to add training for RNs once and Mental Retardation; the Texas Nurses Association; and the these rules are finalized to allow a better understanding of the Texas Respite Resource Network. rules. The suggestions was also made to include disability organizations and/or consumers in the training program to allow General comments were received from the Texas Association for consumer viewpoints. for Home Care stating that the new rules are difficult to understand but recommended no specific changes to the The BNE is preparing two half day workshops to address these language to address that concern. delegation rules. The workshops are planned for Summer 2000. It is planned that consumer input that formed the basis The Board recognizes that the rules are complex. The overall for discussion of the rule during the Delegation Task Force consensus of the commentors, with one exception, was that the meetings will be included. rules are more concise, clearer and more easily understood by the RN. This was certainly the goal of the rewrite of Chapter TNA offered numerous editorial comments, which in the opinion 218. The Board believes the proposed rules will more clearly of TNA, makes the rules more clear to the reader. define, for the practicing RN, when delegation is appropriate. While many of TNA’s comments are addressed individually be- Comments from the Honorable Glen Maxey, State Represen- low, the majority of comments which applied to particular sen- tative stated that his office closely followed the development tence structure and/or verb tense have been incorporated. Cer- of this rule and provided assistance to the Board, the Texas tain changes were not made because, in the opinion of the staff, Nurses Association and the disability community in finding com- the proposed language, which appeared in the February 18, mon ground in the area of nurse delegation. Rep. Maxey’s 2000 Texas Register, was appropriate and provides guidance suggestion concerning §218.8(f)(1)(B)(v) is addressed in that for safe delegation by the RN. section’s comments. TNA Comment: With regard to §218.2, TNA asks if it would The BNE appreciates the comments of Rep. Maxey and ac- be desirable to add a definition of "assistance with self- knowledges the invaluable assistance that his office provided administered medication" to rules? during this rule review. In the opinion of the Board, the proposed language, which The BNE also acknowledges the invaluable assistance that Rep. appeared in the February 18, 2000 Texas Register,was Naishtat and his staff provided during this rule review. appropriate and provides guidance for safe delegation by the RN. ADAPT provided a philosophical discussion of issues of impor- tance to their constituents. TNA Comment: With regard to §218.2: Clarify meaning of terminology "licensure liability" by either 1) adding a definition The BNE appreciates the comments of ADAPT and acknowl- of "licensure liability" in §218.2 that reads: "Licensure liability" edges the invaluable assistance that members of ADAPT have means a RN’s accountability or liability to the BNE with respect provided during this rule review. to its taking disciplinary action against the RN’s license." or TAHC expressed concern that the proposed rules language is 2) replace the phrase "the RN’s licensure accountability is "...still very unclear ... as to whether the person with dementia met..." appearing in §218.3(2) and §218.10 with the following: but stable and predictable health condition overall, a feeble- "The RN’s accountability to the BNE with respect to its taking minded spouse and whose family lives out of town be able to disciplinary action against the RN’s license is met." receive services through (RN) delegation in their home. Home The Board accepts the suggested wording of TNA’s later care agencies throughout the state are faced with this situation recommendation, "The RN’s accountability to the BNE, with and still lack guidance in these rules..." respect to its taking disciplinary action against the RN’s license, The BNE believes that the language in Chapter 218 does ad- is met..." The change in wording has been incorporated to better dress the scenario presented by TAHC. Section 218.8 explains clarify the rule’s meaning. that before the RN may delegate tasks under this section, the TNA Comment: With regard to §218.2(2) and §218.8(b): 1) client must be stable and predictable, in an independent living replace the term "client" with term "client/family/significant other" environment, and have the ability to participate in the manage- in the approximately 20 instances the term "client" is used in ment of the delegated task. Additionally, the term "client" is the broader sense in the rules. 2) Delete definition of "client" in defined in §218.2 and refers to the individual and/or his/her rules since will no longer be needed. family or significant others. If the patient and their family and/
25 TexReg 4768 May 26, 2000 Texas Register In the opinion of the BNE, the proposed language, which in the proposed rule. In the opinion of the BNE, the proposed appeared in the February 18, 2000 Texas Register,was language is appropriate. appropriate and provides guidance for safe delegation by the TNA Comment: If the BNE does not agree with TNA’s previous RN. comment then §218.8(a)(2) needs to tie into §218.8(c) so the TNA Comment: With regard to §218.3(b): replace phrase reader knows that content of the two sections is cumulative and "...and can verify compliance with §§218.5, 218.7(2);and 218.8 both need to be complied with. as appropriate of this rule..." with phrase: "...and can verify The BNE agrees that mention of §218.8(c) would make the rule compliance with this Chapter 218 and specifically with §§218.5, clearer to the reader and the change has been incorporated. 218.7(2) and 218.8 as appropriate..." TNA states that just listing the particular sections with which the RN must comply suggests TNA Comment: With regard to §218.8(b), add introductory that the other sections of the rule may be ignored. paragraph similar to that used in §218.2 (relating to General Definitions) that 1) states that definitions apply unless context The BNE agrees that the editorial change suggested does aid indicates otherwise and 2) calls readers attention to general in the understanding of the rule. The suggested wording has definitions in §218.2. Proposed language is: "(b) Definitions been added. related to the Client with Stable and Predictable Heath Care TNA Comment: With regard to §218.5(4): Replace with (4) The Needs. "The following words and terms, when used in §218.8, nursing task must not require the unlicensed person to exercise shall have the following meanings, unless the contest clearly professional nursing judgment; however, the unlicensed person indicates otherwise. Additional definitions related to delegation may take any action that a reasonable, prudent non-health care generally may be found in §218.2." professional would take in an emergency situation." The BNE agrees in part and disagrees in part with this The BNE recognizes the variable contingencies which may comment. The BNE believes that the first recommendation as present themselves to an unlicensed person and agrees to it pertains to the addition of language introducing §218.8(b), incorporate the change. "the following words and terms, when used in §218.8, shall have the following meaning, unless the context clearly indicates TDHS Comment: With regard to §218.5(8): Suggests that the otherwise," is unnecessarily confusing to the reader. The BNE word "periodically" needs clarification. TDHS believes that this agrees that an introductory sentence to §218.8(b) guiding the could be interpreted several different ways by the population. RN to additional definition in §218.2 is warranted and the TDHS would suggest that the meaning of "periodically" be change has been incorporated. described as when the client’s Plan of Care is reviewed and revised depending on the client’s condition. TDHS Comment: With regard to §218.8(b)(4), add a definition for "group home, foster home or assisted living facility" as, "an The BNE agrees that the additional wording does make the rule entity licensed or regulated by a state agency or exempt form clearer and the suggested change has been incorporated into such licensure or regulation." §218.5(8) to read, "If the delegation continues over time, the RN shall periodically evaluate the delegation of tasks. For example, The BNE agrees that all of these types of facilities are appro- the evaluation would be appropriate when the client’s Plan of priate and the change has been incorporated Care is reviewed and revised. The RN’s evaluation of delegated TNA Comment: With regard to §218.8(b), add definition of "per- task(s) will be incorporated into the client’s Plan of Care." manently placed feeding tube" and define as follows: "Perma- TNA Comment: With regard to §218.7(2)(B)(iii): §218.8(e) also nently placed feeding tube" means a feeding tube inserted in a needs to be referenced because §218.8(e) also covers tube surgically created orifice or stoma" feedings and needs to be referenced to avoid misleading RN The BNE agrees and the change has been incorporated. as to what sections apply. TNA Comment: With regard to §218.8(c)(1)(A), replace sub- The BNE agrees with this recommendation and the change paragraph (A) with the following: (A) The client is in an inde- has been made adding "§218.8(e)" to referenced provisions in pendent living environment. "§218.7 (2) (B)(iii)." The BNE agrees that the recommended language is correct TNA Comment: Add new §218.7(2)(C) that reads: (C) Nursing since the term has previously been defined. The suggested students functioning as unlicensed persons may perform the change has been incorporated in the rule. tasks set out in (2) if they comply either with this (2)(A) and (B) or with §218.11." TRRN, Advocacy Inc. and Texas Council for Developmental Disabilities Comments: with regard to §218.8(c)(1)(B): These The BNE believes that the proposed language, which appeared groups support the language of this section to allow the client in the February 18, 2000 Texas Register, was appropriate the ability and willingness to participate in the management and and provides guidance for safe delegation by the RN. TNA direction of the delegated task with minimal supervision. Comment: With regard to §218.8(a)(2), TNA wants the BNE to delete subject to disability community’s agreement since this The BNE appreciates this comment. section was part of agreed language negotiated with disability ADAPT Comment: With regard to §218.8(d)(1), recommends community. that the reference to §218.7(2) be deleted. Referencing The BNE reviewed negotiated language and concluded that §218.7(2) in this area broadens what is already stated and is the §218.8(a)(2) language included in the Texas Register was unnecessarily restrictive. indeed part of the negotiated agreement presented to the Board The BNE agrees that the language in §218.7(2) does unneces- by the disability community and TNA. The Board voted to sarily broaden what is already stated and reference to §218.7 include the negotiated language in §218.8(a)(2) as contained (2) has been deleted.
ADOPTED RULES May 26, 2000 25 TexReg 4769 TNA Comment: With regard to §218.8(d)(1), rewrite to read: Each of these commentors represent opinions of respiratory "(1) comply with §218.5 (relating to General Criteria for Delega- therapists and each comment challenged the delegation rule in tion), §218.7(2) (relating to Delegation of Specific Tasks), and general and the proposal to expand the delegation of unit dose §218.8(c) (relating to Application of Section)." inhalation therapy for prophylaxis and maintenance in particular {Proposed §218.8(f)(1)(A)}. With regard to the first suggestion, the BNE has accepted the comment from ADAPT as explained above. With regard to the While the Texas Board of Nurse Examiners appreciates the addition of reference to §218.8(c), the BNE believes that the interest of the respiratory therapy community, the Board does proposed language is more appropriate and provides guidance reiterate that delegation of nursing tasks is under the regulatory for safe delegation by the RN. authority of the Board of Nurse Examiners. The definition of professional nursing found in Chapter 301.002 of the Nursing TRRN, Advocacy Inc. and Texas Council for Developmental Practice Act does allow the RN to, " ... (administer) medications Disabilities Comments: With regard to §218.8(d)(2)(F): These or treatments as ordered by a physician, podiatrist, or dentist..." groups support the RN assessing the situation with the client to The Board acknowledges the interest of this group of health determine the frequency of reassessment of the client’s status care professionals and recognizes that although scopes of tasks and comment that this language is very important in having the often overlap, collaboration among health care professionals in client as part of the decision making process. the interest of the client is tantamount to the optimal provision The BNE appreciates this comment. of health care services. It is the RN’s responsibility to adhere to the criteria outlined in Chapter 218 to assure the safe TNA Comment: With regard to §218.8(d)(3): Add a new sen- delegation of administration of medications by all allowed routes tence to end of paragraph that reads: "More detailed super- by properly trained and qualified unlicensed persons. visory guidelines are found in §218.8(f)(1)(B)(v) for adminis- tration of medications from a daily reminder pill container and Comments with regard to §218.8(f)(1)(B)(ii) were received from §218.8(f)(1)(C)(vii) for administration of subcutaneous injectable ADAPT, TRRN, Advocacy Inc., and the Texas Council for insulin. Developmental Disabilities. Comments centered around the proposed language, "The RN has placed or verified that the In the opinion of the BNE, the proposed language, which person filling the daily pill container is capable to place the unit appeared in the February 18, 2000 Texas Register,was dose medication(s) from the properly dispensed prescription appropriate and provides guidance for safe delegation by the bottle into the client’s daily pill container." These commentors RN. believe that the client and/or unlicensed person should also TRRN, Advocacy Inc., and Texas Council for Developmental be able to place the unit dose medication(s) from the properly Disabilities Comments: With regard to §218.8(e)(1)-(4): These dispensed prescription bottle into the client’s daily reminder pill groups support the expansion of delegation tasks to include container. Rule language was also suggested by TNA. tube feeding through permanently placed feeding tubes and to The BNE appreciates the interest of all parties on this section include intermittent catheterizations, digital stimulation associ- of the rule. The rule language in §218.7(f)(1)(B)(ii) has been ated with a bowel program, tasks related to external stoma care changed to read, "The unit dose medication(s) are placed in including but not limited to pouch changes, measuring I&O, and the client’s daily reminder pill container, from properly dispensed skin care surrounding the stoma care. These expanded items prescription bottle(s), by the RN or a person mutually agreed will allow more flexibility for the client to live independently. upon by the RN and client who has demonstrated the ability to The BNE appreciates this comment. complete the task properly." The BNE feels that this amendment is a proper balance between client’s interest in managing their TNA Comment: With regard to §218.8(f)(1): First: add new own care and the RN’s duty to adhere to the five rights of subparagraphs (A) and (B) that read as follow and renumber medication administration. current paragraphs (A), (B) and (C) as (C) (D) and (E) respec- tively: "(A) The delegation must comply with the requirements Comments with regard to §218.8(f)(1)(B)(v) were received set out in §218.8(c) and (d). (B) The client, or if appropriate, from the Honorable Elliott Naishtat and the Honorable Glen family or significant others(s), 1)acknowledges in writing that the Maxey, State Representatives, ADAPT, TRRN Advocacy Inc., administration of medications will be delegated to an unlicensed TAHC and the Texas Council for Developmental Disabilities. person only if the client/family/significant other(s) is willing and Comments centered around the proposed language which able to participate in the management and direction of the del- necessitated RN supervisory visits each 14 days. These egated task with minimal nursing supervision and 2) agrees in commentors believed that supervisory visit language should be writing that is willing and able to so participate." less proscriptive and that the RN and client should decide on a case-by-case basis the frequency of such RN supervisory visits. Second: Delete §218.8(f)(1)(B)(vi) and §218.8(f)(1)(C)(viii) Rule language was also suggested by TNA. In the opinion of the BNE, the proposed language, which The BNE appreciates the comments from all parties on this appeared in the February 18, 2000 Texas Register,was section of the proposed rules. The purpose of the 14 day su- appropriate and provides guidance for safe delegation by the pervisory requirement as proposed was to insure that delegated RN. tasks are properly monitored to avoid the development of unrea- Respiratory Therapist Comments concerning the regulatory sonable practices by unlicensed persons. The BNE has consid- authority of the registered nurse to delegate certain tasks to ered the comments from all parties and has modified the rule unlicensed personnel were received from Neil Allen, L. Lynn language in §218.8(f)(1)(B)(v) to read, "The RN shall make su- LeBouef, Duanne Halford, Andrea Harrison, Joe Horn, Norma pervisory visits in the event there are changes in the client’s McBley, Ofodile Ogwika, Jane Osmond, Angelo Pineda, Zlatko status related to the medication being given. Two supervisory Priji, David C. Shelledy, Vandi Thrall, and Marta Tingdale. visits will be scheduled within the first 60 days that delegation
25 TexReg 4770 May 26, 2000 Texas Register is done under this section. One mandatory supervisory visit MHMR Comment: With regard to §218.9(b)(7), comments will be scheduled within the first two weeks that delegation is relating to the calling of a medication refill to a pharmacy to done under this section to validate the daily reminder pill con- replenish the client’s medication supply. MHMR recommends tainer is being filled correctly and to evaluate the proper and that the proposed rule be modified to specify that the registered safe administration of medications from the container. A sec- nurse may delegate to the unlicensed personnel the calling of ond mandatory RN supervisory visit will be scheduled at the the pharmacy to refill a prescription medication to replenish end of the first 60 days of delegation under this section, again the client’s prescription medication supply. This should occur to validate that delegation is being done according to these after the RN determines that the client’s clinical response rules. After this verification has been accomplished, the RN, in to prescription medication is stable and predictable and that consultation with the client and, when appropriate, family and/ current practitioner medication orders include a valid number of or significant other(s), shall determine the need for supervisory refills. visits as necessary to assure that safe and effective services It is the opinion of the BNE that although MHMR’s comments are being provided." The BNE agrees that this modification to do describe an issue relating to delegation, changing the dele- the proposed language will accomplish the BNE goals without gation rule to address MHMR’s comment would be substantive. the need for 14 day supervisory visits. MHMR’s suggestion has received support but the concept has With regard to §218.8(f)(1)(B)(vi) and §218.8(f)(1)(C)(vii) the not been fully explored and will not be included at this time. TNA made two comments: First: Delete sections and move TNA Comments: With regard to §218.10(a)(3): Insert a content to a new §218.8(f)(1)(B) and rework as set out in new paragraph (3) that reads, "(3) adequately supervises the Comment on §218.8(f)(1)(B) above. unlicensed person." With regard to this suggestions, in the opinion of the BNE, the The BNE agrees to this clarification and the change has been proposed language, which appeared in the February 18, 2000 incorporated. Texas Register, was appropriate and provides guidance for safe delegation by the RN. TNA Comment: With regard to §218.10(b): end sentence with "who delegated task." and delete remainder of current sentence However, TNA made the further comment that if a new subpara- beginning with "as the delegating licensee..." as outside BNE’s graph (B) is not added to §218.8(f)(1) as recommended, then authority to ascribe accountability to licensees of other licensing reword §218.8(f)(1)(B)(vi) and §218.8(f)(1)(C)(vii) to read, "The boards. client, or if appropriate, family or significant other(s) acknowl- edges in writing that _____ will be delegated to an unlicensed The BNE agrees the rule is only applicable to the RN and the person only if the client/family/significant other(s) is willing and change has been incorporated. able to participate in the management and direction of the dele- TNA Comment: With regard to §218.11: Does §218.8 also gated task with minimal nursing supervision and agrees in writ- need to be referenced since nursing students may also practice ing that is willing and able to so participate." as an unlicensed person in an independent living environment In response, the BNE has changed §218.8(f)(1)(B)(vi) and setting? §218.8(f)(1) (C)(vii) to read, "The client acknowledges in writing The BNE agrees to this clarification and the change has been that the administration of medication(s) under this section will incorporated. be delegated to an unlicensed person only if the client is willing and able to participate in the management and direction of the TNA Comment: With regard to §218.11: Does protocol instruc- delegated task with minimal nursing supervision." This change tion requirement of §218.7(2)(A)(ii) apply when students are in- has been made to satisfy the BNE’s desire to make the rule volved? If not, then need to modify statement that delegation more concise and understandable to the client and the RN as to students must be consistent with §218.7(2). well as to help facilitate the client’s management of their own The BNE suggests that the applicable protocol language dis- health care. cussed in §218.7 (2)(A)(ii) is in the best interest of the public TNA Comment: With regard to §218.8(f)(1)(C)(iv) and (vi): add and does apply to nursing students working as unlicensed per- phrase "and instruct the unlicensed person that the task is client sonnel. No change is necessary. specific and not transferable to other clients or providers" to end The new sections are adopted under the Texas Board of Nurse of (C)(iv) and delete (C)(vi). Examiner’s Nursing Practice Act, (Texas Occupations Code) The BNE agrees to this clarification and the change has been (1999), which provides the Board with the authority to make and incorporated. enforce rules reasonably required in the exercise of it powers and jurisdiction; and specifically NPA , §303.151 which grants TNA Comment: With regard to §218.8(f)(2)(C) replace "SQ the Board authority to adopt rules that regulate professional insulin" with "subcutaneous injectable insulin" and "§218.8(f)(C) nursing. with §218.8(f)(1)(C) §218.1. Purpose. The BNE agrees to this clarification and the change has been incorporated. The Texas Board of Nurse Examiners (BNE or Board) recognizes that changes in health care delivery have and will continue to influence the TAHC also commented on the need for supervisory visits every way nursing care is delivered. The Board believes that the registered 14 days as noted in §218.8(f)(1)(C)(vi). nurse (RN) is in a unique position to develop and implement a nursing In the opinion of the BNE, the proposed language, which plan of care that incorporates a professional relationship between the appeared in the February 18, 2000 Texas Register,was RN and the client. The Board recognizes that the RN’s responsibility appropriate and provides guidance for safe delegation by the may vary from that of the nurse providing care at the bedside of an RN. acutely ill client to managing health care delivery in institutional and
ADOPTED RULES May 26, 2000 25 TexReg 4771 community settings. Assessment of the nursing needs of the client, (2) are qualified nursing faculty or preceptors directly the plan of nursing actions, implementation of the plan, and evaluation supervising or instructing nursing students in the performance of are essential components of professional nursing practice and are the nursing tasks while enrolled in accredited nursing programs; responsibilities of the RN. The full utilization of the services of a (3) instruct and/or supervise an unlicensed person in the RN may require delegation of selected nursing tasks to unlicensed proper performance of nursing tasks as a part of an education course personnel. The scope of delegation and the level of supervision by designed to prepare persons to obtain a state license, certificate or the RN may vary depending on the setting, the complexity of the permit that authorizes the person to perform such tasks; task, the skills and experience of the unlicensed person, the client’s physical and mental status, and the client’s ability and willingness to (4) practice in situations in which the unlicensed person be involved in the management of his/her own care. The following is directly assisting the RN by carrying out nursing tasks in the RN’s sections govern the RN in delegating nursing tasks to unlicensed presence; and personnel across a variety of settings where nursing care services are (5) assign tasks to or supervise LVNs or other licensed delivered. practitioners practicing within the scope of their license. §218.2. Definitions. §218.5. General Criteria for Delegation. The following words and terms, when used in this chapter, shall The following standards must be met before the RN delegates nursing have the following meanings, unless the context clearly indicates tasks to unlicensed persons. These criteria apply to all instances of otherwise. Additional definitions which are exclusively related to RN delegation. Additional criteria, if appropriate to the particular the delegation of tasks for clients in independent living environments task being delegated, may also be found in §218.7(2) and §218.8 of with stable and predictable health care needs who participate in the this title (relating to Discretionary Delegation Tasks and Delegation management of the delegated task may be found in §218.8(b) of this of Tasks for the Client in Independent Living Environments with title (relating to Delegation of Tasks for the Client in Independent Stable and Predictable Health Care Needs Who Participate in the Living Environments with Stable and Predictable Health Care Needs Management of Delegated Tasks). Who Participate in the Management of Delegated Tasks). (1) The RN must make an assessment of the client’s (1) Activities of daily living–Limited to the following nursing care needs. The RN should, when the client’s status allows, activities: bathing, dressing, grooming, routine hair and skin care, consult with the client, and when appropriate the client’s family and/ meal preparation, feeding, exercising, toileting, transfer/ambulation or significant other(s), to identify the client’s nursing needs prior to and assistance with self administered medications. delegating nursing tasks. (2) Client–Refers to the individual and/or his/her family (2) The nursing task must be one that a reasonable and or significant others. prudent RN would find is within the scope of sound nursing judgment (3) Delegation–Authorizing an unlicensed person to pro- to delegate. The RN should consider the five rights of delegation: the vide nursing services while retaining accountability for the outcome. right task, the right person to whom the delegation is made, the right It does not include situations in which an unlicensed person is di- circumstances, the right direction and communication by the RN, and rectly assisting a RN by carrying out nursing tasks in the presence of the right supervision as determined by the RN. a RN. (3) The nursing task must be one that, in the opinion (4) Unlicensed person–An individual, not licensed as a of the delegating RN, can be properly and safely performed by the health care provider, who is monetarily compensated to provide cer- unlicensed person involved without jeopardizing the client’s welfare. tain health related tasks and functions in a complementary or assistive (4) The nursing task must not require the unlicensed role to the RN in providing direct client care or carrying out com- person to exercise professional nursing judgment; however, the mon nursing functions. The term includes, but is not limited to, nurse unlicensed person may take any action that a reasonable, prudent aides, orderlies, assistants, attendants, technicians, home health aides, non-health care professional would take in an emergency situation. medication aides permitted by a state agency, and other individuals providing personal care/assistance of health related services. (5) The unlicensed person to whom the nursing task is delegated must be adequately identified. The identification may §218.3. RN Accountability for Delegated Tasks. be by individual or, if appropriate, by training, education, and/or (a) The RN is accountable for tasks delegated to unlicensed certification/permit of the unlicensed person. persons. (6) The RN shall have either instructed the unlicensed (b) The RN’s accountability to the BNE with respect to its person in the delegated task or verified the unlicensed person’s taking disciplinary action against the RN’s license is met when the competency to perform the nursing task. The verification of delegating RN has complied with and can verify compliance with competence may be done by the RN making the decision to Chapter 218 and specifically with §§218.5, 218.7(2) and 218.8 of delegate or, if appropriate, by training, education, experience and/ this title (relating to General Criteria for Delegation; Discretionary or certification/permit of the unlicensed person. Delegation Tasks; and Delegation of Tasks for the Client in Indepen- (7) The RN shall adequately supervise the performance dent Living Environments with Stable and Predictable Health Care of the delegated nursing task in accordance with the requirements of Needs Who Participate in the Management of Delegated Tasks) as §218.6 of this title (relating to Supervision). appropriate. (8) If the delegation continues over time, the RN shall §218.4. Application of Chapter. periodically evaluate the delegation of tasks. For example, the This chapter does not apply to RNs who: evaluation would be appropriate when the client’s Plan of Care is reviewed and revised. The RN’s evaluation of delegated task(s) will (1) supervise or instruct others in the gratuitous nursing be incorporated into the client’s Plan of Care. care of the sick;
25 TexReg 4772 May 26, 2000 Texas Register §218.6. Supervision. (B) the collecting, reporting, and documentation of data including, but not limited to: The registered professional nurse shall provide supervision of all nursing tasks delegated to unlicensed persons in accordance with the (i) vital signs, height, weight, intake and output, following conditions. These supervision criteria apply to all instances capillary blood and urine test for sugar and hematest results, of RN delegation. Additional criteria, if appropriate to the particular (ii) environmental situations; task being delegated, may be found in §218.7(2) and §218.8 of this title (relating to Discretionary Delegation Tasks and Delegation (iii) client or family comments relating to the of Tasks for the Client in Independent Living Environments with client’s care; and Stable and Predictable Health Care Needs Who Participate in the (iv) behaviors related to the plan of care; Management of Delegated Tasks). (C) ambulation, positioning, and turning; (1) The degree of supervision required shall be deter- mined by the RN after an evaluation of appropriate factors involved (D) transportation of the client within a facility; including, but not limited to, the following: (E) personal hygiene and elimination, including vagi- (A) the stability of the status of the client; nal irrigations and cleansing enemas; (B) the training, experience and capability of the (F) feeding, cutting up of food, or placing of meal unlicensed person to whom the nursing task is delegated; trays; (C) the nature of the nursing task being delegated; and (G) socialization activities; (D) the proximity and availability of the RN to the (H) activities of daily living; and unlicensed person when the nursing task will be performed. (I) reinforcement of health teaching planned and/or (2) The RN or another equally qualified RN shall be provided by the registered nurse. available in person or by telecommunications, and shall make (2) Discretionary Delegation Tasks. decisions about appropriate levels of supervision using the following examples as guidelines: (A) In addition to General Criteria for Delegation outlined in §218.5 of this title, the nursing tasks which follow in (A) In situations where the RN’s regularly scheduled subparagraph (B) of this section may be delegated to an unlicensed presence is required to provide nursing services, including assess- person only: ment, planning, intervention and evaluation of the client whose health status is changing and/or to evaluate the client’s health status, the RN (i) if the RN delegating the task is directly respon- must be readily available to supervise the unlicensed person in the sible for the nursing care given to the client; performance of delegated tasks. Settings include, but are not limited (ii) if the agency, facility, or institution employing to acute care, long term care, rehabilitation centers and/or clinics pro- unlicensed personnel follows a current protocol for the instruction and viding public health services. training of unlicensed personnel performing nursing tasks under this (B) In situations where nursing care is provided in the subsection and that the protocol is developed with input by registered client’s residence but the client’s status is unstable and unpredictable nurses currently employed in the facility and includes: and the RN is required to assess, plan, intervene and evaluate the (I) the manner in which the instruction addresses client’s unstable and unpredictable status and need for skilled nursing the complexity of the delegated task; services, the RN shall make supervisory visits at least every fourteen calendar days. The RN shall assess the relationship between the (II) the manner in which the unlicensed person unlicensed person and the client to determine whether health care demonstrates competency of the delegated task; goals are being met. Settings include, but are not limited to group (III) the mechanism for reevaluation of the com- homes, foster homes and/or the client’s residence. petency; and §218.7. Delegation of Specific Tasks. (IV) an established mechanism for identifying The tasks which follow apply to RN delegation in all settings. those individuals to whom nursing tasks under this subsection may Additional tasks which may be delegated for the client in independent be delegated; and living environments with stable and predictable health care needs who (iii) if the protocol recognizes that the final decision participate in the management of delegated tasks may be found in as to what nursing tasks can be safely delegated in any specific §218.8 of this title (relating to Delegation of Tasks for the Client in situation is within the specific scope of the RN’s professional Independent Living Environments with Stable and Predictable Health judgment. Care Needs Who Participate in the Management of Delegated Tasks). (B) the following are nursing tasks that are not usually (1) Tasks Which are Most Commonly Delegated. By way within the scope of sound professional nursing judgment to delegate of example, and not in limitation, the following nursing tasks are and may be delegated only in accordance with, §218.5 of this ones that are most commonly the type of tasks within the scope of title, (relating to General Criteria for Delegation) and §218.7(2)(A) sound professional nursing practice to be considered for delegation, preceding. These types of tasks include: regardless of the setting, provided the delegation is in compliance with §218.5 of this title (relating to General Criteria for Delegation) (i) sterile procedures - those procedures involving a and the level of supervision required is determined by the RN in wound or an anatomical site which could potentially become infected; accordance with §218.6 of this title (relating to Supervision): (ii) non-sterile procedures, such as dressing or (A) non-invasive and non-sterile treatments; cleansing penetrating wounds and deep burns;
ADOPTED RULES May 26, 2000 25 TexReg 4773 (iii) invasive procedures - inserting tubes in a body (b) Definitions Related to the Client with Stable and Pre- cavity or instilling or inserting substances into an indwelling tube, dictable Health Care Needs: Additional definitions related to del- unless allowed in §218.8(e) and §218.8(f) of this title (relating to egation generally may be found in §218.2 of this title (relating to Administration of Medications for the Client In Independent Living Definitions). Environments with Stable and Predictable Health Care Needs Who (1) Administration of Medications–Removal of an indi- Participate in the Management of the Delegated Task) and §218.7(1) vidual/unit dose from a previously dispensed, properly labeled con- of this title (relating to Tasks Which are Most Commonly Delegated tainer; verifying it with the medication order; giving the correct med- and Additional Delegable Tasks) and §218.7(2) of this title (relating ication and the correct dose to the proper client at the proper time by to Discretionary Delegation Tasks); and the proper route; and promptly recording the time and dose given. (iv) care of broken skin other than minor abrasions (2) Client–Refers to the individual and/or his/her family or cuts generally classified as requiring only first aid treatment. or significant others. (3) Nursing Tasks That May Not Be Delegated. By way (3) Ability to participate in the delegation decision–The of example, and not in limitation, the following are nursing tasks that ability and willingness to participate in one’s own health care. are not within the scope of sound professional nursing judgment to delegate: (4) Independent living environment–A client’s individual residence which may include a home or homelike setting such as the (A) physical, psychological, and social assessment client’s home, an entity licensed or regulated by a state agency or which requires professional nursing judgment, intervention, referral, exempt from such licensure or regulation, (such as a group home, or follow-up; foster home or assisted living facility), and includes where the client (B) formulation of the nursing care plan and evaluation works, attends school, or engages in other community activities. of the client’s response to the care rendered; (5) Permanently placed feeding tube–A feeding tube in- (C) specific tasks involved in the implementation of serted in a surgically created orifice or stoma. the care plan which require professional nursing judgment or inter- (6) Stable and predictable–A situation where the client’s vention; clinical and behavioral status is determined to be non-fluctuating and (D) the responsibility and accountability for client consistent. A stable/predictable condition involves long term health health teaching and health counseling which promotes client edu- care needs which are not recuperative in nature and do not require cation and involves the client’s significant others in accomplishing the regularly scheduled presence of a registered nurse or licensed health goals; and vocational nurse. Excluded by this definition are situations where the client’s clinical and behavioral status is expected to change rapidly (E) administration of medications, except as permitted or in need of the continuous/continual assessment and evaluation of by §218.8(f) and §218.9 of this title (relating to Administration of a registered nurse or licensed vocational nurse. Medications for the Client in Independent Living Environments with Stable and Predictable Health Care Needs Who Participate in the (c) Application of this Section. Management of Delegated Tasks and The Medication Aide Permit (1) Applies to situations meeting the following criteria: Holder.) (A) The client is in an independent living environment; §218.8. Delegation of Tasks for the Client in Independent Living En- vironments with Stable and Predictable Health Care Needs Who Par- (B) The client has the ability to participate in the del- ticipate in the Management of Delegated Tasks. egation decision, is able and willing to participate in the management (a) Purpose. and direction of the delegated task with minimal nursing supervision. This shall be ascertained in light of the overall situation of the client (1) The Texas Board of Nurse Examiners recognizes that based on assessment of factors set out in §218.8(d)(2) following. public preference in the provision of health care services includes a greater opportunity for clients to share with the RN in choice and (C) The health condition relative to which the task is control for delivery of services in the community based setting. The being performed is a stable, predictable condition requiring minimal Board believes that it is essential that the registered nurse who works nursing supervision. with the client in an independent living environment with stable and (2) Applies to in-home hospice care; predictable health care needs, and the ability to participate in the management of the delegated task understand the delegation rules. (3) Does not apply to settings where: The RN shall work with the client in his/her pursuit of independent (A) laws or administrative rules governing licensing living and shall include the client in the management of the client’s of the setting require the regularly scheduled presence of a registered needs and support the client and family throughout their experience nurse or licensed vocational nurse; or in the health care system. (B) nursing services are continuously provided such as (2) In addition to the General Criteria for Delegation in in an acute care facility, long term care facility, rehabilitation center §218.5 of this title, in situations involving clients with stable and or clinic. predictable health care needs, the RN, with the client shall, in accordance with §218.8(c) and (d) following: verify the training, (d) Criteria for Delegation Under This Section. A RN experience and competency of the unlicensed person to whom the delegating tasks under this section must meet the following criteria: delegation is made; verify the client’s ability and willingness to (1) Comply with §218.5 of this title (relating to General participate in his/her own health care; provide communication and Criteria for Delegation) and, in addition: direction for the safe completion of any delegated task; and supervise the unlicensed person’s performance of the task. (2) Assess the situation with the client to determine:
25 TexReg 4774 May 26, 2000 Texas Register (A) the client’s ability to participate in the delegation (A) The RN may delegate medications which are ad- decision and ability and willingness to participate in the management ministered orally or via permanently placed feeding tubes, sublin- and direction of the delegated task with minimal nursing supervision. gually, or topically. These include eye, ear and nose drops and vagi- nal or rectal suppositories, and unit dose medication administration (B) the adequacy and reliability of support systems by way of inhalation for prophylaxis and/or maintenance. available to the client; (B) The RN may delegate the administration of oral (C) the stability and predictability of the client’s health unit dose medications from the client’s daily reminder pill container status relative to which delegation occurs; under the following conditions: (D) the client’s knowledge base about his/her health (i) The client meets all requirements for delegation status and the delegated task; of medication administration as specified in §218.8(f)(1) preceding; (E) the client’s ability to communicate with the unli- (ii) The unit dose medications(s) are placed in censed person in traditional or non-traditional ways; the client’s daily reminder pill container, from properly dispensed (F) how frequently the client’s status shall be re- prescription bottle(s), by the RN or a person mutually agreed upon assessed to determine that delegation continues to be appropriate; by the RN and client who has demonstrated the ability to complete the task properly; (G) the unlicensed person’s ability to recognize and inform the RN of data on client changes related to the delegated (iii) The client and the unlicensed person involved task; and in such delegation activity have been instructed by the RN about each medication placed in such a container with regard to distinguishing (H) the experience and competency of the unlicensed characteristics of each medication, proper time, dose, route and person to perform the delegated task. adverse effects which may be associated with the medication; (3) The RN determines the need for supervisory visits (iv) The RN shall provide to the client and to the in consultation with the client and, when appropriate, family and/ unlicensed person(s) instructions to contact the RN involved with or significant other(s) as necessary to assure that safe and effective the delegation before the medication is administered in instances in services are being provided. which there are questions concerning the medications or changes in (e) Additional Delegable Tasks Under This Section: In the client’s status related to the medication being given. Examples of accordance with this section, delegable tasks, in addition to those situations which would be brought to the attention of the RN include identified in §218.7 of this title (relating to Delegation of Specific but are not limited to instances in which the medications appear to Tasks) include: be rearranged or missing; (1) medication administration in compliance with (v) The RN shall make supervisory visits in the §218.8(f) of this title, (relating to Administration of Medications for event there are changes in the client’s status related to the medication the Client in an Independent Living Environment with Stable and being given. Two supervisory visits will be scheduled within the Predictable Health Care Needs and the Ability to Participate in the first 60 days after delegation begins under this section to validate the Management of the Delegated Task); daily reminder pill container is being filled correctly and to evaluate the proper and safe administration of medications from the container. (2) assistance with feeding is broadened to include tube The first visit shall be scheduled within the first two weeks and the feeding through permanently placed feeding tubes; second near the end of the first 60 day period. After this verification (3) assistance with elimination is broadened to include in- has been accomplished, the RN, in consultation with the client and, termittent catheterization, digital stimulation associated with a bowel when appropriate, family and/or significant other(s), shall determine program, tasks related to external stoma care including but not lim- the need for supervisory visits as necessary to assure that safe and ited to pouch changes, measuring I & O, and skin care surrounding effective services are being provided; and the stoma area; and (vi) The client acknowledges in writing that the (4) assistance with other activities necessary to maintain administration of medication(s) under this section will be delegated to the independence of the client such as maintenance of skin integrity an unlicensed person only if the client is willing and able to participate and mobility. in the management and direction of the delegated task with minimal nursing supervision. (f) Administration of Medications for the Client in Indepen- dent Living Environments with Stable and Predictable Health Care (C) The RN may delegate the administration of sub- Needs Who Participate in the Management of Delegated Tasks. cutaneous injectable insulin under the following conditions: (1) In independent living environments where the client’s (i) The client meets all requirements for delegation clinical and behavioral status is stable and predictable, does not re- of medication administration as specified in §218.8(f)(1) preceding; quire the regular presence and assessment, intervention and evalua- (ii) A registered nurse is available on call for tion by a RN, and the client has expressed his/her ability and will- consultation/intervention 24 hours each day; ingness to participate in the management of his/her care, including in-home hospice settings where the client’s deteriorating condition is (iii) The registered nurse must provide teaching of predictable, the RN may delegate the administration of medications. all aspects of subcutaneous injectable insulin to the client and the The delegation may only occur after the RN has trained or verified unlicensed person to include, but not limited to proper technique for the training and/or experience of the unlicensed person to administer determination of the client’s blood sugar prior to each subcutaneous the medication. The administration of medications may be delegated injection of insulin, proper injection technique, risks, side effects only in accordance with this section. and the correct response(s). The RN must leave written instructions for the performance of the administration of subcutaneous injectable
ADOPTED RULES May 26, 2000 25 TexReg 4775 insulin, including a copy of the protocol as ordered by the physician, (1) calculation of any medication doses except for mea- for the unlicensed person to use as a reference; suring a prescribed amount of liquid medication and breaking a tablet for administration, provided the RN has calculated the dose; (iv) The registered nurse must delegate the addmin- istration of subcutaneous injectable insulin to an unlicensed person, (2) administration of the initial dose of a medication that specific to one client. The RN must teach that the administration has not been previously administered to the client; of subcutaneous injectable insulin is to be performed only for the (3) administration of medications by an injectable patient for whom the instructions are provided and instruct the unli- route except as described for subcutaneous injectable insulin in censed person that the task is client specific and not transferable to §218.8(f)(1)(C); other clients or providers; (4) administration of medications used for intermittent (v) The registered nurse may delegate the admin- positive pressure breathing or other methods involving medication istration of subcutaneous injectable insulin to additional unlicensed inhalation treatments except as described for unit dose medication persons providing care to the specific client provided the registered administration by way of inhalation for prophylaxis and/or mainte- nurse limits the number of unlicensed persons to the number who will nance in §218.8(f)(1)(A); remain proficient in performing the task and can be safely supervised by the registered nurse; (5) administration of medications by way of a tube inserted in a cavity of the body except as stated in §218.8(f)(1)(A); (vi) The registered nurse shall make supervisory visits in the event there are changes in the client’s status and at least (6) responsibility for receiving verbal or telephone orders every fourteen calendar days to the client’s location to evaluate the from a physician, dentist, or podiatrist; and proper and safe medication administration of subcutaneous injectable (7) responsibility for ordering a client’s medication from insulin by the unlicensed person(s); and the pharmacy. (vii) The client acknowledges in writing that the §218.10. Supervising Unlicensed Personnel Performing Tasks Dele- administration of medication(s) under this section will be delegated to gated by Other Practitioners. an unlicensed person only if the client is willing and able to participate in the management and direction of the delegated task with minimal (a) The following applies to the registered professional nurse nursing supervision. who practices in a collegial relationship with another licensed prac- titioner who has delegated tasks to an unlicensed person over whom (2) A RN shall not delegate the following tasks to any the RN has supervisory responsibilities. The RN’s accountability to medication provider: the BNE, with respect to its taking disciplinary action against the (A) calculation of any medication doses except for RN’s license, is met if the RN: measuring a prescribed amount of liquid medication and breaking (1) verifies the training of the unlicensed person; a tablet for administration, provided the RN has calculated the dose; (2) verifies that the unlicensed person can properly and (B) administration of the initial dose of a medication adequately perform the delegated task without jeopardizing the that has not been previously administered to the client; client’s welfare; and (C) administration of medications by an injectable (3) adequately supervises the unlicensed person. route except as described for subcutaneous injectable insulin in §218.8(f)(1)(C); (b) If the RN cannot verify the unlicensed person’s capability to perform the delegated task, the RN must communicate this fact to (D) administration of medications by way of a tube in- the licensee who delegated the task. serted in a cavity of the body except as stated in §218.8(f)(1)(A); §218.11. Nursing Students Working as Unlicensed Personnel. (E) responsibility for receiving verbal or telephone orders from a physician, dentist, or podiatrist; and Certain nursing tasks may be delegated to professional nursing stu- dents working as unlicensed personnel in agencies, facilities, or in- (F) responsibility for ordering a client’s medication stitutions provided the students are currently enrolled in accredited from the pharmacy. professional nursing programs or are on semester breaks from such §218.9. The Medication Aide Permit Holder. programs, and that the student has demonstrated a satisfactory level of performance of the task(s) which will be delegated. This delega- (a) A RN may delegate the administration of medication tion must be consistent with §§218.7(1), 218.7(2) and 218.8 of this to clients in long term care facilities and home health agencies to title (relating to Tasks Which are Most Commonly Delegated, Discre- medication aides if: tionary Delegation Tasks, and Delegation of Tasks for the Client in (1) the medication aide holds a valid permit issued by the Independent Living Environments with Stable and Predictable Health appropriate state agency to administer medications in that facility or Care Needs Who Participate in the Management of Delegated Tasks). agency; Section 218.7(3) of this title (relating to Nursing Tasks That May Not Be Delegated) which prohibits delegation of certain tasks also applies (2) the RN assures that the medication aide functions in to nursing students working as unlicensed personnel. compliance with the laws and regulations of the agency issuing the permit; This agency hereby certifies that the adoption has been re- viewed by legal counsel and found to be a valid exercise of the (3) the route of administration is oral, via a permanently agency’s legal authority. placed feeding tube, sublingual or topical including eye, ear or nose drops and vaginal or rectal suppositories. Filed with the Office of the Secretary of State on May 10, 2000. (b) The following tasks may not be delegated to the Medica- TRD-200003277 tion Aide Permit Holder: Katherine A. Thomas, MN, RN
25 TexReg 4776 May 26, 2000 Texas Register Executive Director (2) a pharmacist licensed in a state other than Texas when Board of Nurse Examiners working in a federal facility and serving as an instructor for a Texas Effective date: May 30, 2000 college-based internship program. Proposal publication date: February 18, 2000 (b) When not under the direct supervision of a preceptor For further information, please call: (512) 305-6811 pharmacist, a pharmacist-intern may function as a pharmacy techni- ♦♦♦ cian and perform all of the duties of a certified pharmacy technician provided the pharmacist-intern: Part 15. TEXAS STATE BOARD OF (1) is under the direct supervision of a pharmacist; PHARMACY (2) has completed the pharmacy’s on-site technician train- ing program; Chapter 283. LICENSING REQUIREMENTS (3) has completed a pharmacist training program in the FOR PHARMACISTS preparation of sterile pharmaceuticals if the pharmacist-intern is compounding sterile pharmaceuticals; and 22 TAC §283.5 (4) is not counted as a pharmacy technician in the ratio The Texas State Board of Pharmacy adopts amendments to of pharmacists to pharmacy technicians. The ratio of pharmacists to §283.5, concerning Pharmacist-Intern Duties. The amend- pharmacist-interns shall be 1:1 when performing pharmacy technician ments are adopted with changes to the proposed text as pub- duties. lished in the March 31, 2000, issue of the Texas Register (25 TexReg 2745). (c) A pharmacist-intern may not: The amendments permit and set the requirements for a (1) present or identify himself/herself as a pharmacist; pharmacist-intern to perform the duties of a certified pharmacy (2) sign or initial any document which is required to be technician. signed or initialed by a pharmacist unless a preceptor cosigns the The Texas Federation of Drug Stores (TFDS) commented that document; or §283.5(b)(4) should be amended such that the pharmacist- (3) independently supervise pharmacy technicians. intern is not counted in the pharmacist to pharmacy techni- cian ratio. This would maintain the current ratios for pharma- This agency hereby certifies that the adoption has been re- cist to pharmacist-interns and pharmacist to pharmacy tech- viewed by legal counsel and found to be a valid exercise of the nicians permitted elsewhere in the rules. The Board concurs agency’s legal authority. and added language which clarifies that the ratio of pharma- Filed with the Office of the Secretary of State on May 15, 2000. cist to pharmacist-interns remains at 1:1. In addition, the TFDS stated that changes should be made to clarify that although TRD-200003357 pharmacist-interns may not supervise pharmacy technicians, Gay Dodson, R.Ph. they should have instruction and practice supervising techni- Executive Director/Secretary cians and other pharmacy personnel. The Board agrees but Texas State Board of Pharmacy states that this is already a requirement and contained in the Effective date: June 4, 2000 competencies and objectives of internship. However, language Proposal publication date: March 31, 2000 was added to clarify that this supervision may not occur inde- For further information, please call: (512) 305-8028 pendently. ♦♦♦ The amendments are adopted under §§551.002, 554.051, 554.005, and 554.002 of the Texas Pharmacy Act (Chapters Chapter 291. PHARMACIES 551-566, Texas Occupations Code). The Board interprets §551.002 as authorizing the agency to protect the public through Subchapter A. ALL CLASSES OF PHARMA- the effective control and regulation of the practice of pharmacy. The Board interprets §554.051 as authorizing the agency to CIES adopt rules for the proper administration and enforcement of 22 TAC §291.7, §291.17 the Act. The Board interprets §554.005 as authorizing the agency to regulate the delivery or distribution of prescription The Texas State Board of Pharmacy adopts amendments to drugs as they relate to the practice of pharmacy and to specify §291.7, concerning Change of Pharmacist Employment and the minimum standards for the maintenance of prescription drug §291.17, concerning Inventory Requirements. The amend- records. The Board interprets §554.002 as authorizing the ments are adopted without changes to the proposed text as agency to set the requirements for internship and to regulate published in the March 31, 2000, issue of the Texas Register the training, qualifications, and employment of a pharmacist- (25 TexReg 2746). intern. The amendments: (1) establish consistent procedures for per- §283.5. Pharmacist-Intern Duties. sons to follow when reporting a change of pharmacist-in-charge (PIC) to the Texas State Board of Pharmacy; and (2) help en- (a) A pharmacist-intern participating in a board-approved sure that the incoming PIC is aware of the responsibilities of internship program may perform any duty of a pharmacist provided being a PIC of a pharmacy. he or she is under the direct supervision of: No comments were received regarding the amendments. (1) a pharmacist licensed by the board and approved as a preceptor by the board; or
ADOPTED RULES May 26, 2000 25 TexReg 4777 The amendments are adopted under §§554.002, 554.051, The Texas Federation of Drug Stores (TFDS) made the fol- and 562.106 of the Texas Pharmacy Act (Chapters 551-566, lowing comments. Section 291.32(c)(2)(C) concerning the du- Texas Occupations Code). The Board interprets §554.002 as ties which may be performed by pharmacy technicians should authorizing the agency to regulate the practice of pharmacy in be amended to "...including but not limited to the following." Texas by enforcing the provisions of the Texas Pharmacy Act This clarifies that the list is not all inclusive. The Board relating to the conduct of a pharmacist practicing in this state. agrees with this comment and made the appropriate change. The Board interprets §554.051 as authorizing the agency to Section 291.33(b)(4) should be changed to allow other phar- adopt rules for the proper administration and enforcement of the macy personnel as well as pharmacy technicians to remain Act. The Board interprets §562.106 as requiring a pharmacy to in the prescription department in the temporary absence of report in writing to the Board, not later than the 10th day after the pharmacist. The Board agrees provided one certified the date of a change of the person designated as the PIC of a pharmacy technician remains in the prescription department. pharmacy. Appropriate changes were made to the language. Section 291.33(b)(4)(A)(ii) should be changed from "2 hours in a 24 This agency hereby certifies that the adoption has been re- hour period" to "1 hour in a 12 hour period." The TFDS be- viewed by legal counsel and found to be a valid exercise of the lieves this is more in line with actual staffing patterns where agency’s legal authority. a pharmacist receives a 30 minute lunch and two 15 minute Filed with the Office of the Secretary of State on May 15, 2000. breaks during a shift. The Board agrees and made appropri- TRD-200003356 ate changes. The TFDS believes the phrase "for reasons of security or otherwise" in §291.33(b)(4)(A)(iii) is redundant. The Gay Dodson, R.Ph. Board agrees and strikes the phrase. The TFDS commented Executive Director/Secretary that §291.33(b)(4)(A)(iv)(II) should add "or the patient’s agent" Texas State Board of Pharmacy to the phrase, "...not be delivered to the patient or the patient’s Effective date: June 4, 2000 agent until the pharmacist returns..." The Board concurs and Proposal publication date: March 31, 2000 made changes to include the patient’s agent. The TFDS also For further information, please call: (512) 305-8028 commented that an agent of a pharmacist should continue to ♦♦♦ be able to deliver dispensed prescriptions to patients or their agents for up to a two hour period when a pharmacist is not in Subchapter B. COMMUNITY PHARMACY the pharmacy. The TFDS believes this is in the best interest of the patient, permitting them to pick up their dispensed, already (CLASS A) verified, medications for a longer period of time. The Board 22 TAC §§291.32, 291.33, 291.36 concurs and adds deleted language back into the rule which previously permitted this activity. The final comment concerned The Texas State Board of Pharmacy adopts amendments to pharmacies with two or more pharmacists on duty. The TFDS §291.32, concerning Personnel, §291.33, concerning Opera- commented that the rule language should be changed to state tional Standards, and §291.36, concerning Class A Pharma- that the pharmacist should try to stagger their breaks and meal cies Compounding Sterile Pharmaceuticals. The amendments periods so that the prescription department is not left without to §§291.32, 291.33, and 291.36 are adopted with changes to a pharmacist on duty. The Board disagrees with this comment the proposed text as published in the March 31, 2000, issue of and believes that the public is best served in these situations by the Texas Register (25 TexReg 2747). having a pharmacist available in the prescription department. The amendments: (1) clarify the duties which may be performed The same changes have been made in §291.36 to make the by pharmacy technicians; (2) specify the requirements for a rules consistent. temporary absence of the pharmacist; and (3) make changes resulting from a rule review of §291.36. Changes as a result The amendments are adopted under §§551.002, 554.051, of the rule review of §291.36 include: (1) updates citations as 554.005, and 554.053 of the Texas Pharmacy Act (Chapters a result of the codification of the Texas Pharmacy Act by the 551-566, Texas Occupations Code). The Board interprets 76th Legislature; (2) allows the use of electronic signatures in §551.002 as authorizing the agency to protect the public through certain circumstances; (3) clarifies pharmaceutical care duties; the effective control and regulation of the practice of pharmacy. (4) clarifies the definition of "state"; (5) makes provisions The Board interprets §554.051 as authorizing the agency to for dispensing Schedule II controlled substances issued by adopt rules for the proper administration and enforcement of out-of-state physicians; and (6) updates the requirements for the Act. The Board interprets §554.005 as authorizing the transferring prescriptions. agency to regulate the delivery or distribution of prescription drugs as they relate to the practice of pharmacy and to specify Changes made to §291.33(b)(4) and §291.36(d)(2)(D), con- the minimum standards for the maintenance of prescription drug cerning temporary absence of a pharmacist, changed the term records. The Board interprets §554.053 as authorizing the "pharmacy" to the term "prescription department" as necessary agency to adopt rules for the use and the duties of pharmacy to differentiate between the licensed facility and the portion of technicians in a pharmacy. the facility where prescription drugs are maintained. §291.32. Personnel. A change was made to §291.36(e)(2)(B)(iv)(II)(-a-)(-3-) to cor- rect an error which would have allowed a prescription for a (a) Pharmacist-in-charge. Schedule II controlled substance to be dispensed after the sev- (1) General. enth day after the date on which the prescription was issued. This change brings this section into agreement with the provi- (A) Each Class A pharmacy shall have one pharmacist- sions of the Texas Controlled Substances Act. in-charge who is employed on a full-time basis, who may be the pharmacist-in-charge for only one such pharmacy; provided, however,
25 TexReg 4778 May 26, 2000 Texas Register such pharmacist-in-charge may be the pharmacist-in-charge of more patient confidentiality, prevention of unauthorized access, and mal- than one Class A pharmacy, if the additional Class A pharmacies are function; not open to provide pharmacy services simultaneously. (ii) inspecting medications in the automated phar- (B) The pharmacist-in-charge shall comply with the macy dispensing system, at least monthly, for expiration date, mis- provisions of §291.17 of this title (relating to Inventory Require- branding, physical integrity, security, and accountability; ments). (iii) assigning, discontinuing, or changing person- (2) Responsibilities. The pharmacist-in-charge shall have nel access to the automated pharmacy dispensing system; responsibility for, at a minimum, the following: (iv) ensuring that pharmacy technicians and li- (A) dispensing of drugs, including: censed healthcare professionals performing any services in connection with an automated pharmacy dispensing system have been properly (i) packaging, preparation, compounding, and la- trained on the use of the system and can demonstrate comprehensive beling; and knowledge of the written policies and procedures for operation of the (ii) ensuring that drugs are dispensed safely, and system; and accurately as prescribed; (v) ensuring that the automated pharmacy dispens- (B) delivery of drugs to the patient or the patient’s ing system is stocked accurately and an accountability record is main- agent, including ensuring that drugs are delivered safely, and accu- tained in accordance with the written policies and procedures of op- rately as prescribed; eration. (C) assuring that a pharmacist communicates to the (b) Pharmacists. patient or the patient’s agent information about the prescription drug (1) General. or device which in the exercise of the pharmacist’s professional judgment, the pharmacist deems significant as specified in §291.33(c) (A) The pharmacist-in-charge shall be assisted by of this title (relating to Operational Standards); sufficient number of additional licensed pharmacists as may be required to operate the Class A pharmacy competently, safely, and (D) assuring that a pharmacist communicates to the adequately to meet the needs of the patients of the pharmacy. patient or the patient’s agent on their request, information concerning any prescription drugs dispensed to the patient by the pharmacy; (B) All pharmacists shall assist the pharmacist-in- charge in meeting his or her responsibilities in ordering, dispensing, (E) assuring that a reasonable effort is made to obtain, and accounting for prescription drugs. record, and maintain patient medication records; (C) Pharmacists are solely responsible for the direct (F) education and training of pharmacy technicians; supervision of pharmacy technicians and for designating and delegat- (G) establishment of policies for procurement of pre- ing duties, other than those listed in paragraph (2) of this subsection, scription drugs and devices and other products dispensed from the to pharmacy technicians. Each pharmacist: Class A pharmacy; (i) shall verify the accuracy of all acts, tasks, and (H) disposal and distribution of drugs from the Class functions performed by pharmacy technicians; and A pharmacy; (ii) shall be responsible for any delegated act per- (I) bulk compounding of drugs; formed by pharmacy technicians under his or her supervision. (J) storage of all materials, including drugs, chemicals, (D) All pharmacists while on duty, shall be responsible and biologicals; for complying with all state and federal laws or rules governing the practice of pharmacy. (K) maintaining records of all transactions of the Class A pharmacy necessary to maintain accurate control over and (E) A dispensing pharmacist shall ensure that the drug accountability for all pharmaceutical materials required by applicable is dispensed and delivered safely, and accurately as prescribed. state and federal laws and sections; (2) Duties. Duties which may only be performed by a (L) establishment and maintenance of effective con- pharmacist are as follows: trols against the theft or diversion of prescription drugs, and records (A) receiving oral prescription drug orders and reduc- for such drugs; ing these orders to writing, either manually or electronically; (M) maintenance of records in a data processing (B) interpreting prescription drug orders; system such that the data processing system is in compliance with Class A (community) pharmacy requirements; (C) selection of drug products; (N) legal operation of the pharmacy, including meeting (D) performing the final check of the dispensed pre- all inspection and other requirements of all state and federal laws or scription before delivery to the patient to ensure that the prescription sections governing the practice of pharmacy; and has been dispensed accurately as prescribed; (O) effective September 1, 2000, if the pharmacy uses (E) communicating to the patient or patient’s agent an automated pharmacy dispensing system, shall be responsible for information about the prescription drug or device which in the the following: exercise of the pharmacist’s professional judgement, the pharmacist deems significant, as specified in §291.33(c) of this title; (i) reviewing and approving all policies and pro- cedures for system operation, safety, security, accuracy and access,
ADOPTED RULES May 26, 2000 25 TexReg 4779 (F) communicating to the patient or the patient’s agent during an open meeting by the Board and maintain a current certifi- on his or her request information concerning any prescription drugs cation with the Pharmacy Technician Certification Board or any other dispensed to the patient by the pharmacy; entity providing an examination approved by the Board. (G) assuring that a reasonable effort is made to obtain, (2) Duties. record, and maintain patient medication records; (A) Pharmacy technicians may not perform any of the (H) interpreting patient medication records and per- duties listed in subsection (b)(2) of this section. forming drug regimen reviews; and (B) A pharmacist may delegate to pharmacy techni- (I) performing a specific act of drug therapy manage- cians any nonjudgmental technical duty associated with the prepara- ment for a patient delegated to a pharmacist by a written protocol tion and distribution of prescription drugs provided: from a physician licensed in this state in compliance with the Medi- (i) a pharmacist verifies the accuracy of all acts, cal Practice Act. tasks, and functions performed by pharmacy technicians; (3) Special requirements for nonsterile compounding. (ii) pharmacy technicians are under the direct su- (A) All pharmacists engaged in compounding shall pervision of and responsible to a pharmacist; and possess the education, training, and proficiency necessary to properly (iii) effective September 1, 2000, only pharmacy and safely perform compounding duties undertaken or supervised. technicians who have been properly trained on the use of an auto- Continuing education shall include training in the art and science of mated pharmacy dispensing system and can demonstrate comprehen- compounding and the legal requirements for compounding. sive knowledge of the written policies and procedures for the opera- (B) A pharmacist shall inspect and approve all com- tion of the system may be allowed access to the system; and ponents, drug product containers, closures, labeling, and any other (C) Pharmacy technicians may perform only nonjudg- materials involved in the compounding process. mental technical duties associated with the preparation and distribu- (C) A pharmacist shall review all compounding tion of prescription drugs, including but not limited to the following: records for accuracy and conduct in-process and final checks to (i) initiating and receiving refill authorization re- assure that errors have not occurred in the compounding process. quests; (D) A pharmacist is responsible for the proper mainte- (ii) entering prescription data into a data processing nance, cleanliness, and use of all equipment used in the compounding system; process. (iii) taking a stock bottle from the shelf for a (c) Pharmacy technicians. prescription; (1) Qualifications. (iv) preparing and packaging prescription drug or- (A) General. All pharmacy technicians shall: ders (i.e., counting tablets/capsules, measuring liquids and placing them in the prescription container); (i) have a high school or equivalent degree, e.g., GED, or be currently enrolled in a program which awards such a (v) affixing prescription labels and auxiliary labels degree; and to the prescription container provided: (ii) complete a structured didactic and experiential (I) the pharmacy technician has completed the training program, which provides instruction and experience in the education and training requirements outlined in paragraphs (1) and areas listed in paragraph (4) of this subsection. (4) of this subsection; and (iii) Effective January 1, 2001, all pharmacy techni- (II) effective January 1, 2001, only certified cians must have taken and passed the National Pharmacy Technician pharmacy technicians may affix a label to a prescription container. Certification Exam or other examination approved during an open (vi) reconstituting medications; meeting by the Board or be a pharmacy technician trainee. (vii) prepackaging and labeling prepackaged drugs; (B) Pharmacy Technician Trainee. (viii) loading bulk unlabeled drugs into an auto- (i) A person shall be designated as a pharmacy mated dispensing system provided a pharmacist verifies that the sys- technician trainee while participating in a pharmacy’s technician tem is properly loaded prior to use; training program in preparation for the National Pharmacy Technician Certification Exam or other examination approved during an open (ix) compounding non-sterile prescription drug or- meeting by the Board. ders; and (ii) A person may be designated a pharmacy tech- (x) bulk compounding. nician trainee for no more than one year. A person may not be a (3) Ratio of pharmacist to pharmacy technicians. technician trainee if they fail to pass the certification exam within this one year training period. This clause does not apply to a phar- (A) The ratio of pharmacists to pharmacy technicians macy technician trainee working in a pharmacy as part of a training may not exceed 1:2 program accredited by the American Society of Health-System Phar- (B) The ratio of pharmacists to pharmacy technicians macists. may be 1:3 provided that at least one of the three technicians is (C) Certified Pharmacy Technicians. All certified certified. pharmacy technicians shall have taken and passed the National Phar- (4) Training. macy Technician Certification Exam or other examination approved
25 TexReg 4780 May 26, 2000 Texas Register (A) pharmacy technicians shall complete initial train- (i) specify the manner in which the pharmacist ing as outlined by the pharmacist-in-charge in a training manual. responsible for the supervision of pharmacy technicians will supervise Such training: such personnel and verify the accuracy and completeness of all acts, tasks, and functions performed by such personnel; and (i) shall include training and experience as outlined in paragraph (5) of this subsection; and (ii) specify duties which may and may not be performed by pharmacy technicians; and (ii) may not be transferred to another pharmacy unless: (B) instruction in the following areas and any addi- tional areas appropriate to the duties of pharmacy technicians in the (I) the pharmacies are under common ownership pharmacy: and control and have a common training program; and (i) Orientation; (II) the pharmacist-in-charge of each pharmacy in which the pharmacy technician works certifies that the pharmacy (ii) Job descriptions; technician is competent to perform the duties assigned in that (iii) Communication techniques; pharmacy. (iv) Laws and rules; (B) A pharmacy technician shall be designated a phar- macy technician trainee until completing the full training program. A (v) Security and safety; pharmacy technician trainee: (vi) Prescription drugs: (i) may perform all of the duties of a pharmacy (I) Basic pharmaceutical nomenclature; technician except affix a label to a prescription container; (II) Dosage forms; (ii) may be designated a pharmacy technician trainee for no longer than one year; and (vii) Prescription drug orders: (iii) shall be counted in the pharmacist to pharmacy (I) Prescribers; technician ratio. (II) Directions for use; (C) The pharmacist-in-charge shall assure the continu- (III) Commonly-used abbreviations and sym- ing competency of pharmacy technicians through in-service education bols; and training to supplement initial training. (IV) Number of dosage units; (D) The pharmacist-in-charge shall document the com- pletion of the training program and certify the competency of phar- (V) Strengths and systems of measurement; macy technicians completing the training. A written record of initial (VI) Routes of administration; and in-service training of pharmacy technicians shall be maintained and contain the following information: (VII) Frequency of administration; (i) name of the person receiving the training; (VIII) Interpreting directions for use; (ii) date(s) of the training; (viii) Prescription drug order preparation: (iii) general description of the topics covered; (I) Creating or updating patient medication records; (iv) a statement or statements that certifies that the pharmacy technician is competent to perform the duties assigned; (II) Entering prescription drug order information into the computer or typing the label in a manual system; (v) name of the person supervising the training; and (III) Selecting the correct stock bottle; (vi) signature of the pharmacy technician and the pharmacist-in-charge or other pharmacist employed by the pharmacy (IV) Accurately counting or pouring the appro- and designated by the pharmacist-in-charge as responsible for training priate quantity of drug product; of pharmacy technicians. (V) Selecting the proper container; (E) A person who has previously completed training as (VI) Affixing the prescription label; a pharmacy technician, or a licensed nurse or physician assistant is not required to complete the entire training program if the person (VII) Affixing auxiliary labels, if indicated; and is able to show competency through a documented assessment (VIII) Preparing the finished product for inspec- of competency. Such competency assessment may be conducted tion and final check by pharmacists; by personnel designated by the pharmacist-in-charge, but the final acceptance of competency must be approved by the pharmacist-in- (ix) Other functions; charge. (x) Drug product prepackaging; (5) Training program. Pharmacy technician training shall (xi) Compounding of non-sterile pharmaceuticals; be outlined in a training manual. Such training manual shall, at a minimum, contain the following: (xii) Written policy and guidelines for use of and supervision of pharmacy technicians. (A) written procedures and guidelines for the use and supervision of pharmacy technicians. Such procedures and guidelines (d) Identification of pharmacy personnel. All pharmacy shall: personnel shall be identified as follows.
ADOPTED RULES May 26, 2000 25 TexReg 4781 (1) Pharmacy technicians. All pharmacy technicians shall (A) The pharmacy shall be arranged in an orderly wear an identification tag or badge which bears the person’s name fashion and kept clean. All required equipment shall be clean and in and identifies him or her as a pharmacy technician trainee, pharmacy good operating condition. technician, or a certified pharmacy technician. (B) A Class A pharmacy shall have a sink with hot (2) Pharmacist interns. All pharmacist interns shall wear and cold running water within the pharmacy, exclusive of restroom an identification tag or badge which bears the person’s name and facilities, available to all pharmacy personnel and maintained in a identifies him or her as a pharmacist intern. sanitary condition. (3) Pharmacists. All pharmacists shall wear an identifica- (C) A Class A pharmacy which serves the general tion tag or badge which bears the person’s name and identifies him public shall contain an area which is suitable for confidential patient or her as a pharmacist. counseling. §291.33. Operational Standards. (i) Such counseling area shall: (a) Licensing requirements. (I) be easily accessible to both patient and pharmacists and not allow patient access to prescription drugs; (1) A Class A pharmacy shall register annually or bien- nially with the board on a pharmacy license application provided by (II) be designed to maintain the confidentiality the board, following the procedures specified in §291.1 of this title and privacy of the pharmacist/patient communication. (relating to Pharmacy License Application). (ii) In determining whether the area is suitable (2) A Class A pharmacy which changes ownership shall for confidential patient counseling and designed to maintain the notify the board within ten days of the change of ownership and confidentiality and privacy of the pharmacist/patient communication, apply for a new and separate license as specified in §291.4 of this the board may consider factors such as the following: title (relating to Change of Ownership). (I) the proximity of the counseling area to the (3) A Class A pharmacy which changes location and/or check-out or cash register area; name shall notify the board within ten days of the change and file (II) the volume of pedestrian traffic in and for an amended license as specified in §291.2 of this title (relating to around the counseling area; Change of Location and/or Name). (III) the presence of walls or other barriers (4) A Class A pharmacy owned by a partnership or between the counseling area and other areas of the pharmacy; and corporation which changes managing officers shall notify the board in writing of the names of the new managing officers within ten days of (IV) any evidence of confidential information the change, following the procedures in §291.3 of this title (relating being overheard by persons other than the patient or patient’s agent to Change of Managing Officers). or the pharmacist or agents of the pharmacist. (5) A Class A pharmacy shall notify the board in writing (D) The pharmacy shall be properly lighted and ven- within ten days of closing, following the procedures in §291.5 of this tilated. title (relating to Closed Pharmacies). (E) The temperature of the pharmacy shall be main- (6) A separate license is required for each principal place tained within a range compatible with the proper storage of drugs; of business and only one pharmacy license may be issued to a spe- the temperature of the refrigerator shall be maintained within a range cific location. compatible with the proper storage of drugs requiring refrigeration. (7) A fee as specified in §291.6 of this title (relating to (F) Animals, including birds and reptiles, shall not be Pharmacy License Fees) will be charged for the issuance and renewal kept within the pharmacy and in immediately adjacent areas under of a license and the issuance of an amended license. the control of the pharmacy. This provision does not apply to fish in aquariums, guide dogs accompanying disabled persons, or animals (8) A Class A pharmacy, licensed under the provisions for sale to the general public in a separate area that is inspected by of the Act, §560.051(a)(1), which also operates another type of local health jurisdictions. pharmacy which would otherwise be required to be licensed under the Act, §560.051(a)(2) concerning Nuclear Pharmacy (Class B), is not (2) Special requirements for nonsterile compounding. required to secure a license for such other type of pharmacy; provided, (A) Pharmacies regularly engaging in compounding however, such licensee is required to comply with the provisions of shall have a designated and adequate area for the safe and orderly §291.51 of this title (relating to Purpose), §291.52 of this title (relating compounding of drug products, including the placement of equipment to Definitions), §291.53 of this title (relating to Personnel), §291.54 and materials. Pharmacies involved in occasional compounding shall of this title (relating to Operational Standards), and §291.55 of this prepare an area prior to each compounding activity which is adequate title (relating to Records), contained in Nuclear Pharmacy (Class B), for safe and orderly compounding. to the extent such sections are applicable to the operation of the pharmacy. (B) Only personnel authorized by the responsible phar- macist shall be in the immediate vicinity of a drug compounding op- (9) A Class A (community) pharmacy engaged in the eration. compounding of sterile pharmaceuticals shall comply with the provi- sions of §291.36 of this title (relating to Class A Pharmacies Com- (C) A sink with hot and cold running water, exclusive pounding Sterile Pharmaceuticals). of rest room facilities, shall be accessible to the compounding areas and be maintained in a sanitary condition. Supplies necessary for (b) Environment. adequate washing shall be accessible in the immediate area of the (1) General requirements. sink and include:
25 TexReg 4782 May 26, 2000 Texas Register (i) soap or detergent; and (i) initiating and receiving refill authorization re- quests; (ii) air-driers or single-use towels. (ii) entering prescription data into a data processing (D) If drug products which require special precautions system; to prevent contamination, such as penicillin, are involved in a compounding operation, appropriate measures, including dedication (iii) taking a stock bottle from the shelf for a of equipment for such operations or the meticulous cleaning of prescription; contaminated equipment prior to its use for the preparation of (iv) preparing and packaging prescription drug or- other drug products, must be utilized in order to prevent cross- ders (i.e., counting tablets/capsules, measuring liquids and placing contamination. them in the prescription container); (3) Security. (v) affixing prescription labels and auxiliary labels (A) Each pharmacist while on duty shall be responsi- to the prescription container. After January 1, 2001, only certified ble for the security of the prescription department, including provi- pharmacy technicians may affix prescription labels to prescription sions for effective control against theft or diversion of prescription containers; and drugs, and records for such drugs. (vi) prepackaging and labeling prepackaged drugs. (B) The prescription department shall be locked by key (C) Upon return to the prescription department, the or combination so as to prevent access when a pharmacist is not pharmacist shall: on-site. However, the pharmacist-in-charge may designate persons who may enter the pharmacy to perform functions designated by the (i) conduct a drug regimen review as specified in pharmacist-in-charge (e.g., janitorial services). subsection (c)(2) of this section; and (4) Temporary absence of pharmacist. (ii) verify the accuracy of all acts, tasks, and functions performed by the certified pharmacy technicians prior to (A) If a pharmacy is staffed by a single pharmacist, delivery of the prescription to the patient or the patient’s agent. the pharmacist may leave the prescription department for breaks and meal periods without closing the prescription department and (D) An agent of the pharmacist may deliver a prescrip- removing pharmacy technicians and other pharmacy personnel from tion drug order to the patient or his or her agent provided a record of the prescription department provided the following conditions are the delivery is maintained containing the following information: met: (i) date of the delivery; (i) at least one certified pharmacy technician re- (ii) unique identification number of the prescription mains in the prescription department; drug order; (ii) the pharmacist remains on-site at the licensed (iii) patient’s name; location of the pharmacy and available for an emergency; (iv) patient’s phone number or the phone number (iii) the absence does not exceed 30 minutes at a of the person picking up the prescription; and time and a total of one hour in a 12 hour period; (v) signature of the person picking up the prescrip- (iv) the pharmacist reasonably believes that the se- tion. curity of the prescription department will be maintained in his or her absence. If in the professional judgment of the pharmacist, the (E) Any prescription delivered to a patient when a pharmacist determines that the prescription department should close pharmacist is not in the prescription department must meet the during his or her absence, then the pharmacist shall close the pre- requirements for a prescription delivered to a patient as described scription department and remove the pharmacy technicians or other in subsection (c)(1)(F) of this section. pharmacy personnel from the prescription department during his or (F) During the times a pharmacist is absent from the her absence; and prescription department a pharmacist intern shall be considered a (v) a notice is posted which includes the following certified pharmacy technician and may perform only the duties of a information: certified pharmacy technician. (I) the fact that pharmacist is on a break and the (G) In pharmacies with two or more pharmacists on time the pharmacist will return; and duty, the pharmacists shall stagger their breaks and meal periods so that the prescription department is not left without a pharmacist on (II) the fact that pharmacy technicians may duty. begin the processing of prescription drug orders or refills brought in during the pharmacist absence but the prescription or refill may not (c) Prescription dispensing and delivery. be delivered to the patient or the patient’s agent until the pharmacist (1) Patient counseling and provision of drug information. returns and verifies the accuracy of the prescription. (A) To optimize drug therapy, a pharmacist shall (B) During the time a pharmacist is absent from the communicate to the patient or the patient’s agent, information prescription department, only pharmacy technicians who have com- about the prescription drug or device which in the exercise of the pleted the pharmacy’s training program may perform the following pharmacist’s professional judgment the pharmacist deems significant, duties, provided a pharmacist verifies the accuracy of all acts, tasks, such as the following: and functions performed by the pharmacy technicians prior to deliv- ery of the prescription to the patient or the patient’s agent: (i) the name and description of the drug or device;
ADOPTED RULES May 26, 2000 25 TexReg 4783 (ii) dosage form, dosage, route of administration, (i) So that a patient will have access to information and duration of drug therapy; concerning his or her prescription, a prescription may not be delivered to a patient unless a pharmacist is in the pharmacy, except as provided (iii) special directions and precautions for prepara- in subsection (b)(4) of this section or clause (ii) of this subparagraph. tion, administration, and use by the patient; (ii) An agent of the pharmacist may deliver a (iv) common severe side or adverse effects or in- prescription drug order to the patient or his or her agent during short teractions and therapeutic contraindications that may be encountered, periods of time when a pharmacist is absent from the pharmacy, including their avoidance, and the action required if they occur; provided the short periods of time do not exceed two hours, and (v) techniques for self monitoring of drug therapy; provided a record of the delivery is maintained containing the following information: (vi) proper storage; (I) date of the delivery; (vii) refill information; and (II) unique identification number of the prescrip- (viii) action to be taken in the event of a missed tion drug order; dose. (III) patient’s name; (B) Such communication: (IV) patient’s phone number or the phone num- (i) shall be provided with each new prescription ber of the person picking up the prescription; and drug order, once yearly on maintenance medications, and if the pharmacist deems appropriate, with prescription drug order refills. (V) signature of the person picking up the pre- (For the purposes of this clause, maintenance medications are defined scription. as any medication the patient has taken for one year or longer); (iii) Any prescription delivered to a patient when (ii) shall be provided for any prescription drug order a pharmacist is not in the pharmacy must meet the requirements dispensed by the pharmacy on the request of the patient or patient’s described in subparagraph (F) of this paragraph. agent; (iv) A Class A pharmacy shall make available for (iii) shall be communicated orally in person unless use by the public a current or updated edition of the United States the patient or patient’s agent is not at the pharmacy or a specific Pharmacopeia Dispensing Information, Volume II (Advice to the communication barrier prohibits such oral communication; and Patient), or another source of such information designed for the consumer. (iv) shall be reinforced with written information. The following is applicable concerning this written information. (F) In addition to the requirements of subparagraphs (A)-(D) of this paragraph, if a prescription drug order is delivered (I) Written information designed for the con- to the patient or his or her agent at the patient’s residence or other sumer such as the USP DI patient information leaflets shall be pro- designated location, the following is applicable. vided. (i) The information specified in subparagraph (A) (II) When a compounded product is dispensed, of this paragraph shall be delivered with the dispensed prescription information shall be provided for the major active ingredient(s), if in writing. available. (ii) If prescriptions are routinely delivered outside (III) For new drug entities, if no written infor- the area covered by the pharmacy’s local telephone service, the mation is initially available, the pharmacist is not required to provide pharmacy shall provide a toll-free telephone line which is answered information until such information is available, provided: during normal business hours to enable communication between the (-a-) the pharmacist informs the patient or patient and a pharmacist. the patient’s agent that the product is a new drug entity and written information is not available; (iii) The pharmacist shall place on the prescription (-b-) the pharmacist documents the fact that container or on a separate sheet delivered with the prescription no written information was provided; and container in both English and Spanish the local and if applicable, toll- (-c-) if the prescription is refilled after writ- free telephone number of the pharmacy and the statement: "Written ten information is available, such information is provided to the pa- information about this prescription has been provided for you. Please tient or patient’s agent. read this information before you take the medication. If you have questions concerning this prescription, a pharmacist is available (C) Only a pharmacist may verbally provide drug during normal business hours to answer these questions at (insert information to a patient or patient’s agent and answer questions the pharmacy’s local and toll-free telephone numbers)." concerning prescription drugs. Non-pharmacist personnel may not ask questions of a patient or patient’s agent which are intended to (iv) The pharmacy shall maintain and use adequate screen and/or limit interaction with the pharmacist. storage or shipment containers and use shipping processes to ensure drug stability and potency. Such shipping processes shall include the (D) Nothing in this subparagraph shall be construed use of appropriate packaging material and/or devices to ensure that as requiring a pharmacist to provide consultation when a patient the drug is maintained at an appropriate temperature range to maintain or patient’s agent refuses such consultation. The pharmacist shall the integrity of the medication throughout the delivery process. document such refusal for consultation. (v) The pharmacy shall use a delivery system which (E) In addition to the requirements of subparagraphs is designed to assure that the drugs are delivered to the appropriate (A)-(D) of this paragraph, if a prescription drug order is delivered to patient.." the patient at the pharmacy, the following is applicable.
25 TexReg 4784 May 26, 2000 Texas Register (G) The provisions of this paragraph do not apply to (4) Labeling. patients in facilities where drugs are administered to patients by a (A) At the time of delivery of the drug, the dispensing person required to do so by the laws of the state (i.e., nursing homes). container shall bear a label with at least the following information: (2) Pharmaceutical care services. (i) name, address and phone number of the phar- (A) Drug regimen review. macy; (i) For the purpose of promoting therapeutic appro- (ii) unique identification number of the prescrip- priateness, a pharmacist shall at the time of dispensing a prescription tion; drug order, review the patient’s medication record. Such review shall (iii) date the prescription is dispensed; at a minimum identify clinically significant: (iv) initials or an identification code of the dispens- (I) known allergies; ing pharmacist; (II) rational therapy-contraindications; (v) name of the prescribing practitioner; (III) reasonable dose and route of administra- (vi) name of the patient or if such drug was tion; prescribed for an animal, the species of the animal and the name (IV) reasonable directions for use; of the owner; (V) duplication of therapy; (vii) instructions for use; (VI) drug-drug interactions; (viii) quantity dispensed; (VII) drug-food interactions; (ix) appropriate ancillary instructions such as stor- age instructions or cautionary statements such as warnings of poten- (VIII) drug-disease interactions; tial harmful effects of combining the drug product with any product (IX) adverse drug reactions; and containing alcohol; (X) proper utilization, including overutilization (x) if the prescription is for a Schedule II-IV or underutilization. controlled substance, the statement "Caution: Federal law prohibits the transfer of this drug to any person other than the patient for whom (ii) Upon identifying any clinically significant con- it was prescribed"; ditions, situations, or items listed in clause (i) of this subparagraph, the pharmacist shall take appropriate steps to avoid or resolve the (xi) if the pharmacist has selected a generically problem including consultation with the prescribing practitioner. The equivalent drug pursuant to the provisions of the Act, Chapters pharmacist shall document such occurrences. 562 and 563, the statement "Substituted for Brand Prescribed" or "Substituted for ’Brand Name’" where "Brand Name" is the actual (B) Other pharmaceutical care services which may be name of the brand name product prescribed; provided by pharmacists include, but are not limited to, the following: (xii) the name of the advanced practice nurse or (i) managing drug therapy as delegated by a prac- physician assistant, if the prescription is carried out or signed by an titioner as allowed under the provisions of the Medical Practices; advanced practice nurse or physician assistant in compliance with (ii) administering immunizations and vaccinations Subtitle B, Chapter 157, Occupations Code; and under written protocol of a physician; (xiii) the name and strength of the actual drug (iii) managing patient compliance programs; product dispensed, unless otherwise directed by the prescribing practitioner. (iv) providing preventative health care services; and (I) The name shall be either: (v) providing case management of patients who are (-a-) the brand name; or being treated with high-risk or high-cost drugs, or who are considered (-b-) if no brand name, then the generic "high risk" due to their age, medical condition, family history, or name and name of the manufacturer or distributor of such generic related concern. drug. (The name of the manufacturer or distributor may be reduced (3) Prescription containers. to an abbreviation or initials, provided the abbreviation or initials are sufficient to identify the manufacturer or distributor. For combination (A) A drug dispensed pursuant to a prescription drug drug products or non-sterile compounded drug products having no order shall be dispensed in a child-resistant container unless: brand name, the principal active ingredients shall be indicated on the (i) the patient or the practitioner requests the pre- label.) scription not be dispensed in a child-resistant container; or (II) Except as provided in clause (xi) of this (ii) the product is exempted from requirements of subparagraph, the brand name of the prescribed drug shall not appear the Poison Prevention Packaging Act of 1970. on the prescription container label unless it is the drug product actually dispensed. (B) A drug dispensed pursuant to a prescription drug order shall be dispensed in an appropriate container as specified on (B) The dispensing container is not required to bear the manufacturer’s container. the label specified in subparagraph (A) of this paragraph if: (C) Prescription containers or closures shall not be re- (i) the drug is prescribed for administration to an used. ultimate user who is institutionalized in a licensed health care institution (e.g., nursing home, hospice, hospital);
ADOPTED RULES May 26, 2000 25 TexReg 4785 (ii) no more than a 34-day supply or 100 dosage strength, quality, or purity of the drug product beyond acceptable units, whichever is less, is dispensed at one time; standards; (iii) the drug is not in the possession of the ultimate (iii) cleaned and sanitized immediately prior to each user prior to administration; use; and (iv) the pharmacist-in-charge has determined that (iv) routinely inspected, calibrated (if necessary), or the institution: checked to ensure proper performance. (I) maintains medication administration records (e) Library. A reference library shall be maintained which which include adequate directions for use for the drug(s) prescribed; includes the following in hard-copy or electronic format: (II) maintains records of ordering, receipt, and (1) current copies of the following: administration of the drug(s); and (A) Texas Pharmacy Act and rules; (III) provides for appropriate safeguards for the (B) Texas Dangerous Drug Act and rules; control and storage of the drug(s); and (C) Texas Controlled Substances Act and rules; and (v) the system employed by the pharmacy in dis- pensing the prescription drug order adequately: (D) Federal Controlled Substances Act and rules (or official publication describing the requirements of the Federal Con- (I) identifies the: trolled Substances Act and rules); (-a-) pharmacy by name and address; (-b-) unique identification number of the (2) at least one current or updated reference from each of prescription; the following categories: (-c-) name and strength of the drug dis- (A) patient information: pensed; (-d-) name of the patient; (i) United States Pharmacopeia Dispensing Infor- (-e-) name of the prescribing practitioner; mation, Volume II (Advice to the Patient); or and (ii) a reference text or information leaflets which (II) sets forth the directions for use and caution- provide patient information; ary statements, if any, contained on the prescription drug order or (B) drug interactions: a reference text on drug inter- required by law. actions, such as Phillip D. Hansten’s Drug Interactions; (d) Equipment and supplies. (C) a general information reference text, such as: (1) Class A pharmacies dispensing prescription drug or- (i) Facts and Comparisons with current supple- ders shall have the following equipment and supplies: ments; (A) typewriter or comparable equipment; (ii) United States Pharmacopeia Dispensing Infor- (B) refrigerator; mation Volume I (Drug Information for the Healthcare Provider); (C) adequate supply of child-resistant, light-resistant, (iii) American Hospital Formulary Service with tight, and if applicable, glass containers; current supplements; or (D) adequate supply of prescription, poison, and other (iv) Remington’s Pharmaceutical Sciences; and applicable labels; (3) basic antidote information and the telephone number (E) appropriate equipment necessary for the proper of the nearest Regional Poison Control Center. preparation of prescription drug orders; and (f) Drugs. (F) metric-apothecary weight and measure conversion (1) Procurement and storage. charts. (A) The pharmacist-in-charge shall have the responsi- (2) If the community pharmacy compounds prescription bility for the procurement and storage of drugs, but may receive input drug orders, the pharmacy shall: from other appropriate staff relative to such responsibility. (A) have a Class A prescription balance, or analytical (B) Prescription drugs and devices and nonprescription balance and weights which shall be properly maintained and inspected Schedule V controlled substances shall be stored within the prescrip- at least every three years by the appropriate authority as prescribed tion department or a locked storage area. by local, state, or federal law or regulations; and (C) All drugs shall be stored at the proper temperature, (B) have equipment and utensils necessary for the as defined by the following terms: proper compounding of prescription drug orders. Such equipment and utensils used in the compounding process shall be: (i) controlled room temperature–temperature main- tained thermostatically between 15 degrees and 30 degrees Celsius (i) of appropriate design, appropriate capacity, and (59 degrees and 86 degrees Fahrenheit); be operated within designed operational limits; (ii) cool–temperature between 8 degrees and 15 (ii) of suitable composition so that surfaces that degrees Celsius (46 degrees and 59 degrees Fahrenheit) which may, contact components, in-process material, or drug products shall not alternatively, be stored in a refrigerator unless otherwise specified on be reactive, additive, or absorptive so as to alter the safety, identity, the labeling;
25 TexReg 4786 May 26, 2000 Texas Register (iii) refrigerate–temperature maintained thermostat- (III) American Chemical Society (ACS); or ically between 2 degrees and 8 degrees Celsius (36 degrees and 46 (iii) in the professional judgment of the pharmacist, degrees Fahrenheit); and be of high quality and obtained from acceptable and reliable (iv) freeze–temperature maintained thermostatically alternative sources. between -20 degrees and -10 degrees Celsius (-4 degrees and 14 (B) All components shall be stored in properly labeled degrees Fahrenheit). containers in a clean, dry area, under proper temperatures as defined (2) Out-of-date drugs or devices. in paragraph (1) of this subsection. (A) Any drug or device bearing an expiration date shall (C) Drug product containers and closures shall not be not be dispensed beyond the expiration date of the drug or device. reactive, additive, or absorptive so as to alter the safety, identity, strength, quality, or purity of the compounded drug product beyond (B) Outdated drugs or devices shall be removed from the desired result. dispensing stock and shall be quarantined together until such drugs or devices are disposed of properly. (D) Components, drug product containers, and clo- sures shall be rotated so that the oldest stock is used first. (3) Nonprescription Schedule V controlled substances. (E) Container closure systems shall provide adequate (A) Schedule V controlled substances containing protection against foreseeable external factors in storage and use that codeine, dihydrocodeine, or any of the salts of codeine or dihy- can cause deterioration or contamination of the compounded drug drocodeine may not be distributed without a prescription drug order product. from a practitioner. (5) Class A Pharmacies may not sell, purchase, trade or (B) A pharmacist may distribute nonprescription possess prescription drug samples, unless the pharmacy meets all of Schedule V controlled substances which contain no more than 15 the following conditions: milligrams of opium per 29.5729 ml or per 28.35 Gm provided: (A) the pharmacy is owned by a charitable organiza- (i) such distribution is made only by a pharmacist; tion described in the Internal Revenue Code of 1986, or by a city, a nonpharmacist employee may not distribute a nonprescription state or county government; Schedule V controlled substance even if under the supervision of a pharmacist; however, after the pharmacist has fulfilled professional (B) the pharmacy is a part of a health care entity which and legal responsibilities, the actual cash, credit transaction, or provides health care primarily to indigent or low income patients at delivery may be completed by a nonpharmacist: no or reduced cost; (ii) not more than 240 ml (eight fluid ounces), or (C) the samples are for dispensing or provision at no not more than 48 solid dosage units of any substance containing charge to patients of such health care entity; and opium, may be distributed to the same purchaser in any given 48- (D) the samples are possessed in compliance with the hour period without a prescription drug order; federal Prescription Drug Marketing Act of 1986. (iii) the purchaser is at least 18 years of age; and (g) Prepackaging of drugs and loading bulk unlabeled drugs (iv) the pharmacist requires every purchaser not into automated drug dispensing system. known to the pharmacist to furnish suitable identification (includ- (1) Drugs may be prepackaged in quantities suitable for ing proof of age where appropriate). internal distribution only by a pharmacist or by supportive personnel (C) A record of such distribution shall be maintained under the direction and direct supervision of a pharmacist. by the pharmacy in a bound record book. The record shall contain (2) The label of a prepackaged unit shall indicate: the following information: (A) brand name and strength of the drug; or if no brand (i) true name of the purchaser; name, then the generic name, strength, and name of the manufacturer (ii) current address of the purchaser; or distributor; (iii) name and quantity of controlled substance (B) facility’s lot number; purchased; (C) expiration date; and (iv) date of each purchase; and (D) quantity of the drug, if the quantity is greater than (v) signature or written initials of the distributing one. pharmacist. (3) Records of prepackaging shall be maintained to show: (4) Drugs, components, and materials used in nonsterile (A) name of the drug, strength, and dosage form; compounding. (B) facility’s lot number; (A) Drugs used in nonsterile compounding shall: (C) manufacturer or distributor; (i) meet official compendia requirements; or (D) manufacturer’s lot number; (ii) be of a chemical grade in one of the following categories: (E) expiration date; (I) Chemically Pure (CP); (F) quantity per prepackaged unit; (II) Analytical Reagent (AR); or (G) number of prepackaged units;
ADOPTED RULES May 26, 2000 25 TexReg 4787 (H) date packaged; (C) The dispensing container is not required to bear the label specified in subparagraph (A) of this paragraph if: (I) name, initials, or electronic signature of the prepacker; and (i) the drug is prescribed for administration to an ultimate user who is institutionalized in a licensed health care (J) signature, or electronic signature of the responsible institution (e.g., nursing home, hospice, hospital); pharmacist. (ii) no more than a 34-day supply or 100 dosage (4) Stock packages, repackaged units, and control records units, whichever is less, is dispensed at one time; shall be quarantined together until checked/released by the pharma- cist. (iii) the drug is not in the possession of the ultimate user prior to administration; (h) Customized patient medication packages. (iv) the pharmacist-in-charge has determined that (1) Purpose. In lieu of dispensing two or more prescribed the institution: drug products in separate containers, a pharmacist may, with the consent of the patient, the patient’s caregiver, or the prescriber, (I) maintains medication administration records provide a customized patient medication package (patient med-pak). which include adequate directions for use for the drug(s) prescribed; (2) Definition. A patient med-pak is a package prepared (II) maintains records of ordering, receipt, and by a pharmacist for a specific patient comprising a series of containers administration of the drug(s); and and containing two or more prescribed solid oral dosage forms. The (III) provides for appropriate safeguards for the patient med-pak is so designed or each container is so labeled as to control and storage of the drug(s); and indicate the day and time, or period of time, that the contents within each container are to be taken. (v) the system employed by the pharmacy in dis- pensing the prescription drug order adequately: (3) Label. (I) identifies the: (A) The patient med-pak shall bear a label stating: (-a-) pharmacy name and address; (i) the name of the patient; (-b-) unique identification number of the prescription; (ii) the unique identification number for the patient (-c-) name and strength each drug product med-pak itself and a separate unique identification number for each of dispensed; the prescription drug orders for each of the drug products contained (-d-) name of the patient; therein; (-e-) name of the prescribing practitioner of (iii) the name, strength, physical description or each drug product; and identification, and total quantity of each drug product contained (II) for each drug product sets forth the direc- therein; tions for use and cautionary statements, if any contained on the pre- (iv) the directions for use and cautionary state- scription drug order or required by law. ments, if any, contained in the prescription drug order for each drug (4) Labeling. The patient med-pak shall be accompanied product contained therein; by a patient package insert, in the event that any drug contained (v) if applicable, a warning of the potential harm- therein is required to be dispensed with such insert as accompanying ful effect of combining any form of alcoholic beverage with any drug labeling. Alternatively, such required information may be incorpo- product contained therein; rated into a single, overall educational insert provided by the phar- macist for the total patient med-pak. (vi) any storage instructions or cautionary state- ments required by the official compendia; (5) Packaging. In the absence of more stringent packaging requirements for any of the drug products contained therein, each (vii) the name of the prescriber of each drug prod- container of the patient med-pak shall comply with official packaging uct; standards. Each container shall be either not reclosable or so designed (viii) the date of preparation of the patient med-pak as to show evidence of having been opened. and the beyond-use date assigned to the patient med-pak (which such (6) Guidelines. It is the responsibility of the dispensing beyond-use date shall not be later than 60 days from the date of pharmacist when preparing a patient med-pak, to take into account preparation); any applicable compendial requirements or guidelines and the phys- (ix) the name, address, and telephone number of the ical and chemical compatibility of the dosage forms placed within pharmacy; each container, as well as any therapeutic incompatibilities that may attend the simultaneous administration of the drugs. (x) the initials or an identification code of the dispensing pharmacist; and (7) Recordkeeping. In addition to any individual prescrip- tion filing requirements, a record of each patient med-pak shall be (xi) any other information, statements, or warnings made and filed. Each record shall contain, as a minimum: required for any of the drug products contained therein. (A) the name and address of the patient; (B) If the patient med-pak allows for the removal or separation of the intact containers therefrom, each individual (B) the unique identification number for the patient container shall bear a label identifying each of the drug product med-pak itself and a separate unique identification number for each contained therein. of the prescription drug orders for each of the drug products contained therein;
25 TexReg 4788 May 26, 2000 Texas Register (C) the name of the manufacturer or distributor and lot (III) "use by" date as determined by the phar- number for each drug product contained therein; macist using appropriate documented criteria as outlined in clause (i) of this subparagraph; and (D) information identifying or describing the design, characteristics, or specifications of the patient med-pak sufficient to (IV) quantity or amount in the container. allow subsequent preparation of an identical patient med-pak for the (C) Commercially available drug products may be patient; compounded for individual patients under the provisions of subpara- (E) the date of preparation of the patient med-pak and graph (A) of this paragraph provided the prescribing practitioner has the beyond-use date that was assigned; requested that the drug product be compounded. (F) any special labeling instructions; and (D) Drug products may be compounded for the exclu- sive use of the pharmacy where the products are compounded. Com- (G) the initials or an identification code of the dispens- pounded drug products may not be distributed for resale, including ing pharmacist. distribution to pharmacies under common ownership or control, ex- (i) Nonsterile compounding. cept that a practitioner may obtain compounded drug products for ad- ministration to patients, but not for dispensing. Products compounded (1) Purpose. The purpose of this subsection is to provide for physician administration to patients shall be labeled. Such label standards for the compounding of nonsterile drug products in shall contain: licensed pharmacies for dispensing and/or administration to humans or animals. Licensed pharmacies compounding nonsterile drug (i) the statement: "For Office Use Only"; products shall comply with the following paragraphs in addition to (ii) name and strength of the compounded medica- all other provisions of this section and §§291.31, 291.32, 291.34, and tion or list of the active ingredients and strengths; 291.35 of this title (relating to Definitions, Personnel, Records, and Triplicate Prescription Requirements). (iii) facility’s control number; (2) General requirements. (iv) "use by" date as determined by the pharmacist using appropriate documented criteria as outlined in subparagraph (A) Nonsterile drug products may be compounded in (B)(i) of this paragraph; and licensed pharmacies: (v) quantity or amount in the container. (i) when there exists a valid pharmacist/patient/pre- scriber relationship and upon the presentation of a valid prescription (E) Compounding pharmacies/pharmacists may adver- drug order; or tise and promote the fact that they provide nonsterile prescription compounding services, but shall not solicit business by promoting to (ii) in anticipation of future prescription drug orders compound specific drug products. based on routine, regularly observed prescribing patterns. (3) Compounding process. (B) Nonsterile compounding in anticipation of future prescription drug orders must be based upon a history of receiving (A) Any person with an apparent illness or open lesion valid prescriptions issued within an established pharmacist/patient/ that may adversely affect the safety or quality of a drug product being prescriber relationship, provided that in the pharmacist’s professional compounded shall be excluded from direct contact with components, judgment the quantity prepared is stable for the anticipated shelf time. drug product containers, closures, any materials involved in the compounding process, and drug products until the condition is (i) The pharmacist’s professional judgment should corrected. be based on criteria such as: (B) Personnel engaged in the compounding of drug (I) physical and chemical properties of active products shall wear clean clothing appropriate to the operation being ingredients; performed. Protective apparel, such as coats/jackets, aprons, hair nets, (II) use of preservatives and/or stabilizing gowns, hand or arm coverings, or masks shall be worn as necessary agents; to protect personnel from chemical exposure and drug products from contamination. (III) dosage form; (C) At each step of the compounding process, the (IV) storage conditions; and pharmacist shall ensure that components used in compounding are (V) scientific, laboratory, or reference data. accurately weighed, measured, or subdivided as appropriate to conform to the formula being prepared. (ii) Documentation of the criteria used to determine the stability for the anticipated shelf time must be maintained with (D) The pharmacist shall establish and conduct quality the nonsterile compounding record. control procedures to monitor the output of compounded drug products for uniformity and consistency such as capsule weight (iii) Any product compounded in anticipation of variations, adequacy of mixing, clarity, or pH of solutions. Such future prescription drug orders shall be labeled. Such label shall procedures shall be documented in the nonsterile compounding contain: record. (I) name and strength of the compounded med- (E) Compounding records for all drugs compounded ication or list of the active ingredients and strengths; in anticipation of future prescription drug orders shall be maintained (II) facility’s lot number; by the pharmacy electronically or manually as part of the prescription, formula record, formula book, or compounding log and shall include: (i) the date of preparation;
ADOPTED RULES May 26, 2000 25 TexReg 4789 (ii) facility’s lot number; (A) the pharmacy shall have a method to calibrate and verify the accuracy of the automated compounding or counting device (iii) manufacturer’s lot number(s) and expiration and document the calibration and verification on a routine basis; date(s) for all components (if the original manufacturer’s lot num- ber(s) and expiration date(s) are not known, the pharmacy shall record (B) the devices may be loaded with bulk or unlabeled the source of acquisition of the components); drugs only by a pharmacist or by pharmacy technicians under the direction and direct supervision of a pharmacist; (iv) a complete formula, including methodology and necessary equipment; (C) the label of an automated compounding or count- ing device container shall indicate the brand name and strength of (v) signature or initials of the pharmacist or sup- the drug; or if no brand name, then the generic name, strength, and portive person performing the compounding; name of the manufacturer or distributor; (vi) signature or initials of the pharmacist respon- (D) records of loading bulk or unlabeled drugs into an sible for supervising supportive personnel and conducting in-process automated compounding or counting device shall be maintained to and finals checks of compounded products if supportive personnel show: perform the compounding function; (i) name of the drug, strength, and dosage form; (vii) the brand name(s) of the raw materials, or if no brand name, the generic name(s) and the name(s) of the (ii) manufacturer or distributor; manufacturer(s) of the raw materials; (iii) manufacturer’s lot number; (viii) the quantity in units of finished products or (iv) expiration date; grams of raw materials; (v) quantity added to the automated compounded or (ix) the package size and the number of units counting device; prepared; (vi) date of loading; (x) documentation of performance of quality con- trol procedures; and (vii) name, initials, or electronic signature of the person loading the automated compounding or counting device; and (xi) the criteria used to determine the "use by" date. (viii) signature or electronic signature of the respon- (F) Compounding records for all drugs compounded sible pharmacist; and pursuant to an individual prescription and not in anticipation of future prescription drug orders shall be maintained by the pharmacy (E) the automated compounding or counting device electronically or manually as part of the prescription, formula record, shall not be used until a pharmacist verifies that the system is properly formula book, or compounding log and shall include: loaded and affixes his or her signature to the record specified in subparagraph (D) of this paragraph. (i) the date of preparation; (2) Automated pharmacy dispensing systems. This para- (ii) a complete formula which includes the brand graph becomes effective September 1, 2000. name(s) of the raw materials, or if no brand name, the generic name(s) and name(s) of the manufacturer(s) of the raw materials and (A) Authority to use automated pharmacy dispensing the quantities of each; systems. A pharmacy may use an automated pharmacy dispensing system to fill prescription drug orders provided that: (iii) signature or initials of the pharmacist or sup- portive person performing the compounding; (i) the pharmacist-in-charge is responsible for the supervision of the operation of the system; (iv) signature or initials of the pharmacist respon- sible for supervising supportive personnel and conducting in-process (ii) the automated pharmacy dispensing system has and finals checks of compounded products if supportive personnel been tested by the pharmacy and found to dispense accurately. The perform the compounding function; pharmacy shall make the results of such testing available to the Board upon request; and (v) the quantity in units of finished products or grams of raw materials; (iii) the pharmacy will make the automated phar- macy dispensing system available for inspection by the board for the (vi) the package size and the number of units purpose of validating the accuracy of the system. prepared; and (B) Quality assurance program. A pharmacy which (vii) documentation of performance of quality con- uses an automated pharmacy dispensing system to fill prescription trol procedures. Documentation of the performance of quality control drug orders shall operate according to a written program for quality procedures is not required if the compounding process involves the assurance of the automated pharmacy dispensing system which: mixing of two or more commercially available oral liquids or com- mercially available preparations when the final product is intended (i) requires continuous monitoring of the automated for external use. pharmacy dispensing system; and (j) Automated devices and systems. (ii) establishes mechanisms and procedures to test the accuracy of the automated pharmacy dispensing system at least (1) Automated compounding or counting devices. If a every six months and whenever any upgrade or change is made to pharmacy uses automated compounding or counting devices: the system and documents each such activity. (C) Policies and procedures of operation.
25 TexReg 4790 May 26, 2000 Texas Register (i) When an automated pharmacy dispensing sys- scription drug order. The intent of these standards is to provide a tem is used to fill prescription drug orders, it shall be operated ac- minimum level of pharmaceutical care to the patient so that the pa- cording to written policies and procedures of operation. The policies tient’s health is protected while striving to produce positive patient and procedures of operation shall establish requirements for opera- outcomes. tion of the automated pharmacy dispensing system and shall describe (b) Definitions. The following words and terms, when used policies and procedures that: in this section, shall have the following meanings, unless the context (I) include a description of the policies and clearly indicates otherwise. procedures of operation; (1) ACPE–The American Council on Pharmaceutical Ed- (II) provide for a pharmacist’s review, approval, ucation. and accountability for the transmission of each original or new (2) Act–The Texas Pharmacy Act, Chapter 551-556, Oc- prescription drug order to the automated pharmacy dispensing system cupations Code, as amended. before the transmission is made; (3) Accurately as prescribed–Dispensing, delivering, and/ (III) provide for access to the automated phar- or distributing a prescription drug order: macy dispensing system for stocking and retrieval of medications which is limited to licensed healthcare professionals or pharmacy (A) to the correct patient (or agent of the patient) for technicians acting under the supervision of a pharmacist; whom the drug or device was prescribed; (IV) require prior to use, that a pharmacist (B) with the correct drug in the correct strength, checks, verifies, and documents that the automated pharmacy dis- quantity, and dosage form ordered by the practitioner; and pensing system has been accurately filled each time the system is (C) with correct labeling (including directions for use) stocked; as ordered by the practitioner. Provided, however, that nothing herein (V) provide for an accountability record to be shall prohibit pharmacist substitution if substitution is conducted in maintained which documents all transactions relative to stocking strict accordance with applicable laws and rules, including Chapters and removing medications from the automated pharmacy dispensing 562 and 563 of the Texas Pharmacy Act. system; (4) Advanced practice nurse–A registered nurse approved (VI) require a prospective drug regimen review by the Texas State Board of Nurse Examiners to practice as an is conducted as specified in subsection (c)(2) of this section; and advanced practice nurse on the basis of completion of an advanced education program. The term includes a nurse practitioner, a nurse (VII) establish and make provisions for docu- midwife, a nurse anesthetist, and a clinical nurse specialist. mentation of a preventative maintenance program for the automated pharmacy dispensing system. (5) Airborne particulate cleanliness class–The level of cleanliness specified by the maximum allowable number of particles (ii) A pharmacy which uses an automated pharmacy per cubic foot of air as specified in Federal Standard 209E, et seq. dispensing system to fill prescription drug orders shall, at least For example: annually, review its written policies and procedures, revise them if necessary, and document the review. (A) Class 100 is an atmospheric environment which contains less than 100 particles 0.5 microns in diameter per cubic (D) Recovery Plan. A pharmacy which uses an foot of air; automated pharmacy dispensing system to fill prescription drug orders shall maintain a written plan for recovery from a disaster or any (B) Class 10,000 is an atmospheric environment which other situation which interrupts the ability of the automated pharmacy contains less than 10,000 particles 0.5 microns in diameter per cubic dispensing system to provide services necessary for the operation of foot of air; and the pharmacy. The written plan for recovery shall include: (C) Class 100,000 is an atmospheric environment (i) planning and preparation for maintaining phar- which contains less than 100,000 particles 0.5 microns in diameter macy services when an automated pharmacy dispensing system is per cubic foot of air. experiencing downtime; (6) Ancillary supplies–Supplies necessary for the admin- (ii) procedures for response when an automated istration of compounded sterile pharmaceuticals. pharmacy dispensing system is experiencing downtime; (7) Aseptic preparation–The technique involving proce- (iii) procedures for the maintenance and testing of dures designed to preclude contamination of drugs, packaging, equip- the written plan for recovery; and ment, or supplies by microorganisms during processing. (iv) procedures for notification of the Board, each (8) Automated compounding or counting device–An au- patient of the pharmacy, and other appropriate agencies whenever tomated device that compounds, measures, counts, and or packages an automated pharmacy dispensing system experiences downtime a specified quantity of dosage units for a designated drug product. for more than two days of operation or a period of time which (9) Batch preparation compounding–Compounding of significantly limits the pharmacy’s ability to provide pharmacy multiple sterile-product units, in a single discrete process, by the services. same individual(s), carried out during one limited time period. §291.36. Class A Pharmacies Compounding Sterile Pharmaceuti- Batch preparation/compounding does not include the preparation of cals. multiple sterile-product units pursuant to patient specific medication (a) Purpose. The purpose of this section is to provide stan- orders. dards for the preparation, labeling, and distribution of compounded sterile pharmaceuticals by licensed pharmacies, pursuant to a pre-
ADOPTED RULES May 26, 2000 25 TexReg 4791 (10) Biological Safety Cabinet–Containment unit suitable (18) Controlled area–A controlled area is the area desig- for the preparation of low to moderate risk agents where there is nated for preparing sterile pharmaceuticals. a need for protection of the product, personnel, and environment, (19) Controlled substance–A drug, immediate precursor, according to National Sanitation Foundation (NSF) Standard 49. or other substance listed in Schedules I-V or Penalty Groups 1-4 of the (11) Board–The Texas State Board of Pharmacy. Texas Controlled Substances Act, as amended, or a drug, immediate precursor, or other substance included in Schedule I, II, III, IV, or V (12) Carrying out or signing a prescription drug order– of the Federal Comprehensive Drug Abuse Prevention and Control The completion of a prescription drug order presigned by the Act of 1970, as amended (Public Law 91-513). delegating physician, or the signing of a prescription by an advanced practice nurse or physician assistant after the person has been (20) Critical areas–Any area in the controlled area where designated with the Texas State Board of Medical Examiners by the products or containers are exposed to the environment. delegating physician as a person delegated to sign a prescription. The (21) Cytotoxic–A pharmaceutical that has the capability following information shall be provided on each prescription: of killing living cells. (A) patient’s name and address; (22) Dangerous drug–Any drug or device that is not (B) name, strength, and quantity of the drug to be included in Penalty Groups 1-4 of the Controlled Substances Act and dispensed; that is unsafe for self-medication or any drug or device that bears or is required to bear the legend: (C) directions for use; (A) "Caution: federal law prohibits dispensing without (D) the intended use of the drug, if appropriate; prescription"; or (E) the name, address, and telephone number of the (B) "Caution: federal law restricts this drug to use by physician; or on the order of a licensed veterinarian." (F) the name, address, telephone number, and identifi- (23) Data communication device–An electronic device cation number of the advanced practice nurse or physician assistant that receives electronic information from one source and transmits completing the prescription drug order; or routes it to another (e.g., bridge, router, switch or gateway). (G) the date; and (24) Deliver or delivery–The actual, constructive, or at- (H) the number of refills permitted. tempted transfer of a prescription drug or device or controlled sub- stance from one person to another, whether or not for a consideration. (13) Certified Pharmacy Technician–A pharmacy techni- cian who: (25) Designated agent– (A) has completed the pharmacy technician training (A) a licensed nurse, physician assistant, pharmacist, program of the pharmacy; or other individual designated by a practitioner, and for whom the practitioner assumes legal responsibility, who communicates (B) has taken and passed the National Pharmacy prescription drug orders to a pharmacist; Technician Certification Exam or other examination approved during an open meeting by the Board; and (B) a licensed nurse, physician assistant, or pharmacist employed in a health care facility to whom the practitioner commu- (C) maintains a current certification with the Pharmacy nicates a prescription drug order; Technician Certification Board or any other entity providing an ex- amination approved by the Board. (C) an advanced practice nurse or physician assistant authorized by a practitioner to carry out or sign a prescription drug (14) Clean room–A room in which the concentration of order for dangerous drugs under Chapter 157 of the Medical Practice airborne particles is controlled and there are one or more clean zones Act (Subtitle B, Occupations Code); or according to Federal Standard 209E, et seq. (D) a person who is a licensed vocational nurse or has (15) Clean zone–A defined space in which the concentra- an education equivalent to or greater than that required for a licensed tion of airborne particles is controlled to meet a specified airborne vocational nurse designated by the practitioner to communicate particulate cleanliness class. prescriptions for an advanced practice nurse or physician assistant (16) Compounding–The preparation, mixing, assembling, authorized by the practitioner to sign prescription drug orders under packaging, or labeling of a drug or device: Chapter 157 of the Medical Practice Act (Subtitle B, Occupations Code). (A) as the result of a practitioner’s prescription drug or medication order or initiative based on the practitioner-patient (26) Device–An instrument, apparatus, implement, ma- pharmacist relationship in the course of professional practice; chine, contrivance, implant, in vitro reagent, or other similar or related article, including any component part or accessory, that is required (B) in anticipation of prescription drug or medication under federal or state law to be ordered or prescribed by a practi- orders based on routine, regularly observed prescribing patterns; or tioner. (C) for the purpose of or as an incident to research, (27) Dispense–Preparing, packaging, compounding, or teaching, or chemical analysis and not for sale or dispensing. labeling for delivery a prescription drug or device in the course of (17) Confidential record–Any health related record that professional practice to an ultimate user or his agent by or pursuant contains information that identifies an individual and that is main- to the lawful order of a practitioner. tained by a pharmacy or pharmacist such as a patient medication record, prescription drug order, or medication drug order.
25 TexReg 4792 May 26, 2000 Texas Register (28) Dispensing pharmacist–The pharmacist responsible (C) is a discharge prescription drug order. (Note: for the final check of the dispensed prescription before delivery to furlough prescription drug orders are not considered new prescription the patient. drug orders.) (29) Distribute–The delivery of a prescription drug or (39) Original prescription–The: device other than by administering or dispensing. (A) original written prescription drug orders; or (30) Downtime–Period of time during which a data pro- (B) original verbal or electronic prescription drug cessing system is not operable. orders reduced to writing either manually or electronically by the (31) Drug regimen review–An evaluation of prescription pharmacist. drug or medication orders and patient medication records for: (40) Part-time pharmacist–A pharmacist who works less (A) known allergies; than full-time. (B) rational therapy–contraindications; (41) Patient counseling–Communication by the pharma- cist of information to the patient or patient’s agent, in order to im- (C) reasonable dose and route of administration; prove therapy by ensuring proper use of drugs and devices. (D) reasonable directions for use; (42) Pharmacist-in-charge–The pharmacist designated on (E) duplication of therapy; a pharmacy license as the pharmacist who has the authority or responsibility for a pharmacy’s compliance with laws and rules (F) drug-drug interactions; pertaining to the practice of pharmacy. (G) drug-food interactions; (43) Pharmaceutical care–The provision of drug therapy (H) drug-disease interactions; and other pharmaceutical services intended to assist in the cure or prevention of a disease, elimination or reduction of a patient’s (I) adverse drug reactions; and symptoms, or arresting or slowing of a disease process. (J) proper utilization, including overutilization or un- (44) Pharmacy technicians–Those individuals utilized in derutilization. pharmacies whose responsibility it shall be to provide technical (32) Electronic prescription drug order–A prescription services that do not require professional judgment concerned with drug order which is transmitted by an electronic device to the receiver the preparation and distribution of drugs under the direct supervision (pharmacy). of and responsible to a pharmacist. Pharmacy technician includes certified pharmacy technicians, pharmacy technicians, and pharmacy (33) Electronic signature–A unique security code or other technician trainees. identifier which specifically identifies the person entering information into a data processing system. A facility which utilizes electronic (45) Pharmacy technician trainee–a pharmacy technician: signatures must: (A) participating in a pharmacy’s technician training (A) maintain a permanent list of the unique security program; or codes assigned to persons authorized to use the data processing (B) a person currently enrolled in a technician training system; and program accredited by the American Society of Health-System (B) have an ongoing security program which is capa- Pharmacists provided: ble of identifying misuse and/or unauthorized use of electronic sig- (i) the person is working during times the individual natures. is assigned to a pharmacy as a part of the experiential component (34) Expiration date–The date (and time, when applica- of the American Society of Health-System Pharmacists training ble) beyond which a product should not be used. program; (35) Full-time pharmacist–A pharmacist who works in a (ii) the person is under the direct supervision of and pharmacy from 30 to 40 hours per week or if the pharmacy is open responsible to a pharmacist; and less than 60 hours per week, one-half of the time the pharmacy is (iii) the supervising pharmacist conducts in-process open. and final checks. (36) Hard copy–A physical document that is readable (46) Physician assistant–A physician assistant recognized without the use of a special device (i.e., cathode ray tube (CRT), by the Texas State Board of Medical Examiners as having the microfiche reader, etc.). specialized education and training required under Subtitle B, Chapter (37) Medical Practice Act–The Texas Medical Practice 157, Occupations Code, and issued an identification number by the Act, Subtitle B, Occupations Code, as amended. Texas State Board of Medical Examiners. (38) New prescription drug order–A prescription drug (47) Practitioner– order that: (A) a physician, dentist, podiatrist, veterinarian, or (A) has not been dispensed to the patient in the same other person licensed or registered to prescribe, distribute, administer, strength and dosage form by this pharmacy within the last year; or dispense a prescription drug or device in the course of professional practice in this state; (B) is transferred from another pharmacy; and/or (B) a person licensed by another state in a health field in which, under Texas law, licensees in this state may legally prescribe dangerous drugs or a person practicing in another state
ADOPTED RULES May 26, 2000 25 TexReg 4793 and licensed by another state as a physician, dentist, veterinarian, or prescribed route at the prescribed time, and properly labeled with podiatrist, having a current federal Drug Enforcement Administration name, strength, and expiration date of the drug. registration number, and who may legally prescribe Schedule II, III, (59) Unusable drugs–Drugs or devices that are unusable IV, or V controlled substances in such other state; or for reasons such as they are adulterated, misbranded, expired, (C) a person licensed in the Dominion of Canada or defective, or recalled. the United Mexican States in a health field in which, under the laws (60) Written protocol–A physicians order, standing med- of this state, a licensee may legally prescribe dangerous drugs; ical order, standing delegation order, or other order or protocol as (D) does not include a person licensed under the Texas defined by rule of the Texas State Board of Medical Examiners under Pharmacy Act. the Texas Medical Practice Act. (48) Prepackaging–The act of repackaging and relabeling (c) Personnel. quantities of drug products from a manufacturer’s original commer- (1) Pharmacist-in-charge. cial container into a prescription container for dispensing by a phar- macist to the ultimate consumer. (A) General. (49) Prescription drug– (i) Each Class A pharmacy compounding sterile pharmaceuticals shall have one pharmacist-in-charge who is em- (A) a substance for which federal or state law requires ployed on a full-time basis, who may be the pharmacist-in-charge a prescription before it may be legally dispensed to the public; for only one such pharmacy; provided, however, such pharmacist-in- (B) a drug or device that under federal law is required, charge may be the pharmacist-in-charge of more than one Class A prior to being dispensed or delivered, to be labeled with either of the pharmacy, if the additional Class A pharmacies are not open to pro- following statements: vide pharmacy services simultaneously. (i) "Caution: federal law prohibits dispensing with- (ii) The pharmacist-in-charge shall comply with the out prescription"; or provisions of ˘291.17 of this title (relating to Inventory Require- ments). (ii) "Caution: federal law restricts this drug to use by or on order of a licensed veterinarian"; or (B) Responsibilities. The pharmacist-in-charge shall have the responsibility for, at a minimum, the following: (C) a drug or device that is required by any applicable federal or state law or regulation to be dispensed on prescription only (i) ensuring that drugs and/or devices are dispensed or is restricted to use by a practitioner only. and delivered safely and accurately as prescribed; (50) Prescription drug order– (ii) that a pharmacist communicates to the patient or the patient’s agent information about the prescription drug or device (A) an order from a practitioner or a practitioner’s which in the exercise of the pharmacist’s professional judgment, the designated agent to a pharmacist for a drug or device to be dispensed; pharmacist deems significant as specified in subsection (d)(3) of this or section; (B) an order pursuant to the Subtitle B, Chapter 157, (iii) assuring that a pharmacist communicates to the Occupations Code. patient or the patient’s agent on his or her request, information (51) Process validation–Documented evidence providing concerning any prescription drugs dispensed to the patient by the a high degree of assurance that a specific process will consistently pharmacy; produce a product meeting its predetermined specifications and qual- (iv) assuring that a reasonable effort is made to ity attributes. obtain, record, and maintain patient medication records; (52) Quality assurance–The set of activities used to assure (v) developing a system to assure that all pharmacy that the process used in the preparation of sterile drug products lead personnel responsible for compounding and/or supervising the com- to products that meet predetermined standards of quality. pounding of sterile pharmaceuticals within the pharmacy receive ap- (53) Quality control–The set of testing activities used to propriate education and training and competency evaluation; determine that the ingredients, components (e.g., containers), and fi- (vi) establishing policies for procurement of drugs nal sterile pharmaceuticals prepared meet predetermined requirements and devices and storage of all pharmaceutical materials including with respect to identity, purity, non-pyrogenicity, and sterility. pharmaceuticals, components used in the compounding of pharma- (54) Sample–A prescription drug which is not intended to ceuticals, and drug delivery devices; be sold and is intended to promote the sale of the drug. (vii) developing a system for the disposal and (55) State–One of the 50 United States of America, a U.S. distribution of drugs from the Class A pharmacy; territory, or the District of Columbia. (viii) developing a system for bulk compounding or (56) Sterile pharmaceutical–A dosage form free from batch preparation of drugs; living micro-organisms. (ix) developing a system for the compounding, (57) Texas Controlled Substances Act–The Texas Con- sterility assurance, quality assurance and quality control of sterile trolled Substances Act, Health and Safety Code, Chapter 481, as pharmaceuticals; amended. (x) participating in those aspects of the patient care (58) Unit-dose packaging–The ordered amount of drug in evaluation program relating to pharmaceutical material utilization and a dosage form ready for administration to a particular patient, by the effectiveness;
25 TexReg 4794 May 26, 2000 Texas Register (xi) implementing the policies and decisions relat- (v) performing the final check of the dispensed pre- ing to pharmaceutical services; scription before delivery to the patient to ensure that the prescription has been dispensed accurately as prescribed; (xii) maintaining records of all transactions of the Class A pharmacy necessary to maintain accurate control over and (vi) communicating to the patient or patient’s agent accountability for all pharmaceutical materials required by applicable information about the prescription drug or device which in the state and federal laws and rules; exercise of the pharmacist’s professional judgment, the pharmacist deems significant as specified in paragraph (3) of this subsection; (xiii) developing a system to assure the maintenance of effective controls against the theft or diversion of prescription (vii) communicating to the patient or the patient’s drugs, and records for such drugs; agent on his or her request, information concerning any prescription drugs dispensed to the patient by the pharmacy; (xiv) assuring that records in a data processing system are maintained such that the data processing system is in (viii) assuring that a reasonable effort is made to compliance with this section; obtain, record, and maintain patient medication records; and (xv) assuring that the pharmacy has a system to (ix) performing a specific act of drug therapy man- dispose of cytotoxic waste in a manner so as not to endanger the agement for a patient delegated to a pharmacist by a written protocol public health; and from a physician licensed in this state in compliance with the Medical Practice Act. (xvi) legal operation of the pharmacy, including meeting all inspection and other requirements of all state and federal (3) Pharmacy technicians. laws or rules governing the practice of pharmacy. (A) Qualifications. (2) Pharmacists. (i) General. All pharmacy technicians shall: (A) General. (I) have a high school or equivalent degree, e.g., (i) The pharmacist-in-charge shall be assisted by GED, or be currently enrolled in a program which awards such a sufficient number of additional licensed pharmacists as may be degree; and required to operate the pharmacy competently, safely, and adequately (II) complete a structured didactic and experien- to meet the needs of the patients of the pharmacy. tial training program, which provides instruction and experience in (ii) All pharmacists shall assist the pharmacist-in- the areas listed in subparagraph (D) of this paragraph. charge in meeting his or her responsibilities in ordering, dispensing, (III) Effective January 1, 2001, all pharmacy and accounting for prescription drugs. technicians must have taken and passed the National Pharmacy (iii) Pharmacists are solely responsible for the di- Technician Certification Exam or other examination approved during rect supervision of pharmacy technicians and for designating and an open meeting by the Board or be a pharmacy technician trainee. delegating duties, other than those listed in subparagraph (B) of this (ii) Pharmacy Technician Trainee. paragraph, to pharmacy technicians. Each pharmacist: (I) A person shall be designated as a pharmacy (I) shall verify the accuracy of all acts, tasks, technician trainee while participating in a pharmacy’s technician and functions performed by pharmacy technicians; and training program in preparation for the National Pharmacy Technician (II) shall be responsible for any delegated act Certification Exam or other examination approved during an open performed by pharmacy technicians under his or her supervision. meeting by the Board. (iv) All pharmacists while on duty, shall be respon- (II) A person may be designated a pharmacy sible for complying with all state and federal laws or rules governing technician trainee for no more than one year. A person may not be a the practice of pharmacy. technician trainee if they fail to pass the certification exam within this one year training period. This subclause does not apply to a pharmacy (v) A pharmacist shall be accessible at all times to technician trainee working in a pharmacy as part of a training program respond to patients’ and other health professionals’ questions and accredited by the American Society of Health-System Pharmacists. needs. Such access may be through a telephone which is answered 24 hours a day. (iii) Certified Pharmacy Technicians. All certified pharmacy technicians shall have taken and passed the National Phar- (vi) A dispensing pharmacist shall ensure that the macy Technician Certification Exam or other examination approved drug is dispensed and delivered safely, and accurately as prescribed. during an open meeting by the Board and maintain a current certifi- (B) Duties. Duties which may only be performed by cation with the Pharmacy Technician Certification Board or any other a pharmacist are as follows: entity providing an examination approved by the Board. (i) receiving verbal prescription drug orders and (B) Duties. reducing these orders to writing, either manually or electronically; (i) pharmacy technicians may not perform any of (ii) interpreting and evaluating prescription drug the duties listed in paragraph (2)(B) of this subsection. orders; (ii) A pharmacist may delegate to pharmacy tech- (iii) selection of drug products; nicians any nonjudgmental technical duty associated with the prepa- ration and distribution of prescription drugs provided: (iv) interpreting patient medication records and per- forming drug regimen reviews; (I) a pharmacist verifies the accuracy of all acts, tasks, and functions performed by pharmacy technicians; and
ADOPTED RULES May 26, 2000 25 TexReg 4795 (II) pharmacy technicians are under the direct (i) pharmacy technicians shall complete initial supervision of and responsible to a pharmacist. training as outlined by the pharmacist-in-charge in a training manual which includes training and experience as outlined in subparagraph (iii) Pharmacy technicians may perform only non- (E) of this paragraph prior to the regular performance of their duties. judgmental technical duties associated with the preparation and dis- Such training: tribution of prescription drugs, including but not limited to the fol- lowing. (I) shall include training and experience as out- lined in subparagraph (E) of this paragraph; and (I) initiating and receiving refill authorization requests; (II) may not be transferred to another pharmacy unless: (II) entering prescription data into a data pro- (-a-) the pharmacies are under common own- cessing system; ership and control and have a common training program; and (III) taking a stock bottle from the shelf for a (-b-) the pharmacist-in-charge of each phar- prescription; macy in which the pharmacy technician works certifies that the phar- macy technician is competent to perform the duties assigned in that (IV) preparing and packaging prescription drug pharmacy. orders (i.e., counting tablets/capsules, measuring liquids and placing them in the prescription container); (ii) A pharmacy technician shall be designated a pharmacy technician trainee until completing the full training (V) affixing prescription labels and auxiliary program. A pharmacy technician trainee: labels to the prescription container provided: (-a-) the pharmacy technician has completed (I) may perform all of the duties of a pharmacy the education and training requirements outlined in subparagraphs technician except affix a label to a prescription container and effective (A) and (D) of this subsection; and January 1, 2001, compound sterile pharmaceuticals; (-b-) effective January 1, 2001, only certified (II) may be designated a pharmacy technician pharmacy technicians may affix a label to a prescription container. trainee for no longer than one year; and (VI) reconstituting medications; (III) shall be counted in the pharmacist to phar- (VII) prepackaging and labeling prepackaged macy technician ratio. drugs; (iii) The pharmacist-in-charge shall assure the con- (VIII) loading bulk unlabeled drugs into an au- tinuing competency of pharmacy technicians through-in-service edu- tomated dispensing system provided a pharmacist verifies that the cation and training to supplement initial training. system is properly loaded prior to use; (iv) The pharmacist-in-charge shall document the (IX) compounding sterile pharmaceuticals pro- completion of the training program and certify the competency of vided: pharmacy technicians completing the training. A written record (-a-) the pharmacy technician has completed of initial and in-service training of pharmacy technicians shall be the education and training specified in paragraph (4) of this subsection maintained and contain the following information: and the pharmacy technician is supervised by a pharmacist who has (I) name of the person receiving the training; completed the training specified in paragraph (4) of this subsection; and (II) date(s) of the training; (-b-) effective January 1, 2001, only certified (III) general description of the topics covered; pharmacy technicians may compound sterile pharmaceuticals. (IV) a statement or statements that certifies that (X) compounding non-sterile prescription drug the pharmacy technician is competent to perform the duties assigned; orders; and (V) name of the person supervising the training; (XI) bulk compounding. and (iv) Certified pharmacy technicians. Effective Jan- (VI) signature of the pharmacy technician and uary 1, 2001, only certified pharmacy technicians may: the pharmacist-in-charge or other pharmacist employed by the phar- (I) affix a label to a prescription container; and macy and designated by the pharmacist-in-charge as responsible for training of pharmacy technicians. (II) compound sterile pharmaceuticals. (v) A person who has previously completed training (C) Ratio of pharmacist to pharmacy technicians. as a pharmacy technician, or a licensed nurse or physician assistant (i) The ratio of pharmacists to pharmacy techni- is not required to complete the entire training program if the person cians may not exceed 1:2 provided that only one pharmacy technician is able to show competency through a documented assessment may be engaged in the compounding of sterile pharmaceuticals. of competency. Such competency assessment may be conducted by personnel designated by the pharmacist-in-charge, but the final (ii) The ratio of pharmacists to pharmacy techni- acceptance of competency must be approved by the pharmacist-in- cians may be 1:3 provided that at least one of the three technicians is charge. certified and only one may be engaged in the compounding of sterile pharmaceuticals. (E) Training program. Pharmacy technicians training shall be outlined in a training manual. Such training manual shall, at (D) Training. a minimum, contain the following:
25 TexReg 4796 May 26, 2000 Texas Register (i) written procedures and guidelines for the use and (i) All pharmacy personnel preparing sterile phar- supervision of pharmacy technicians. Such procedures and guidelines maceuticals shall receive didactic and experiential training and com- shall: petency evaluation through demonstration, testing (written or prac- tical) as outlined by the pharmacist-in-charge and described in the (I) specify the manner in which the pharmacist policy and procedure or training manual. Such training shall include responsible for the supervision of pharmacy technicians will supervise instruction and experience in the following areas: such personnel and verify the accuracy and completeness of all acts, task and functions performed by such personnel; and (I) aseptic technique; (II) specify duties which may and may not be (II) critical area contamination factors; performed by pharmacy technicians; and (III) environmental monitoring; (ii) instruction in the following areas and any addi- (IV) facilities; tional areas appropriate to the duties of pharmacy technicians in the pharmacy: (V) equipment and supplies; (I) Orientation; (VI) sterile pharmaceutical calculations and ter- minology; (II) Job descriptions; (VII) sterile pharmaceutical compounding docu- (III) Communication techniques; mentation; (IV) Laws and rules; (VIII) quality assurance procedures; (V) Security and safety; (IX) aseptic preparation procedures including (VI) Prescription drugs: proper gowning and gloving technique; (-a-) Basic pharmaceutical nomenclature; (X) handling of cytotoxic and hazardous drugs, (-b-) Dosage forms; if applicable; and (VII) Prescription drug orders: (XI) general conduct in the controlled area. (-a-) Prescribers; (-b-) Directions for use; (ii) The aseptic technique of each person com- (-c-) Commonly-used abbreviations and pounding or responsible for the direct supervision of personnel com- symbols; pounding sterile pharmaceuticals shall be observed and evaluated as (-d-) Number of dosage units; satisfactory through written or practical tests and process validation (-e-) Strength and systems of measurement; and such evaluation documented. (-f-) Route of administration; (iii) Although process validation may be incorpo- (-g-) Frequency of administration; rated into the experiential portion of a training program, process val- (-h-) Interpreting directions for use; idation must be conducted at each pharmacy where an individual (VIII) Prescription drug order preparation: compounds sterile pharmaceuticals. No product intended for patient (-a-) Creating or updating patient medication use shall be compounded by an individual until the on-site process records; validation test indicates that the individual can competently perform (-b-) Entering prescription drug order infor- aseptic procedures, except that a pharmacist may temporarily com- mation into the computer or typing the label in a manual system; pound sterile pharmaceuticals and supervise pharmacy technicians (-c-) Selecting the correct stock bottle; compounding sterile pharmaceuticals without process validation pro- (-d-) Accurately counting or pouring the ap- vided the pharmacist: propriate quantity of drug product; (I) has completed a recognized course in an (-e-) Selecting the proper container; accredited college of pharmacy or a course sponsored by an American (-f-) Affixing the prescription label; Council on Pharmaceutical Education approved provider which (-g-) Affixing auxiliary labels, if indicated; provides 20 hours of instruction and experience in the areas listed and in this subparagraph; and (-h-) Preparing the finished product for in- spection and final check by pharmacists; (II) completes the on-site process validation within seven days of commencing work at the pharmacy. (IX) Other functions; (iv) Process validation procedures for assessing the (X) Drug product prepackaging; preparation of specific types of sterile pharmaceuticals shall be (XI) Compounding of non-sterile pharmaceuti- representative of all types of manipulations, products, and batch sizes cals; that personnel preparing that type of pharmaceutical are likely to encounter. (XII) Written policy and guidelines for use of and supervision of pharmacy technicians. (v) The pharmacist-in-charge shall assure continu- ing competency of pharmacy personnel through in-service education, (4) Special education, training, and evaluation require- training, and process validation to supplement initial training. Per- ments for pharmacy personnel compounding or responsible for the sonnel competency shall be evaluated: direct supervision of pharmacy personnel compounding sterile phar- maceuticals. (I) during orientation and training prior to the regular performance of those tasks; (A) General.
ADOPTED RULES May 26, 2000 25 TexReg 4797 (II) whenever the quality assurance program (II) completion of a training program which is yields an unacceptable result; accredited by the American Society of Health-System Pharmacists (formerly the American Society of Hospital Pharmacists). Individuals (III) whenever unacceptable techniques are ob- enrolled in training programs accredited by the American Society of served; and Health-System Pharmacists may compound sterile pharmaceuticals in (IV) at least on an annual basis. a licensed pharmacy provided: (-a-) the compounding occurs only during (B) Pharmacists. times the individual is assigned to a pharmacy as a part of the (i) All pharmacists who compound sterile pharma- experiential component of the American Society of Health-System ceuticals or supervise pharmacy technicians compounding sterile Pharmacists training program; pharmaceuticals shall: (-b-) the individual is under the direct super- vision of and responsible to a pharmacist who has completed training (I) complete through a single course, a mini- as specified in subparagraph (B) of this paragraph; and mum of 20 hours of instruction and experience in the areas listed in (-c-) the supervising pharmacist conducts in- subparagraph (A) of this paragraph. Such training may be through: process and final checks; and (-a-) completion of a structured on-the-job didactic and experiential training program at this pharmacy which (iii) on January 1, 2001, discontinue preparation of provides 20 hours of instruction and experience in the areas listed sterile pharmaceuticals if the technician has not taken and passed the in paragraph (1) of this subsection. Such training may not be National Pharmacy Technician Certification Exam or other examina- transferred to another pharmacy unless the pharmacies are under tion approved during an open meeting by the Board. Such pharmacy common ownership and control and use a common training program; technicians may continue to compound sterile pharmaceuticals during or the interim between the effective date of these rules and January 1, (-b-) completion of a recognized course in 2001, if they maintain documentation of completion of the training an accredited college of pharmacy or a course sponsored by an specified in clause (ii) of this subparagraph. American Council on Pharmaceutical Education approved provider (iv) acquire the required experiential portion of the which provides 20 hours of instruction and experience in the areas training programs specified in this subparagraph under the supervision listed in subparagraph (A) of this paragraph; and of an individual who has already completed training as specified in (II) possess knowledge about: subparagraph (B) or (C) of this paragraph. (-a-) aseptic processing; (D) Documentation of Training. A written record (-b-) quality control and quality assurance as of initial and in-service training and the results of written or related to environmental, component, and end-product testing; practical testing and process validation of pharmacy personnel shall (-c-) chemical, pharmaceutical, and clinical be maintained and contain the following information: properties of drugs; (-d-) container, equipment, and closure sys- (i) name of the person receiving the training or tem selection; and completing the testing or process validation; (-e-) sterilization techniques. (ii) date(s) of the training, testing, or process vali- (ii) The required experiential portion of the train- dation; ing programs specified in this subparagraph must be supervised by (iii) general description of the topics covered in the an individual who has already completed training as specified in sub- training or testing or of the process validated; paragraph (B) or (C) of this paragraph. (iv) name of the person supervising the training, (C) Pharmacy technicians. In addition to the qualifi- testing, or process validation; and cations and training outlined in paragraph (3) of this subsection, all pharmacy technicians who compound sterile pharmaceuticals shall: (v) signature (first initial and last name or full sig- nature) of the person receiving the training or completing the testing (i) have a high school or equivalent education; or process validation and the pharmacist-in-charge or other pharma- (ii) either: cist employed by the pharmacy and designated by the pharmacist-in- charge as responsible for training, testing, or process validation of (I) complete through a single course, a mini- personnel. mum of 40 hours of instruction and experience in the areas listed in subparagraph (A) of this paragraph. Such training may be ob- (5) Identification of pharmacy personnel. Pharmacy per- tained through the: sonnel shall be identified as follows. (-a-) completion of a structured on-the-job (A) Pharmacy technicians. All pharmacy technicians didactic and experiential training program at this pharmacy which shall wear an identification tag or badge which bears the person’s provides 40 hours of instruction and experience in the areas listed name and identifies him or her as a pharmacy technician trainee, in subparagraph (A) of this paragraph. Such training may not be pharmacy technician, or a certified pharmacy technician. transferred to another pharmacy unless the pharmacies are under common ownership and control and use a common training program; (B) Pharmacist interns. All pharmacist interns shall or wear an identification tag or badge which bears the person’s name (-b-) completion of a course sponsored by an and identifies him or her as a pharmacist intern. ACPE approved provider which provides 40 hours of instruction and (C) Pharmacists. All pharmacists shall wear an iden- experience in the areas listed in subparagraph (A) of this paragraph; tification tag or badge which bears the person’s name and identifies or him or her as a pharmacist.
25 TexReg 4798 May 26, 2000 Texas Register (d) Operational standards. preparation of drugs prepared in the pharmacy, and additional space, depending on the size and scope of pharmaceutical services. (1) Licensing requirements. (iii) The pharmacy shall be arranged in an orderly (A) A Class A pharmacy compounding sterile phar- fashion and shall be kept clean. All required equipment shall be clean maceuticals shall register annually or biennially with the board on and in good operating condition. a pharmacy license application provided by the board, following the procedures specified in §291.1 of this title (relating to Pharmacy Li- (iv) A sink with hot and cold running water, exclu- cense Application). sive of restroom facilities, designated primarily for use of admixtures, shall be available within the pharmacy facility to all pharmacy per- (B) A Class A pharmacy compounding sterile phar- sonnel and shall be maintained in a sanitary condition at all times. maceuticals which changes ownership shall notify the board within ten days of the change of ownership and apply for a new and sepa- (v) The pharmacy shall be properly lighted and rate license as specified in §291.4 of this title (relating to Change of ventilated. Ownership). (vi) The temperature of the pharmacy shall be (C) A Class A pharmacy compounding sterile pharma- maintained within a range compatible with the proper storage of ceuticals which changes location and/or name shall notify the board drugs; the temperature of the refrigerator shall be maintained within within ten days of the change and file for an amended license as a range compatible with the proper storage of drugs requiring specified in §291.2 of this title (relating to Change of Location and/ refrigeration. or Name). (vii) If prescription drug orders are delivered to the (D) A Class A pharmacy compounding sterile phar- patient at the pharmacy, the pharmacy shall contain an area which is maceuticals owned by a partnership or corporation which changes suitable for confidential patient counseling. managing officers shall notify the board in writing of the names of (I) Such counseling area shall: the new managing officers within ten days of the change, following (-a-) be easily accessible to both patient and the procedures in §291.3 of this title (relating to Change of Managing pharmacists and not allow patient access to prescription drugs; Officers). (-b-) be designed to maintain the confiden- (E) A Class A pharmacy compounding sterile pharma- tiality and privacy of the pharmacist/patient communication. ceuticals shall notify the board in writing within ten days of closing, (II) In determining whether the area is suitable following the procedures in §291.5 of this title (relating to Closed for confidential patient counseling and designed to maintain the Pharmacies). confidentiality and privacy of the pharmacist/patient communication, (F) A separate license is required for each principal the board may consider factors such as the following: place of business and only one pharmacy license may be issued to a (-a-) the proximity of the counseling area to specific location. the check-out or cash register area; (-b-) the volume of pedestrian traffic in and (G) A fee as specified in §291.6 of this title (relating to around the counseling area; Pharmacy License Fees) will be charged for the issuance and renewal (-c-) the presence of walls or other barriers of a license and the issuance of an amended license. between the counseling area and other areas of the pharmacy; and (H) A Class A pharmacy compounding sterile pharma- (-d-) any evidence of confidential informa- ceuticals, licensed under the provisions of the Act, §560.051(a)(1), tion being overheard by persons other than the patient or patient’s which also operates another type of pharmacy which would otherwise agent or the pharmacist or agents of the pharmacist. be required to be licensed under the Act, §560.051(a)(2), concerning (viii) Animals, including birds and reptiles, shall nuclear pharmacy (Class B), is not required to secure a license for not be kept within the pharmacy and in immediately adjacent areas such other type of pharmacy; provided, however, such licensee is re- under the control of the pharmacy. This provision does not apply quired to comply with the provisions of §291.51 of this title (relating to fish in aquariums, guide dogs accompanying disabled persons, to Purpose), §291.52 of this title (relating to Definitions), §291.53 of or animals for sale to the general public in a separate area that is this title (relating to Personnel), §291.54 of this title (relating to Op- inspected by local health jurisdictions. erational Standards), and §291.55 of this title (relating to Records), contained in Nuclear Pharmacy (Class B), to the extent such sections (B) Special requirements for the compounding of ster- are applicable to the operation of the pharmacy. ile pharmaceuticals. When the pharmacy compounds sterile pharma- ceuticals, the following is applicable. (I) A Class A pharmacy engaged in nonsterile com- pounding of drug products shall comply with the provisions of (i) Aseptic environment control device(s). The §§291.31-291.34 of this title (relating to Definitions, Personnel, Oper- pharmacy shall prepare sterile pharmaceuticals in an appropriate ational Standards, and Records for Class A (Community) Pharmacies) aseptic environmental control device(s) or area, such as a laminar air to the extent such rules are applicable to nonsterile compounding of flow hood, biological safety cabinet, or clean room which is capable drug products. of maintaining at least Class 100 conditions during normal activity. The aseptic environmental control device(s) shall: (2) Environment. (I) be certified by an independent contractor (A) General requirements. according to Federal Standard 209E, et seq, for operational efficiency (i) The pharmacy shall be enclosed and lockable. at least every six months or when it is relocated; and (ii) The pharmacy shall have adequate space neces- (II) have pre-filters inspected periodically and sary for the storage, compounding, labeling, dispensing, and sterile replaced as needed, in accordance with written policies and proce- dures, and the inspection and/or replacement date documented.
ADOPTED RULES May 26, 2000 25 TexReg 4799 (ii) Controlled area. The pharmacy shall have a distributed in a manner to minimize patient contact with cytotoxic designated controlled area for the compounding of sterile pharma- agents. ceuticals that is functionally separate from areas for the preparation (II) Aseptic environment control device(s). of non-sterile pharmaceuticals and is constructed to minimize the (-a-) Cytotoxic drugs must be prepared in a opportunities for particulate and microbial contamination. This con- vertical flow biological safety cabinet. trolled area for the preparation of sterile pharmaceuticals shall: (-b-) If the vertical flow biological safety (I) have a controlled environment that is aseptic cabinet is also used to prepare non-cytotoxic sterile pharmaceuticals, or contains an aseptic environmental control device(s); the cabinet must be thoroughly cleaned prior to its use to prepare non-cytotoxic sterile pharmaceuticals. (II) be clean, well lighted, and of sufficient size to support sterile compounding activities; (C) Security requirements. (III) be used only for the compounding of sterile (i) The pharmacy shall have locked storage for pharmaceuticals; Schedule II controlled substances and other controlled drugs requiring additional security. (IV) be designed to avoid outside traffic and air flow; (ii) All areas occupied by a pharmacy shall be capable of being locked by key or combination, so as to prevent (V) have non-porous and washable floors or access by unauthorized personnel when a pharmacist is not on-site. floor covering to enable regular disinfection; (iii) The pharmacy may authorize personnel to gain (VI) be ventilated in a manner not interfering access to that area of the pharmacy containing dispensed sterile with aseptic environmental control conditions; pharmaceuticals, in the absence of the pharmacist, for the purpose (VII) have hard cleanable walls and ceilings of retrieving dispensed prescriptions to deliver to patients. If the (acoustical ceiling tiles that are coated with an acrylic paint are pharmacy allows such after-hours access, the area containing the acceptable); dispensed sterile pharmaceuticals shall be an enclosed and lockable area separate from the area containing undispensed prescription drugs. (VIII) have drugs and supplies stored on shelv- A list of the authorized personnel having such access shall be in the ing areas above the floor to permit adequate floor cleaning; pharmacy’s policy and procedure manual. (IX) contain only the appropriate compounding (iv) Each pharmacist while on duty shall be respon- supplies and not be used for bulk storage for supplies and materials. sible for the security of the prescription department, including pro- (iii) End-product evaluation. visions for effective control against theft or diversion of prescription drugs, and records for such drugs. (I) The responsible pharmacist shall verify that the sterile pharmaceutical was compounded accurately with respect to (D) Temporary absence of pharmacist. the use of correct ingredients, quantities, containers, and reservoirs. (i) If a pharmacy is staffed by a single pharmacist, (II) end product sterility testing according to the pharmacist may leave the prescription department for breaks policies and procedures, which include a statistically valid sampling and meal periods without closing the prescription department and plan and acceptance criteria for the sampling and testing, shall be removing pharmacy technicians and other pharmacy personnel from performed if deemed appropriate by the pharmacist-in-charge; the prescription department provided the following conditions are met: (III) the pharmacist-in-charge shall establish a mechanism for recalling all products of a specific batch if end-product (I) at least one certified pharmacy technician testing procedures yield unacceptable results. remains in the prescription department; (iv) Automated compounding or counting device. If (II) the pharmacist remains on-site at the li- automated compounding or counting devices are used, the pharmacy censed location of the pharmacy and available for an emergency; shall have a method to calibrate and verify the accuracy of automated (III) the absence does not exceed 30 minutes at compounding or counting devices used in aseptic processing and a time and a total of one hours in a 12 hour period; document the calibration and verification on a routine basis. (IV) the pharmacist reasonably believes that the (v) Cytotoxic drugs. In addition to the requirements security of the prescription department will be maintained in his specified in clause (i) of this subparagraph, if the product is also or her absence. If in the professional judgment of the pharmacist, cytotoxic, the following is applicable. the pharmacist determines that the prescription department should (I) General. close during his or her absence, then the pharmacist shall close the (-a-) All personnel involved in the com- prescription department and remove the pharmacy technicians and pounding of cytotoxic products shall wear appropriate protective ap- other pharmacy personnel from the prescription department during parel, such as masks, gloves, and gowns or coveralls with tight cuffs. his or her absence; and (-b-) Appropriate safety and containment (V) a notice is posted which includes the follow- techniques for compounding cytotoxic drugs shall be used in ing information: conjunction with aseptic techniques required for preparing sterile (-a-) the fact that pharmacist is on a break pharmaceuticals. and the time the pharmacist will return; and (-c-) Disposal of cytotoxic waste shall com- (-b-) the fact that pharmacy technicians may ply with all applicable local, state, and federal requirements. begin the processing of prescription drug orders or refills brought in (-d-) Prepared doses of cytotoxic drugs must during the pharmacist absence but the prescription or refill may not be dispensed, labeled with proper precautions inside and outside, and
25 TexReg 4800 May 26, 2000 Texas Register be delivered to the patient or the patient’s agent until the pharmacist (3) Prescription dispensing and delivery. returns and verifies the accuracy of the prescription. (A) Patient counseling and provision of drug informa- (ii) During the time a pharmacist is absent from the tion. prescription department, only pharmacy technicians who have com- (i) To optimize drug therapy, a pharmacist shall pleted the pharmacy’s training program may perform the following communicate to the patient or the patient’s agent, information duties, provided a pharmacist verifies the accuracy of all acts, tasks, about the prescription drug or device which in the exercise of the and functions performed by the pharmacy technicians prior to deliv- pharmacist’s professional judgment the pharmacist deems significant, ery of the prescription to the patient or the patient’s agent: such as the following: (I) initiating and receiving refill authorization (I) the name and description of the drug or requests; device; (II) entering prescription data into a data pro- (II) dosage form, dosage, route of administra- cessing system; tion, and duration of drug therapy; (III) taking a stock bottle from the shelf for a (III) special directions and precautions for prescription; preparation, administration, and use by the patient; (IV) preparing and packaging prescription drug (IV) common severe side or adverse effects or orders (i.e., counting tablets/capsules, measuring liquids and placing interactions and therapeutic contraindications that may be encoun- them in the prescription container); tered, including their avoidance, and the action required if they occur; (V) affixing prescription labels and auxiliary la- (V) techniques for self monitoring of drug ther- bels to the prescription container. After January 1, 2001, only certi- apy; fied pharmacy technicians may affix prescription labels to prescription containers; and (VI) proper storage; (VI) prepackaging and labeling prepackaged (VII) refill information; and drugs. (VIII) action to be taken in the event of a missed (iii) Upon return to the prescription department, the dose. pharmacist shall: (ii) Such communication: (I) conduct a drug regimen review as specified (I) shall be provided with each new prescription in paragraph (4)(A)(ii) of this subsection; and drug order, once yearly on maintenance medications, and if the (II) verify the accuracy of all acts, tasks, and pharmacist deems appropriate, with prescription drug order refills. functions performed by pharmacy technicians prior to delivery of the (For the purposes of this clause, maintenance medications are defined prescription to the patient or the patient’s agent. as any medication the patient has taken for one year or longer); (iv) An agent of the pharmacist may deliver a (II) shall be provided for any prescription drug prescription drug order to the patient or his or her agent provided order dispensed by the pharmacy on the request of the patient or a record of the delivery is maintained containing the following patient’s agent; information: (III) shall be communicated orally in person (I) date of the delivery; unless the patient or patient’s agent is not at the pharmacy or a specific communication barrier prohibits such oral communication; (II) unique identification number of the prescrip- and tion drug order; (IV) shall be reinforced with written informa- (III) patient’s name; tion. The following is applicable concerning this written information. (IV) patient’s phone number or the phone num- (-a-) Written information designed for the ber of the person picking up the prescription; and consumer such as the USP DI Patient Information Leaflets shall be provided. (V) signature of the person picking up the pre- (-b-) When a compounded product is dis- scription. pensed, information shall be provided for the major active ingre- (v) Any prescription delivered to a patient when dient(s), if available. a pharmacist is not in the prescription department must meet the (-c-) For new drug entities, if no written requirements for a prescription delivered to a patient as described in information is initially available, the pharmacist is not required to paragraph (3)(A)(v) of this subsection. provide information until such information is available, provided: (vi) During the times a pharmacist is absent from (-1-) the pharmacist informs the the prescription department a pharmacist intern shall be considered a patient or the patient’s agent that the product is a new drug entity certified pharmacy technician and may perform only the duties of a and written information is not available; certified pharmacy technician. (-2-) the pharmacist documents the (vii) In pharmacies with two or more pharmacists fact that no written information was provided; and on duty, the pharmacists shall stagger their breaks and meal periods (-3-) if the prescription is refilled so that the prescription department is not left without a pharmacist after written information is available, such information is provided to on duty. the patient or patient’s agent.
ADOPTED RULES May 26, 2000 25 TexReg 4801 (iii) Only a pharmacist may verbally provide drug ing normal business hours to answer these questions at (insert the information to a patient or patient’s agent and answer questions pharmacy’s local and toll-free telephone numbers)." concerning prescription drugs. Non-pharmacist personnel may not (IV) The pharmacist-in-charge shall assure that: ask questions of a patient or patient’s agent which are intended to (-a-) the pharmacy maintain and use ade- screen and/or limit interaction with the pharmacist. quate storage or shipment containers and shipping processes to ensure (iv) Nothing in this subparagraph shall be construed drug stability and potency. Such shipping processes shall include the as requiring a pharmacist to provide consultation when a patient use of appropriate packaging material and/or devices to ensure that or patient’s agent refuses such consultation. The pharmacist shall the drug is maintained at an appropriate temperature range to main- document such refusal for consultation. tain the integrity of the medication throughout the delivery process; and (v) In addition to the requirements of clauses (i)- (-b-) the pharmacy uses a delivery system (iv) of this subparagraph, if a prescription drug order is delivered to which is designed to assure that the drugs are delivered to the the patient at the pharmacy, the following is applicable. appropriate patient. (I) So that a patient will have access to infor- (vii) The provisions of this subparagraph do not mation concerning his or her prescription, a prescription may not be apply to patients in facilities where drugs are administered to patients delivered to a patient unless a pharmacist is in the pharmacy, except by a person authorized to do so by the laws of the state (i.e., nursing as provided in paragraph (2)(D) of this subsection or subclause (II) homes). of this clause. (B) Prescription containers. (II) An agent of the pharmacist may deliver a prescription drug order to the patient or his or her agent during short (i) A drug dispensed pursuant to a prescription drug periods of time when a pharmacist is absent from the pharmacy, order shall be dispensed in an appropriate container as specified on provided the short periods of time do not exceed two hours, and the manufacturer’s container. provided a record of the delivery is maintained containing the (ii) Prescription containers or closures shall not be following information: re-used. (-a-) date of the delivery; (-b-) unique identification number of the (C) Labeling. prescription drug order; (i) At the time of delivery of the drug, the dispens- (-c-) patient’s name; ing container of a sterile pharmaceutical shall bear a label with at (-d-) patient’s phone number or the phone least the following information: number of the person picking up the prescription; and (-e-) signature of the person picking up the (I) name, address and phone number of the prescription. pharmacy, including a phone number which is answered 24 hours a day; (III) Any prescription delivered to a patient when a pharmacist is not in the pharmacy must meet the requirements (II) date dispensed; described in clause (vi) of this subparagraph. (III) name of prescribing practitioner; (IV) A Class A pharmacy compounding sterile (IV) name of patient; pharmaceuticals that delivers prescriptions to patients or their agents on-site shall make available for use by the public a current or updated (V) directions for use, including infusion rate edition of the United States Pharmacopeia Dispensing Information, and directions to the patient for the addition of additives, if applicable; Volume II (Advice to the Patient), or another source of such infor- (VI) unique identification number of the pre- mation, such as patient information leaflets. scription; (vi) In addition to the requirements of clauses (i)- (VII) name and amount of the base solution and (iv) of this subparagraph, if a prescription drug order is delivered of each drug added unless otherwise directed by the prescribing to the patient or his or her agent at the patient’s residence or other practitioner; designated location, the following is applicable. (VIII) initials or identification code of the person (I) The information specified in clause (i) of this preparing the product and the pharmacist who checked and released subparagraph shall be delivered with the dispensed prescription in the final product; writing. (IX) expiration date of the preparation based on (II) If prescriptions are routinely delivered out- published data; side the area covered by the pharmacy’s local telephone service, the pharmacy shall provide a toll-free telephone line which is answered (X) appropriate ancillary instructions, such as during normal business hours to enable communication between the storage instructions or cautionary statements, including cytotoxic/ patient and a pharmacist. biohazardous warning labels where applicable; (III) The pharmacist shall place on the prescrip- (XI) if the prescription is for a Schedule II-IV tion container or on a separate sheet delivered with the prescription controlled substance, the statement "Caution: Federal law prohibits container in both English and Spanish the local and if applicable, toll- the transfer of this drug to any person other than the patient for whom free telephone number of the pharmacy and the statement: "Written it was prescribed"; information about this prescription has been provided for you. Please (XII) if the pharmacist has selected a generically read this information before you take the medication. If you have equivalent drug pursuant to the provisions of the Act, Chapters questions concerning this prescription, a pharmacist is available dur-
25 TexReg 4802 May 26, 2000 Texas Register 562 and 563, the statement "Substituted for Brand Prescribed" or (-g-) drug-food interactions; "Substituted for ’Brand Name’" where "Brand Name" is the actual (-h-) drug-disease interactions; name of the brand name product prescribed; and (-i-) adverse drug reactions; (-j-) proper utilization, including overutiliza- (XIII) the name of the advanced practice nurse tion or underutilization; and or physician assistant, if the prescription is carried out by an advanced (-k-) clinical laboratory or clinical monitor- practice nurse or physician assistant in compliance with Subtitle B, ing methods to monitor and evaluate drug effectiveness, side effects, Chapter 157, Occupations Code. toxicity, or adverse effects, and appropriateness to continued use of (ii) The dispensing container is not required to bear the drug in its current regimen. the label specified in subparagraph (A) of this paragraph if: (II) Upon identifying any clinically significant (I) the drug is prescribed for administration to conditions, situations, or items listed in subclause (I) of this clause, an ultimate user who is institutionalized in a licensed health care the pharmacist shall take appropriate steps to avoid or resolve the facility (e.g., nursing home, hospice, hospital); problem including consultation with the prescribing practitioner. The pharmacist shall document such occurrences. (II) no more than a 34-day supply or 100 dosage units, whichever is less, is dispensed at one time; (iii) Patient care guidelines. (III) the drug is not in the possession of the (I) Primary provider. There shall be a desig- ultimate user prior to administration; nated physician primarily responsible for the patient’s medical care. There shall be a clear understanding between the physician, the pa- (IV) the pharmacist-in-charge has determined tient, and the pharmacy of the responsibilities of each in the areas of that the institution: the delivery of care, and the monitoring of the patient. This shall be (-a-) maintains medication administration documented in the patient medication record (PMR). records which include adequate directions for use for the drug(s) prescribed; (II) Patient training. The pharmacist-in-charge (-b-) maintains records of ordering, receipt, shall develop policies that assure that the patient and/or patient’s and administration of the drug(s); and caregiver receives information regarding drugs and their safe and (-c-) provides for appropriate safeguards for appropriate use, including instruction regarding: the control and storage of the drug(s); (-a-) appropriate disposition of hazardous solutions and ancillary supplies; (V) the system employed by the pharmacy in (-b-) proper disposition of controlled sub- dispensing the prescription drug order adequately identifies the: stances in the home; (-a-) pharmacy by name and address; (-c-) self-administration of drugs, where ap- (-b-) unique identification number of the propriate; prescription; (-d-) emergency procedures, including how (-c-) name and strength of the drug dis- to contact an appropriate individual in the event of problems or pensed; emergencies related to drug therapy; and (-d-) the name of the patient; (-e-) if the patient or patient’s caregiver (-e-) name of the prescribing practitioner; prepares sterile preparations in the home, the following additional and information shall be provided: (VI) the system employed by the pharmacy in (-1-) safeguards against microbial dispensing the prescription drug order adequately sets forth the contamination, including aseptic techniques for compounding intra- directions for use and cautionary statements, if any, contained on venous admixtures and aseptic techniques for injecting additives to the prescription drug order or required by law. premixed intravenous solutions; (4) Pharmaceutical care services. (-2-) appropriate storage methods, (A) The following pharmaceutical care services shall including storage durations for sterile pharmaceuticals and expirations be provided by pharmacists of the pharmacy. of self-mixed solutions; (i) Drug utilization review. A systematic ongoing (-3-) handling and disposition of process of drug utilization review shall be designed, followed, and premixed and self-mixed intravenous admixtures; and documented to increase the probability of desired patient outcomes (-4-) proper disposition of intra- and decrease the probability of undesired outcomes from drug therapy. venous admixture compounding supplies such as syringes, vials, am- (ii) Drug regimen review. pules, and intravenous solution containers. (I) For the purpose of promoting therapeutic (III) Pharmacist-patient relationship. It is im- appropriateness, a pharmacist shall evaluate prescription drug orders perative that a pharmacist-patient relationship be established and and patient medication records for: maintained throughout the patient’s course of therapy. This shall (-a-) known allergies; be documented in the patient’s medication record (PMR). (-b-) rational therapy–contraindications; (IV) Patient monitoring. The pharmacist-in- (-c-) reasonable dose and route of adminis- charge shall develop policies to ensure that: tration; (-a-) the patient’s response to drug therapy (-d-) reasonable directions for use; is monitored and conveyed to the appropriate health care provider; (-e-) duplication of therapy; and (-f-) drug-drug interactions;
ADOPTED RULES May 26, 2000 25 TexReg 4803 (-b-) the first dose of any new drug therapy (6) Library. A reference library shall be maintained which is administered in the presence of an individual qualified to monitor includes the following in hard-copy or electronic format: for and respond to adverse drug reactions. (A) current copies of the following: (B) Other pharmaceutical care services which may be (i) Texas Pharmacy Act and rules; provided by pharmacists include, but are not limited to, the following: (ii) Texas Dangerous Drug Act and rules; (i) managing drug therapy as delegated by a prac- titioner as allowed under the provisions of the Medical Practice Act; (iii) Texas Controlled Substances Act and rules; and (ii) administering immunizations and vaccinations (iv) Federal Controlled Substances Act and rules under written protocol of a physician; (or official publication describing the requirements of the Federal Controlled Substances Act and rules); (iii) managing patient compliance programs; (B) at least one current or updated reference from each (iv) providing preventative health care services; and of the following categories: (v) providing case management of patients who are (i) patient information (if prescriptions are deliv- being treated with high-risk or high-cost drugs, or who are considered ered to patients or their agents on-site): "high risk" due to their age, medical condition, family history, or related concern. (I) United States Pharmacopeia Dispensing In- formation, Volume II (Advice to the Patient); or (5) Equipment and supplies. Class A pharmacies com- pounding sterile pharmaceuticals shall have the following equipment (II) a reference text or information leaflets and supplies: which provide patient information; (A) typewriter or comparable equipment; (ii) drug interactions. A reference text on drug interactions, such as Hansten’s and Horn’s Drug Interactions; (B) refrigerator and, if sterile pharmaceuticals are stored in the refrigerator, a system or device (i.e., thermometer) (iii) a general information reference text, such as: to monitor the temperature daily to ensure that proper storage (I) Facts and Comparisons with current supple- requirements are met; ments; (C) adequate supply of prescription, poison, and other (II) United States Pharmacopeia Dispensing In- applicable labels; formation, Volume I (Drug Information for the Healthcare Provider); (D) appropriate equipment necessary for the proper (III) AHFS Drug Information with current sup- preparation of prescription drug orders; plements; (E) metric-apothecary weight and measure conversion (IV) Remington’s Pharmaceutical Sciences; or charts; (V) Micromedex; (F) if the pharmacy compounds prescription drug or- ders which require the use of a balance, a Class A prescription bal- (iv) sterile pharmaceuticals. A current or updated ance, or analytical balance and weights. Such balance shall be prop- reference text on injectable drug products, such as Handbook on erly maintained and inspected at least every three years by the ap- Injectable Drug Products; propriate authority as prescribed by local, state, or federal law or (C) a specialty reference appropriate for the scope of regulations. pharmacy services provided by the pharmacy, e.g., if the pharmacy (G) appropriate disposal containers for used needles, prepares cytotoxic drugs, a reference text on the preparation of syringes, etc., and if applicable, cytotoxic waste from the preparation cytotoxic drugs, such as Procedures for Handling Cytotoxic Drugs; of chemotherapeutic agents, and/or biohazardous waste; (D) patient education manuals; and (H) temperature controlled delivery containers; (E) basic antidote information and the telephone num- (I) infusion devices, if applicable; ber of the nearest regional poison control center. (J) all necessary supplies, including: (7) Drugs. (i) disposable needles, syringes, and other aseptic (A) Procurement and storage. mixing; (i) The pharmacist-in-charge shall have the respon- (ii) disinfectant cleaning solutions; sibility for the procurement and storage of drugs, but may receive input from other appropriate staff relative to such responsibility. (iii) hand washing agents with bacteriocidal action; (ii) Prescription drugs and devices shall be stored (iv) disposable, lint free towels or wipes; within the prescription department or a locked storage area. (v) appropriate filters and filtration equipment; (iii) All drugs shall be stored at the proper temper- (vi) cytotoxic spill kits, if applicable; and ature, as defined by the following terms. (vii) masks, caps, coveralls or gowns with tight (I) Cold–Any temperature not exceeding 8 de- cuffs, shoe covers, and gloves, as applicable. grees Centigrade (46 degrees Fahrenheit). A refrigerator is a cold place in which the temperature is maintained thermostatically be- tween 2 and 8 degrees Centigrade (36 and 46 degrees Fahrenheit).
25 TexReg 4804 May 26, 2000 Texas Register A freezer is a cold place in which the temperature is maintained (IV) quantity of the drug, if the quantity is thermostatically between -20 and -10 degrees Centigrade (-4 and -14 greater than one. degrees Fahrenheit). (iii) Records of prepackaging shall be maintained (II) Cool–Any temperature between 8 and 15 to show: degrees Centigrade (46 and 59 degrees Fahrenheit). An article for (I) name of the drug, strength, and dosage form; which storage in a cool place is directed may, alternatively, be stored in a refrigerator unless otherwise specified in the labeling. (II) facility’s unique lot number; (III) Room temperature–The temperature pre- (III) manufacturer or distributor; vailing in a working area. Controlled room temperature is a tem- (IV) manufacturer’s lot number; perature thermostatically between 15 and 30 degrees Centigrade (59 and 86 degrees Fahrenheit). (V) expiration date; (IV) Warm–Any temperature between 30 and 40 (VI) quantity per prepackaged unit; degrees Centigrade (86 and 104 degrees Fahrenheit). (VII) number of prepackaged units; (V) Excessive heat–Temperature above 40 de- (VIII) date packaged; grees Centigrade (104 degrees Fahrenheit). (IX) name, initials, signature, or electronic sig- (VI) Protection from freezing where, in addition nature of the prepacker; and to the risk of breakage of the container, freezing subjects a product to loss of strength or potency, or to destructive alteration of the dosage (X) signature or electronic signature of the re- form, the container label bears an appropriate instruction to protect sponsible pharmacist. the product from freezing. (iv) Stock packages, repackaged units, and control (B) Out-of-date and other unusable drugs or devices. records shall be quarantined together until checked/released by the pharmacist. (i) Any drug or device bearing an expiration date shall not be dispensed beyond the expiration date of the drug or (B) Loading bulk drugs into automated compounding device. or counting devices. (ii) Outdated and other unusable drugs or devices (i) Automated compounding or counting devices shall be removed from dispensing stock and shall be quarantined may be loaded with bulk drugs only by a pharmacist or by pharmacy together until such drugs or devices are disposed of properly. technicians under the direction and direct supervision of a pharmacist. (C) Class A Pharmacies may not sell, purchase, trade (ii) The label of an automated compounding or or possess prescription drug samples, unless the pharmacy meets all counting device container shall indicate the brand name and strength of the following conditions: of the drug; or if no brand name, then the generic name, strength, and name of the manufacturer or distributor. (i) the pharmacy is owned by a charitable organi- zation described in the Internal Revenue Code of 1986, or by a city, (iii) Records of loading bulk drugs into an auto- state or county government; mated compounding or counting device shall be maintained to show: (ii) the pharmacy is a part of a health care entity (I) name of the drug, strength, and dosage form; which provides health care primarily to indigent or low income pa- (II) manufacturer or distributor; tients at no or reduced cost; (III) manufacturer’s lot number; (iii) the samples are for dispensing or provision at no charge to patients of such health care entity; and (IV) expiration date; (iv) the samples are possessed in compliance with (V) quantity added to the automated compound- the federal Prescription Drug Marketing Act of 1986. ing or counting device; (8) Prepackaging of drugs and loading bulk drugs into (VI) date of loading; automated compounding or counting devices. (VII) name, initials, signature, or electronic sig- (A) Prepackaging of drugs. nature of the person loading the automated compounding or counting device; and (i) Drugs may be prepackaged in quantities suitable for internal distribution only by a pharmacist or by pharmacy (VIII) signature or electronic signature of the technicians under the direction and direct supervision of a pharmacist. responsible pharmacist. (ii) The label of a prepackaged unit shall indicate: (iv) The automated compounding or counting de- vice shall not be used until a pharmacist verifies that the system is (I) brand name and strength of the drug; or if properly loaded and affixes his or her signature or electronic signa- no brand name then the generic name, strength, and name of the ture to the record specified in clause (iii) of this subparagraph. manufacturer or distributor; (9) Sterile pharmaceuticals. (II) facility’s unique lot number; (A) Batch preparation. (III) expiration date based on currently available literature; and (i) Master work sheet. A master work sheet shall be developed and approved by a pharmacist for each batch of sterile
ADOPTED RULES May 26, 2000 25 TexReg 4805 pharmaceuticals to be prepared. Once approved, a duplicate of the (i) The expiration date assigned shall be based on master work sheet shall be used as the preparation work sheet from currently available drug stability information and sterility considera- which each batch is prepared and on which all documentation for that tions or appropriate in-house or contract service stability testing. batch occurs. The master work sheet shall contain at a minimum: (ii) Sources of drug stability information shall in- (I) the formula; clude the following: (II) the components; (I) references (e.g., Remington’s Pharmaceuti- cal Sciences, Handbook on Injectable Drugs); (III) the compounding directions; (II) manufacturer recommendations; and (IV) a sample label; (III) reliable, published research. (V) evaluation and testing requirements; (iii) When interpreting published drug stability in- (VI) sterilization method(s); formation, the pharmacist shall consider all aspects of the final sterile (VII) specific equipment used during aseptic product being prepared (e.g., drug reservoir, drug concentration, stor- preparation (e.g., specific automated compounding or counting de- age conditions). vice); and (iv) Methods used for establishing expiration dates (VIII) storage requirements. shall be documented. (ii) Preparation work sheet. The preparation work (C) Quality control. There shall be a documented, on- sheet for each batch of sterile pharmaceuticals shall document the going quality control program that monitors and evaluates personnel following: performance, equipment and facilities. Procedures shall be in place to assure that the pharmacy is capable of consistently preparing phar- (I) identity of all solutions and ingredients and maceuticals which are sterile and stable. Quality control procedures their corresponding amounts, concentrations, or volumes; shall include, but are not limited to, the following: (II) manufacturer lot number for each compo- (i) recall procedures; nent; (ii) storage and dating; (III) component manufacturer or suitable identi- fying number; (iii) documentation of appropriate functioning of refrigerator, freezer, and other equipment; (IV) container specifications (e.g., syringe, pump cassette); (iv) documentation of aseptic environmental control device(s) certification at least every six months and the regular (V) unique lot or control number assigned to replacement of pre-filters as necessary; and batch; (v) a process to evaluate and confirm the quality of (VI) expiration date of batch-prepared products; the prepared pharmaceutical product. (VII) date of preparation; (D) Quality assurance. (VIII) name, initials, or electronic signature of (i) There shall be a documented, ongoing quality the person(s) involved in the preparation; assurance program for monitoring and evaluating personnel perfor- (IX) name, initials, or electronic signature of the mance and patient outcomes to assure an efficient drug delivery pro- responsible pharmacist; cess, patient safety, and positive clinical outcomes. (X) end-product evaluation and testing specifi- (ii) There shall be documentation of quality assur- cations, if applicable; and ance audits at regular, planned intervals including infection control, sterile technique, delivery systems/times, order transcription accuracy, (XI) comparison of actual yield to anticipated drug administration systems, adverse drug reactions, and drug ther- yield, when appropriate. apy appropriateness. (iii) Label. The label of each batch prepared sterile (iii) A plan for corrective action of program of pharmaceutical shall bear at a minimum: problems identified by quality assurance audits shall be developed (I) the unique lot number assigned to the batch; which includes procedures for documentation of identified problems and action taken. (II) all solution and ingredient names, amounts, strengths, and concentrations, when applicable; (iv) A periodic evaluation of the effectiveness of the quality assurance activities shall be completed and documented. (III) quantity; (e) Records. (IV) expiration date and time, when applicable; (1) Maintenance of records. (V) appropriate ancillary instructions, such as storage instructions or cautionary statements, including cytotoxic (A) Every inventory or other record required to be kept warning labels where appropriate; and under this section shall be kept by the pharmacy and be available, for at least two years from the date of such inventory or record, for (VI) device-specific instructions, when appropri- inspecting and copying by the board or its representative, and other ate. authorized local, state, or federal law enforcement agencies. (B) Expiration date.
25 TexReg 4806 May 26, 2000 Texas Register (B) Records of controlled substances listed in Sched- (iii) Preprinted prescription drug order forms. No ules I and II shall be maintained separately from all other records of prescription drug order form furnished to a practitioner shall contain the pharmacy. a preprinted order for a drug product by brand name, generic name, or manufacturer. (C) Records of controlled substances, other than orig- inal prescription drug orders, listed in Schedules III-V shall be main- (iv) Prescription drug orders written by practition- tained separately or readily retrievable from all other records of ers in another state. the pharmacy. For purposes of this subsection, "readily retrievable" (I) Dangerous drug prescription orders. A phar- means that the controlled substances shall be asterisked, red-lined, or macist may dispense a prescription drug order for dangerous drugs in some other manner readily identifiable apart from all other items issued by practitioners in a state other than Texas in the same manner appearing on the record. as prescription drug orders for dangerous drugs issued by practition- (D) Records, except when specifically required to be ers in Texas are dispensed. maintained in original or hard-copy form, may be maintained in an (II) Controlled substance prescription drug or- alternative data retention system, such as a data processing system or ders. direct imaging system provided: (-a-) A pharmacist may dispense prescrip- (i) the records maintained in the alternative system tion drug order for controlled substances in Schedule II issued by contain all of the information required on the manual record; and a practitioner in another state provided: (ii) the data processing system is capable of pro- (-1-) the prescription is filled in ducing a hard copy of the record upon the request of the board, its compliance with a written plan approved by the Director of the Texas representative, or other authorized local, state, or federal law enforce- Department of Public Safety in consultation with the Board, which ment or regulatory agencies. provides the manner in which the dispensing pharmacy may fill a prescription for a Schedule II controlled substance; (2) Prescriptions. (-2-) the prescription drug order (A) Professional responsibility. Pharmacists shall ex- is an original written prescription issued by a person practicing ercise sound professional judgment with respect to the accuracy and in another state and licensed by another state as a physician, authenticity of any prescription drug order they dispense. If the phar- dentist, veterinarian, or podiatrist, who has a current federal Drug macist questions the accuracy or authenticity of a prescription drug Enforcement Administration (DEA) registration number, and who order, he/she shall verify the order with the practitioner prior to dis- may legally prescribe Schedule II controlled substances in such other pensing. state; and (B) Written prescription drug orders. (-3-) the prescription drug order is (i) Practitioner’s signature. Written prescription not dispensed after the end of the seventh day after the date on which drug orders shall be manually signed by the practitioner (electron- the prescription is issued. ically produced or rubber stamped signatures may not be used). (-b-) A pharmacist may dispense prescrip- tion drug orders for controlled substances in Schedule III, IV, or V (I) A practitioner may sign a prescription drug issued by a practitioner in another state provided: order in the same manner as he would sign a check or legal document, e.g., J.H. Smith or John H. Smith. (-1-) the prescription drug order is an original written prescription issued by a person practicing (II) The prescription drug order may not be in another state and licensed by another state as a physician, signed by a practitioner’s agent but may be prepared by an agent dentist, veterinarian, or podiatrist, who has a current federal Drug for the signature of a practitioner. However, the prescribing prac- Enforcement Administration registration number, and who may titioner is responsible in case the prescription drug order does not legally prescribe Schedule III, IV, or V controlled substances in such conform in all essential respects to the law and regulations. other state; (ii) Required prescription drug order format. (-2-) the prescription drug order is (I) A pharmacist may not dispense a written not dispensed or refilled more than six months from the initial date prescription drug order issued in Texas unless it is ordered on a form of issuance and may not be refilled more than five times; and containing two signature lines of equal prominence, side by side, at (-3-) if there are no refill instruc- the bottom of the form. Under either signature line shall be printed tions on the original written prescription drug order (which shall be clearly the words "product selection permitted," and under the other interpreted as no refills authorized) or if all refills authorized on the signature line shall be printed clearly the words "dispense as written." original written prescription drug order have been dispensed, a new (II) The two signature line requirement does not written prescription drug order is obtained from the prescribing prac- apply to the following types of prescriptions drug orders: titioner prior to dispensing any additional quantities of controlled (-a-) prescription drug orders issued by a substances. practitioner in a state other than Texas; (v) Prescription drug orders written by practitioners (-b-) prescription drug orders for dangerous in the United Mexican States or the Dominion of Canada. drugs issued by a practitioner in the United Mexican States or the Dominion of Canada; and (I) Controlled substance prescription drug or- (-c-) prescription drug orders issued by prac- ders. A pharmacist may not dispense a prescription drug order for a titioners practicing in a federal facility provided they are acting in the Schedule II, III, IV, or V controlled substance issued by a practitioner scope of their employment. licensed in the Dominion of Canada or the United Mexican States.
ADOPTED RULES May 26, 2000 25 TexReg 4807 (II) Dangerous drug prescription drug orders. A (v) A pharmacist may not dispense a verbal pre- pharmacist may dispense a dangerous drug prescription issued by a scription drug order for a dangerous drug or a controlled substance person licensed in the Dominion of Canada or the United Mexican issued by a practitioner licensed in the Dominion of Canada or the States as a physician, dentist, veterinarian, or podiatrist provided: United Mexican States unless the practitioner is also licensed in (-a-) the prescription drug order is an origi- Texas. nal written prescription; and (D) Electronic prescription drug orders. For the (-b-) if there are no refill instructions on the purpose of this subparagraph, electronic prescription drug orders shall original written prescription drug order (which shall be interpreted be considered the same as verbal prescription drug orders. as no refills authorized) or if all refills authorized on the original written prescription drug order have been dispensed, a new written (i) An electronic prescription drug order may be prescription drug order shall be obtained from the prescribing transmitted by a practitioner or a practitioner’s designated agent: practitioner prior to dispensing any additional quantities of dangerous (I) directly to a pharmacy; or drugs. (II) through the use of a data communication (vi) Prescription drug orders carried out or signed device provided: by an advanced practice nurse or physician assistant. (-a-) the prescription information is not al- (I) A pharmacist may dispense a prescription tered during transmission; and drug order for a dangerous drug which is carried out or signed by an (-b-) confidential patient information is not advanced practice nurse or physician assistant provided: accessed or maintained by the operator of the data communication (-a-) the prescription is for a dangerous drug device unless the operator is authorized to receive the confidential and not for a controlled substance; and information as specified in subsection (k) of this section. (-b-) the advanced practice nurse or physi- (ii) A practitioner shall designate in writing the cian assistant is practicing in accordance with Subtitle B, Chapter name of each agent authorized by the practitioner to electronically 157, Occupations Code. transmit prescriptions for the practitioner. The practitioner shall (II) Each practitioner shall designate in writing maintain at the practitioner’s usual place of business a list of the the name of each advanced practice nurse or physician assistant designated agents. The practitioner shall provide a pharmacist with authorized to carry out or sign a prescription drug order pursuant to a copy of the practitioner’s written authorization for a specific agent Subtitle B, Chapter 157, Occupations Code. A list of the advanced on the pharmacist’s request. practice nurses or physician assistants designated by the practitioner (iii) A pharmacist may not dispense an electronic must be maintained in the practitioner’s usual place of business. On prescription drug order for a: request by a pharmacist, a practitioner shall furnish the pharmacist with a copy of the written authorization for a specific advanced (I) Schedule II controlled substance; practice nurse or physician assistant. (II) Schedule III, IV, or V controlled substance (vii) Prescription drug orders for Schedule II con- issued by a practitioner licensed in another state unless the practitioner trolled substances. No Schedule II controlled substance may be dis- is also registered under the Texas Controlled Substances Act; or pensed without a written prescription drug order of a practitioner on (III) dangerous drug or controlled substance an official prescription form as required by the Texas Controlled Sub- issued by a practitioner licensed in the Dominion of Canada or stances Act, §481.075. the United Mexican States unless the practitioner is also licensed (C) Verbal prescription drug orders. in Texas. (i) A verbal prescription drug order from a practi- (iv) The practitioner or practitioner’s agent shall tioner or a practitioner’s designated agent may only be received by note any substitution instructions on the electronic prescription drug a pharmacist or a pharmacist-intern under the direct supervision of a order. Such electronic prescription drug order may follow the two- pharmacist. line format indicated in subparagraph (B)(ii) of this paragraph or any other format that clearly indicated the substitution instructions. (ii) A practitioner shall designate in writing the name of each agent authorized by the practitioner to communicate (E) Authorization for generic substitution. prescriptions verbally for the practitioner. The practitioner shall (i) A pharmacist may dispense a generically equiv- maintain at the practitioner’s usual place of business a list of the alent drug product if: designated agents. The practitioner shall provide a pharmacist with a copy of the practitioner’s written authorization for a specific agent (I) the generic product cost the patient less than on the pharmacist’s request. the prescribed drug product; (iii) If a prescription drug order is transmitted to (II) the patient does not refuse the substitution; a pharmacist verbally, the pharmacist shall note any substitution and instructions by the practitioner or practitioner’s agent on the file copy (III) the prescribing practitioner authorizes the of the prescription drug order. Such file copy may follow the two- substitution of a generically equivalent product; or line format indicated in subparagraph (B)(ii) of this paragraph, or any other format that clearly indicates the substitution instructions. (IV) the practitioner or practitioner’s agent does not clearly indicate that the verbal or electronic prescription drug (iv) A pharmacist may not dispense a verbal pre- order shall be dispensed as ordered. scription drug order for a Schedule III, IV, or V controlled substance issued by a practitioner licensed in another state unless the practi- (ii) Practitioners shall indicate their dispensing in- tioner is also registered under the Texas Controlled Substances Act. structions by signing on either the "Dispense as Written" or "Product
25 TexReg 4808 May 26, 2000 Texas Register Selection Permitted" line on the prescription drug order. If the practi- (III) whom to notify with questions concerning tioner’s signature does not clearly indicate the prescription drug order the change; and shall be dispensed as written, the pharmacist may substitute a gener- (IV) instructions for return of the drug if not ically equivalent drug product. wanted by the patient. (iii) A pharmacist may not substitute on prescrip- (ii) The pharmacy shall maintain documentation tion drug orders identified in subparagraph (B)(iv) and (v) of this of patient notification of therapeutic drug interchange which shall paragraph unless the practitioner has authorized substitution on the include: prescription drug order. (I) the date of the notification; (iv) If the practitioner has not authorized substitu- tion on the written prescription drug order, a pharmacist shall not (II) the method of notification; substitute a generically equivalent drug product unless: (III) a description of the change; and (I) the pharmacist obtains verbal or written au- (IV) the reason for the change. thorization from the practitioner (such authorization shall be noted on the original prescription drug order); or (H) Original prescription drug order records. (II) the pharmacist obtains written documenta- (i) Original prescriptions shall be maintained by the tion regarding substitution requirements from the State Board of Phar- pharmacy in numerical order and remain legible for a period of two macy in the state, other than Texas, in which the prescription drug years from the date of filling or the date of the last refill dispensed. order was issued. The following is applicable concerning this docu- (ii) If an original prescription drug order is changed, mentation. such prescription order shall be invalid and of no further force and (-a-) The documentation shall state that a effect; if additional drugs are to be dispensed, a new prescription drug pharmacist may substitute on a prescription drug order issued in such order with a new and separate number is required. other state unless the practitioner prohibits substitution on the original prescription drug order. (iii) Original prescriptions shall be maintained in (-b-) The pharmacist shall note on the orig- one of the following formats: inal prescription drug order the fact that documentation from such (I) in three separate files as follows: other state board of pharmacy is on file. (-a-) prescriptions for controlled substances (-c-) Such documentation shall be updated listed in Schedule II; yearly. (-b-) prescriptions for controlled substances (F) Substitution of dosage form. listed in Schedule III-V; and (-c-) prescriptions for dangerous drugs and (i) A pharmacist may dispense a dosage form of a nonprescription drugs; or drug product different from that prescribed, such as a tablet instead of a capsule or liquid instead of tablets, provided: (II) within a patient medication record system provided that original prescriptions for controlled substances are (I) the patient consents to the dosage form maintained separate from original prescriptions for noncontrolled sub- substitution; stances and official prescriptions for Schedule II controlled substances (II) the pharmacist notifies the practitioner of the are maintained separate from all other original prescriptions. dosage form substitution; and (iv) Original prescription records other than pre- (III) the dosage form so dispensed: scriptions for Schedule II controlled substances may be stored on (-a-) contains the identical amount of the microfilm, microfiche, or other system which is capable of produc- active ingredients as the dosage prescribed for the patient; ing a direct image of the original prescription record, e.g., digitalized (-b-) is not an enteric-coated or time release imaging system. If original prescription records are stored in a direct product; and imaging system, the following is applicable. (-c-) does not alter desired clinical outcomes. (I) The record of refills recorded on the original (ii) Substitution of dosage form may not include the prescription must also be stored in this system. substitution of a product that has been compounded by the pharmacist (II) The original prescription records must be unless the pharmacist contacts the practitioner prior to dispensing and maintained in numerical order and as specified in clause (iii) of this obtains permission to dispense the compounded product. subparagraph. (G) Therapeutic Drug Interchange. A switch to a drug (III) The pharmacy must provide immediate ac- providing a similar therapeutic response to the one prescribed shall cess to equipment necessary to render the records easily readable. not be made without prior approval of the prescribing practitioner. This subparagraph does not apply to generic substitution. For generic (I) Prescription drug order information. substitution, see the requirements of subparagraphs (E) and (F) of this (i) All original prescriptions shall bear: paragraph. (I) name of the patient; (i) The patient shall be notified of the therapeutic drug interchange prior to, or upon delivery, of the dispensed (II) address of the patient, provided, however, prescription to the patient. Such notification shall include: a prescription for a dangerous drug is not required to bear the address of the patient if such address is readily retrievable on (I) a description of the change; another appropriate, uniformly maintained pharmacy record, such as (II) the reason for the change; medication records;
ADOPTED RULES May 26, 2000 25 TexReg 4809 (III) name, and if for a controlled substance, the (XI) date the prescription drug order was elec- address and DEA registration number of the practitioner; tronically transmitted to the pharmacy, if different from the date of issuance of the prescription; and (IV) name and strength of the drug prescribed; (XII) if transmitted by a designated agent, the (V) quantity prescribed; full name of the designated agent. (VI) directions for use; (iv) At the time of dispensing, a pharmacist is (VII) intended use for the drug unless the practi- responsible for the addition of the following information to the tioner determines the furnishing of this information is not in the best original prescription: interest of the patient; (I) unique identification number of the prescrip- (VIII) date of issuance; and tion drug order; (IX) if telephoned to the pharmacist by a desig- (II) initials or identification code of the person nated agent, the full name of the designated agent. who compounded the sterile pharmaceutical and the pharmacist who checked and released the product; (ii) All original prescriptions for dangerous drugs carried out by an advanced practice nurse or physician assistant in (III) name, quantity, lot number, and expiration accordance with Subtitle B, Chapter 157, Occupations Code, shall date of each product used in compounding the sterile pharmaceutical; bear: and (I) name and address of the patient; (IV) date of dispensing, if different from the date of issuance. (II) name, address, and telephone number of the practitioner; (J) Refills. (III) name, address, telephone number, identifi- (i) Refills may be dispensed only in accordance cation number, and original signature of the advanced practice nurse with the prescriber’s authorization as indicated on the original or physician assistant; prescription drug order. Such refills may be indicated as authorization to refill the prescription drug order a specified number of times or for (IV) name, strength, and quantity of the danger- a specified period of time period, such as the duration of therapy. ous drug; (ii) If there are no refill instructions on the original (V) directions for use; prescription drug order (which shall be interpreted as no refills (VI) the intended use of the drug, if appropriate; authorized) or if all refills authorized on the original prescription drug order have been dispensed, authorization from the prescribing (VII) date of issuance; and practitioner shall be obtained prior to dispensing any refills. (VIII) number of refills authorized. (iii) Refills of prescription drug orders for danger- (iii) All original electronic prescription drug orders ous drugs or nonprescription drugs shall be dispensed as follows. shall bear: (I) Prescription drug orders for dangerous drugs (I) name of the patient; or nonprescription drugs may not be refilled after one year from the date of issuance of the original prescription order. (II) address of the patient, provided, however, a prescription for a dangerous drug is not required to bear the (II) If one year has expired from the date of address of the patient if such address is readily retrievable on another issuance of an original prescription drug order for a dangerous drug appropriate, uniformly maintained pharmacy record, such as patient or nonprescription drug, authorization shall be obtained from the medication records; prescribing practitioner prior to dispensing any additional quantities of the drug. (III) name and strength of the drug prescribed; (iv) Refills of prescription drug orders for Schedule (IV) quantity prescribed; III-V controlled substances shall be dispensed as follows. (V) directions for use; (I) Prescription drug orders for Schedule III-V (VI) intended use for the drug unless the practi- controlled substances may not be refilled more than five times or tioner determines the furnishing of this information is not in the best after six months from the date of issuance of the original prescription interest of the patient; drug order, whichever occurs first. (VII) date of issuance; (II) If a prescription drug order for a Schedule III, IV, or V controlled substance has been refilled a total of five (VIII) a statement which indicates that the pre- times or if six months have expired from the date of issuance of the scription has been electronically transmitted (e.g., Faxed to or elec- original prescription drug order, whichever comes first, a new and tronically transmitted to:); separate prescription drug order shall be obtained from the prescribing (IX) name, address, and electronic access num- practitioner prior to dispensing any additional quantities of controlled ber of the pharmacy to which the prescription was transmitted; substances. (X) telephone number of the prescribing practi- (v) A pharmacist may exercise his professional tioner; judgment in refilling a prescription drug order for a drug, other than a controlled substance listed in Schedule II, without the authorization of the prescribing practitioner, provided:
25 TexReg 4810 May 26, 2000 Texas Register (I) failure to refill the prescription might result (-c-) date of each dispensing; in an interruption of a therapeutic regimen or create patient suffering; (-d-) quantity dispensed at each dispensing; (-e-) initials or identification code of person (II) either: who compounded the sterile pharmaceutical and the pharmacist who (-a-) a natural or manmade disaster has oc- checks and releases the final product; and curred which prohibits the pharmacist from being able to contact the (-f-) total number of refills for the prescrip- practitioner; or tion. (-b-) the pharmacist is unable to contact the practitioner after a reasonable effort; (ii) If refill records are maintained in accordance with clause (i)(II) of this subparagraph, refill records for controlled (III) the quantity of prescription drug dispensed substances in Schedule III-V shall be maintained separately from refill does not exceed a 72-hour supply; records of dangerous drugs and nonprescription drugs. (IV) the pharmacist informs the patient or the (C) Authorization of refills. Practitioner authorization patient’s agent at the time of dispensing that the refill is being for additional refills of a prescription drug order shall be noted on the provided without such authorization and that authorization of the original prescription, in addition to the documentation of dispensing practitioner is required for future refills; the refill. (V) the pharmacist informs the practitioner of (D) Transfer of prescription drug order information. the emergency refill at the earliest reasonable time; For the purpose of refill or initial dispensing, the transfer of (VI) the pharmacist maintains a record of the original prescription drug order information is permissible between emergency refill containing the information required to be maintained pharmacies, subject to the following requirements. on a prescription as specified in this paragraph; (i) The transfer of original prescription drug order (VII) the pharmacist affixes a label to the dis- information for controlled substances listed in Schedules III, IV, or pensing container as specified in this paragraph; and V is permissible between pharmacies on a one-time basis. (VIII) if the prescription was initially filled at (ii) The transfer of original prescription drug order another pharmacy, the pharmacist may exercise his professional information for dangerous drugs is permissible between pharmacies judgment in refilling the prescription provided: without limitation up to the number of originally authorized refills. (-a-) the patient has the prescription con- (iii) The transfer is communicated directly between tainer, label, receipt or other documentation from the other pharmacy pharmacists and/or pharmacist interns. which contains the essential information; (-b-) after a reasonable effort, the pharmacist (iv) Both the original and the transferred prescrip- is unable to contact the other pharmacy to transfer the remaining tion drug order are maintained for a period of two years from the prescription refills or there are no refills remaining on the prescription; date of last refill. (-c-) the pharmacist, in his professional (v) The pharmacist or pharmacist intern transferring judgment, determines that such a request for an emergency refill is the prescription drug order information shall: appropriate and meets the requirements of subclauses (I) and (II) of this clause; and (I) write the word "void" on the face of the invalidated prescription drug order; and (IX) the pharmacist complies with the require- ments of subclauses (III)-(V) of this clause. (II) record on the reverse of the invalidated prescription drug order the following information: (3) Prescription drug order records maintained in a man- (-a-) the name, address, and, if a controlled ual system. substance, the DEA registration number of the pharmacy to which (A) Original prescriptions. Original prescriptions shall such prescription drug order is transferred; be maintained in three files as specified in paragraph (2)(H)(iii) of (-b-) the name of the pharmacist or pharma- this subsection. cist intern receiving the prescription drug order information; (-c-) the name of the pharmacist or pharma- (B) Refills. cist intern transferring the prescription drug order information; and (i) Each time a prescription drug order is refilled, a (-d-) the date of the transfer. record of such refill shall be made: (vi) The pharmacist or pharmacist intern receiving (I) on the back of the prescription by recording the transferred prescription drug order information shall: the date of dispensing, the written initials or identification code of the (I) write the word "transfer" on the face of the dispensing pharmacist and the amount dispensed. (If the pharmacist transferred prescription drug order; and merely initials and dates the back of the prescription drug order, he or she shall be deemed to have dispensed a refill for the full face (II) record on the transferred prescription drug amount of the prescription drug order); or order the following information: (-a-) original date of issuance and date of (II) on another appropriate, uniformly main- dispensing or receipt, if different from date of issuance; tained, readily retrievable record, such as patient medication records, (-b-) original prescription number and the which indicates by patient name the following information: number of refills authorized on the original prescription drug order; (-a-) unique identification number of the pre- (-c-) number of valid refills remaining and scription; the date of last refill, if applicable; (-b-) name, strength, and lot number of each drug product used in compounding the sterile pharmaceutical;
ADOPTED RULES May 26, 2000 25 TexReg 4811 (-d-) name, address, and, if a controlled (i) Each time a prescription drug order is filled or substance, the DEA registration number of the pharmacy from which refilled, a record of such dispensing shall be entered into the data such prescription information is transferred; and processing system. (-e-) name of the pharmacist or pharmacist (ii) The data processing system shall have the intern transferring the prescription drug order information. capacity to produce a daily hard-copy printout of all original (E) A pharmacist or pharmacist intern may not refuse prescriptions dispensed and refilled. This hard-copy printout shall to transfer original prescription information to another pharmacist or contain the following information: pharmacist intern who is acting on behalf of a patient and who is (I) unique identification number of the prescrip- making a request for this information as specified in subparagraph tion; (D) of this paragraph. (II) date of dispensing; (4) Prescription drug order records maintained in a data processing system. (III) patient name; (A) General requirements for records maintained in a (IV) prescribing practitioner’s name; data processing system. (V) name and amount of each drug product used (i) Compliance with data processing system re- in compounding the sterile pharmaceutical; quirements. If a pharmacy’s data processing system is not in com- (VI) total quantity dispensed; pliance with this subsection, the pharmacy must maintain a manual recordkeeping system as specified in paragraph (3) of this subsection. (VII) initials or an identification code of the dispensing pharmacist; and (ii) Original prescriptions. Original prescriptions shall be maintained as specified in paragraph (2)(F)(iii) of this (VIII) if not immediately retrievable via CRT subsection. display, the following shall also be included on the hard-copy printout: (-a-) patient’s address; (iii) Requirements for backup systems. (-b-) prescribing practitioner’s address; (I) The pharmacy shall maintain a backup copy (-c-) practitioner’s DEA registration number, of information stored in the data processing system using disk, tape, if the prescription drug order is for a controlled substance; or other electronic backup system and update this backup copy on a (-d-) quantity prescribed, if different from regular basis, at least monthly, to assure that data is not lost due to the quantity dispensed; system failure. (-e-) date of issuance of the prescription drug order, if different from the date of dispensing; and (II) Data processing systems shall have a work- (-f-) total number of refills dispensed to date able (electronic) data retention system which can produce an audit for that prescription drug order. trail of drug usage for the preceding two years as specified in sub- paragraph (B)(vii) of this paragraph. (iii) The daily hard-copy printout shall be produced within 72 hours of the date on which the prescription drug orders were (iv) Change or discontinuance of a data processing dispensed and shall be maintained in a separate file at the pharmacy. system. Records of controlled substances shall be readily retrievable from (I) Records of dispensing. A pharmacy that records of noncontrolled substances. changes or discontinues use of a data processing system must: (iv) Each individual pharmacist who dispenses or (-a-) transfer the records of dispensing to the refills a prescription drug order shall verify that the data indicated on new data processing system; or the daily hard-copy printout is correct, by dating and signing such (-b-) purge the records of dispensing to a document in the same manner as signing a check or legal document printout which contains the same information required on the daily (e.g., J.H. Smith or John H. Smith) within seven days from the date printout as specified in subparagraph (B) (ii) of this paragraph. The of dispensing. information on this hard-copy printout shall be sorted and printed by prescription number and list each dispensing for this prescription (v) In lieu of the printout described in clause (ii) of chronologically. this subparagraph, the pharmacy shall maintain a log book in which each individual pharmacist using the data processing system shall (II) Other records. A pharmacy that changes or sign a statement each day, attesting to the fact that the information discontinues use of a data processing system must: entered into the data processing system that day has been reviewed (-a-) transfer the records to the new data by him or her and is correct as entered. Such log book shall be processing system; or maintained at the pharmacy employing such a system for a period of (-b-) purge the records to a printout which two years after the date of dispensing; provided, however, that the contains all of the information required on the original document. data processing system can produce the hard-copy printout on demand (III) Maintenance of purged records. Informa- by an authorized agent of the Texas State Board of Pharmacy, Texas tion purged from a data processing system must be maintained by Department of Public Safety, or Drug Enforcement Administration. If the pharmacy for two years from the date of initial entry into the data no printer is available on site, the hard-copy printout shall be available processing system. within 48 hours with a certification by the individual providing the printout which states that the printout is true and correct as of the (v) Loss of data. The pharmacist-in-charge shall date of entry and such information has not been altered, amended, or report to the board in writing any significant loss of information from modified. the data processing system within 10 days of discovery of the loss. (B) Records of dispensing.
25 TexReg 4812 May 26, 2000 Texas Register (vi) The pharmacist-in-charge is responsible for the (ii) The transfer of original prescription drug order proper maintenance of such records and responsible that such data information for dangerous drugs is permissible between pharmacies processing system can produce the records outlined in this section without limitation up to the number of originally authorized refills. and that such system is in compliance with this subsection. (iii) The transfer is communicated directly between (vii) The data processing system shall be capable pharmacists and/or pharmacist interns or as authorized in paragraph of producing a hard-copy printout of an audit trail for all dispensings (3)(D) of this subsection. (original and refill) of any specified strength and dosage form of a (iv) Both the original and the transferred prescrip- drug (by either brand or generic name or both) during a specified tion drug orders are maintained for a period of two years from the time period. date of last refill. (I) Such audit trail shall contain all of the (v) The pharmacist or pharmacist intern transferring information required on the daily printout as set out in clause (ii) the prescription drug order information shall: of this subparagraph. (I) write the word "void" on the face of the (II) The audit trail required in this subparagraph invalidated prescription drug order; and shall be supplied by the pharmacy within 48 hours, if requested by an authorized agent of the Texas State Board of Pharmacy, Texas (II) record on the reverse of the invalidated Department of Public Safety, or Drug Enforcement Administration. prescription drug order the following information: (-a-) the name, address, and, if a controlled (viii) Failure to provide the records set out in this substance, the DEA registration number of the pharmacy to which paragraph, either on site or within 48 hours for whatever reason, such prescription is transferred; constitutes prima facie evidence of failure to keep and maintain (-b-) the name of the pharmacist or pharma- records. cist intern receiving the prescription drug order information; (ix) The data processing system shall provide on- (-c-) the name of the pharmacist or pharma- line retrieval (via CRT display or hard-copy printout) of the informa- cist intern transferring the prescription drug order information; and tion set out in clause (ii) of this subparagraph of: (-d-) the date of the transfer. (I) the original controlled substance prescription (vi) The pharmacist or pharmacist intern receiving drug orders currently authorized for refilling; and the transferred prescription drug order information shall: (II) the current refill history for Schedule III, IV, (I) write the word "transfer" on the face of the and V controlled substances for the immediately preceding six-month transferred prescription drug order; and period. (II) record on the transferred prescription drug (x) In the event that a pharmacy which uses a data order the following information: processing system experiences system downtime, the following is (-a-) original date of issuance and date of applicable: dispensing or receipt, if different from date of issuance; (-b-) original prescription number and the (I) an auxiliary procedure shall ensure that refills number of refills authorized on the original prescription drug order; are authorized by the original prescription drug order and that the (-c-) number of valid refills remaining and maximum number of refills has not been exceeded or authorization the date of last refill, if applicable; from the prescribing practitioner shall be obtained prior to dispensing (-d-) name, address, and, if a controlled a refill; and substance, the DEA registration number of the pharmacy from which (II) all of the appropriate data shall be retained such prescription drug order information is transferred; and for on-line data entry as soon as the system is available for use again. (-e-) name of the pharmacist or pharmacist intern transferring the prescription drug order information. (C) Authorization of refills. Practitioner authorization for additional refills of a prescription drug order shall be noted as (vii) Prescription drug orders may not be transferred follows: by non-electronic means during periods of downtime except on consultation with and authorization by a prescribing practitioner; (i) on the hard-copy prescription drug order; provided however, during downtime, a hard copy of a prescription (ii) on the daily hard-copy printout; or drug order may be made available for informational purposes only, to the patient, a pharmacist or pharmacist intern, and the prescription (iii) via the CRT display. may be read to a pharmacist or pharmacist intern by telephone. (D) Transfer of prescription drug order information. (viii) The original prescription drug order shall be For the purpose of refill or initial dispensing, the transfer of invalidated in the data processing system for purposes of filling or original prescription drug order information is permissible between refilling, but shall be maintained in the data processing system for pharmacies, subject to the following requirements. refill history purposes. (i) The transfer of original prescription drug order (ix) If the data processing system has the capacity information for controlled substances listed in Schedules III, IV, to store all the information required in clause (v) and (vi) of or V is permissible between pharmacies on a one-time basis only. this subparagraph, the pharmacist is not required to record this However, pharmacies electronically sharing a real-time, on-line information on the original or transferred prescription drug order. database may transfer up to the maximum refills permitted by law and the prescriber’s authorization. (x) The data processing system shall have a mech- anism to prohibit the transfer or refilling of controlled substance pre- scription drug orders which have been previously transferred.
ADOPTED RULES May 26, 2000 25 TexReg 4813 (E) Electronic transfer of prescription drug order in- (R) emergency preparedness plan, to include continu- formation between pharmacies. Pharmacies electronically accessing ity of patient and public safety. the same prescription drug order records may electronically transfer (7) Patient Medication Record (PMR). A PMR shall be prescription information if the following requirements are met. maintained for each patient of the pharmacy. The PMR shall contain (i) The original prescription is voided and the at a minimum the following. following information is documented in the records of the transferring (A) Patient information: pharmacy; (i) patient’s full name, gender, and date of birth; (I) the name, address, and if a controlled sub- stance, the DEA registration number of the pharmacy to which such (ii) weight and height; prescription is transferred; (iii) known drug sensitivities and allergies to drugs (II) the name of the pharmacist or pharmacist and/or food; intern receiving the prescription drug order information; and (iv) primary diagnosis and chronic conditions; (III) the date of the transfer. (v) other drugs the patient is receiving; (ii) Pharmacies not owned by the same person (vi) documentation of patient training; may electronically access the same prescription drug order records, provided the owner or chief executive officer of each pharmacy signs (vii) pharmacist’s comments relevant to the individ- an agreement allowing access to such prescription drug order records. ual’s drug therapy, including any other information unique to the spe- cific patient or drug. (F) A pharmacist or pharmacist intern may not refuse to transfer original prescription information to another pharmacist or (B) Prescription drug order information: pharmacist intern who is acting on behalf of a patient and who is (i) date of dispensing each sterile pharmaceutical; making a request for this information as specified in subparagraph (D) of this paragraph. (ii) unique identification number of the prescrip- tion; (5) Limitation to one type of recordkeeping system. When filing prescription drug order information a pharmacy may use (iii) physician’s name; only one of the two systems described in paragraph (3) or (4) of this (iv) name, quantity, and lot number of each product subsection. used in compounding the sterile pharmaceutical; (6) Policy and procedure manual. A policy and procedure (v) quantity dispensed; and manual as it relates to the sterile pharmaceuticals shall be maintained at the pharmacy and be available for inspection. The manual shall (vi) directions for use and method of administration, include policies and procedures for: including infusion rate if applicable. (A) pharmaceutical care services; (C) Nothing in this paragraph shall be construed as requiring a pharmacist to obtain, record, and maintain patient (B) handling, storage, and disposal of cytotoxic/bio- information other than prescription drug order information when a hazardous drugs and waste; patient or patient’s agent refuses to provide the necessary information (C) disposal of unusable drugs, supplies, and returns; for such patient medication records. (D) security; (8) Distribution of controlled substances to another regis- trant. A pharmacy may distribute controlled substances to a practi- (E) equipment; tioner, another pharmacy or other registrant, without being registered (F) sanitation; to distribute, under the following conditions. (G) reference materials; (A) The registrant to whom the controlled substance is to be distributed is registered under the Controlled Substances Act (H) drug selection and procurement; to dispense that controlled substance. (I) drug storage; (B) The total number of dosage units of controlled (J) drug administration to include infusion devices, substances distributed by a pharmacy may not exceed 5.0% of all drug delivery systems, and first dose monitoring; controlled substances dispensed and distributed by the pharmacy during each calendar year in which the pharmacy is registered; if (K) drug labeling; during the same calendar year it does exceed 5.0%, the pharmacy is (L) delivery of drugs; required to obtain an additional registration to distribute controlled substances. (M) recordkeeping; (C) If the distribution is for a Schedule III, IV, or V (N) controlled substances; controlled substance, a record shall be maintained which indicates: (O) investigational drugs, including the obtaining of (i) the actual date of distribution; protocols from the principal investigator; (ii) the name, strength, and quantity of controlled (P) quality assurance/quality control; substances distributed; (Q) duties and education and training of professional (iii) the name, address, and DEA registration num- and nonprofessional staff; and ber of the distributing pharmacy; and
25 TexReg 4814 May 26, 2000 Texas Register (iv) the name, address, and DEA registration num- or other materials used in the diagnosis or treatment of injury, illness, ber of the pharmacy, practitioner, or other registrant to whom the and disease. controlled substances are distributed. (10) Permission to maintain central records. Any phar- (D) If the distribution is for a Schedule I or II macy that uses a centralized recordkeeping system for invoices and controlled substance, the following is applicable. financial data shall comply with the following procedures. (i) The pharmacy, practitioner or other registrant (A) Controlled substance records. Invoices and finan- who is receiving the controlled substances shall issue copy 1 and copy cial data for controlled substances may be maintained at a central 2 of a DEA order form (DEA 222) to the distributing pharmacy. location provided the following conditions are met. (ii) The distributing pharmacy shall: (i) Prior to the initiation of central recordkeeping, the pharmacy submits written notification by registered or certified (I) complete the area on the DEA order form mail to the divisional director of the Drug Enforcement Adminis- (DEA 222) titled TO BE FILLED IN BY SUPPLIER; tration as required by the Code of Federal Regulations, Title 21, (II) maintain copy 1 of the DEA order form §1304.04(a), and submits a copy of this written notification to the (DEA 222) at the pharmacy for two years; and Texas State Board of Pharmacy. Unless the registrant is informed by the divisional director of the Drug Enforcement Administration (III) forward copy 2 of the DEA order form that permission to keep central records is denied, the pharmacy may (DEA 222) to the divisional office of the Drug Enforcement Admin- maintain central records commencing 14 days after receipt of notifi- istration at the close of the month during which the order is filled. cation by the divisional director. (9) Other records. Other records to be maintained by a (ii) The pharmacy maintains a copy of the notifica- pharmacy: tion required in clause (i) of this subparagraph. (A) a permanent log of the initials or identification (iii) The records to be maintained at the central codes which will identify each dispensing pharmacist by name (the record location shall not include executed DEA order forms, prescrip- initials or identification code shall be unique to ensure that each tion drug orders, or controlled substance inventories, which shall be pharmacist can be identified, i.e., identical initials or identification maintained at the pharmacy. codes shall not be used); (B) Dangerous drug records. Invoices and financial (B) copy 3 of DEA order form (DEA 222) which data for dangerous drugs may be maintained at a central location. has been properly dated, initialed, and filed, and all copies of each unaccepted or defective order form and any attached statements or (C) Access to records. If the records are kept on mi- other documents; crofilm, computer media, or in any form requiring special equipment to render the records easily readable, the pharmacy shall provide ac- (C) a hard copy of the power of attorney to sign DEA cess to such equipment with the records. 222 order forms (if applicable); (D) Delivery of records. The pharmacy agrees to (D) suppliers’ invoices of dangerous drugs and con- deliver all or any part of such records to the pharmacy location within trolled substances; pharmacists or other responsible individuals shall two business days of written request of a board agent or any other verify that the controlled drugs listed on the invoices were actually authorized official. received by clearly recording their initials and the actual date of re- ceipt of the controlled substances; (E) Ownership of pharmacy records. For purposes of these sections, a pharmacy licensed under the Act is the only entity (E) suppliers’ credit memos for controlled substances which may legally own and maintain prescription drug records. and dangerous drugs; (11) Confidentiality. (F) a hard copy of inventories required by §291.17 of this title (relating to Inventory Requirements); (A) A pharmacist shall provide adequate security of prescription drug order and patient medication records to prevent in- (G) hard-copy reports of surrender or destruction of discriminate or unauthorized access to confidential health information. controlled substances and/or dangerous drugs to an appropriate state If prescription drug orders, requests for refill authorization, or other or federal agency; confidential health information are not transmitted directly between a (H) records of distribution of controlled substances pharmacy and a physician but are transmitted through a data commu- and/or dangerous drugs to other pharmacies, practitioners, or reg- nication device, confidential health information may not be accessed istrants; and or maintained by the operator of the data communication device un- less specifically authorized to obtain the confidential information by (I) a hard copy of any notification required by the this subsection. Texas Pharmacy Act or these sections, including, but not limited to, the following: (B) Confidential records are privileged and may be released only to: (i) reports of theft or significant loss of controlled substances to DEA, DPS, and the board; (i) the patient or the patient’s agent; (ii) notifications of a change in pharmacist-in- (ii) a practitioner or another pharmacist if, in the charge of a pharmacy; and pharmacist’s professional judgement, the release is necessary to protect the patient’s health and well being; (iii) reports of a fire or other disaster which may affect the strength, purity, or labeling of drugs, medications, devices, (iii) the board or to a person or another state or federal agency authorized by law to receive the confidential record;
ADOPTED RULES May 26, 2000 25 TexReg 4815 (iv) a law enforcement agency engaged in investiga- interprets §554.051 as authorizing the agency to adopt rules tion of a suspected violation of Chapter 481 or 483, Health and Safety for the proper administration and enforcement of the Act. The Code, or the Comprehensive Drug Abuse Prevention and Control Act Board interprets §554.005 as authorizing the agency to regulate of 1970 (21 U.S.C. Section 801 et seq.); the delivery or distribution of prescription drugs as they relate to the practice of pharmacy and to specify the minimum standards (v) a person employed by a state agency that for the maintenance of prescription drug records. licenses a practitioner, if the person is performing the person’s official duties; or §291.74. Operational Standards. (vi) an insurance carrier or other third party payor (a) Licensing requirements. authorized by a patient to receive such information. (1) A Class C pharmacy shall register annually or bien- (f) Triplicate prescription requirements. The Texas State nially with the board on a pharmacy license application provided by Board of Pharmacy adopts by reference the rules promulgated by the the board, following the procedures specified in §291.1 of this title Texas Department of Public Safety, which are set forth in Subchapter (relating to Pharmacy License Application). F of 37 TAC §§13.101 - 13.113 concerning triplicate prescriptions. (2) If the institutional pharmacy is owned or operated by This agency hereby certifies that the adoption has been re- a hospital management or consulting firm, the following conditions viewed by legal counsel and found to be a valid exercise of the apply. agency’s legal authority. (A) The pharmacy license application shall list the Filed with the Office of the Secretary of State on May 15, 2000. hospital management or consulting firm as the owner or operator. TRD-200003355 (B) The hospital management or consulting firm shall Gay Dodson, R.Ph. obtain DEA and DPS controlled substance registrations that are issued Executive Director in their name, unless the following occurs: Texas State Board of Pharmacy (i) the hospital management or consulting firm and Effective date: June 4, 2000 the facility cosign a contractual pharmacy service agreement which Proposal publication date: March 31, 2000 assigns overall responsibility for controlled substances to the facility; For further information, please call: (512) 305-8028 and ♦♦♦ (ii) such hospital pharmacy management or consult- ing firm maintains dual responsibility for the controlled substances. Subchapter D. INSTITUTIONAL PHARMACY (3) A Class C pharmacy which changes ownership shall (CLASS C) notify the board within 10 days of the change of ownership and 22 TAC §§291.72-291.75 apply for a new and separate license as specified in ˘291.4 of this title (relating to Change of Ownership). The Texas State Board of Pharmacy adopts amendments to (4) A Class C pharmacy which changes location and/or §291.72, concerning Definitions, §291.73, concerning Person- name shall notify the board within 10 days of the change and file nel, §291.74, concerning Operational Standards, and §291.75, for an amended license as specified in §291.2 if this title (relating to concerning Records. The amendments to §§291.72, 291.73, Change of Location and/or Name). and 291.75 are adopted without change to the proposed text as published in the March 31, 2000, issue of the Texas Register (5) A Class C pharmacy owned by a partnership or (25 TexReg 2756). The amendments to §291.74 are adopted corporation which changes managing officers shall notify the board with changes and will be republished. in writing of the names of the new managing officers within 10 days of the change following the procedures in ˘291.3 of this title (relating The amendments implement the recommendations of the Task to Change of Managing Officers). Force on Non-Residential Pharmacies and Pharmacy Automa- tion as those recommendations apply to Class C (Institutional) (6) A Class C pharmacy shall notify the board in writing Pharmacies. The amendments also make non-substantive within 10 days of closing, following the procedures in ˘291.5 of this housekeeping changes due to the codification of the Texas title (relating to Closed Pharmacies). Pharmacy Act by the 76th Legislature. (7) A fee as specified in §291.6 of this title (relating to The Texas Federation of Drug Stores commented that there Pharmacy License Fees) will be charged for the issuance and renewal appears to be inconsistencies between these proposed rules of a license and the issuance of an amended license. and similar Class A rules adopted by the Board in February (8) A separate license is required for each principal place 2000. The Board disagrees. Changes were made to these of business and only one pharmacy license may be issued to a specific rules at the time of their proposal consistent with the Class location. A rules as adopted in February 2000. The Board made one change to §291.74(j)(2)(C)(i)(IV) to clarify who is responsible (9) A Class C pharmacy, licensed under the Act, for the accuracy of the restocking process for the automated §560.051(a)(3), which also operates another type of pharmacy medication supply system. which would otherwise be required to be licensed under the Act, §560.051(a)(1) (Community Pharmacy (Class A)) or the Act, The amendments are adopted under §§551.002, 554.051, §560.051(a)(2) (Nuclear Pharmacy (Class B)), is not required to and 554.005 of the Texas Pharmacy Act (Chapters 551-566, secure a license for the such other type of pharmacy; provided, Texas Occupations Code). The Board interprets §551.002 as however, such licensee is required to comply with the provisions of authorizing the agency to protect the public through the effective §291.31 of this title (relating to Definitions), §291.32 of this title control and regulation of the practice of pharmacy. The Board (relating to Personnel), §291.33 of this title (relating to Operational
25 TexReg 4816 May 26, 2000 Texas Register Standards), §291.34 of this title (relating to Records), §291.35 of (I) be certified by an independent contractor this title (relating to Triplicate Prescription Records), and §291.36 according to Federal Standard 209E et seq for operational efficiency of this title (relating to Class A Pharmacies Compounding Sterile at least every six months or when it is relocated; and Pharmaceuticals), contained in Community Pharmacy (Class A), (II) have pre-filters inspected periodically and or §291.51 of this title (relating to Purpose), §291.52 of this title replaced as needed, in accordance with written policies and proce- (relating to Definitions), §291.53 of this title (relating to Personnel), dures, and the inspection and/or replacement date documented. §291.54 of this title (relating to Operational Standards), and §291.55 of this title (relating to Records), contained in Nuclear Pharmacy (ii) Controlled area. The institutional pharmacy (Class B), to the extent such sections are applicable to the operation shall have a designated controlled area for the compounding of sterile of the pharmacy. pharmaceuticals that is functionally separate from areas for the prepa- ration of non-sterile pharmaceuticals and is constructed to minimize (10) A Class C pharmacy engaged in non-sterile com- the opportunities for particulate and microbial contamination. This pounding of drug products for inpatients of the hospital shall comply controlled area for the preparation of sterile pharmaceuticals shall: with the provisions of §§291.31-291.34 of this title (relating to Def- initions, Personnel, Operational Standards, and Records for Class A (I) have a controlled environment that is aseptic (Community) Pharmacies) to the extent such rules are applicable to or contains an aseptic environmental control device(s); non-sterile compounding of drug products. (II) be clean, well lighted, and of sufficient size (b) Environment. to support sterile compounding activities; (1) General requirements. (III) be used only for the compounding of sterile pharmaceuticals; (A) The institutional pharmacy shall be enclosed and lockable. (IV) be designed to avoid outside traffic and air flow and be ventilated in a manner not interfering with aseptic (B) The institutional pharmacy shall have adequate environmental control conditions; space necessary for the storage, compounding, labeling, dispensing, and sterile preparation of drugs prepared in the pharmacy, and (V) have drugs and supplies stored on shelving additional space, depending on the size and scope of pharmaceutical areas above the floor to permit adequate floor cleaning; services. (VI) have non-porous and washable floors or (C) The institutional pharmacy shall be arranged in an floor covering to enable regular disinfection; orderly fashion and shall be kept clean. All required equipment shall (VII) have hard cleanable walls and ceilings be clean and in good operating condition. (acoustical ceiling tiles that are coated with an acrylic paint are (D) A sink with hot and cold running water exclusive acceptable); and of restroom facilities shall be available to all pharmacy personnel and (VIII) contain only the appropriate compound- shall be maintained in a sanitary condition at all times. ing supplies and not be used for bulk storage for supplies and mate- (E) The institutional pharmacy shall be properly rials. lighted and ventilated. (iii) End-product evaluation. (F) The temperature of the institutional pharmacy shall (I) The responsible pharmacist shall verify that be maintained within a range compatible with the proper storage of the sterile pharmaceutical was compounded accurately with respect to drugs. The temperature of the refrigerator shall be maintained within the use of correct ingredients, quantities, containers, and reservoirs. a range compatible with the proper storage of drugs requiring refrig- eration. (II) End product sterility testing according to policies and procedures, which include a statistically valid sampling (G) If the institutional pharmacy has flammable mate- plan and acceptance criteria for the sampling and testing, shall be rials, the pharmacy shall have a designated area for the storage of performed if deemed appropriate by the pharmacist-in-charge. flammable materials. Such area shall meet the requirements set by local and state fire laws. (III) The pharmacist-in-charge shall establish a mechanism for recalling all products of a specific batch if end-product (H) The institutional pharmacy shall store antiseptics, testing procedures yield unacceptable results. other drugs for external use, and disinfectants separately from internal and injectable medications. (B) Cytotoxic drugs. In addition to the requirements specified in subparagraph (A) of this subsection, the product is also (2) Special requirements for the compounding of sterile cytotoxic, the following is applicable. pharmaceuticals in the institutional pharmacy. (i) General. (A) If the institutional pharmacy compounds sterile pharmaceuticals, the following is applicable. (I) All personnel involved in the compounding of cytotoxic products shall wear appropriate protective apparel, such (i) Aseptic environment control device(s). The as masks, gloves, and gowns or coveralls with tight cuffs. institutional pharmacy shall prepare sterile pharmaceuticals in an appropriate aseptic environmental control device(s) or area, such as a (II) Appropriate safety and containment tech- laminar air flow hood, biological safety cabinet, or clean room, which niques for compounding cytotoxic drugs shall be used in conjunction is capable of maintaining at least Class 100 conditions during normal with aseptic techniques required for preparing sterile pharmaceuti- activity. Such aseptic environmental control device(s) shall: cals.
ADOPTED RULES May 26, 2000 25 TexReg 4817 (III) Disposal of cytotoxic waste shall comply (d) Library. A reference library shall be maintained which with all applicable local, state, and federal requirements. includes the following in hard-copy or electronic format: (IV) Prepared doses of cytotoxic drugs must be (1) current copies of the following: dispensed, labeled with proper precautions inside and outside, and (A) Texas Pharmacy Act and rules; distributed in a manner to minimize contact with cytotoxic agents. (B) Texas Dangerous Drug Act and rules; (ii) Aseptic environment control device(s). (C) Texas Controlled Substances Act and regulations; (I) Cytotoxic drugs must be prepared in a verti- and cal flow biological safety cabinet. (D) Federal Controlled Substances Act and regulations (II) If the vertical flow biological safety cabinet (or official publication describing the requirements of the Federal is also used to prepare non-cytotoxic sterile pharmaceuticals, the Controlled Substances Act and regulations); cabinet must be thoroughly cleaned prior to its use to prepare non- cytotoxic sterile pharmaceuticals. (2) at least one current or updated reference from each of the following categories: (3) Security requirements. (A) drug interactions. A reference text on drug (A) All areas occupied by an institutional pharmacy interactions, such as Hansten’s and Horn’s Drug Interactions; shall be capable of being locked by key or combination, so as to prevent access by unauthorized personnel by force. (B) general information: (B) Each pharmacist on duty shall be responsible for (i) Facts and Comparisons with current supple- the security of the institutional pharmacy, including provisions for ments; adequate safeguards against theft or diversion of dangerous drugs, (ii) United States Pharmacopeia Dispensing Infor- controlled substances, and records for such drugs. mation Volume I (Drug Information for the Healthcare Provider); (C) The institutional pharmacy shall have locked stor- (iii) AHFS Drug Information with current supple- age for Schedule II controlled substances and other drugs requiring ments; additional security. (iv) Remington’s Pharmaceutical Sciences; or (c) Equipment and supplies. (v) Micromedex; (1) Institutional pharmacies distributing medication orders shall have the following equipment: (3) a current or updated reference on injectable drug products, such as Handbook of Injectable Drugs; (A) typewriter or comparable equipment; and (4) basic antidote information and the telephone number (B) refrigerator and a system or device (e.g., ther- of the nearest regional poison control center; mometer) to monitor the temperature daily to ensure that proper stor- age requirements are met. (5) if the pharmacy compounds sterile pharmaceuticals: (2) If the institutional pharmacy compounds medication (A) American Society of Hospital Pharmacists’ orders which require the use of a balance, a Class A prescription Technical Assistance Bulletin on Quality Assurance for Pharmacy- balance or analytical balance with weights. Such balance shall be Prepared Sterile Products; and properly maintained and inspected at least every three years by the (B) specialty reference appropriate for the scope of appropriate authority as prescribed by local, state, or federal law or services provided by the pharmacy, e.g., if the pharmacy prepares regulations. cytotoxic drugs, a reference text on the preparation of cytotoxic drugs, (3) If the institutional pharmacy compounds sterile phar- such as Procedures for Handling Cytotoxic Drugs; maceuticals, the pharmacy shall have the following equipment: (6) metric-apothecary weight and measure conversion (A) appropriate disposal containers for used needles, charts. syringes, etc., and if applicable, cytotoxic waste from the preparation (e) Absence of a pharmacist. of chemotherapeutic agents, cytotoxic waste; (1) Medication orders. (B) infusion devices, if applicable; (A) In facilities with a full-time pharmacist, if a (C) all necessary supplies, including: practitioner orders a drug for administration to a bona fide patient of (i) disposable needles, syringes, and other supplies the facility when the pharmacy is closed, the following is applicable. for aseptic mixing; (i) Prescription drugs and devices only in sufficient (ii) disinfectant cleaning solutions; quantities for immediate therapeutic needs may be removed from the institutional pharmacy. (iii) hand washing agents with bacteriocidal action; (ii) Only a designated licensed nurse or practitioner (iv) disposable, lint free towels or wipes; may remove such drugs and devices. (v) appropriate filters and filtration equipment; (iii) A record shall be made at the time of with- (vi) cytotoxic spill kits, if applicable; and drawal by the authorized person removing the drugs and devices. The record shall contain the following information: (vii) masks, caps, coveralls or gowns with tight cuffs, shoe covers, and gloves, as applicable. (I) name of patient;
25 TexReg 4818 May 26, 2000 Texas Register (II) name of device or drug, strength, and dosage (A) The pharmacist-in-charge shall have the responsi- form; bility for the procurement and storage of drugs, but may receive input from other appropriate staff of the facility, relative to such responsi- (III) dose prescribed; bility. (IV) quantity taken; (B) The pharmacist-in-charge shall have the respon- (V) time and date; and sibility for determining specifications of all drugs procured by the facility. (VI) signature (first initial and last name or full signature) or electronic signature of person making withdrawal. (C) Institutional pharmacies may not sell, purchase, trade or possess prescription drug samples, unless the pharmacy meets (iv) The original or direct copy of the medication all of the following conditions: order may substitute for such record, providing the medication order meets all the requirements of clause (iii) of this subparagraph. (i) the pharmacy is owned by a charitable organi- zation described in the Internal Revenue Code of 1986, or by a city, (v) The pharmacist shall verify the withdrawal and state or county government; perform a drug regimen review as specified in subsection (g)(1)(B) of this section as soon as practical, but in no event more than 72 hours (ii) the pharmacy is a part of a health care entity from the time of such withdrawal. which provides health care primarily to indigent or low income patients at no or reduced cost; (B) In facilities with a part-time or consultant pharma- cist, if a practitioner orders a drug for administration to a bona fide (iii) the samples are for dispensing or provision at patient of the facility when the pharmacist is not on duty, or when no charge to patients of such health care entity; and the pharmacy is closed, the following is applicable. (iv) the samples are possessed in compliance with (i) Prescription drugs and devices only in sufficient the federal Prescription Drug Marketing Act of 1986. quantities for therapeutic needs may be removed from the institutional (D) All drugs shall be stored at the proper tempera- pharmacy. tures, as defined by the following. (ii) Only a designated licensed nurse or practitioner (i) Cold–Any temperature not exceeding 8 degrees may remove such drugs and devices. Centigrade (46 degrees Fahrenheit). A refrigerator is a cold place (iii) A record shall be made at the time of with- in which the temperature is maintained thermostatically between drawal by the authorized person removing the drugs and devices; the 2 and 8 degrees Centigrade (36 and 46 degrees Fahrenheit). A record shall meet the same requirements as specified in subparagraph freezer is a cold place in which the temperature is maintained (A)(iii) and (iv) of this paragraph. thermostatically between -20 and -10 degrees Centigrade (-4 and - 14 degrees Fahrenheit). (iv) The pharmacist shall verify the withdrawal and perform a drug regimen review as specified in subsection (g)(1)(B) (ii) Cool–Any temperature between 8 and 15 de- of this section after a reasonable interval, but in no event may such grees Centigrade (46 and 59 degrees Fahrenheit). An article for which interval exceed seven days. storage in a cool place is directed may, alternatively, be stored in a refrigerator unless otherwise specified in the labeling. (2) Floor stock. In facilities using a floor stock method of drug distribution, the following is applicable. (iii) Room temperature–The temperature prevailing in a working area. Controlled room temperature is a temperature (A) Prescription drugs and devices may be removed thermostatically between 15 and 30 degrees Centigrade (59 and 86 from the pharmacy only in the original manufacturer’s container or degrees Fahrenheit). prepackaged container. (iv) Warm–Any temperature between 30 and 40 (B) Only a designated licensed nurse or practitioner degrees Centigrade (86 and 104 degrees Fahrenheit). may remove such drugs and devices. (v) Excessive heat–Any temperature above 40 de- (C) A record shall be made at the time of withdrawal grees Centigrade (104 degrees Fahrenheit). by the authorized person removing the drug or device; the record shall contain the following information: (vi) Protection from freezing where, in addition to the risk of breakage of the container, freezing subjects a product to (i) name of the drug, strength, and dosage form; loss of strength or potency, or to destructive alteration of the dosage (ii) quantity removed; form, the container label bears an appropriate instruction to protect the product from freezing. (iii) location of floor stock; (E) Any drug bearing an expiration date may not be (iv) date and time; and distributed beyond the expiration date of the drug. (v) signature (first initial and last name or full (F) Outdated and other unusable drugs shall be re- signature) or electronic signature of person making the withdrawal. moved from stock and shall be quarantined together until such drugs (D) The pharmacist shall verify the withdrawal after a are disposed of properly. reasonable interval, but in no event may such interval exceed seven (2) Formulary. days. (A) A formulary shall be developed by the facility (f) Drugs. committee performing the pharmacy and therapeutics function for (1) Procurement, preparation and storage. the facility.
ADOPTED RULES May 26, 2000 25 TexReg 4819 (B) The pharmacist-in-charge or pharmacist desig- (VII) storage requirements; and nated by the pharmacist-in-charge shall be a full voting member of (VIII) specific equipment used during aseptic the committee performing the pharmacy and therapeutics function preparation (e.g., specific automated compounding device). for the facility, when such committee is performing the pharmacy and therapeutics function. (ii) Preparation work sheet. The preparation work sheet for each batch of sterile pharmaceuticals shall document the (3) Pre-packaging of drugs. following: (A) Drugs may be pre-packaged in quantities suitable (I) identity of all solutions and ingredients and for internal distribution only by a pharmacist or by supportive their corresponding amounts, concentrations, or volumes; personnel under the direction and direct supervision of a pharmacist. (II) manufacturer lot number for each compo- (B) The label of a pre-packaged unit shall indicate: nent; (i) brand name and strength of the drug; or if no (III) component manufacturer or suitable identi- brand name, then the generic name, strength, and name of the fying number; manufacturer or distributor; (IV) container specifications (e.g., syringe, (ii) facility’s unique lot number; pump cassette); (iii) expiration date based on currently available (V) unique lot or control number assigned to literature; and batch; (iv) quantity of the drug, if the quantity is greater (VI) expiration date of batch-prepared products; than one. (VII) date of preparation; (C) Records of pre-packaging shall be maintained to show: (VIII) name, initials, or electronic signature of the person(s) involved in the preparation; (i) name of the drug, strength, and dosage form; (IX) name, initials, or electronic signature of the (ii) facility’s unique lot number; responsible pharmacist; (iii) manufacturer or distributor; (X) end-product evaluation and testing specifi- (iv) manufacturer’s lot number; cations, if applicable; and (v) expiration date; (XI) comparison of actual yield to anticipated yield, when appropriate. (vi) quantity per prepackaged unit; (B) Labeling. The label of each sterile pharmaceutical (vii) number of prepackaged units; shall bear at a minimum: (viii) date packaged; (i) for patient-specific products, the patient’s name (ix) name, initials, or electronic signature of the and location or identification number; prepacker; and (ii) for batch prepared products, the unique lot or (x) name, initials, or electronic signature of the control number assigned to the batch; responsible pharmacist. (iii) all solution and ingredient names, amounts, (D) Stock packages, repackaged units, and control strengths, and concentrations, when applicable; records shall be quarantined together until checked/released by the (iv) expiration date and time, when applicable; pharmacist. (v) directions for use, including infusion rate, when (4) Sterile pharmaceuticals compounded in the pharmacy. appropriate; (A) Batch preparation. (vi) name or initials of the person preparing the (i) Master work sheet. A master work sheet shall product and, if prepared by supportive personnel, the name or initials be developed and approved by a pharmacist for each batch of sterile of the pharmacist who checked and released the final product. (This pharmaceuticals to be prepared. Once approved, a duplicate of the information is not required on the label if it is maintained in a master work sheet shall be used as the preparation work sheet from permanent record of the pharmacy); which each batch is prepared and on which all documentation for that (vii) appropriate ancillary instructions such as stor- batch occurs. The master work sheet shall contain at a minimum: age instructions or cautionary statements, including cytotoxic warning (I) the formula; labels where appropriate; and (II) the components; (viii) device-specific instructions, when appropri- ate. (III) the compounding directions; (C) Expiration date. (IV) a sample label; (i) The expiration date assigned shall be based on (V) evaluation and testing requirements; currently available drug stability information and sterility considera- (VI) sterilization method(s), if applicable; tions or appropriate in-house or contract service stability testing.
25 TexReg 4820 May 26, 2000 Texas Register (ii) Sources of drug stability information shall in- (A) Medication orders. clude the following: (i) Drugs may be given to patients in facilities only (I) references (e.g., Remington’s Pharmaceuti- on the order of a practitioner. No change in the order for drugs may cal Sciences, Handbook on Injectable Drugs); be made without the approval of a practitioner. (II) manufacturer recommendations; and (ii) Drugs may be distributed only from the original or a direct copy of the practitioner’s medication order. (III) reliable, published research. (iii) Supportive personnel may not receive verbal (iii) When interpreting published drug stability in- medication orders. formation, the pharmacist shall consider all aspects of the final sterile product being prepared (e.g., drug reservoir, drug concentration, stor- (iv) Institutional pharmacies shall be exempt from age conditions). the labeling provisions and patient notification requirements of Section 556.006 and 556.009 of the Act, as respects drugs distributed (iv) Methods used for establishing expiration dates pursuant to medication orders. shall be documented. (B) Procedures. (D) Quality control. There shall be a documented, on- going quality control program that monitors and evaluates personnel (i) Written policies and procedures for a drug dis- performance, equipment and facilities. Procedures shall be in place tribution system (best suited for the particular institutional pharmacy) to assure that the pharmacy is capable of consistently preparing phar- shall be developed and implemented by the pharmacist-in-charge, maceuticals which are sterile and stable. Quality control procedures with the advice of the committee performing the pharmacy and ther- shall include, but are not limited to, the following: apeutics function for the facility. (i) recall procedures; (ii) The written policies and procedures for the drug distribution system shall include, but not be limited to, procedures (ii) storage and dating; and regarding the following: (iii) documentation of appropriate functioning of (I) pharmaceutical care services; refrigerator, freezer and other equipment; (II) handling, storage and disposal of cytotoxic (iv) documentation of aseptic environmental control drugs and waste; device(s) certification at least every six months and the regular replacement of pre-filters as necessary; and (III) disposal of unusable drugs and supplies; (v) a process to evaluate and confirm the quality of (IV) security; the prepared pharmaceutical product. (V) equipment; (E) Quality assurance. (VI) sanitation; (i) There shall be a documented, ongoing quality (VII) reference materials; assurance program for monitoring and evaluating personnel perfor- mance and patient outcomes to assure an efficient drug delivery pro- (VIII) drug selection and procurement; cess, patient safety, and positive clinical outcomes. (IX) drug storage; (ii) There shall be documentation of quality assur- (X) controlled substances; ance audits at regular, planned intervals including infection control, sterile technique, delivery systems/times, order transcription accuracy, (XI) investigational drugs, including the obtain- drug administration systems, adverse drug reactions and drug therapy ing of protocols from the principal investigator; appropriateness, as applicable. (XII) prepackaging and manufacturing; (iii) A plan for corrective action of problems iden- (XIII) stop orders; tified by quality assurance audits shall be developed which includes procedures for documentation of identified problems and action taken. (XIV) reporting of medication errors, adverse drug reactions/events, and drug product defects; (iv) A periodic evaluation of the effectiveness of the quality assurance activities shall be completed and documented. (XV) physician orders; (5) Sterile pharmaceuticals prepared in a location other (XVI) floor stocks; than the pharmacy. A distinctive supplementary label shall be affixed (XVII) drugs brought into the facility; to the container of any admixture. The label shall bear at a minimum: (XVIII) furlough medications; (A) patient’s name and location; (XIX) self-administration; (B) name and amount of drug(s) added; (XX) emergency drug supply; (C) name of the basic solution; (XXI) formulary; (D) name or identifying code of person who prepared admixture; and (XXII) monthly inspections of nursing stations and other areas where drugs are stored, distributed, administered or (E) expiration date of solution. dispensed; (6) Distribution. (XXIII) control of drug samples;
ADOPTED RULES May 26, 2000 25 TexReg 4821 (XXIV) outdated and other unusable drugs; (ii) The drug regimen review shall be conducted on a prospective basis when a pharmacist is on duty, except for (XXV) routine distribution of inpatient medica- an emergency order, and on a retrospective basis as specified in tion; subsection (e)(1) of this section when a pharmacist is not on duty. (XXVI) preparation and distribution of sterile (iii) Any questions regarding the order must be re- pharmaceuticals; solved with the prescriber and a written notation of these discussions (XXVII) handling of medication orders when a made and maintained. pharmacist is not on duty; (C) Education. The pharmacist-in-charge in coopera- (XXVIII) use of automated compounding or tion with appropriate multi-disciplinary staff of the facility shall de- counting devices; velop policies that assure that: (XXIX) use of data processing and direct imag- (i) the patient and/or patient’s caregiver receives ing systems; information regarding drugs and their safe and appropriate use; and (XXX) drug administration to include infusion (ii) health care providers are provided with patient devices, drug delivery systems, and first dose monitoring; specific drug information. (XXXI) drug labeling; (D) Patient monitoring. The pharmacist-in-charge in cooperation with appropriate multi-disciplinary staff of the facility (XXXII) recordkeeping; shall develop policies to ensure that the patient’s response to drug (XXXIII) quality assurance/quality control; therapy is monitored and conveyed to the appropriate health care provider. (XXXIV) duties and education and training of professional and nonprofessional staff; and (2) Other pharmaceutical care services which may be provided by pharmacists in the facility include, but are not limited (XXXV) emergency preparedness plan, to in- to, the following: clude continuity of patient therapy and public safety. (A) managing drug therapy as delegated by a practi- (g) Pharmaceutical care services. tioner as allowed under the provisions of the Medical Practice Act; (1) The pharmacist-in-charge shall assure that at least the (B) administering immunizations and vaccinations un- following pharmaceutical care services are provided to patients of the der written protocol of a physician; facility. (C) managing patient compliance programs; (A) Drug utilization review. A systematic ongoing process of drug utilization review shall be developed in conjunction (D) providing preventative health care services; and with the medical staff to increase the probability of desired patient (E) providing case management of patients who are outcomes and decrease the probability of undesired outcomes from being treated with high-risk or high-cost drugs, or who are considered drug therapy. "high risk" due to their age, medical condition, family history, or (B) Drug regimen review. related concern. (i) For the purpose of promoting therapeutic appro- (h) Emergency rooms. priateness, a pharmacist shall evaluate medication orders and patient (1) During the times a pharmacist is on duty in the facility medication records for: any prescription drugs supplied to an outpatient, including emergency (I) known allergies; department patients, may only be dispensed by a pharmacist. (II) rational therapy–contraindications; (2) When a pharmacist is not on duty in the facility, the following is applicable for supplying prescription drugs from the (III) reasonable dose and route of administra- emergency room. tion; (A) If the patient has been admitted to the emergency (IV) reasonable directions for use; room and assessed by a practitioner at the hospital, the following (V) duplication of therapy; procedures shall be observed in supplying prescription drugs from the emergency room. (VI) drug-drug interactions; (i) Dangerous drugs and/or controlled substances (VII) drug-food interactions; may only be supplied in accordance with the system of control (VIII) drug-disease interactions; and accountability for dangerous drugs and/or controlled substances administered or supplied from the emergency room; such system (IX) adverse drug reactions; shall be developed and supervised by the pharmacist-in-charge or (X) proper utilization, including overutilization staff pharmacist designated by the pharmacist-in-charge. or underutilization; and (ii) Only dangerous drugs and/or controlled sub- (XI) clinical laboratory or clinical monitoring stances listed on the emergency room drug list may be supplied; such methods to monitor and evaluate drug effectiveness, side effects, list shall be developed by the pharmacist-in-charge and the facility’s toxicity, or adverse effects, and appropriateness to continued use of emergency department committee (or like group or person respon- the drug in its current regimen. sible for policy in that department) and shall consist of dangerous
25 TexReg 4822 May 26, 2000 Texas Register drugs and/or controlled substances of the nature and type to meet the (iii) The practitioner shall have a previous patient/ immediate needs of emergency room patients. physician relationship with the patient admitted to the emergency room. (iii) Dangerous drugs and/or controlled substances may only be supplied in prepackaged quantities not to exceed a (iv) The dangerous drugs may only be supplied in 72-hour supply in suitable containers and appropriately prelabeled accordance with the system of control and accountability for drugs (including necessary auxiliary labels) by the institutional pharmacy. administered or supplied from the emergency room; such system shall be developed and supervised by the pharmacist-in-charge or (iv) At the time of delivery of the dangerous drugs staff pharmacist designated by the pharmacist-in-charge. and/or controlled substances, the practitioner or licensed nurse under the supervision of a practitioner shall appropriately complete the label (v) Only dangerous drugs listed on the emergency with at least the following information: room drug list may be supplied; such list shall be developed by the pharmacist-in-charge and the facility’s emergency department (I) name, address, and phone number of the committee (or like group or person responsible for policy in that facility; department) and shall consist of dangerous drugs of the nature and (II) date supplied; type to meet the immediate needs of emergency room patients. (III) name of practitioner; (vi) The dangerous drugs may only be supplied in prepackaged quantities not to exceed a 72-hour supply in suitable (IV) name of patient; containers and appropriately prelabeled (including necessary auxiliary (V) directions for use; labels) by the institutional pharmacy. (VI) brand name and strength of the dangerous (vii) At any time of delivery of the dangerous drugs, drug or controlled substance; or if no brand name, then the generic a licensed nurse shall complete the label with at least the following name, strength, and the name of the manufacturer or distributor of information: the dangerous drug or controlled substance; (I) name, address, and phone number of the (VII) quantity supplied; and facility; (VIII) unique identification number. (II) date supplied; (v) The practitioner, or a licensed nurse under the (III) name of the practitioner; supervision of the practitioner, shall give the appropriately labeled, (IV) name of the patient; prepackaged drug to the patient and explain the correct use of the drug. (V) directions for use; (vi) A perpetual record of dangerous drugs and/or (VI) brand name and strength of the dangerous controlled substances supplied from the emergency room shall be drug; or if no brand name, then the generic name, strength, and the maintained in the emergency room. Such record shall include the name of the manufacturer or distributor of the dangerous drug; following: (VII) quantity supplied; and (I) date supplied; (VIII) unique identification number. (II) practitioner’s name; (viii) A licensed nurse shall give the appropriately (III) patient’s name; labeled, prepackaged dangerous drug to the patient and explain the correct use of the drug. (IV) brand name and strength of the dangerous drug or controlled substance; or if no brand name, then the generic (ix) A perpetual record of dangerous drugs supplied name, strength, and the name of the manufacturer or distributor of from the emergency room shall be maintained in the emergency room. the dangerous drug or controlled substance; Such record shall include the following: (V) quantity supplied; and (I) date supplied; (VI) unique identification number. (II) practitioner’s name; (vii) The pharmacist-in-charge, or staff pharmacist (III) patient’s name; designated by the pharmacist-in-charge, shall verify the correctness (IV) brand name and strength of the dangerous of this record at least once every seven days. drug; or if no brand name, then the generic name, strength, and the (B) If the patient has been admitted to the emergency name of the manufacturer or distributor of the dangerous drug; room of a hospital and a practitioner telephones an order for a (V) quantity supplied; and dangerous drug to be supplied, the following is applicable. (VI) unique identification number. (i) Dangerous drugs may only be supplied to pa- tients of hospitals after the normal business hours of local pharma- (x) The pharmacist-in-charge or staff pharmacist cies and when pharmacy services are not reasonably available to the designated by the pharmacist-in-charge shall verify the correctness patient. of this record at least once every seven days. (ii) The practitioner shall cosign any order for a (C) Prior to implementing the procedures for supply- dangerous drug which is telephoned to the hospital emergency room ing dangerous drugs to emergency room patients of a hospital on the within 72 hours. telephone order of a practitioner, as specified in subparagraph (B) of this paragraph, the hospital shall notify the board of its intent to im-
ADOPTED RULES May 26, 2000 25 TexReg 4823 plement this policy. Such notification shall be signed by the hospital (i) date supplied; administrator, medical director, and pharmacist-in-charge and contain (ii) practitioner’s name; the following information: (iii) patient’s name; (i) the hours the hospital pharmacy is open for pharmacy services; and (iv) brand name and strength of the prescription drug; or if no brand name, then the generic name, strength, dosage (ii) documentation of the lack of pharmacy services form, and the name of the manufacturer or distributor of the after normal business hours of the hospital pharmacy. prescription drug; (i) Radiology departments. (v) quantity supplied; and (1) During the times a pharmacist is on duty, any prescrip- (vi) unique identification number. tion drugs dispensed to an outpatient, including radiology department patients, may only be dispensed by a pharmacist. (H) The pharmacist-in-charge, or a pharmacist desig- nated by the pharmacist-in-charge, shall verify the correctness of this (2) When a pharmacist is not on duty, the following record at least once every seven days. procedures shall be observed in supplying prescription drugs from the radiology department. (j) Automated devices and systems. (A) Prescription drugs may only be supplied to pa- (1) Automated compounding or counting devices. If a tients who have been scheduled for an x-ray examination at the fa- pharmacy uses automated compounding or counting devices: cility. (A) the pharmacy shall have a method to calibrate and (B) Prescription drugs may only be supplied in accor- verify the accuracy of the automated compounding or counting device dance with the system of control and accountability for prescription and document the calibration and verification on a routine basis; drugs administered or supplied from the radiology department and su- (B) the devices may be loaded with bulk or unlabeled pervised by the pharmacist-in-charge or staff pharmacist designated drugs only by a pharmacist or by pharmacy technicians under the by the pharmacist-in-charge. direction and direct supervision of a pharmacist; (C) Only prescription drugs listed on the radiology (C) the label of an automated compounding or count- drug list may be supplied; such list shall be developed by the ing device container shall indicate the brand name and strength of pharmacist-in-charge and the facility’s radiology committee (or like the drug; or if no brand name, then the generic name, strength, and group or persons responsible for policy in that department) and shall name of the manufacturer or distributor; consist of drugs for the preparation of a patient for a radiological procedure. (D) records of loading bulk or unlabeled drugs into an automated compounding or counting device shall be maintained to (D) Prescription drugs may only be supplied in show: prepackaged quantities in suitable containers and prelabeled by the institutional pharmacy with the following information: (i) name of the drug, strength, and dosage form; (i) name and address of the facility; (ii) manufacturer or distributor; (ii) directions for use; (iii) manufacturer’s lot number; (iii) name and strength of the prescription drug–if (iv) expiration date; generic name, the name of the manufacturer or distributor of the (v) date of loading; prescription drug; (vi) name, initials, or electronic signature of the (iv) quantity; person loading the automated compounding or counting device; and (v) facility’s lot number and expiration date; and (vii) signature or electronic signature of the respon- (vi) appropriate ancillary label(s). sible pharmacist; and (E) At the time of delivery of the prescription drug, (E) the automated compounding or counting device the practitioner or practitioner’s agent shall complete the label with shall not be used until a pharmacist verifies that the system is properly the following information: loaded and affixes his or her signature to the record specified in subparagraph (D) of this paragraph. (i) date supplied; (2) Automated medication supply systems. (ii) name of physician; (A) Authority to use automated medication supply (iii) name of patient; and systems. A pharmacy may use an automated medication supply (iv) unique identification number. system to fill medication orders provided that: (F) The practitioner or practitioner’s agent shall give (i) the pharmacist-in-charge is responsible for the the appropriately labeled, prepackaged prescription drug to the supervision of the operation of the system; patient. (ii) the automated medication supply system has (G) A perpetual record of prescription drugs supplied been tested by the pharmacy and found to dispense accurately. The from the radiology department shall be maintained in the radiology pharmacy shall make the results of such testing available to the Board department. Such records shall include the following: upon request; and
25 TexReg 4824 May 26, 2000 Texas Register (iii) the pharmacy will make the automated medi- interrupts the ability of the automated medication supply system to cation supply system available for inspection by the board for the provide services necessary for the operation of the pharmacy. The purpose of validating the accuracy of the system. written plan for recovery shall include: (B) Quality assurance program. A pharmacy which (i) planning and preparation for maintaining phar- uses an automated medication supply system to fill medication orders macy services when an automated medication supply system is ex- shall operate according to a written program for quality assurance of periencing downtime; the automated medication supply system which: (ii) procedures for response when an automated (i) requires continuous monitoring of the automated medication supply system is experiencing downtime; medication supply system; and (iii) procedures for the maintenance and testing of (ii) establishes mechanisms and procedures to test the written plan for recovery; and the accuracy of the automated medication supply system at least every (iv) procedures for notification of the Board and six months and whenever any upgrade or change is made to the system other appropriate agencies whenever an automated medication supply and documents each such activity. system experiences downtime for more than two days of operation or (C) Policies and procedures of operation. a period of time which significantly limits the pharmacy’s ability to provide pharmacy services. (i) When an automated medication supply system is used to store or distribute medications for administration pursuant This agency hereby certifies that the adoption has been re- to medication orders, it shall be operated according to written policies viewed by legal counsel and found to be a valid exercise of the and procedures of operation. The policies and procedures of operation agency’s legal authority. shall establish requirements for operation of the automated medication Filed with the Office of the Secretary of State on May 15, 2000. supply system and shall describe policies and procedures that: TRD-200003354 (I) include a description of the policies and Gay Dodson, R.Ph. procedures of operation; Executive Director/Secretary (II) provide for a pharmacist’s review and ap- Texas State Board of Pharmacy proval of each original or new medication order filled through the Effective date: June 4, 2000 use of the automated medication supply system: Proposal publication date: March 31, 2000 (-a-) before the order is filled when a phar- For further information, please call: (512) 305-8028 macist is on duty except for an emergency order; (-b-) retrospectively within 72 hours in a ♦♦♦ facility with a full-time pharmacist when a pharmacist is not on duty at the time the order is made; or TITLE 25. HEALTH SERVICES (-c-) retrospectively within 7 days in a facil- ity with a part-time or consultant pharmacist when a pharmacist is Part 1. TEXAS DEPARTMENT OF not on duty at the time the order is made; HEALTH (III) provide for access to the automated medi- cation supply system for stocking and retrieval of medications which Chapter 289. RADIATION CONTROL is limited to licensed healthcare professionals or pharmacy techni- cians acting under the supervision of a pharmacist; Subchapter D. GENERAL (IV) provide that a pharmacist is responsible for 25 TAC §289.201 the accuracy of the restocking of the system. The actual restocking The Texas Department of Health (department) adopts the may be performed by a pharmacy technician; amendment to §289.201, concerning general provisions for (V) provide for an accountability record to be radioactive material with changes to the proposed text published maintained which documents all transactions relative to stocking and in the December 3, 1999, issue of the Texas Register (24 removing medications from the automated medication supply system; TexReg 10767). (VI) require a prospective or retrospective drug The amendment deleted pertinent references to x-ray radiation, regimen review is conducted as specified in subsection (g) of this registered sources of radiation, and radiation machines because section; and the requirements for the use of radiation machines are being consolidated in a new section. The amendment included new (VII) establish and make provisions for docu- definitions that support the changes in the rule as a result of mentation of a preventative maintenance program for the automated House Bill 1172 passed by the 76th Legislature. Several of medication supply system. the definitions have been designated as items of compatibility (ii) A pharmacy which uses an automated medica- by the United States Nuclear Regulatory Commission (NRC). tion supply system to fill medication orders shall, at least annually, As an Agreement State, Texas must adopt these items of review its written policies and procedures, revise them if necessary, compatibility in accordance with that agreement. Language and document the review. was added to clarify that persons who receive, possess, use, transfer, or acquire radioactive material prior to receiving a (D) Recovery Plan. A pharmacy which uses an license are also subject to the requirements of this chapter. automated medication supply system to store or distribute medications The language that allows the department to make exemptions to for administration pursuant to medication orders shall maintain a the requirements of this chapter was revised to reflect changes written plan for recovery from a disaster or any other situation which made as a result of House Bill 1172 by the 76th Legislature.
ADOPTED RULES May 26, 2000 25 TexReg 4825 Language that specifies the department may enter public or (5) Adult–An individual 18 or more years of age. private property to determine compliance with department rules (6) Agency–The Texas Department of Health. and orders was added. These amendments are part of the department’s continuing effort to update, clarify, and simplify its (7) Agreement state–Any state with which the NRC has rules regarding the control of radiation based upon technological entered into an effective agreement under Section 274b. of the Atomic advances, public concerns, legislative directives, compatibility Energy Act of 1954, as amended (73 Stat. 689). with NRC, or other factors. (8) Airborne radioactive material–Any radioactive mate- The department received no public comments during the com- rial dispersed in the air in the form of dusts, fumes, particulates, ment period for this amendment. However, the department is mists, vapors, or gases. making the following minor changes due to staff comments to (9) Airborne radioactivity area–A room, enclosure, or area clarify the intent and improve the accuracy of the section. in which airborne radioactive materials exist in concentrations: Change: Concerning §289.201, the word "materials" was (A) in excess of the derived air concentrations (DACs) changed to "material" in the title of the section to reflect how specified in Table I, Column 1 of §289.202(ggg)(2)(F) of this title the word is used throughout the remaining text of the section. (relating to Standards for Protection Against Radiation); or Change: Concerning §289.201(b)(11), commas were added to (B) to such a degree that an individual present in the the sentence, "...from past nuclear accidents, such as Cher- area without respiratory protective equipment could exceed, during nobyl, that contribute to background radiation..." for grammati- the hours an individual is present in a week, an intake of 0.6% of the cal correctness and ease in reading. annual limit on intake (ALI) or 12 DAC-hours. Change: Concerning §289.201(b)(46), the third sentence was (10) As low as is reasonably achievable (ALARA) - changed to, "Examples of individual monitoring devices include, Making every reasonable effort to maintain exposures to radiation as but are not limited to, film badges, ..." to provide an allowance for far below the dose limits in these regulations as is practical, consistent newly developed technologies in individual monitoring devices. with the purpose for which the licensed activity is undertaken, taking The amendment is adopted under the Health and Safety into account the state of technology, the economics of improvements Code, Chapter 401, which provides the Texas Board of Health in relation to the state of technology, the economics of improvements (board) with authority to adopt rules and guidelines relating in relation to benefits to the public health and safety, and other societal to the control of radiation; and Health and Safety Code, and socioeconomic considerations, and in relation to utilization of §12.001, which provides the Texas Board of Health (board) ionizing radiation and licensed sources of radiation in the public with the authority to adopt rules for its procedure and for the interest. performance of each duty imposed by law on the board, the (11) Background radiation - Radiation from cosmic department, or the commissioner of health. sources; non-technologically enhanced naturally occurring radioac- §289.201. General Provisions for Radioactive Material . tive material, including radon, except as a decay product of source or special nuclear material, and including global fallout as it exists (a) Scope. Except as otherwise specifically provided, this in the environment from the testing of nuclear explosive devices or section applies to all persons who receive, possess, use, transfer, from past nuclear accidents, such as Chernobyl, that contribute to or acquire any radioactive material, provided, however, that nothing background radiation and are not under the control of the licensee. in this section shall apply to any person to the extent such person "Background radiation" does not include radiation from sources of is subject to regulation by the United States Nuclear Regulatory radiation regulated by the agency. Commission (NRC) or to radioactive material in the possession of federal agencies. Attention is directed to the fact that regulation by (12) Becquerel (Bq)–The SI unit of activity. One bec- the state of source material, byproduct material, and special nuclear querel is equal to 1 disintegration or transformation per second (dps material in quantities not sufficient to form a critical mass is subject or tps). to the provisions of the agreement between the state and the NRC and (13) Bioassay - The determination of kinds, quantities, to Part 150 of the NRC regulations (10 Code of Federal Regulations or concentrations, and, in some cases, the locations of radioactive (CFR) Part 150). A person who receives, possesses, uses, owns, material in the human body, whether by direct measurement, in transfers, or acquires radioactive material prior to receiving a license vivo counting, or by analysis and evaluation of materials excreted is subject to the requirements of this chapter. or removed from the human body. For purposes of this chapter, (b) Definitions. The following words and terms when used "radiobioassay" is an equivalent term. in this chapter shall have the following meanings, unless the context (14) Brachytherapy–A method of radiation therapy in clearly indicates otherwise. which sealed sources are utilized to deliver a radiation dose at a (1) Absorbed dose–The energy imparted by ionizing ra- distance of up to a few centimeters, by surface, intracavitary, or diation per unit mass of irradiated material. The units of absorbed interstitial application. dose are the gray (Gy) and the rad. (15) Byproduct material–Byproduct material is defined as: (2) Accelerator-produced material–Any material made ra- (A) any radioactive material (except special nuclear dioactive by exposing it to the radiation from a particle accelerator. material) yielded in or made radioactive by exposure to the radiation (3) Act–Texas Radiation Control Act, Health and Safety incident to the process of producing or utilizing special nuclear Code, Chapter 401. material; and (4) Activity–The rate of disintegration or transformation (B) the tailings or wastes produced by or resulting or decay of radioactive material. The units of activity are the from the extraction or concentration of uranium or thorium from becquerel (Bq) and the curie (Ci). any ore processed primarily for its source material content, including
25 TexReg 4826 May 26, 2000 Texas Register discrete surface wastes resulting from uranium solution extraction (29) Distribution - The physical conveyance and autho- processes. rized transfer of commodities from producers to consumers and any intermediate persons involved in that conveyance. (16) Certificate of registration - A form of permission given by the agency to an applicant who has met the requirements (30) Dose - A generic term that means absorbed dose, for registration or mammography system certification set out in the dose equivalent, effective dose equivalent, committed dose equivalent, Act and this chapter. committed effective dose equivalent, total organ dose equivalent, or total effective dose equivalent. For purposes of this chapter, "radiation (17) Certification of mammography systems (state certifi- dose" is an equivalent term. cation) - A form of permission given by the agency to an applicant who has met the requirements for mammography system certification (31) Dose equivalent (HT) - The product of the absorbed set out in the Act and this chapter. dose in tissue, quality factor, and all other necessary modifying factors at the location of interest. The units of dose equivalent are the sievert (18) Collective dose–The sum of the individual doses (Sv) and rem. received in a given period of time by a specified population from exposure to a specified source of radiation. (32) Dose limits - The permissible upper bounds of radiation doses established in accordance with this chapter. For (19) Commercial–Having financial profit as the primary purposes of this chapter, "limits" is an equivalent term. aim. (33) Effective dose equivalent (H ) - The sum of the (20) Committed dose equivalent (H ) - The dose equiv- E T, 50 products of the dose equivalent to each organ or tissue (H ) and the alent to organs or tissues of reference (T) that will be received from T weighting factor (w ) applicable to each of the body organs or tissues an intake of radioactive material by an individual during the 50-year T that are irradiated (H = w H ). period following the intake. E T T (34) Embryo/fetus - The developing human organism (21) Committed effective dose equivalent (H ) - The sum E, 50 from conception until the time of birth. of the products of the weighting factors applicable to each of the body organs or tissues that are irradiated and the committed dose equivalent (35) Entrance or access point - Any opening through to each of these organs or tissues (HE, 50 = wT,HT,50). which an individual or extremity of an individual could gain access to radiation areas or to licensed sources of radiation. This includes (22) Constraint (dose constraint) - A value above which portals of sufficient size to permit human access, irrespective of their specified licensee actions are required. intended use. (23) Critical group - The group of individuals reasonably (36) Exposure - The quotient of dQ by dm where "dQ" is expected to receive the greatest exposure to residual radioactivity for the absolute value of the total charge of the ions of one sign produced any applicable set of circumstances. in air when all the electrons (negatrons and positrons) liberated by (24) Curie (Ci) - A unit of measurement of radioactivity. photons in a volume element of air having mass "dm" are completely One curie (Ci) is that quantity of radioactive material that decays at stopped in air. The SI unit of exposure is the coulomb per kilogram the rate of 3.7 x1010 disintegrations per second (dps). Commonly used (C/kg). The roentgen is the special unit of exposure. For purposes submultiples of the curie are the millicurie (mCi) and the microcurie of this chapter, this term is used as a noun. ("Ci). One mCi = 1 x 10-3 Ci = 3.7 x 107 dps. One "Ci = 1 x10-6 Ci (37) Exposure rate - The exposure per unit of time. = 3.7 x 104 dps. One nanocurie (nCi) = 1 x 10-9 Ci = 3.7 x 101 dps. One picocurie (pCi) = 1 x 10-12 Ci = 3.7 x 10-2 dps. (38) External dose - That portion of the dose equivalent received from any source of radiation outside the body. (25) Decommission - To remove a facility or site safely from service and reduce residual radioactivity to a level that permits (39) Extremity - Hand, elbow, arm below the elbow, foot, the following: knee, and leg below the knee. The arm above the elbow and the leg above the knee are considered part of the whole body. (A) release of the property for unrestricted use and/or termination of license; or (40) Generally applicable environmental radiation standards–Standards issued by the United States Environmental (B) release of the property under alternate require- Protection Agency (EPa) under the authority of the Atomic energy ments for license termination. Act of 1954, as amended, that impose limits on radiation exposures
(26) Deep dose equivalent (Hd), that applies to external or levels, or concentrations or quantities of radioactive material, in whole body exposure - The dose equivalent at a tissue depth of 1 the general environment outside the boundaries of locations under centimeter (cm) (1,000 milligrams per square centimeter (mg/cm2)). the control of persons possessing or using radioactive material. (27) Depleted uranium - The source material uranium in (41) Gray (Gy) - The SI unit of absorbed dose. One gray which the isotope uranium-235 is less than 0.711 weight percent of is equal to an absorbed dose of 1 joule per kilogram (J/kg) or 100 the total uranium present. Depleted uranium does not include special rad. nuclear material. (42) High radiation area - An area, accessible to individ- (28) Distinguishable from background - The detectable uals, in which radiation levels from sources of radiation external to concentration of a radionuclide is statistically different from the the body could result in an individual receiving a dose equivalent in background concentration of that radionuclide in the vicinity of the excess of 0.1 rem (1 millisievert (mSv)) in one hour at 30 cm from site, or, in the case of structures or equipment, in similar materials any source of radiation or from any surface that the radiation pene- using adequate measurement technology, survey, and statistical trates. techniques. (43) Human use–The internal or external administration of radiation or radioactive material to human beings for healing arts
ADOPTED RULES May 26, 2000 25 TexReg 4827 purposes or research and/or development specifically authorized by destination and whose location cannot be readily traced in the the agency. transportation system. (44) Individual–Any human being. (57) Low-level radioactive waste (LLRW) - Radioactive material that meets the following criteria: (45) Individual monitoring - The assessment of: (A) LLRW is radioactive material that is: (A) dose equivalent to an individual by the use of individual monitoring devices; or (i) discarded or unwanted and is not exempt by rule adopted under the Texas Radiation Control Act (Act), Health and (B) committed effective dose equivalent to an individ- Safety Code, §401.106; ual by bioassay or by determination of the time-weighted air concen- trations to which an individual has been exposed, that is, DAC-hours. (ii) waste, as that term is defined in 10 CFR Part (See the definition for DAC-hours in §289.202(c) of this title); or 61.2; and (C) dose equivalent to an individual by the use of (iii) subject to: survey data. (I) concentration limits established in 10 CFR (46) Individual monitoring devices - Devices designed to Part 61.55, or compatible rules adopted by the agency or the Texas be worn by a single individual for the assessment of dose equivalent. Natural Resource Conservation Commission (TNRCC), as applicable; For purposes of this chapter, "personnel dosimeter" and "dosimeter" and are equivalent terms. Examples of individual monitoring devices (II) disposal criteria established in 10 CFR, or include, but are not limited to, film badges, thermoluminescence established by the agency or TNRCC, as applicable. dosimeters (TLDs), optically stimulated luminescence dosimeters (OSLs), pocket ionization chambers (pocket dosimeters), electronic (B) LLRW does not include: personal dosimeters, and personal air sampling devices. (i) high-level radioactive waste as defined by 10 (47) Inspection–An official examination and/or observa- CFR 60.2; tion including, but not limited to, records, tests, surveys, and mon- (ii) spent nuclear fuel as defined by 10 CFR 72.3; itoring to determine compliance with the Act and rules, orders, re- quirements, and conditions of the agency. (iii) byproduct material defined in the Act, Health and Safety Code, §401.003(3)(B); (48) Internal dose–That portion of the dose equivalent received from radioactive material taken into the body. (iv) naturally occurring radioactive material (NORM) waste that is not oil and gas NORM waste; (49) Ionizing radiation–Any electromagnetic or particu- late radiation capable of producing ions, directly or indirectly, in its (v) oil and gas NORM waste; or passage through matter. Ionizing radiation includes gamma rays and (vi) transuranics greater than 100 nanocuries per x-rays, alpha and beta particles, high speed electrons, neutrons, and gram. other nuclear particles. (58) Manufacture - To fabricate or mechanically produce. (50) Land disposal facility - The land, buildings, and equipment that are intended to be used for the disposal of low-level (59) Member of the public - Any individual, except when radioactive waste (LLRW) into the subsurface of the land. that individual is receiving an occupational dose. (51) Lens dose equivalent - The external dose equivalent (60) Minor–An individual less than 18 years of age. to the lens of the eye at a tissue depth of 0.3 cm (300 mg/cm2). (61) Monitoring - The measurement of radiation, radioac- (52) License - A form of permission given by the agency tive material concentrations, surface area activities, or quantities of to an applicant who has met the requirements for licensing set out in radioactive material and the use of the results of these measurements the Act and this chapter. to evaluate potential exposures and doses. For purposes of this chap- ter, "radiation monitoring" and "radiation protection monitoring" are (53) Licensed material - Radioactive material received, equivalent terms. possessed, used, or transferred under a general or specific license issued by the agency. (62) NARM - Any naturally occurring or accelerator- produced radioactive material except source material or special (54) Licensee - Any person who is licensed by the agency nuclear material. in accordance with the Act and this chapter. (63) Natural radioactivity - Radioactivity of naturally (55) Licensing state - Any state with rules equivalent to occurring nuclides whose location and chemical and physical form the Suggested State Regulations for Control of Radiation relating have not been altered by man. to, and having an effective program for, the regulatory control of naturally occurring or accelerator-produced radioactive material (64) NRC - The United States Nuclear Regulatory Com- (NARM) and has been designated as such by the Conference mission (NRC) or its duly authorized representatives. of Radiation Control Program Directors, Inc. For the purposes (65) Occupational dose - The dose received by an individ- of evaluation and/or distribution of sealed sources, this includes ual in the course of employment in which the individual’s assigned Licensing State Status: Product Review Only. duties involve exposure to sources of radiation from licensed/regis- (56) Lost or missing radioactive material - Radioactive tered and unlicensed/unregistered sources of radiation, whether in the material whose location is unknown. This definition includes licensed possession of the licensee/registrant or other person. Occupational material that has been shipped but has not reached its planned dose does not include dose received from background radiation, from any medical administration the individual has received, from expo-
25 TexReg 4828 May 26, 2000 Texas Register sure to individuals administered radioactive material and released in (77) Radiation area - Any area, accessible to individuals, accordance with this chapter, from voluntary participation in medical in which radiation levels could result in an individual receiving a dose research programs, or as a member of the public. equivalent in excess of 0.005 rem (0.05 mSv) in one hour at 30 cm from the source of radiation or from any surface that the radiation (66) Particle accelerator - Any machine capable of accel- penetrates. erating electrons, protons, deuterons, or other charged particles in a vacuum and designed to discharge the resultant particulate or other (78) Radiation machine - Any device capable of produc- associated radiation at energies usually in excess of 1 MeV. ing ionizing radiation except those devices with radioactive material as the only source of radiation. (67) Person - Any individual, corporation, partnership, firm, association, trust, estate, public or private institution, group, (79) Radiation safety officer (RSO) - An individual who agency, local government, any other state or political subdivision or has a knowledge of and the authority and responsibility to apply agency thereof, or any other legal entity, and any legal successor, appropriate radiation protection rules, standards, and practices, who representative, agent, or agency of the foregoing, other than the NRC, must be specifically authorized on a radioactive material license, and and other than federal government agencies licensed or exempted by who is the primary contact with the agency. the NRC. (80) Radioactive material - Any material (solid, liquid, or (68) Personnel monitoring equipment (See definition for gas) that emits radiation spontaneously. individual monitoring devices.) (81) Radioactive waste - As used in §289.254 of this (69) Pharmacist - An individual licensed by the Texas chapter, this term is equivalent to LLRW. State Board of Pharmacy, and with license in good standing, to (82) Radioactivity - The disintegration of unstable atomic compound and dispense drugs, prescriptions, and poisons. nuclei with the emission of radiation. (70) Physician - An individual licensed by the Texas State (83) Radiobioassay (See definition for bioassay.) Board of Medical Examiners, with license in good standing. (84) Registrant - Any person issued a certificate of (71) Principal activities - Activities authorized by the registration by the agency in accordance with the Act and this chapter. license that are essential to achieving the purpose(s) for which the license was issued or amended. Storage during which no licensed (85) Regulation (See definition for rule.) material is accessed for use or disposal and activities incidental to (86) Regulations of the United States Department of decontamination or decommissioning are not principal activities. Transportation (DOT) - The requirements in 49 CFR Parts 100-189. (72) Public dose - The dose received by a member of the (87) Rem - The special unit of any of the quantities public from exposure to sources of radiation released by a licensee, expressed as dose equivalent. The dose equivalent in rem is equal to or to any other source of radiation under the control of a licensee/ the absorbed dose in rad multiplied by the quality factor (1 rem = registrant. It does not include occupational dose or doses received 0.01 sievert (Sv)). from background radiation, from any medical administration the individual has received, from exposure to individuals administered (88) Research and development - Research and develop- radioactive material and released in accordance with this chapter, or ment is defined as: from voluntary participation in medical research programs. (A) theoretical analysis, exploration, or experimenta- (73) Quality factor (Q) - The modifying factor listed in tion; or subsection (n)(3) and (4) of this section that is used to derive dose (B) the extension of investigative findings and theories equivalent from absorbed dose. of a scientific or technical nature into practical application for (74) Quarter (calendar quarter) - A period of time equal experimental and demonstration purposes, including the experimental to one-fourth of the year observed by the licensee, approximately 13 production and testing of models, devices, equipment, materials, and consecutive weeks, providing that the beginning of the first quarter processes. in a year coincides with the starting date of the year and that no day (89) Residual radioactivity - The radioactivity in struc- is omitted or duplicated in consecutive quarters. tures, materials, soils, groundwater, and other media at a site resulting (75) Rad - The special unit of absorbed dose. One rad is from activities under the licensee’s control. This includes radioactiv- equal to an absorbed dose of 100 ergs per gram (erg/g) or 0.01 J/kg ity from all licensed and unlicensed sources used by the licensee, but (0.01 gray). excludes background radiation. It also includes radioactive materials remaining at the site as a result of routine or accidental releases of (76) Radiation - One or more of the following: radioactive material at the site and previous burials at the site, even (A) gamma and x rays; alpha and beta particles and if those burials were made in accordance with the provisions of 30 other atomic or nuclear particles or rays; Texas Administrative Code §336.334. (B) stimulated emission of radiation from any elec- (90) Restricted area - An area, access to which is limited tronic device to such energy density levels as to reasonably cause by the licensee for the purpose of protecting individuals against undue bodily harm; or risks from exposure to sources of radiation. Restricted area does not include areas used as residential quarters, but separate rooms in a (C) sonic, ultrasonic, or infrasonic waves from any residential building may be set apart as a restricted area. electronic device or resulting from the operation of an electronic circuit in an electronic device in the energy range to reasonably cause (91) Roentgen (R)–The specia unit of exposure. One detectable bodily harm. roentgen (R) equals 2.58 x 10-4C/kg of air. (See definition for exposure.)
ADOPTED RULES May 26, 2000 25 TexReg 4829 (92) Rule (as defined in the Government Code, Chapters (B) any material artificially enriched by any of the 2001 and 2002, as amended)–Any agency statement of general foregoing, but does not include source material. applicability that implements, interprets, or prescribes law or policy, (102) Special nuclear material in quantities not sufficient or describes the procedure or practice requirements of an agency. to form a critical mass–Uranium enriched in the isotope 235 in The term includes the amendment or repeal of a prior section but quantities not exceeding 350 grams (g) of contained uranium- does not include statements concerning only the internal management 235; uranium-233 in quantities not exceeding 200 g; plutonium or organization of any agency and not affecting private rights or in quantities not exceeding 200 g; or any combination of them in procedures. The word "rule" was formerly referred to as "regulation." accordance with the following formula. (93) Sealed source–Radioactive material that is perma- (A) For each kind of special nuclear material, deter- nently bonded or fixed in a capsule or matrix designed to prevent mine the ratio between the quantity of that special nuclear material release and dispersal of the radioactive material under the most se- and the quantity specified above for the same kind of special nuclear vere conditions that are likely to be encountered in normal use and material. The sum of such ratios for all of the kinds of special nu- handling. clear material in combination shall not exceed "1" (i.e., unity). (94) Shallow dose equivalent (H ), (that applies to the s (B) For example, the following quantities in combina- external exposure of the skin or an extremity)–The dose equivalent tion would not exceed the limitation and are within the formula: at a tissue depth of 0.0007 cm (7 mg/cm2) averaged over an area of Figure: 25 TAC §289.201(b)(102)(B) (No change) 1 square centimeter (cm2). (103) Special units–The conventional units historically (95) SI–The abbreviation for the International System of used by licensees and registrants, i.e., curie (activity), rad (absorbed Units. dose), and rem (dose equivalent). (96) Sievert–The SI unit of any of the quantities expressed (104) Survey - An evaluation of the radiological condi- as dose equivalent. The dose equivalent in sievert is equal to the tions and potential hazards incident to the production, use, transfer, absorbed dose in gray multiplied by the quality factor (1 SV = 100 release, disposal, and/or presence of sources of radiation. When ap- rem). propriate, such survey includes, but is not limited to, tests, physical (97) Site boundary - That line beyond which the land or examination of location of materials and equipment, measurements property is not owned, leased, or otherwise controlled by the licensee. of levels of radiation or concentration of radioactive material present, and evaluation of administrative and/or engineered controls. (98) Source material–Source material is defined as: (105) Termination - A release by the agency of the (A) uranium or thorium, or any combination thereof, obligations and authorizations of the licensee under the terms of the in any physical or chemical form; or license. It does not relieve a person of duties and responsibilities (B) ores that contain by right 0.05% or more of imposed by law. uranium, thorium, or any combination thereof; and (106) Test–A method of determining the characteristics or (C) does not include special nuclear material. condition of sources of radiation or components thereof. (99) Source of radiation–Any radioactive material, or any (107) Texas Regulations for Control of Radiation (TRCR) device or equipment emitting or capable of producing radiation. - All sections of Title 25 Texas Administrative Code (TAC), Chapter 289. (100) Special form radioactive material - Radioactive ma- terial that satisfies the following conditions. (108) Total effective dose equivalent (TEDE)–The sum of the deep dose equivalent for external exposures and the committed (A) It is either a single solid piece or is contained in effective dose equivalent for internal exposures. a sealed capsule that can be opened only by destroying the capsule; (109) Total organ dose equivalent (TODE)–The sum of (B) The piece or capsule has at least one dimension the deep dose equivalent and the committed dose equivalent to the not less than 5 millimeters (mm) (0.2 inch); and organ receiving the highest dose as described in §289.202(rr)(1)(F) (C) It satisfies the requirements specified by the NRC. of this title. A special form encapsulation designed in accordance with the NRC (110) Transport index–The dimensionless number requirements in effect on June 30, 1983, and constructed prior to (rounded up to the next tenth) placed on the label of a package, to July 1, 1985, may continue to be used. A special form encapsulation designate the degree of control to be exercised by the carrier during designed in accordance with the NRC requirements in effect on March transportation. The transport index is determined as follows: 31, 1996, and constructed prior to April 1, 1998, may continue to be used. A special form encapsulation either designed or constructed (A) For non-fissile material packages, the number after April 1, 1998, must meet the requirements of this definition determined by multiplying the maximum radiation level in millisievert applicable at the time of its design or construction. per hour (mSv/hr) at 1 meter (m) (3.3 feet) from the external surface of the package by 100 (equivalent to the maximum radiation level in (101) Special nuclear material–Special nuclear material is millirem per hour (mrem/hr) at 1 m (3.3 feet); or defined as: (B) For fissile material packages, the number deter- (A) plutonium, uranium-233, uranium enriched in the mined by multiplying the maximum radiation level in mSv/hr at 1 m isotope 233 or in the isotope 235, and any other material that the (3.3 feet) from the external surface of the package by 100 (equivalent NRC, in accordance with the provisions of the Atomic Energy Act to the maximum radiation level in mrem/hr at 1 m (3.3 feet), or, for of 1954, §51 as amended, determines to be special nuclear material, criticality control purposes, the number obtained as described in 10 but does not include source material; or CFR 71.59, whichever is larger.
25 TexReg 4830 May 26, 2000 Texas Register (111) Type A quantity–A quantity of radioactive material, (A) state of technology; the aggregate radioactivity of which does not exceed A1 for special (B) economic considerations in relation to benefits to form radioactive material or A2 for normal form radioactive material, the public health and safety; and where A1 and A2 are given in §289.257(s)(2) of this title (relating to Packaging and Transportation of Radioactive Material) or may be (C) other societal, socioeconomic, or public health and determined by procedures described in §289.257(s)(1)-(4) of this title. safety considerations. (112) Type B quantity–A quantity of radioactive material (2) United States Department of Energy (DOE) contrac- greater than a type A quantity. tors and NRC contractors. Any DOE contractor or subcontractor and any NRC contractor or subcontractor of the following categories op- (113) Unrefined and unprocessed ore–Ore in its natural erating within Texas is exempt from this chapter, with the exception form prior to any processing, such as grinding, roasting, beneficiating, of §289.204 of this title (relating to Fees for Certificates of Regis- or refining. tration, Radioactive Material(s) Licenses, Emergency Planning and (114) Unrestricted area (uncontrolled area) - An area, Implementation, and Other Regulatory Services), to the extent that access to which is neither limited nor controlled by the licensee. For such contractor or subcontractor under that individual’s contract re- purposes of this chapter, "uncontrolled area" is an equivalent term. ceives, possesses, uses, transfers, or acquires sources of radiation: (115) Very high radiation area - An area, accessible to (A) prime contractors performing work for the DOE individuals, in which radiation levels from sources of radiation at United States government-owned or controlled sites, including the external to the body could result in an individual receiving an transportation of sources of radiation to or from such sites and the absorbed dose in excess of 500 rads (5 grays) in one hour at 1 meter performance of contract services during temporary interruptions of (m) from a source of radiation or from any surface that the radiation such transportation; penetrates. At very high doses received at high dose rates, units of (B) prime contractors of the DOE performing research absorbed dose, gray and rad, are appropriate, rather than units of dose in, or development, manufacture, storage, testing, or transportation of, equivalent, Sv and rem. atomic weapons or components thereof; (116) Veterinarian - An individual licensed by the Texas (C) prime contractors of the DOE using or operat- Board of Veterinary Medical Examiners, with license in good ing nuclear reactors or other nuclear devices in a United States standing. government-owned vehicle or vessel; and (117) Week - Seven consecutive days starting on Sunday. (D) any other prime contractor or subcontractor of the (118) Whole body - For purposes of external exposure, DOE or of the NRC when the state and the NRC jointly determine head, trunk including male gonads, arms above the elbow, or legs that: above the knee. (i) the exemption of the prime contractor or sub- (119) Worker - An individual engaged in work under contractor is authorized by law; and a license or certificate of registration issued by the agency and (ii) in accordance with the terms of the contract or controlled by a licensee or registrant, but does not include the licensee subcontract, there is adequate assurance that the work thereunder can or registrant. be accomplished without undue risk to the public health and safety (120) Working level (WL) - Any combination of short- and the environment. lived radon daughters in 1 liter of air that will result in the ultimate (d) Records. emission of 1.3 x 105 million electron volts (MeV) of potential alpha particle energy. The short-lived radon daughters are – for radon- (1) Each licensee shall maintain records showing the 222: polonium-218, lead-214, bismuth-214, and polonium-214; and receipt, transfer, and disposal of all licensed sources of radiation. for radon-220: polonium-216, lead-212, bismuth-212, and polonium- These records shall be maintained by the licensee until disposal 212. is authorized by the agency. Additional record requirements are specified elsewhere in this chapter. All records required by this (121) Working level month (WLM) - An exposure to one chapter shall be accurate and factual. working level for 170 hours – 2,000 working hours per year divided by 12 months per year is approximately equal to 170 hours per month. (2) Records are only valid if stamped, initialed, or signed and dated by authorized personnel or otherwise authenticated. (122) Year - The period of time beginning in January used to determine compliance with the provisions of this chapter. The (3) Each record required by this chapter must be legible licensee may change the starting date of the year used to determine throughout the retention period specified by the agency. The record compliance by the licensee provided that the change is made at the may be the original or a reproduced copy or a microform provided that beginning of the year and that no day is omitted or duplicated in the copy or microform is authenticated by authorized personnel and consecutive years. that the microform is capable of producing a clear copy throughout the required retention period. The record may also be stored in (c) Exemptions. electronic media with the capability for producing legible, accurate, (1) General provision. The agency may, upon application and complete records during the required retention period. Records, therefor or upon its own initiative, exempt a source of radiation or such as letters, drawings, or specifications, must include all pertinent a kind of use or user from the requirements of this chapter if the information such as stamps, initials, and signatures. The licensee agency determines that the exemption is not prohibited by law and shall maintain adequate safeguards against tampering with and loss will not result in a significant risk to public health and safety and of records. the environment. In determining such exemptions, the agency will (e) Inspections. consider:
ADOPTED RULES May 26, 2000 25 TexReg 4831 (1) The agency may enter public or private property at sealed source contained in a device, test samples are obtained when reasonable times to determine whether, in a matter under the agency’s the source is in the "off" position; jurisdiction, there is compliance with the Act, the agency’s rules, (F) the test for leakage for brachytherapy sources license conditions, and orders issued by the agency. manufactured to contain radium shall be capable of detecting an (2) Each licensee shall afford the agency, at all reasonable absolute leakage rate of 0.001 micro;Ci (37 Bq) of radon-222 in times, opportunity to inspect sources of radiation and the premises a 24-hour period when the collection efficiency for radon-222 and and facilities wherein such sources of radiation are used or stored. its daughters has been determined with respect to collection method, volume, and time; and (3) Each licensee shall make available to the agency for inspection, upon reasonable notice, records maintained in accordance (G) tests for contamination from radium daughters with this chapter. shall be taken on the interior surface of brachytherapy source storage containers and shall be capable of detecting the presence of 0.005 (f) Tests. micro;Ci (185 Bq) of a radium daughter that has a half-life greater (1) Each licensee shall perform, upon instructions from than four days. the agency, or shall permit the agency to perform such reasonable (2) A licensee need not perform tests for leakage or tests as the agency deems appropriate or necessary including, but not contamination on the following sealed sources: limited to, tests of: (A) sealed sources containing only radioactive material (A) sources of radiation; with a half-life of less than 30 days; (B) facilities wherein sources of radiation are used or (B) sealed sources containing only radioactive material stored; as a gas; (C) radiation detection and monitoring instruments; (C) sealed sources containing 100 micro;Ci (3.7 and megabecquerels (MBq)) or less of beta or photon-emitting material (D) other equipment and devices used in connection or 10 micro;Ci (370 kilobecquerels (kBq)) or less of alpha-emitting with utilization or storage of licensed sources of radiation. material; (2) Each licensee is required to accept from the agency, (D) sealed sources containing only hydrogen-3; samples collected from its facility(ies) or from areas that are (E) seeds of iridium-192 encased in nylon ribbon; and radioactive as a result of its licensed activities. (F) sealed sources, except teletherapy and brachyther- (g) Tests for leakage and/or contamination of sealed sources. apy sources, which are stored, not being used, and identified as in (1) The licensee in possession of any sealed source shall storage. The licensee shall, however, test each such sealed source assure that: for leakage or contamination and receive the test results before any use or transfer unless it has been tested for leakage or contamination (A) each sealed source, except as specified in para- within six months before the date of use or transfer. graph (2) of this subsection, is tested for leakage or contamination and the test results are received before the sealed source is put into (3) Analysis of tests for leakage or contamination from use unless the licensee has a certificate from the transferor indicating sealed sources shall be performed by persons specifically authorized that the sealed source was tested within six months before transfer to by the agency, the NRC, an agreement state, or a licensing state, to the licensee; perform such services. (B) each sealed source that is not designed to emit (4) Test results shall be kept in units of microcurie or alpha particles is tested for leakage or contamination at intervals becquerel and maintained for inspection by the agency. not to exceed six months or at alternative intervals approved by the (5) The following shall be considered evidence that a agency, or by the NRC, an agreement state, or a licensing state after sealed source is leaking: evaluation of information specified in §289.252(h)(7)(D) and (E) of this title (relating to Licensing of Radioactive Material); (A) the presence of 0.005 micro;Ci (185 becquerels Bq) or more of removable contamination on any test sample; (C) each sealed source that is designed to emit alpha particles is tested for leakage or contamination at intervals not to (B) leakage of 0.001 micro;Ci (37 Bq) of radon-222 exceed three months or at alternative intervals approved by the agency, per 24 hours for brachytherapy sources manufactured to contain after evaluation of information specified in §289.252(h)(7)(D) and (E) radium; or of this title, or by the NRC, an agreement state, or a licensing state; (C) the presence of removable contamination resulting (D) for each sealed source that is required to be tested from the decay of 0.005 micro;Ci (185 Bq) or more of radium. for leakage or contamination, at any other time there is reason to (6) The licensee shall immediately withdraw a leaking suspect that the sealed source might have been damaged or might be sealed source from use and shall take action to prevent the spread leaking, the licensee shall assure that the sealed source is tested for of contamination. The leaking sealed source shall be repaired or leakage or contamination before further use; transferred for disposal in accordance with §289.202 of this title. (E) tests for leakage for all sealed sources, except (7) Reports of test results for leaking or contaminated brachytherapy sources manufactured to contain radium, shall be sealed sources shall be made in accordance with §289.202(bbb) of capable of detecting the presence of 0.005 "Ci (185 Bq) of radioactive this title. material on a test sample. Test samples shall be taken from the sealed source or from the surfaces of the container in which the sealed source (h) Additional requirements. The agency may, by rule, order, is stored or mounted where contamination might accumulate. For a or condition of license or general license acknowledgment, impose
25 TexReg 4832 May 26, 2000 Texas Register upon any licensee such requirements in addition to those established in all information in the agency file being disclosed upon an open in this chapter as it deems appropriate or necessary to minimize records request. danger to public health and safety or property or the environment. (3) The agency will determine whether information falls (i) Violations. An injunction or other court order may be within one of the exceptions to the Texas Public Information Act. obtained prohibiting any violation of any provision of the Act or any The Office of General Counsel will be queried as to whether or not rule or order issued thereunder. Any person who willfully violates there has been a previous determination that the information falls any provision of the Act or any rule or order issued thereunder may within one of the exceptions to the Texas Public Information Act. If be guilty of a misdemeanor and upon conviction, may be punished there has been no previous determination and the agency believes that by fine or imprisonment or both, as provided by law. the information falls within one of the exceptions, an opinion of the Attorney General will be requested. If the agency agrees in writing (j) Impounding. Sources of radiation shall be subject to to the request, the information shall not be open for public inspection impounding in accordance with §401.068 of the Act and §289.205 of unless the Attorney General’s office subsequently determines that it this title (relating to Hearing and Enforcement Procedures). does not fall within an exception. (k) Communications. (4) Requests for information. (1) Except where otherwise specified, all communications (A) All requests for open records information must and reports concerning this chapter and applications filed under them be in writing and refer to documents currently in possession of the should be addressed to the Bureau of Radiation Control, Texas agency. Department of Health, 1100 West 49th Street, Austin, Texas, 78756- 3189. Communications, reports, and applications may be delivered (B) The agency will ascertain whether the information in person to the agency’s office located at 8407 Wall Street, Austin, may be released or whether it falls within an exception to the Texas Texas. Public Information Act. (2) Documents transmitted to the agency will be deemed (i) The agency may take a reasonable period of time submitted on the date of the postmark, telegram, telefacsimile, or to determine whether information falls within one of the exceptions electronic media transmission. to the Texas Public Information Act. (l) Interpretations. Except as specifically authorized by the (ii) If the information is determined to be public, it agency in writing, no interpretation of the meaning of this chapter will be presented for inspection and/or copies of documents will be by any officer or employee of the agency other than a written furnished within a reasonable period of time. A fee will be charged interpretation by the Office of General Counsel, Texas Department to recover agency costs for copies. of Health, will be considered binding upon the agency. (C) Original copies of public records may not be (m) Open records. removed from the agency. Under no circumstances shall material be removed from existing records. (1) Subject to the limitations provided in the Texas Public Information Act, Government Code, Chapter 552, all information and (n) Mean quality factors and absorbed dose equivalencies. data collected, assembled, or maintained by the agency are public (1) As used in this chapter, the quality factors for con- records open to inspection and copying during regular office hours. verting absorbed dose to dose equivalent are shown in the following (2) Any person who submits written information or data table: to the agency and requests that the information be considered con- Figure: 25 TAC §289.201(n)(1) fidential, privileged, or otherwise not available to the public under (2) If it is more convenient to measure the neutron fluence the Texas Public Information Act, shall justify such request in writ- rate than to determine the neutron dose equivalent rate in sievert per ing, including statutes and cases where applicable, addressed to the hour or rem per hour, as provided in paragraph (1) of this subsection, agency. 1 rem (0.01 Sv) of neutron radiation of unknown energies may, for (A) Documents containing information that is claimed purposes of this section, be assumed to result from a total fluence to fall within an exception to the Texas Public Information Act shall of 25 million neutrons per square centimeter incident upon the body. be marked to indicate that fact. Markings shall be placed on the If sufficient information exists to estimate the approximate energy document on origination or submission. distribution of the neutrons, the licensee may use the fluence rate per unit dose equivalent or the appropriate Q value from the following (i) The words "NOT AN OPEN RECORD" shall be table to convert a measured tissue dose in rad (gray) to dose equivalent placed conspicuously at the top and bottom of each page containing in rem (Sv). information claimed to fall within one of the exceptions. Figure: 25 TAC §289.201(n)(2) (ii) The following wording shall be placed at the (o) Units of activity. For purposes of this chapter, activity bottom of the front cover and title page, or first page of text if there is expressed in the special unit of curie (Ci) (becquerel (Bq)), or its is no front cover or title page: multiples, or disintegrations or transformations per second (dps or Figure: 25 TAC §289.201(m)(2)(A)(ii) tps). (B) The agency requests, whenever possible, that all (1) 1 Ci = 3.7 x 1010 dps or tps = 3.7 x 1010 (Bq) = 2.22 information submitted under the claim of an exception to the Texas x1012 disintegrations or transformations per minute (dpm or tpm). Public Information Act be extracted from the main body of the application and submitted as a separate annex or appendix to the (2) 1 Bq = 1 dps or tps. application. This agency hereby certifies that the adoption has been re- (C) Failure to comply with any of the procedures viewed by legal counsel and found to be a valid exercise of the described in subparagraphs (A) and (B) of this paragraph may result agency’s legal authority.
ADOPTED RULES May 26, 2000 25 TexReg 4833 Filed with the Office of the Secretary of State on May 15, 2000. other current employer if the employee is concurrently employed TRD-200003360 and receiving an occupational dose. Susan K. Steeg Change: Concerning §289.202(p)(3), electronic personal General Counsel dosimeters were added to the individual monitoring devices Texas Department of Health that do not require processing and evaluation by a dosimetry Effective date: October 1, 2000 processor accredited by the National Voluntary Laboratory Proposal publication date: December 3, 1999 Accreditation Program to clarify the processing requirements for these devices. For further information, please call: (512) 458-7236 ♦♦♦ Change: Concerning §289.202(ff)(1)(A), the words, "or in" and "or" were deleted from the first sentence for grammatical 25 TAC §289.202 correctness. The Texas Department of Health (department) adopts the Change: Concerning §289.202(yy)(1)(B)(v), the words, "or amendment to §289.202, concerning standards for protection registration" were deleted because this section does not apply against radiation from radioactive material with changes to the to the use of radiation machines authorized by a certificate of proposed text published in the December 3, 1999 issue of the registration. Texas Register (24 TexReg 10775). Change: Concerning §289.202(yy)(3), the proposed words, "oc- The amendment deletes pertinent references to x-ray radiation, cupationally overexposed" were deleted and the word "exposed" registered sources of radiation, and radiation machines because was retained after the word, "individual." The department be- the requirements for the use of radiation machines are being lieves overexposures to members of the public should be re- consolidated in a new section. The amendment includes new ported as well as overexposures to occupationally exposed in- definitions that support the changes in the rule. A requirement dividuals. The phrase, "social security number" was replaced for licensees to establish a constraint on air emissions of with "identification number" to reflect the same requirements for radioactive material to the environment was added. Language reporting of occupational exposures. was added to clarify that exposure from an individual who has had a medical administration of radioactive material is not to Change: Concerning §289.202(ddd)(1)(B)(i) and (ii), the words, be included in the dose limits required by this section. The "the effective date of the rule" were deleted and replaced with conditions requiring monitoring of radiation exposures to minors "October 1, 2000" to state the specific effective date of the rule. and to pregnant women were modified. The requirement was Change: Concerning §289.202(ddd)(1)(C), the phrase, "only if, also clarified to state that the dose limit requiring monitoring for a based on new information" was deleted so that the sentence declared pregnant woman is applicable only for the nine-month reads, "...the agency will require additional cleanup if it deter- gestation period. Additional conditions were added under which mines that the requirements of the subsection were not met..." teletherapy rooms may be exempted from posting requirements. The department believes the cleanup requirements should be Requirements for notification of certain events were moved from met and the rule should not limit the department’s ability to en- another section and more appropriately placed in this section. sure such cleanup to situations in which "new information" is New requirements for decommissioning that are dose-based discovered. rather than concentration-based were added. Several of the revisions have been designated as items of compatibility by the Change: Concerning §289.202(ddd)(5), the words, "the effec- United States Nuclear Regulatory Commission (NRC). As an tive date of the rule" were deleted and replaced with "October Agreement State, Texas must adopt these items of compatibility 1, 2000" to state the specific effective date of the rule. in accordance with that agreement. These amendments are The amendment is adopted under the Health and Safety part of the department’s continuing effort to update, clarify, and Code, Chapter 401, which provides the Texas Board of Health simplify its rules regarding the control of radiation based upon (board) with authority to adopt rules and guidelines relating technological changes, public concerns, legislative directives, to the control of radiation; and Health and Safety Code, compatibility with NRC, or other factors. §12.001, which provides the Texas Board of Health (board) The department received no public comments during the com- with the authority to adopt rules for its procedure and for the ment period for this amendment. However, the department is performance of each duty imposed by law on the board, the making the following minor changes due to staff comments to department, or the commissioner of health. clarify the intent and improve the accuracy of the section. §289.202. Standards for Protection Against Radiation from Radioac- Change: Concerning §289.202, the word "materials" was tive Material. changed to "material" in the title of the section to reflect how (a) Purpose. the word is used throughout the remaining text of the section. (1) This section establishes standards for protection Change: Concerning §289.202(e)(1), a final sentence was against ionizing radiation resulting from activities conducted in added, "Documentation of the radiation protection program accordance with licenses issued by the agency. may be incorporated in the licensee’s operating, safety, and emergency procedures." to clarify how the radiation protection (2) The requirements in this section are designed to program may be documented. control the receipt, possession, use, and transfer of sources of radiation by any licensee so the total dose to an individual, including Change: Concerning §289.202(j)(2)(A)-(C), the phrase, "prior doses resulting from all sources of radiation other than background employers" was changed to, "prior or other current employers" to radiation, does not exceed the standards for protection against clarify that a licensee may obtain information on an employee’s radiation prescribed in this section. However, nothing in this section occupational dose for the current year from a prior employer or
25 TexReg 4834 May 26, 2000 Texas Register shall be construed as limiting actions that may be necessary to protect (6) Dosimetry processor–A registrant that processes and health and safety in an emergency. evaluates personnel monitoring devices in order to determine the radiation dose delivered to the monitoring devices. (b) Scope. (7) Inhalation class (see definition for Class). (1) Except as specifically provided in other sections of this chapter, this section applies to persons who receive, possess, use, or (8) Lung class (see definition for Class). transfer sources of radiation, unless otherwise exempted. No person (9) Nonstochastic effect–A health effect, the severity of may use, manufacture, produce, transport, transfer, receive, acquire, which varies with the dose and for which a threshold is believed own, possess, process, or dispose of sources of radiation unless that to exist. Radiation-induced cataract formation is an example of a person has a license or exemption from the agency. The dose limits nonstochastic effect. For purposes of this section, deterministic effect in this section do not apply to doses due to background radiation, to is an equivalent term. exposure of patients to radiation for the purpose of medical diagnosis or therapy, to exposure from individuals administered radioactive (10) Planned special exposure–An infrequent exposure to material and released in accordance with this chapter, or to voluntary radiation, separate from and in addition to the annual occupational participation in medical research programs. However, no radiation dose limits. may be deliberately applied to human beings except by or under the (11) Quarter–A period of time equal to one-fourth of the supervision of an individual authorized by and licensed in accordance year observed by the licensee, approximately 13 consecutive weeks, with Texas’ statutes to engage in the healing arts. providing that the beginning of the first quarter in a year coincides (2) Licensees who are also registered by the agency to with the starting date of the year and that no day is omitted or receive, possess, use, and transfer radiation machines must also duplicated in consecutive quarters. comply with the requirements of §289.231 of this title (relating to (12) Reference man–A hypothetical aggregation of human General Provisions and Standards for Protection Against Machine- physical and physiological characteristics determined by international Produced Radiation). consensus. These characteristics may be used by esearchers and (c) Definitions. The following words and terms when used public health employees to standardize results of experiments and to in this section shall have the following meaning, unless the context relatebiological insult to a common base. A description of Reference clearly indicates otherwise. Man is contained in the International Commission on Radiological Protection report, ICRP Publication 23, "Report of the Task Group (1) Annual limit on intake (ALI)–The derived limit for on Reference Man." the amount of radioactive material taken into the body of an adult worker by inhalation or ingestion in a year. ALI is the smaller value (13) Respiratory protective equipment–An apparatus, of intake of a given radionuclide in a year by Reference Man that such as a respirator, used to reduce an individual’s intake of airborne would result in a committed effective dose equivalent of 5 rems (0.05 radioactive materials. sievert (Sv)) or a committed dose equivalent of 50 rems (0.5 Sv) to (14) Sanitary sewerage–A system of public sewers for any individual organ or tissue. ALI values for intake by ingestion carrying off waste water and refuse, but excluding sewage treatment and by inhalation of selected radionuclides are given in Columns 1 facilities, septic tanks, and leach fields owned or operated by the and 2 of Table I of subsection (ggg)(2) of this section. licensee or registrant. (2) Class–A classification scheme for inhaled material (15) Stochastic effect–A health effect that occurs ran- according to its rate of clearance from the pulmonary region of the domly and for which the probability of the effect occurring, rather lung. Materials are classified as D, W, or Y, which apply to a range than its severity, is assumed to be a linear function of dose without of clearance half-times: for Class D, Days, of less than 10 days; for threshold. Hereditary effects and cancer incidence are examples of Class W, Weeks, from 10 to 100 days, and for Class Y, Years, of stochastic effects. For purposes of this section probabilistic effect is greater than 100 days. For purposes of this section, lung class and an equivalent term. inhalation class are equivalent terms. (16) Weighting factor w for an organ or tissue (T)–The (3) Declared pregnant woman–A woman who has volun- T proportion of the risk of stochastic effects resulting from irradiation tarily informed the licensee, in writing, of her pregnancy and the of that organ or tissue to the total risk of stochastic effects when the estimated date of conception. The declaration remains in effect until whole body is irradiated uniformly. For calculating the effective dose the declared pregnant woman voluntarily withdraws the declaration equivalent, the values of w are: in writing or is no longer pregnant. T Figure: 25 TAC §289.202(c)(16) (4) Derived air concentration (DAC)–The concentration of (d) Implementation. a given radionuclide in air that, if breathed by Reference Man for a working year of 2,000 hours under conditions of light work, results (1) Any existing license condition that is more restrictive in an intake of 1 ALI. For purposes of this section, the condition of than this section remains in force until there is an amendment or light work is an inhalation rate of 1.2 cubic meters of air per hour for renewal of the license that modifies or removes this condition. 2,000 hours in a year. DAC values are given in Column 3 of Table I (2) If a license condition exempts a licensee from a of subsection (ggg)(2) of this section. provision of this section in effect on or before January 1, 1994, it (5) Derived air concentration-hour (DAC-hour)–The prod- also exempts the licensee from the corresponding provision of this uct of the concentration of radioactive material in air, expressed as section. a fraction or multiple of the derived air concentration for each ra- (3) If a license condition cites provisions of this section dionuclide, and the time of exposure to that radionuclide, in hours. in effect prior to January 1, 1994, that do not correspond to any A licensee may take 2,000 DAC-hours to represent ALI, equivalent provisions of this section, the license condition remains in force until to a committed effective dose equivalent of 5 rems (0.05 Sv).
ADOPTED RULES May 26, 2000 25 TexReg 4835 there is an amendment or renewal of the license that modifies or device was not in the region of highest potential exposure, or the removes this condition. results of individual monitoring are unavailable. (e) Radiation protection programs. (5) Derived air concentration (DAC) and annual limit on intake (ALI) values are specified in Table I of subsection (ggg)(2) of (1) Each licensee shall develop, document, and implement this section and may be used to determine the individual’s dose and a radiation protection program sufficient to ensure compliance with to demonstrate compliance with the occupational dose limits. See the provisions of this section. See subsection (mm) of this section for subsection (rr) of this section. recordkeeping requirements relating to these programs. Documenta- tion of the radiation protection program may be incorporated in the (6) Notwithstanding the annual dose limits, the licensee licensee’s operating, safety, and emergency procedures. shall limit the soluble uranium intake by an individual to 10 milligrams (mg) in a week in consideration of chemical toxicity. See (2) The licensee shall use, to the extent practicable, footnote 3 of subsection (ggg)(2) of this section. procedures and engineering controls based upon sound radiation protection principles to achieve occupational doses and public doses (7) The licensee shall reduce the dose that an individual that are as low as is reasonably achievable (ALARA). may be allowed to receive in the current year by the amount of occupational dose received while employed by any other person. See (3) The licensee shall, at intervals not to exceed 12 subsection (j)(4) of this section. months, ensure the radiation protection program content and imple- mentation is reviewed. (g) Compliance with requirements for summation of external and internal doses. (4) To implement the ALARA requirement in paragraph (2) of this subsection and notwithstanding the requirements in (1) If the licensee is required to monitor in accordance subsection (n) of this section, a constraint on air emissions of with both subsection (q)(1) and (3) of this section, the licensee radioactive material to the environment, excluding radon-222 and its shall demonstrate compliance with the dose limits by summing daughters, shall be established by licensees such that the individual external and internal doses. If the licensee is required to monitor member of the public likely to receive the highest dose will not be only in accordance with subsection (q)(1) of this section or only in expected to receive a total effective dose equivalent in excess of 10 accordance with subsection (q)(3) of this section, then summation millirems (mrem) (0.1 mSv) per year from these emissions. If a is not required to demonstrate compliance with the dose limits. licensee subject to this requirement exceeds this dose constraint, the The licensee may demonstrate compliance with the requirements licensee shall report the exceedance as required in subsection (yy) of for summation of external and internal doses in accordance with this section and promptly take appropriate corrective action. paragraphs (2)-(4) of this subsection. The dose equivalents for the lens of the eye, the skin, and the extremities are not included in the (f) Occupational dose limits for adults. summation, but are subject to separate limits. (1) The licensee shall control the occupational dose to (2) If the only intake of radionuclides is by inhalation, the individuals, except for planned special exposures in accordance with total effective dose equivalent limit is not exceeded if the sum of the subsection (k) of this section, to the following dose limits. deep dose equivalent divided by the total effective dose equivalent (A) An annual limit shall be the more limiting of: limit, and one of the following, does not exceed unity: (i) the total effective dose equivalent being equal to (A) the sum of the fractions of the inhalation ALI for 5 rems (0.05 Sv); or each radionuclide; or (ii) the sum of the deep dose equivalent and the (B) the total number of derived air concentration-hours committed dose equivalent to any individual organ or tissue other (DAC-hours) for all radionuclides divided by 2,000; or than the lens of the eye being equal to 50 rems (0.5 Sv). (C) the sum of the calculated committed effective (B) The annual limits to the lens of the eye, to the dose equivalents to all significantly irradiated organs or tissues (T) skin, and to the extremities shall be: calculated from bioassay data using appropriate biological models and expressed as a fraction of the annual limit. For purposes of this (i) a lens dose equivalent of 15 rems (0.15 Sv); and requirement, an organ or tissue is deemed to be significantly irradiated
(ii) a shallow dose equivalent of 50 rems (0.5 Sv) if, for that organ or tissue, the product of the weighting factors, wT, to the skin or to any extremity. and the committed dose equivalent, H T,50, per unit intake is greater than 10% of the maximum weighted value of H , that is, w H , (2) Doses received in excess of the annual limits, includ- T,50 T T,50 per unit intake for any organ or tissue. ing doses received during accidents, emergencies, and planned special exposures, shall be subtracted from the limits for planned special ex- (3) If the occupationally exposed individual receives an posures that the individual may receive during the current year and intake of radionuclides by oral ingestion greater than 10% of the during the individual’s lifetime. See subsection (k)(6)(A) and (B) of applicable oral ALI, the licensee shall account for this intake and this section. include it in demonstrating compliance with the limits. (3) The assigned deep dose equivalent and shallow dose (4) The licensee shall evaluate and, to the extent practical, equivalent shall be for the portion of the body receiving the highest account for intakes through wounds or skin absorption. The intake exposure. through intact skin has been included in the calculation of DAC for hydrogen-3 and does not need to be evaluated or accounted for in (4) The deep dose equivalent, lens dose equivalent and accordance with this paragraph. shallow dose equivalent may be assessed from surveys, calculations, or radiation measurements for the purpose of demonstrating compli- (h) Determination of external dose from airborne radioactive ance with the occupational dose limits, if the individual monitoring material.
25 TexReg 4836 May 26, 2000 Texas Register (1) Licensees shall, when determining the dose from (B) the ratio of the total concentration for all radionu- airborne radioactive material, include the contribution to the deep clides in the mixture to the most restrictive DAC value for any ra- dose equivalent, eye dose equivalent, and shallow dose equivalent dionuclide in the mixture. from external exposure to the radioactive cloud. See footnotes 1 and (6) If the identity of each radionuclide in a mixture is 2 of subsection (ggg)(2) of this section. known, but the concentration of one or more of the radionuclides in (2) Airborne radioactivity measurements and DAC values the mixture is not known, the DAC for the mixture shall be the most shall not be used as the primary means to assess the deep dose equiv- restrictive DAC of any radionuclide in the mixture. alent when the airborne radioactive material includes radionuclides (7) When a mixture of radionuclides in air exists, a other than noble gases or if the cloud of airborne radioactive mate- licensee may disregard certain radionuclides in the mixture if: rial is not relatively uniform. The determination of the deep dose equivalent to an individual shall be based upon measurements using (A) the licensee uses the total activity of the mixture instruments or individual monitoring devices. in demonstrating compliance with the dose limits in subsection (f) of this section and in complying with the monitoring requirements in (i) Determination of internal exposure. subsection (q)(3) of this section; (1) For purposes of assessing dose used to determine (B) the concentration of any radionuclide disregarded compliance with occupational dose equivalent limits, the licensee is less than 10% of its DAC; and shall, when required in accordance with subsection (q) of this section, take suitable and timely measurements of: (C) the sum of these percentages for all of the radionu- clides disregarded in the mixture does not exceed 30%. (A) concentrations of radioactive materials in air in work areas; (8) When determining the committed effective dose equiv- alent, the following information may be considered. (B) quantities of radionuclides in the body; (A) In order to calculate the committed effective dose (C) quantities of radionuclides excreted from the body; equivalent, the licensee may assume that the inhalation of 1 ALI, or or an exposure of 2,000 DAC-hours, results in a committed effective (D) combinations of these measurements. dose equivalent of 5 rems (0.05 Sv) for radionuclides that have their ALIs or DACs based on the committed effective dose equivalent. (2) Unless respiratory protective equipment is used, as provided in subsection (x) of this section, or the assessment of intake (B) For an ALI and the associated DAC determined is based on bioassays, the licensee shall assume that an individual by the nonstochastic organ dose limit of 50 rems (0.5 Sv), the intake inhales radioactive material at the airborne concentration in which of radionuclides that would result in a committed effective dose the individual is present. equivalent of 5 rems (0.05 Sv), that is, the stochastic ALI, is listed in parentheses in Table I of subsection (ggg)(2) of this section. The (3) When specific information on the physical and bio- licensee may, as a simplifying assumption, use the stochastic ALI chemical properties of the radionuclides taken into the body or the to determine committed effective dose equivalent. However, if the behavior of the material in an individual is known, the licensee may: licensee uses the stochastic ALI, the licensee shall also demonstrate (A) use that information to calculate the committed that the limit in subsection (f)(1)(A)(ii) of this section is met. effective dose equivalent, and, if used, the licensee shall document (j) Determination of occupational dose for the current year. that information in the individual’s record; (1) For each individual who is likely to receive, in a (B) upon prior approval of the agency, adjust the DAC year, an occupational dose requiring monitoring in accordance with or ALI values to reflect the actual physical and chemical charac- subsection (q) of this section, the licensee shall determine the teristics of airborne radioactive material, for example, aerosol size occupational radiation dose received during the current year. distribution or density; and (2) In complying with the requirements of paragraph (1) (C) separately assess the contribution of fractional of this subsection, a licensee may: intakes of Class D, W, or Y compounds of a given radionuclide to the committed effective dose equivalent. See subsection (ggg)(2) of (A) accept, as a record of the occupational dose that this section. the individual received during the current year, BRC Form 202-2 from prior or other current employers, or other clear and legible record, of (4) If the licensee chooses to assess intakes of Class Y all information required on that form and indicating any periods of material using the measurements given in paragraph (1)(A) or (B) of time for which data are not available; or this subsection, the licensee may delay the recording and reporting of the assessments for periods up to seven months, unless otherwise (B) accept, as a record of the occupational dose that required by subsections (xx) or (yy) of this section. This delay the individual received during the current year, a written signed permits the licensee to make additional measurements basic to the statement from the individual, or from the individual’s prior or assessments. other current employer(s) for work involving radiation exposure, that discloses the nature and the amount of any occupational dose that the (5) If the identity and concentration of each radionuclide individual received during the current year; or in a mixture are known, the fraction of the DAC applicable to the mixture for use in calculating DAC-hours shall be either: (C) obtain reports of the individual’s dose equivalent from prior or other current employer(s) for work involving radiation (A) the sum of the ratios of the concentration to the exposure, or the individual’s current employer, if the individual is not appropriate DAC value, that is, D, W, or Y, from subsection (ggg)(2) employed by the licensee, by telephone, telegram, facsimile, or letter. of this section for each radionuclide in the mixture; or The licensee shall request a written verification of the dose data if the authenticity of the transmitted report cannot be established.
ADOPTED RULES May 26, 2000 25 TexReg 4837 (3) The licensee shall record the exposure data for the (B) all doses in excess of the limits, including doses current year, as required by paragraph (1) of this subsection, on BRC received during accidents and emergencies, received during the Form 202-3, or other clear and legible record, of all the information lifetime of the individual; and required on that form. (C) all lifetime cumulative occupational radiation (4) If the licensee is unable to obtain a complete record doses. of an individual’s current occupational dose while employed by any (5) In complying with the requirements of paragraph other licensee, the licensee shall assume in establishing administrative (4)(C) of this subsection, a licensee may: controls in accordance with subsection (f)(8) of this section for the current year, that the allowable dose limit for the individual is reduced (A) accept, as the record of lifetime cumulative radia- by 1.25 rems (12.5 millisieverts (mSv)) for each quarter; or 416 mrem tion dose, an up-to-date BRC Form 202-2 or equivalent, signed by the (4.16 mSv) for each month for which records were unavailable and individual and countersigned by an appropriate official of the most the individual was engaged in activities that could have resulted in recent employer for work involving radiation exposure, or the indi- occupational radiation exposure. vidual’s current employer, if the individual is not employed by the licensee; and (5) If an individual has incomplete (e.g., a lost or damaged personnel monitoring device) current occupational dose data for the (B) obtain reports of the individual’s dose equivalent current year and that individual is employed solely by the licensee from prior employer(s) for work involving radiation exposure, or the during the current year, the licensee shall: individual’s current employer, if the individual is not employed by the licensee, by telephone, telegram, facsimile, or letter. The licensee (A) assume that the allowable dose limit for the shall request a written verification of the dose data if the authenticity individual is reduced by 1.25 rems (12.5 mSv) for each quarter; of the transmitted report cannot be established. (B) assume that the allowable dose limit for the (6) Subject to subsection (f)(2) of this section, the licensee individual is reduced by 416 mrem (4.16 mSv) for each month; or shall not authorize a planned special exposure that would cause an (C) assess an occupational dose for the individual dur- individual to receive a dose from all planned special exposures and ing the period of missing data using surveys, radiation measurements, all doses in excess of the limits to exceed: or other comparable data for the purpose of demonstrating compli- (A) the numerical values of any of the dose limits in ance with the occupational dose limits. subsection (f)(1) of this section in any year; and (6) Administrative controls established in accordance with (B) five times the annual dose limits in subsection paragraph (4) of this subsection shall be documented and maintained (f)(1) of this section during the individual’s lifetime. for inspection by the agency. Occupational dose assessments made in accordance with paragraph (5) of this subsection and records of (7) The licensee maintains records of the conduct of a data used to make the assessment shall be maintained for inspection planned special exposure in accordance with subsection (qq) of this by the agency. The licensee shall retain the records in accordance section and submits a written report to the agency in accordance with with subsection (rr) of this section. subsection (zz) of this section. (k) Planned special exposures. A licensee may authorize (8) The licensee records the best estimate of the dose an adult worker to receive doses in addition to and accounted for resulting from the planned special exposure in the individual’s record separately from the doses received under the limits specified in and informs the individual, in writing, of the dose within 30 days subsection (f) of this section provided that each of the following from the date of the planned special exposure. The dose from conditions is satisfied. planned special exposures shall not be considered in controlling future occupational dose of the individual in accordance with subsection (1) The licensee authorizes a planned special exposure (f)(1) of this section but shall be included in evaluations required by only in an exceptional situation when alternatives that might avoid paragraphs (4) and (6) of this subsection. the doses estimated to result from the planned special exposure are unavailable or impractical. (9) The licensee shall record the exposure history, as required by paragraph (4) of this subsection, on BRC Form 202- (2) The licensee and employer, if the employer is not 2, or other clear and legible record, of all the information required on the licensee, specifically authorizes the planned special exposure, in that form. The form or record shall show each period in which the writing, before the exposure occurs. individual received occupational exposure to radiation or radioactive (3) Before a planned special exposure, the licensee en- material and shall be signed by the individual who received the sures that each individual involved is: exposure. For each period for which the licensee obtains reports, the licensee shall use the dose shown in the report in preparing BRC (A) informed of the purpose of the planned operation; Form 202-2 or equivalent. (B) informed of the estimated doses and associated (l) Occupational dose limits for minors. The annual occupa- potential risks and specific radiation levels or other conditions that tional dose limits for minors are 10% of the annual occupational dose might be involved in performing the task; and limits specified for adult workers in subsection (f) of this section. (C) instructed in the measures to be taken to keep the (m) Dose equivalent to an embryo/fetus. dose ALARA considering other risks that may be present. (1) If a woman declares her pregnancy, the licensee shall (4) Prior to permitting an individual to participate in a ensure that the dose equivalent to an embryo/fetus during the entire planned special exposure, the licensee shall determine: pregnancy, due to occupational exposure of a declared pregnant (A) the internal and external doses from all previous woman, does not exceed 0.5 rem (5 mSv). If a woman chooses planned special exposures; not to declare pregnancy, the occupational dose limits specified in
25 TexReg 4838 May 26, 2000 Texas Register subsection (f)(1) of this section are applicable to the woman. See individual member of the public of 0.5 rem (5 mSv). This application subsection (rr) of this section for recordkeeping requirements. shall include the following information: (2) The licensee shall make efforts to avoid substantial (A) demonstration of the need for and the expected variation above a uniform monthly exposure rate to a declared preg- duration of operations in excess of the limit in paragraph (1) of this nant woman so as to satisfy the limit in paragraph (1) of this sub- subsection; section. The National Council on Radiation Protection and Measure- (B) the licensee’s program to assess and control dose ments recommended in NCRP Report No. 91 "Recommendations on within the 0.5 rem (5 mSv) annual limit; and Limits for Exposure to Ionizing Radiation" (June 1, 1987) that no more than 0.05 rem (0.5 mSv) to the embryo/fetus be received in any (C) the procedures to be followed to maintain the dose one month. ALARA. (3) The dose equivalent to an embryo/fetus shall be taken (4) In addition to the requirements of this section, a li- as: censee subject to the provisions of the United States Environmental Protection Agency’s (EPA) generally applicable environmental radi- (A) the dose equivalent to the embryo/fetus from ation standards in 40 Code of Federal Regulations (CFR), §190 shall radionuclides in the embryo/fetus and radionuclides in the declared comply with those requirements. pregnant woman; and (5) The agency may impose additional restrictions on (B) the dose equivalent that is most representative of radiation levels in unrestricted areas and on the total quantity of the dose equivalent to the embryo/fetus from external radiation, that radionuclides that a licensee may release in effluents in order to is, in the mother’s lower torso region. restrict the collective dose. (i) If multiple measurements have not been made, (o) Compliance with dose limits for individual members of assignment of the highest deep dose equivalent for the declared the public. pregnant woman shall be the dose equivalent to the embryo/fetus. (1) The licensee shall make or cause to be made surveys (ii) If multiple measurements have been made, as- of radiation levels in unrestricted areas and radioactive materials in signment of the deep dose equivalent for the declared pregnant woman effluents released to unrestricted areas to demonstrate compliance from the individual monitoring device that is most representative of with the dose limits for individual members of the public as required the dose equivalent to the embryo/fetus shall be the dose equivalent in subsection (n) of this section. to the embryo/fetus. Assignment of the highest deep dose equivalent for the declared pregnant woman to the embryo/fetus is not required (2) A licensee shall show compliance with the annual dose unless that dose equivalent is also the most representative deep dose limit in subsection (n) of this section by: equivalent for the region of the embryo/fetus. (A) demonstrating by measurement or calculation that (4) If by the time the woman declares pregnancy to the the total effective dose equivalent to the individual likely to receive licensee, the dose equivalent to the embryo/fetus has exceeded 0.45 the highest dose from the licensed or registered operation does not rem (4.5 mSv), the licensee shall be deemed to be in compliance with exceed the annual dose limit; or paragraph (1) of this subsection, if the additional dose equivalent to (B) demonstrating that: the embryo/fetus does not exceed 0.05 rem (0.5 mSv) during the remainder of the pregnancy. (i) the annual average concentrations of radioactive material released in gaseous and liquid effluents at the boundary of (n) Dose limits for individual members of the public. the unrestricted area do not exceed the values specified in Table II of (1) Each licensee shall conduct operations so that: subsection (ggg)(2) of this section; and (A) except as provided in subparagraph (B) of this (ii) if an individual were continuously present in an paragraph, the total effective dose equivalent to individual members unrestricted area, the dose from external sources of radiation would of the public from the licensed and/or registered operation does not not exceed 0.002 rem (0.02 mSv) in an hour and 0.05 rem (0.5 mSv) exceed 0.1 rem (1 mSv) in a year, exclusive of the dose contribution in a year. from background radiation, from any medical administration the (3) Upon approval from the agency, the licensee may individual has received, from exposure to individuals administered adjust the effluent concentration values in Table II, of subsection radioactive material and released in accordance with this chapter, (ggg)(2) of this section, for members of the public, to take into from voluntary participation in medical research programs, and from account the actual physical and chemical characteristics of the the licensee’s disposal of radioactive material into sanitary sewerage effluents, such as, aerosol size distribution, solubility, density, in accordance with subsection (gg) of this section; and radioactive decay equilibrium, and chemical form. (B) the dose in any unrestricted area from licensed (p) General surveys and monitoring. and/or registered external sources, exclusive of the dose contributions from patients administered radioactive material and released in (1) Each licensee shall make, or cause to be made, surveys accordance with this chapter, does not exceed 0.002 rem (0.02 mSv) that: in any one hour. (A) are necessary for the licensee to comply with this (2) If the licensee permits members of the public to have section; and access to restricted areas, the limits for members of the public (B) are necessary under the circumstances to evaluate: continue to apply to those individuals. (i) the magnitude and extent of radiation levels; (3) A licensee or an applicant for a license may apply for prior agency authorization to operate up to an annual dose limit for an
ADOPTED RULES May 26, 2000 25 TexReg 4839 (ii) concentrations or quantities of radioactive ma- (2) notwithstanding paragraph (1)(C) of this subsection, terial; and a licensee is exempt from supplying individual monitoring devices to healthcare personnel who may enter a high radiation area while (iii) the potential radiological hazards. providing patient care if: (2) The licensee shall ensure that instruments and equip- (A) the personnel are not likely to receive, in one year ment used for quantitative radiation measurements, for example, dose from sources external to the body, a dose in excess of 10% of the rate and effluent monitoring, are operable and calibrated: limits in subsection (f)(1) of this section; and (A) by a person licensed or registered by the agency, (B) the licensee complies with the requirements of another agreement state, a licensing state, or the United States Nuclear subsection (e)(2) of this section; and Regulatory Commission (NRC) to perform such service; (3) each licensee shall monitor, to determine compliance (B) at intervals not to exceed 12 months unless a with subsection (i) of this section, the occupational intake of different time interval is specified in another section of this chapter; radioactive material by and assess the committed effective dose (C) after each instrument or equipment repair; equivalent to: (D) for the types of radiation used and at energies (A) adults likely to receive, in one year, an intake in appropriate for use; and excess of 10% of the applicable ALI in Columns 1 and 2 of Table I of subsection (ggg)(2) of this section; (E) at an accuracy within 20% of the true radiation level. (B) minors likely to receive, in one year, a committed effective dose equivalent in excess of 0.1 rem (1 mSv); and (3) All individual monitoring devices, except for direct and indirect reading pocket dosimeters, electronic personal dosime- (C) declared pregnant women likely to receive, during ters, and those individual monitoring devices used to measure the the entire pregnancy, a committed effective dose equivalent in excess dose to any extremity, that require processing to determine the radi- of 0.1 rem (1 mSv). ation dose and that are used by licensees to comply with subsection (r) Location and use of individual monitoring devices. (f) of this section, with other applicable provisions of this chapter, or with conditions specified in a license, shall be processed and evalu- (1) Each licensee shall ensure that individuals who are ated by a dosimetry processor: required to monitor occupational doses in accordance with subsection (q)(l) of this section wear and use individual monitoring devices as (A) holding current personnel dosimetry accredita- follows. tion from the National Voluntary Laboratory Accreditation Program (NVLAP) of the National Institute of Standards and Technology; (A) An individual monitoring device used for moni- toring the dose to the whole body shall be worn at the unshielded (B) approved in this accreditation process for the type location of the whole body likely to receive the highest exposure. of radiation or radiations included in the NVLAP program that most When a protective apron is worn, the location of the individual mon- closely approximates the type of radiation or radiations for which the itoring device is typically at the neck (collar). individual wearing the dosimeter is monitored; and (B) If an additional individual monitoring device is (C) holding a current certificate of registration from used for monitoring the dose to an embryo/fetus of a declared the agency authorizing dosimetry processing. pregnant woman, in accordance with subsection (m)(1) of this section, (q) Conditions requiring individual monitoring of external it shall be located at the waist under any protective apron being worn and internal occupational dose. Each licensee shall monitor expo- by the woman. sures from sources of radiation at levels sufficient to demonstrate (C) An individual monitoring device used for monitor- compliance with the occupational dose limits of this section. As a ing the lens dose equivalent, to demonstrate compliance with subsec- minimum: tion (f)(1)(B)(i) of this section, shall be located at the neck (collar) (1) each licensee shall monitor occupational exposure to or at a location closer to the eye, outside any protective apron being radiation and shall supply and require the use of individual monitoring worn by the monitored individual. devices by: (D) An individual monitoring device used for moni- (A) adults likely to receive, in one year from sources toring the dose to the extremities, to demonstrate compliance with external to the body, a dose in excess of 10% of the limits in subsection (f)(1)(B)(ii) of this section, shall be worn on the extremity subsection (f)(1) of this section; likely to receive the highest exposure. Each individual monitoring device, to the extent practicable, shall be oriented to measure the (B) minors likely to receive, in one year from sources highest dose to the extremity being monitored. of radiation external to the body, a deep dose equivalent in excess of 0.1 rem (1 mSv), a lens dose equivalent in excess of 0.15 rem (1.5 (E) An individual monitoring device shall be assigned mSv), or a shallow dose equivalent to the skin or to the extremities to and worn by only one individual. in excess of 0.5 rem (5 mSv); (F) An individual monitoring device shall be worn for (C) declared pregnant women likely to receive during the period of time authorized by the dosimetry processor’s certificate the entire pregnancy, from sources of radiation external to the body, of registration or for no longer than three months, whichever is more a deep dose equivalent in excess of 0.1 rem (1 mSv); and restrictive. (D) individuals entering a high or very high radiation (2) Each licensee shall ensure that individual monitoring area; devices are returned to the dosimetry processor for proper processing.
25 TexReg 4840 May 26, 2000 Texas Register (3) Each licensee shall ensure that adequate precautions (1) This subsection applies to licensees with sources of are taken to prevent a deceptive exposure of an individual monitoring radiation in non-self-shielded irradiators. This subsection does not device. apply to sources of radiation that are used in teletherapy, in industrial radiography, or in completely self-shielded irradiators in which the (s) Control of access to high radiation areas. source of radiation is both stored and operated within the same (1) The licensee shall ensure that each entrance or access shielding radiation barrier and, in the designed configuration of the point to a high radiation area has one or more of the following irradiator, is always physically inaccessible to any individual and features: cannot create high levels of radiation in an area that is accessible to any individual. (A) a control device that, upon entry into the area, causes the level of radiation to be reduced below that level at which (2) Each area in which there may exist radiation levels in an individual might receive a deep dose equivalent of 0.1 rem (1 mSv) excess of 500 rads (5 grays) in one hour at 1 m from a source of in one hour at 30 centimeters (cm) from the source of radiation from radiation that is used to irradiate materials shall meet the following any surface that the radiation penetrates; requirements. (B) a control device that energizes a conspicuous (A) Each entrance or access point shall be equipped visible or audible alarm signal so that the individual entering the with entry control devices that: high radiation area and the supervisor of the activity are made aware (i) function automatically to prevent any individual of the entry; or from inadvertently entering a very high radiation area; (C) entryways that are locked, except during periods (ii) permit deliberate entry into the area only after when access to the areas is required, with positive control over each a control device is actuated that causes the radiation level within the individual entry. area, from the source of radiation, to be reduced below that at which it (2) In place of the controls required by paragraph (1) would be possible for an individual to receive a deep dose equivalent of this subsection for a high radiation area, the licensee may in excess of 0.1 rem (1 mSv) in one hour; and substitute continuous direct or electronic surveillance that is capable (iii) prevent operation of the source of radiation if of preventing unauthorized entry. it would produce radiation levels in the area that could result in a (3) The licensee may apply to the agency for approval of deep dose equivalent to an individual in excess of 0.1 rem (1 mSv) alternative methods for controlling access to high radiation areas. in one hour. (4) The licensee shall establish the controls required by (B) Additional control devices shall be provided so paragraphs (1) and (3) of this subsection in a way that does not that, upon failure of the entry control devices to function as required prevent individuals from leaving a high radiation area. by subparagraph (A) of this paragraph: (5) The licensee is not required to control each entrance (i) the radiation level within the area, from the or access point to a room or other area that is a high radiation area source of radiation, is reduced below that at which it would be solely because of the presence of radioactive materials prepared for possible for an individual to receive a deep dose equivalent in excess transport and packaged and labeled in accordance with the regulations of 0.1 rem (1 mSv) in one hour; and of the United States Department of Transportation (DOT) provided (ii) conspicuous visible and audible alarm signals that: are generated to make an individual attempting to enter the area (A) the packages do not remain in the area longer than aware of the hazard and at least one other authorized individual, three days; and who is physically present, familiar with the activity, and prepared to render or summon assistance, aware of the failure of the entry control (B) the dose rate at 1 meter from the external surface devices. of any package does not exceed 0.01 rem (0.1 millisievert) per hour. (C) The licensee shall provide control devices so that, (6) The licensee is not required to control entrance or upon failure or removal of physical radiation barriers other than the access to rooms or other areas in hospitals solely because of the sealed source’s shielded storage container: presence of patients containing radioactive material, provided that there are personnel in attendance who are taking the necessary (i) the radiation level from the source of radiation precautions to prevent the exposure of individuals to sources of is reduced below that at which it would be possible for an individual radiation in excess of the established limits in this section and to to receive a deep dose equivalent in excess of 0.1 rem (1 mSv) in operate within the ALARA provisions of the licensee’s radiation one hour; and protection program. (ii) conspicuous visible and audible alarm signals (t) Control of access to very high radiation areas. In addition are generated to make potentially affected individuals aware of the to the requirements in subsection (s) of this section, the licensee hazard and the licensee or at least one other individual, who is familiar shall institute measures to ensure that an individual is not able to with the activity and prepared to render or summon assistance, aware gain unauthorized or inadvertent access to areas in which radiation of the failure or removal of the physical barrier. levels could be encountered at 500 rads (5 grays) or more in one hour (D) When the shield for stored sealed sources is a at 1 m from a source of radiation or any surface through which the liquid, the licensee shall provide means to monitor the integrity of radiation penetrates at this level. the shield and to signal, automatically, loss of adequate shielding. (u) Control of access to very high radiation areas for irradi- (E) Physical radiation barriers that comprise perma- ators. nent structural components, such as walls, that have no credible prob-
ADOPTED RULES May 26, 2000 25 TexReg 4841 ability of failure or removal in ordinary circumstances, need not meet (4) The entry control devices required by paragraphs (2) the requirements of subparagraphs (C) and (D) of this paragraph. and (3) of this subsection shall be established in such a way that no individual will be prevented from leaving the area. (F) Each area shall be equipped with devices that will automatically generate conspicuous visible and audible alarm signals (v) Use of process or other engineering controls. The to alert personnel in the area before the source of radiation can be put licensee shall use, to the extent practicable, process or other into operation and in time for any individual in the area to operate a engineering controls, such as containment or ventilation, to control clearly identified control device, which must be installed in the area the concentrations of radioactive material in air. and which can prevent the source of radiation from being put into (w) Use of other controls. When it is not practicable to apply operation. process or other engineering controls to control the concentrations of (G) Each area shall be controlled by use of such radioactive material in air to values below those that define an airborne administrative procedures and such devices as are necessary to ensure radioactivity area, the licensee shall, consistent with maintaining the that the area is cleared of personnel prior to each use of the source total effective dose equivalent ALARA, increase monitoring and limit of radiation. intakes by one or more of the following means: (H) Each area shall be checked by a radiation mea- (1) control of access; surement to ensure that, prior to the first individual’s entry into the (2) limitation of exposure times; area after any use of the source of radiation, the radiation level from the source of radiation in the area is below that at which it would be (3) use of respiratory protection equipment; or possible for an individual to receive a deep dose equivalent in excess (4) other controls. of 0.1 rem (1 mSv) in one hour. (x) Use of individual respiratory protection equipment. (I) The entry control devices required in subparagraph (A) of this paragraph shall be tested for proper functioning. See (1) If the licensee uses respiratory protection equipment subsection (uu) of this section for recordkeeping requirements. to limit intakes in accordance with subsection (w) of this section. (i) Testing shall be conducted prior to initial oper- (A) Except as provided in subparagraph (B) of this ation with the source of radiation on any day, unless operations were paragraph, the licensee shall use only respiratory protection equip- continued uninterrupted from the previous day. ment that is tested and certified or had certification extended by the National Institute for Occupational Safety and Health (NIOSH) and (ii) Testing shall be conducted prior to resumption the Mine Safety and Health Administration (MSHA). of operation of the source of radiation after any unintentional interruption. (B) If the licensee wishes to use equipment that has not been tested or certified by the NIOSH and the MSHA, or has (iii) The licensee shall submit and adhere to a not had certification extended by the NIOSH and the MSHA, or for schedule for periodic tests of the entry control and warning systems. which there is no schedule for testing or certification, the licensee (J) The licensee shall not conduct operations, other shall submit an application for authorized use of that equipment, than those necessary to place the source of radiation in safe condition including a demonstration by testing, or a demonstration on the basis or to effect repairs on controls, unless control devices are functioning of test information, that the material and performance characteristics properly. of the equipment are capable of providing the proposed degree of protection under anticipated conditions of use. (K) Entry and exit portals that are used in transporting materials to and from the irradiation area, and that are not intended (C) The licensee shall implement and maintain a for use by individuals, shall be controlled by such devices and respiratory protection program that includes: administrative procedures as are necessary to physically protect and (i) air sampling sufficient to identify the potential warn against inadvertent entry by any individual through these portals. hazard, permit proper equipment selection, and estimate exposures; Exit portals for irradiated materials shall be equipped to detect and signal the presence of any loose radioactive material that is carried (ii) surveys and bioassays, as appropriate, to evalu- toward such an exit and automatically to prevent loose radioactive ate actual intakes; material from being carried out of the area. (iii) testing of respirators for operability immedi- (3) Licensees or applicants for licenses for sources of ately prior to each use; radiation within the purview of paragraph (2) of this subsection that (iv) written procedures regarding selection, fitting, will be used in a variety of positions or in locations, such as open issuance, maintenance, and testing of respirators, including testing for fields or forests, which make it impracticable to comply with certain operability immediately prior to each use; supervision and training requirements of paragraph (2) of this subsection, such as those for of personnel; monitoring, including air sampling and bioassays; and the automatic control of radiation levels, may apply to the Agency for recordkeeping; and approval of alternative safety measures. Alternative safety measures shall provide personnel protection at least equivalent to those specified (v) determination by a physician prior to initial in paragraph (2) of this subsection. At least one of the alternative fitting of respirators, and either every 12 months thereafter or measures shall include an entry-preventing interlock control based periodically at a frequency determined by a physician, that the on a measurement of the radiation that ensures the absence of high individual user is physically able to use the respiratory protection radiation levels before an individual can gain access to the area where equipment. such sources of radiation are used. (D) The licensee shall issue a written policy statement on respirator usage covering:
25 TexReg 4842 May 26, 2000 Texas Register (i) the use of process or other engineering controls, (1) The licensee shall secure radioactive material from instead of respirators; unauthorized removal or access. (ii) the routine, nonroutine, and emergency use of (2) The licensee shall maintain constant surveillance, us- respirators; and ing devices and/or administrative procedures to prevent unauthorized use of radioactive material that is in an unrestricted area and that is (iii) the length of periods of respirator use and relief not in storage. from respirator use. (z) Caution signs. (E) The licensee shall advise each respirator user that the user may leave the area at any time for relief from respirator use (1) Unless otherwise authorized by the agency, the stan- in the event of equipment malfunction, physical or psychological dis- dard radiation symbol prescribed shall use the colors magenta, or tress, procedural or communication failure, significant deterioration purple, or black on yellow background. The standard radiation sym- of operating conditions, or any other conditions that might require bol prescribed is the three-bladed design as follows: such relief. Figure: 25 TAC §289.202(z)(1) (No change.) (F) The licensee shall use respiratory protection equip- (A) the cross-hatched area of the symbol is to be ment within the equipment manufacturer’s expressed limitations for magenta, or purple, or black; and type and mode of use and shall provide proper visual, communica- (B) the background of the symbol is to be yellow. tion, and other special capabilities, such as adequate skin protection, when needed. (2) Notwithstanding the requirements of paragraph (1) of this subsection, licensees are authorized to label sources, source (2) When estimating exposure of individuals to airborne holders, or device components containing sources of radiation that are radioactive materials, the licensee may make allowance for respiratory subjected to high temperatures, with conspicuously etched or stamped protection equipment used to limit intakes in accordance with radiation caution symbols and without a color requirement. subsection (w) of this section, provided that the following conditions, in addition to those in paragraph (1) of this subsection, are satisfied. (aa) Posting requirements. (A) The licensee selects respiratory protection equip- (1) The licensee shall post each radiation area with a ment that provides a protection factor, asspecified in subsection conspicuous sign or signs bearing the radiation symbol and the words (ggg)(1) of this section, greater than the multiple by which peak con- "CAUTION, RADIATION AREA." centrations of airborne radioactive materials in the working area are (2) The licensee shall post each high radiation area with a expected to exceed the values specified in Column 3 of Table I of sub- conspicuous sign or signs bearing the radiation symbol and the words section (ggg)(2) of this section. However, if the election of respiratory "CAUTION, HIGH RADIATION AREA" or "DANGER, HIGH protection equipment with a protection factor greater than the peak RADIATION AREA." concentration is inconsistent with the goal specified in subsection (w) of this section of keeping the total effective dose equivalent ALARA, (3) The licensee shall post each very high radiation area the licensee may select respiratory protection equipment with a lower with a conspicuous sign or signs bearing the radiation symbol and protection factor provided that such a selection would result in a total words "GRAVE DANGER, VERY HIGH RADIATION AREA." If effective dose equivalent that is ALARA. The concentration of ra- the very high radiation area involves medical treatment of patients, dioactive material in the air that is inhaled when respirators are worn the licensee may omit the word "GRAVE" from the sign or signs. may be initially estimated by dividing the average concentration in (4) The licensee shall post each airborne radioactivity area air, during each period of uninterrupted use, by the protection factor. with a conspicuous sign or signs bearing the radiation symbol and If the exposure is later found to be greater than initially estimated, the words "CAUTION, AIRBORNE RADIOACTIVITY AREA" or the corrected value shall be used; if the exposure is later found to be "DANGER, AIRBORNE RADIOACTIVITY AREA." less than initially estimated, the corrected value may be used. (5) The licensee shall post each area or room in which (B) The licensee shall obtain authorization from the there is used or stored an amount of licensed material exceeding 10 agency before assigning respiratory protection factors in excess of times the quantity of such material specified in subsection (ggg)(3) those specified in subsection (ggg)(1) of this section. The agency of this section with a conspicuous sign or signs bearing the radiation may authorize a licensee to use higher protection factors on receipt symbol and the words "CAUTION, RADIOACTIVE MATERIAL(S)" of an application that: or "DANGER, RADIOACTIVE MATERIAL(S)." (i) describes the situation for which a need exists (bb) Exceptions to posting requirements. for higher protection factors; and (1) A licensee is not required to post caution signs in areas (ii) demonstrates that the respiratory protection or rooms containing sources of radiation for periods of less than 8 equipment provides these higher protection factors under the hours, if each of the following conditions is met: proposed conditions of use. (A) the sources of radiation are constantly attended (3) In an emergency, the licensee shall use as emergency during these periods by an individual who takes the precautions equipment only respiratory protection equipment that has been necessary to prevent the exposure of individuals to sources of specifically certified or had certification extended for emergency use radiation in excess of the limits established in this section; and by the NIOSH and the MSHA. (B) the area or room is subject to the licensee’s control. (4) The licensee shall notify the agency in writing at least 30 days before the date that respiratory protection equipment is first (2) Rooms or other areas in hospitals that are occupied by used in accordance with either paragraphs (1) or (2) of this subsection. patients are not required to be posted with caution signs in accordance (y) Security and control of licensed sources of radiation.
ADOPTED RULES May 26, 2000 25 TexReg 4843 with subsection (aa) of this section provided that the patient could be (ee) Procedures for receiving and opening packages. released from licensee control in accordance with this chapter. (1) Each licensee who expects to receive a package (3) A room or area is not required to be posted with a containing quantities of radioactive material in excess of a Type caution sign because of the presence of a sealed source(s) provided A quantity, as defined in §289.201(b) of this title and specified in the radiation level at 30 centimeters from the surface of the sealed §289.257(s)(1) of this title (relating to Packaging and Transportation source container(s) or housing(s) does not exceed 0.005 rem (0.05 of Radioactive Material), shall make arrangements to receive: mSv) per hour. (A) the package when the carrier offers it for delivery; (4) Rooms in medical facilities that are used for telether- or apy are exempt from the requirement to post caution signs in ac- (B) the notification of the arrival of the package at the cordance with subsection (aa) of this section provided the following carrier’s terminal and to take possession of the package expeditiously. conditions are met. (2) Each licensee shall: (A) Access to the room is controlled in accordance with this chapter; and (A) monitor the external surfaces of a labeled package, labeled with a Radioactive White I, Yellow II, or Yellow III label (B) Personnel in attendance take necessary precautions as specified in DOT regulations 49 CFR 172.403 and 172.436- to prevent the inadvertent exposure of workers, other patients, and 440, for radioactive contamination unless the package contains only members of the public to radiation in excess of the limits established radioactive material in the form of gas or in special form as defined in this section. in §289.201(b) of this title; and (cc) Labeling containers. (B) monitor the external surfaces of a labeled package, (1) The licensee shall ensure that each container of labeled with a Radioactive White I, Yellow II, or Yellow III label as licensed material bears a durable, clearly visible label bearing specified in DOT regulations 49 CFR 172.403 and 172.436-440, for the radiation symbol and the words "CAUTION, RADIOACTIVE radiation levels unless the package contains quantities of radioactive MATERIAL" or "DANGER, RADIOACTIVE MATERIAL." The material that are less than or equal to the Type A quantity, as defined label shall also provide information, such as the radionuclides present, in §289.201(b) of this title and specified in §289.257(s)(1) of this an estimate of the quantity of radioactivity, the date for which the title; and activity is estimated, radiation levels, kinds of materials, and mass (C) monitor all packages known to contain radioactive enrichment, to permit individuals handling or using the containers, or material for radioactive contamination and radiation levels if there is working in the vicinity of the containers, to take precautions to avoid evidence of degradation of package integrity, such as packages that or minimize exposures. are crushed, wet, or damaged. (2) Each licensee shall, prior to removal or disposal of (3) The licensee shall perform the monitoring required by empty uncontaminated containers to unrestricted areas, remove or paragraph (2) of this subsection as soon as practicable after receipt deface the radioactive material label or otherwise clearly indicate that of the package, but not later than three hours after the package is the container no longer contains radioactive materials. received at the licensee’s facility if it is received during the licensee’s (dd) Exemptions to labeling requirements. A licensee is not normal working hours. If a package is received after working hours, required to label: the package shall be monitored no later than three hours from the beginning of the next working day. If the licensee discovers there is (1) containers holding licensed material in quantities less evidence of degradation of package integrity, such as a package that is than the quantities listed in subsection (ggg)(3) of this section; crushed, wet, or damaged, the package shall be surveyed immediately. (2) containers holding licensed material in concentrations (4) The licensee shall immediately notify the final delivery less than those specified in Table III of subsection (ggg)(2) of this carrier and, by telephone and telegram, mailgram, or facsimile, the section; agency when removable radioactive surface contamination or external (3) containers attended by an individual who takes the radiation levels exceed the limits established in subparagraphs (A) and precautions necessary to prevent the exposure of individuals in excess (B) of this paragraph. of the limits established by this section; (A) Limits for removable radioactive surface contam- (4) containers when they are in transport and packaged ination levels. and labeled in accordance with the rules of the DOT (labeling of (i) The level of removable radioactive contamina- packages containing radioactive materials is required by the DOT if tion on the external surfaces of each package offered for shipment the amount and type of radioactive material exceeds the limits for an shall be ALARA. The level of removable radioactive contamination excepted quantity or article as defined and limited by DOT regulations may be determined by wiping an area of 300 square centimeters (cm2) 49 CFR 173.403(m) and (w) and 173.424); of the surface concerned with an absorbent material, using moderate (5) containers that are accessible only to individuals pressure, and measuring the activity on the wiping material. Suffi- authorized to handle or use them, or to work in the vicinity of the cient measurements must be taken in the most appropriate locations containers, if the contents are identified to these individuals by a to yield a representative assessment of the removable contamination readily available written record. Examples of containers of this type levels. Except as provided in clause (iii) of this subparagraph, the are containers in locations such as water-filled canals, storage vaults, amount of radioactivity measured on any single wiping material, when or hot cells. The record shall be retained as long as the containers averaged over the surface wiped, must not exceed the limits given in are in use for the purpose indicated on the record; or clause (ii) of this subparagraph at any time during transport. If other methods are used, the detection efficiency of the method used must (6) installed manufacturing or process equipment, such as be taken into account and in no case may the removable contami- piping and tanks.
25 TexReg 4844 May 26, 2000 Texas Register nation on the external surfaces of the package exceed 10 times the (B) ensure that the procedures are followed and that limits listed in clause (ii) of this subparagraph. due consideration is given to special instructions for the type of package being opened. (ii) Removable external radioactive contamination wipe limits are as follows. (6) Licensees transferring special form sources in vehicles Figure: 25 TAC §289.202(ee)(4)(A)(ii) (No change.) owned or operated by the licensee to and from a work site are exempt from the contamination monitoring requirements of paragraph (2) of (iii) In the case of packages transported as exclusive this subsection, but are not exempt from the monitoring requirement use shipments by rail or highway only, the removable radioactive in paragraph (2) of this subsection for measuring radiation levels that contamination at any time during transport must not exceed 10 times ensures that the source is still properly lodged in its shield. the levels prescribed in clause (ii) of this subparagraph. The levels at the beginning of transport must not exceed the levels in clause (ii) (ff) General requirements for waste management. of this subparagraph. (1) Unless otherwise exempted, a licensee shall discharge, (B) Limits for external radiation levels. treat, or decay licensed material or transfer waste for disposal only: (i) External radiation levels around the package and (A) by transfer to an authorized recipient as provided around the vehicle, if applicable, will not exceed 200 millirems per in subsection (jj) of this section, §289.252 of this title, §289.254 hour (mrem/hr) (2 millisiverts per hour (mSv/hr)) at any point on the of this title (relating to Licensing of Radioactive Waste Processing external surface of the package at any time during transportation. The and Storage Facilities), §289.257 of this title, §289.259 of this title transport index shall not exceed 10. (relating to Licensing of Naturally Occurring Radioactive Material (NORM)), or to the United States Department of Energy (DOE); (ii) For a package transported in exclusive use by rail, highway or water, radiation levels external to the package may (B) by decay in storage with prior approval from the exceed the limits specified in clause (i) of this subparagraph but shall agency; not exceed any of the following: (C) by release in effluents within the limits in subsec- (I) 200 mrem/hr (2 mSv/hr) on the accessible tion (n) of this section; or external surface of the package unless the following conditions are (D) as authorized in accordance with paragraph (2) of met, in which case the limit is 1,000 mrem/hr (10 mSv/hr): this subsection, and subsections (gg) and (hh) of this section. (-a-) the shipment is made in a closed trans- port vehicle; (2) Upon agency approval, emission control dust and (-b-) provisions are made to secure the pack- other material from electric arc furnaces or foundries, such as K061 age so that its position within the vehicle remains fixed during trans- listed hazardous waste or other listed hazardous waste, contaminated portation; and as a result of inadvertent melting of a cesium-137 source may (-c-) there are no loading or unloading oper- be transferred for disposal to a hazardous waste disposal facility ations between the beginning and end of the transportation; authorized by the Texas Natural Resource Conservation Commission (Commission) or its successor, another state’s regulatory agency with (II) 200 mrem/hr (2 mSv/hr) at any point on the jurisdiction to regulate hazardous waste as classified under Subtitle outer surface of the vehicle, including the upper and lower surfaces, C of the Resource Conservation and Recovery Act (RCRA), or the or, in the case of a flat-bed style vehicle, with a personnel barrier, at EPA. The material may be transferred for disposal without regard to any point on the vertical planes projected from the outer edges of the its radioactivity if the following conditions are met. vehicle, on the upper surface of the load (or enclosure, if used), and on the lower external surface of the vehicle (a flat-bed style vehicle (A) Contaminated material described in paragraph (2) with a personnel barrier shall have radiation levels determined at of this subsection, whether packaged or unpackaged (i.e., bulk), must vertical planes. If no personnel barrier, the package cannot exceed be treated through stabilization to comply with all waste treatment 200 mrem/hr (2 mSv/hr) at the surface.); requirements of the appropriate state or federal regulatory agency as listed in this paragraph. The treatment operations must be undertaken (III) 10 mrem/hr (0.1 mSv/hr) at any point 2 m by either of the following: from the vertical planes represented by the outer lateral surfaces of the vehicle, or, in the case of a flat-bed style vehicle, at any point (i) the owner/operator of the electric arc furnace or 2 m from the vertical planes projected from the outer edges of the foundry licensed to possess, treat or transfer cesium-137 contaminated vehicle; and incident-related material; or (IV) 2 mrem/hr (0.02 mSv/hr) in any normally (ii) a service contractor licensed by the agency, occupied positions of the vehicle, except that this provision does NRC, or an agreement state. not apply to private motor carriers when persons occupying these (B) The emission control dust and other incident- positions are provided with special health supervision, personnel related materials have been stored (if applicable) and transferred in radiation exposure monitoring devices, and training in accordance accordance with operating and emergency procedures approved by with §289.203(c) of this title (relating to Notices, Instructions, and the agency. Reports to Workers; Inspections). (C) The total cesium-137 activity contained in emis- (5) Each licensee shall: sion control dust and other incident-related materials to be transferred (A) establish, maintain, and retain written procedures to a hazardous waste disposal facility has been specifically approved for safely opening packages in which radioactive material is received; by NRC or the appropriate agreement state(s) and does not exceed and the total activity associated with the inadvertent melting incident. (D) The hazardous waste disposal facility operator has been notified in writing of the impending transfer of the incident-
ADOPTED RULES May 26, 2000 25 TexReg 4845 related materials and has agreed in writing to receive and dispose of (jj) Transfer for disposal and manifests. the packaged or unpackaged materials. Copies of the notification and (1) The control of transfers of LLRW intended for dis- agreement shall be submitted to the agency. posal at a licensed low-level radioactive waste disposal facility, the (E) The licensee, as listed in subparagraph (A)(i) or (ii) establishment of a manifest tracking system, and additional require- of this paragraph, notifies the NRC or agreement state(s) in which ments concerning transfers and recordkeeping for those wastes are the transferor and transferee are located, in writing, of the impending found in §289.257(s)(5) of this title. transfer, at least 30 days before the transfer. (2) Each person involved in the transfer of waste for dis- (F) The packaged stabilized material has been pack- posal including the waste generator, waste collector, and waste pro- aged for transportation and disposal in non-bulk steel packaging as cessor, shall comply with the requirements specified in §289.257(s)(5) defined in DOT regulations at 49 CFR 173.213. of this title. (G) The emission control dust and other incident- (kk) Compliance with environmental and health protection related materials that have been stabilized and packaged as described regulations. Nothing in subsections (ff), (gg), (hh), or (jj) of this in subparagraph (F) of this paragraph shall contain pretreatment section relieves the licensee from complying with other applicable average concentrations of cesium-137 that do not exceed 130 pCi/ federal, state, and local regulations governing any other toxic g of material, above background. or hazardous properties of materials that may be disposed of in accordance with subsections (ff), (gg), (hh), or (jj) of this section. (H) The dose rate at 3.28 feet (1 m) from the surface of any package containing stabilized waste shall not exceed 20 (ll) General provisions for records. micro;rem per hour or 0.20 micro;Sv per hour, above background. (1) Each licensee shall use the SI units becquerel, gray, (I) The unpackaged stabilized material shall contain sievert, and coulomb per kilogram, or the special units curie, rad, rem, pretreatment average concentrations of cesium-137 that do not exceed and roentgen, including multiples and subdivisions, and shall clearly 100 pCi/g of material, above background. indicate the units of all quantities on records required by this section. Disintegrations per minute may be indicated on records of surveys (gg) Discharge by release into sanitary sewerage. performed to determine compliance with subsection (ggg)(6) of this (1) A licensee may discharge licensed material into sani- section. To ensure compatibility with international transportation tary sewerage if each of the following conditions is satisfied: standards, all limits in this section are given in terms of dual units: The International System of Units (SI) followed or preceded by (A) the material is readily soluble, or is readily dis- United States (U.S.) standard or customary units. The U.S. customary persible biological material, in water; units are not exact equivalents, but are rounded to a convenient value, (B) the quantity of licensed radioactive material that providing a functionally equivalent unit. For the purpose of this the licensee releases into the sewer in one month divided by the section, either unit may be used. average monthly volume of water released into the sewer by the (2) Notwithstanding the requirements of paragraph (1) of licensee does not exceed the concentration listed in Table III of this subsection, when recording information on shipment manifests, subsection (ggg)(2) of this section; and as required in §289.257 of this title, information must be recorded (C) if more than one radionuclide is released, the in SI units or in SI and units as specified in paragraph (1) of this following additional conditions must also be satisfied: subsection. (i) the fraction of the limit in Table III of subsec- (3) The licensee shall make a clear distinction among the tion (ggg)(2) of this section represented by discharges into sanitary quantities entered on the records required by this section, such as, sewerage determined by dividing the actual monthly average concen- total effective dose equivalent, total organ dose equivalent, shallow tration of each radionuclide released by the licensee into the sewer dose equivalent, lens dose equivalent, deep dose equivalent, or by the concentration of that radionuclide listed in Table III of sub- committed effective dose equivalent. section (ggg)(2) of this section; and (4) Records required in accordance with §289.201(d) of (ii) the sum of the fractions for each radionuclide this title, and subsections (mm)-(oo), (tt), and (uu) of this section required by clause (i) of this subparagraph does not exceed unity; and shall include the date and the identification of individual(s) making the record, and, as applicable, a unique identification of survey (D) the total quantity of licensed radioactive material instrument(s) used, and an exact description of the location of the that the licensee releases into the sanitary sewerage in a year does not survey. Records of receipt, transfer, and disposal of sources of exceed 5 curies (Ci) (185 gigabecquerels (GBq)) of hydrogen-3, 1 Ci radiation shall uniquely identify the source of radiation. (37 GBq) of carbon-14, and 1 Ci (37 GBq) of all other radioactive materials combined. (5) Copies of records required in accordance with §289.201(d) of this title, and subsections (mm)-(uu) of this section, (2) Excreta from individuals undergoing medical diagno- and by license condition that are relevant to operations at an sis or therapy with radioactive material are not subject to the limita- additional authorized use/storage site shall be maintained at that site tions contained in paragraph (1) of this subsection. in addition to the main site specified on a license. (hh) Treatment by incineration. A licensee may treat licensed (mm) Records of radiation protection programs. material by incineration only in the form and concentration specified in subsection (fff)(1) of this section or as authorized by the agency. (1) Each licensee shall maintain records of the radiation protection program, including: (ii) Discharge by release into septic tanks. No licensee shall discharge radioactive material into a septic tank system except as (A) the provisions of the program; and specifically approved by the agency.
25 TexReg 4846 May 26, 2000 Texas Register (B) audits and other reviews of program content and (G) the doses actually received in the planned special implementation. exposure. (2) The licensee shall retain the records required by (2) The licensee shall retain the records until the agency paragraph (1)(A) of this subsection until the agency terminates each terminates each pertinent license requiring these records. pertinent license requiring the record. The licensee shall retain the (rr) Records of individual monitoring results. records required by paragraph (1)(B) of this subsection for three years after the record is made. (1) Each licensee shall maintain records of doses received by all individuals for whom monitoring was required in accordance (nn) Records of surveys. with subsection (q) of this section, and records of doses received dur- (1) Each licensee shall maintain records showing the ing planned special exposures, accidents, and emergency conditions. results of surveys and calibrations required by subsections (p) and Assessments of dose equivalent and records made using units in ef- (ee)(2) of this section. The licensee shall retain these records for fect before January 1, 1994, need not be changed. These records three years after the record is made. shall include, when applicable: (2) The licensee shall retain each of the following records (A) the deep dose equivalent to the whole body, lens until the agency terminates each pertinent license requiring the record: dose equivalent, shallow dose equivalent to the skin, and shallow dose equivalent to the extremities; (A) the results of surveys to determine the dose from external sources of radiation used, in the absence of or in combination (B) the estimated intake of radionuclides, see subsec- with individual monitoring data, in the assessment of individual dose tion (g) of this section; equivalents; and (C) the committed effective dose equivalent assigned (B) results of measurements and calculations used to to the intake of radionuclides; determine individual intakes of radioactive material and used in the (D) the specific information used to calculate the assessment of internal dose; and committed effective dose equivalent in accordance with subsection (C) results of air sampling, surveys, and bioassays (i)(1) and (3) of this section and when required by subsection (q)(1) required in accordance with subsection (x)(1)(C)(i) and (ii) of this of this section; section; and (E) the total effective dose equivalent when required (D) results of measurements and calculations used to by subsection (g) of this section; evaluate the release of radioactive effluents to the environment. (F) the total of the deep dose equivalent and the (oo) Records of tests for leakage or contamination of sealed committed dose to the organ receiving the highest total dose; and sources. Records of tests for leakage or contamination of sealed (G) the data used to make occupational dose assess- sources required by §289.201(g) of this title shall be kept in units of ments in accordance with subsection (j)(5) of this section. becquerel or microcurie and retained for inspection by the agency for five years after the records are made. (2) The licensee shall make entries of the records specified in paragraph (1) of this subsection at intervals not to exceed 1 year (pp) Records of lifetime cumulative occupational radiation and within 60 days of the end of the year. dose. The licensee shall retain the records of lifetime cumulative occupational radiation dose as specified in subsection (k) of this (3) The licensee shall maintain the records specified in section on BRC Form 202-2 or equivalent until the agency terminates paragraph (1) of this subsection on BRC Form 202-3, in accordance each pertinent license requiring this record. The licensee shall retain with the instructions for BRC Form 202-3, or in clear and legible records used in preparing BRC Form 202-2 or equivalent for three records containing all the information required by BRC Form 202-3. years after the record is made. (4) The licensee shall maintain the records of dose to (qq) Records of planned special exposures. an embryo/fetus with the records of dose to the declared pregnant woman. The declaration of pregnancy, including the estimated date (1) For each use of the provisions of subsection (k) of of conception, shall also be kept on file, but may be maintained this section for planned special exposures, the licensee shall maintain separately from the dose records. records that describe: (5) The licensee shall retain each required form or record (A) the exceptional circumstances requiring the use of until the agency terminates each pertinent license requiring the record. a planned special exposure; The licensee shall retain records used in preparing BRC Form 202-3 (B) the name of the management official who autho- or equivalent for three years after the record is made. rized the planned special exposure and a copy of the signed autho- (ss) Records of dose to individual members of the public. rization; (1) Each licensee shall maintain records sufficient to (C) what actions were necessary; demonstrate compliance with the dose limit for individual members (D) why the actions were necessary; of the public. See subsection (n) of this section. (E) what precautions were taken to assure that doses (2) The licensee shall retain the records required by were maintained ALARA; paragraph (1) of this subsection until the agency terminates each pertinent license requiring the record. (F) what individual and collective doses were expected to result; and (tt) Records of discharge, treatment, or transfer for disposal.
ADOPTED RULES May 26, 2000 25 TexReg 4847 (1) Each licensee shall maintain records of the discharge (E) actions that have been taken, or will be taken, to or treatment of licensed materials made in accordance with subsection recover the source of radiation; and (gg) and (hh) of this section and of transfers for disposal made in (F) procedures or measures that have been, or will be, accordance with subsection (jj) of this section and §289.257 of this adopted to ensure against a recurrence of the loss or theft of licensed title. sources of radiation. (2) The licensee shall retain the records required by (3) Subsequent to filing the written report, the licensee paragraph (1) of this subsection until the agency terminates each shall also report additional substantive information on the loss or pertinent license requiring the record. theft within 30 days after the licensee learns of such information. (uu) Records of testing entry control devices for very high (4) The licensee shall prepare any report filed with the radiation areas. agency in accordance with this subsection so that names of individuals (1) Each licensee shall maintain records of tests made in who may have received exposure to radiation are stated in a separate accordance with subsection (u)(2)(I) of this section on entry control and detachable portion of the report. devices for very high radiation areas. These records must include the (xx) Notification of incidents. date, time, and results of each such test of function. (1) Notwithstanding other requirements for notification, (2) The licensee shall retain the records required by each licensee shall immediately report each event involving a source paragraph (1) of this subsection for three years after the record is of radiation possessed by the licensee that may have caused or made. threatens to cause: (vv) Form of records. Each record required by this chapter (A) an individual to receive: shall be legible throughout the specified retention period. The record shall be the original or a reproduced copy or a microform, (i) a total effective dose equivalent of 25 rems (0.25 provided that the copy or microform is authenticated by authorized Sv) or more; personnel and that the microform is capable of producing a clear copy (ii) a lens dose equivalent of 75 rems (0.75 Sv) or throughout the required retention period or the record may also be more; or stored in electronic media with the capability for producing legible, accurate, and complete records during the required retention period. (iii) a shallow dose equivalent to the skin or ex- Records, such as letters, drawings, and specifications, shall include all tremities or a total organ dose equivalent of 250 rads (2.5 grays) or pertinent information, such as stamps, initials, and signatures. The more; or licensee shall maintain adequate safeguards against tampering with (B) the release of radioactive material, inside or out- and loss of records. side of a restricted area, so that, had an individual been present for (ww) Reports of stolen, lost, or missing licensed sources of 24 hours, the individual could have received an intake five times the radiation. occupational ALI. This provision does not apply to locations where personnel are not normally stationed during routine operations, such (1) Each licensee shall report to the agency by telephone as hot-cells or process enclosures. as follows: (2) Each licensee shall, within 24 hours of discovery of (A) immediately after its occurrence becomes known the event, report to the agency each event involving loss of control to the licensee, stolen, lost, or missing licensed radioactive material of a licensed source of radiation possessed by the licensee that may in an aggregate quantity equal to or greater than 1,000 times the have caused, or threatens to cause: quantity specified in subsection (ggg)(3) of this section, under such circumstances that it appears to the licensee that an exposure could (A) an individual to receive, in a period of 24 hours: result to individuals in unrestricted areas; or (i) a total effective dose equivalent exceeding 5 (B) within 30 days after its occurrence becomes known rems (0.05 Sv); to the licensee, lost, stolen, or missing licensed radioactive material (ii) a lens dose equivalent exceeding 15 rems (0.15 in an aggregate quantity greater than 10 times the quantity specified Sv); or in subsection (ggg)(3) of this section that is still missing. (iii) a shallow dose equivalent to the skin or extrem- (2) Each licensee required to make a report in accordance ities or a total organ dose equivalent exceeding 50 rems (0.5 Sv); or with paragraph (1) of this subsection shall, within 30 days after making the telephone report, make a written report to the agency (B) the release of radioactive material, inside or out- setting forth the following information: side of a restricted area, so that, had an individual been present for 24 hours, the individual could have received an intake in excess of one (A) a description of the licensed source of radiation occupational ALI. This provision does not apply to locations where involved, including, for radioactive material, the kind, quantity, and personnel are not normally stationed during routine operations, such chemical and physical form; as hot-cells or process enclosures. (B) a description of the circumstances under which the (3) Licensees shall make the initial notification reports loss or theft occurred; required by paragraphs (1) and (2) of this subsection by telephone to (C) a statement of disposition, or probable disposition, the agency and shall confirm the initial notification report within 24 of the licensed source of radiation involved; hours by telegram, mailgram, or facsimile to the agency. (D) exposures of individuals to radiation, circum- (4) The licensee shall prepare each report filed with the stances under which the exposures occurred, and the possible total agency in accordance with this section so that names of individuals effective dose equivalent to persons in unrestricted areas;
25 TexReg 4848 May 26, 2000 Texas Register who have received exposure to sources of radiation are stated in a (i) the caller’s name and call back telephone num- separate and detachable portion of the report. ber; (5) The provisions of this section do not apply to doses (ii) a description of the event, including date and that result from planned special exposures, provided such doses are time; within the limits for planned special exposures and are reported in (iii) the exact location of the event; accordance with subsection (zz) of this section. (iv) the isotopes, quantities, and chemical and phys- (6) Each licensee shall notify the agency as soon as ical form of the radioactive material involved; and possible but not later than four hours after the discovery of an event that prevents immediate protective actions necessary to avoid (v) any personnel radiation exposure data available. exposures to radioactive materials that could exceed regulatory limits (B) Each licensee who makes a report required by or releases of radioactive materials that could exceed regulatory limits paragraphs (6) and (7) of this subsection shall submit to the agency a (events may include fires, explosions, toxic gas releases, etc.). written follow-up report within 30 days of the initial report. Written (7) Each licensee shall notify the agency within 24 hours reports prepared in accordance with other requirements of this chapter after the discovery of any of the following events involving radioactive may be submitted to fulfill this requirement if the reports contain all material: of the necessary information and the appropriate distribution is made. The reports must include the following: (A) an unplanned contamination event that: (i) a description of the event, including the probable (i) requires access to the contaminated area, by cause and the manufacturer and model number (if applicable) of any workers or the public, to be restricted for more than 24 hours by equipment that failed or malfunctioned; imposing additional radiological controls or by prohibiting entry into the area; (ii) the exact location of the event; (ii) involves a quantity of material greater than (iii) the isotopes, quantities, and chemical and five times the lowest annual limit on intake specified in subsection physical form of the radioactive material involved; (ggg)(2) of this section for the material; and (iv) date and time of the event; (iii) has access to the area restricted for a reason (v) corrective actions taken or planned and the other than to allow isotopes with a half-life of less than 24 hours to results of any evaluations or assessments; and decay prior to decontamination. (vi) the extent of exposure of individuals to radioac- (B) an event in which equipment is disabled or fails to tive materials without identification of individuals by name. function as designed when: (yy) Reports of exposures, radiation levels, and concentra- (i) the equipment is required by rule or license tions of radioactive material exceeding the limits. condition to prevent releases exceeding regulatory limits, to prevent exposures to radioactive materials exceeding regulatory limits, or to (1) In addition to the notification required by subsection mitigate the consequences of an accident; (xx) of this section, each licensee shall submit a written report within 30 days after learning of any of the following occurrences: (ii) the equipment is required to be available and operable when it is disabled or fails to function; and (A) incidents for which notification is required by subsection (xx) of this section; (iii) no redundant equipment is available and oper- able to perform the required safety function; (B) doses in excess of any of the following: (C) an event that requires unplanned medical treatment (i) the occupational dose limits for adults in sub- at a medical facility of an individual with spreadable radioactive section (f) of this section; contamination on the individual’s clothing or body; or (ii) the occupational dose limits for a minor in (D) an unplanned fire or explosion damaging any subsection (l) of this section; radioactive material or any device, container, or equipment containing (iii) the limits for an embryo/fetus of a declared radioactive material when: pregnant woman in subsection (m) of this section; (i) the quantity of material involved is greater than (iv) the limits for an individual member of the five times the lowest annual limit on intake specified in subsection public in subsection (n) of this section; (ggg)(2) of this section for the material; and (v) any applicable limit in the license; or (ii) the damage affects the integrity of the radioac- tive material or its container. (vi) the ALARA constraints for air emissions as required by subsection (e)(4) of this section; (8) Preparation and submission of reports. Reports made by licensees in response to the requirements of paragraphs (6) and (C) levels of radiation or concentrations of radioactive (7) of this subsection shall be made as follows. material in: (A) Licensees shall make reports required by para- (i) a restricted area in excess of applicable limits in graphs (6) and (7) of this subsection by telephone to the agency. the license; or To the extent that the information is available at the time of notifica- (ii) an unrestricted area in excess of 10 times the tion, the information provided in these reports shall include: applicable limit set forth in this section or in the license, whether or
ADOPTED RULES May 26, 2000 25 TexReg 4849 not involving exposure of any individual in excess of the limits in (1) Each licensee or person possessing non-exempt subsection (n) of this section; or sources of radiation shall, no less than 30 days before vacating and relinquishing possession or control of premises, notify the agency, in (D) for licensees subject to the provisions of the EPA’s writing, of the intent to vacate. generally applicable environmental radiation standards in 40 CFR 190, levels of radiation or releases of radioactive material in excess of (2) The licensee or person possessing non-exempt ra- those standards, or of license conditions related to those requirements. dioactive material shall decommission the premises to a degree con- sistent with subsequent use as an unrestricted area and in accordance (2) Each report required by paragraph (1) of this subsec- with the requirements of subsection (ddd) of this section or, for ura- tion shall describe the extent of exposure of individuals to radiation nium recovery and byproduct material disposal facilities licensed in and radioactive material, including, as appropriate: accordance with §289.260 of this title, subsection (eee) of this sec- (A) estimates of each individual’s dose; tion. (B) the levels of radiation and concentrations of ra- (ddd) Radiological requirements for license termination. dioactive material involved; (1) General provisions and scope. (C) the cause of the elevated exposures, dose rates, or (A) The requirements in this section apply to the concentrations; and decommissioning of facilities licensed in accordance with §289.252 (D) corrective steps taken or planned to ensure against of this title (relating to Licensing of Radioactive Material), §289.254 a recurrence, including the schedule for achieving conformance of this title (relating to Licensing of Radioactive Waste Processing with applicable limits, ALARA constraints, generally applicable and Storage Facilities), §289.255 of this title (relating to Radiation environmental standards, and associated license conditions. Safety Requirements and Licensing and Registration Procedures for Industrial Radiography), and §289.258 of this title (relating (3) Each report filed in accordance with paragraph (1) of to Licensing and Radiation Safety Requirements for Irradiators). this subsection shall include for each individual exposed: the name, The requirements do not apply to uranium recovery and byproduct identification number, and date of birth. With respect to the limit material disposal facilities already subject to the requirements of for the embryo/fetus in subsection (m) of this section, the identifiers §289.260 of this title (relating to Licensing of Uranium Recovery should be those of the declared pregnant woman. The report shall be and Byproduct Material Disposal Facilities). prepared so that this information is stated in a separate and detachable portion of the report. (B) The requirements in this section do not apply to the following: (4) All licensees who make reports in accordance with paragraph (1) of this subsection shall submit the report in writing to (i) sites that have been decommissioned prior to the agency. October 1, 2000, in accordance with requirements identified in this section and in §289.252 of this title; or (zz) Reports of planned special exposures. The licensee shall submit a written report to the agency within 30 days following any (ii) sites that have previously submitted and re- planned special exposure conducted in accordance with subsection (k) ceived approval on a decommissioning plan by October 1, 2000. of this section, informing the agency that a planned special exposure (C) After a site has been decommissioned and the was conducted and indicating the date the planned special exposure license terminated in accordance with the requirements in the occurred and the information required by subsection (qq) of this subsection, the agency will require additional cleanup if it determines section. that the requirements of the subsection were not met and residual (aaa) Notifications and reports to individuals. radioactivity remaining at the site could result in significant threat to public health and safety. (1) Requirements for notification and reports to individu- als of exposure to sources of radiation are specified in §289.203 of (D) When calculating TEDE to the average member of this title. the critical group, the licensee shall determine the peak annual TEDE dose expected within the first 1,000 years after decommissioning. (2) When a licensee is required in accordance with subsection (yy) or (zz) of this section to report to the agency any (2) Radiological requirements for unrestricted use. A site exposure of an identified occupationally exposed individual, or an will be considered acceptable for unrestricted use if the residual identified member of the public, to sources of radiation, the licensee radioactivity that is distinguishable from background radiation results shall also notify the individual and provide a copy of the report in a TEDE to an average member of the critical group that does submitted to the agency, to the individual. Such notice shall be not exceed 25 mrem (0.25 mSv) per year, including that from transmitted at a time not later than the transmittal to the agency, groundwater sources of drinking water, and the residual radioactivity and shall comply with the provisions of §289.203(d)(1) of this title. has been reduced to levels that are ALARA. Determination of the levels that are ALARA must take into account consideration of any (bbb) Reports of leaking or contaminated sealed sources. The detriments, such as deaths from transportation accidents, expected to licensee shall immediately notify the agency if the test for leakage or potentially result from decontamination and waste disposal. contamination required in accordance with §289.201(g) of this title indicates a sealed source is leaking or contaminated. A written report (3) Alternate requirements for license termination. of a leaking or contaminated source shall be submitted to the agency (A) The agency may terminate a license using alternate within five days. The report shall include the equipment involved, requirements greater than the dose requirements specified in para- the test results and the corrective action taken. graph (2) of this subsection if the licensee does the following: (ccc) Vacating premises. (i) provides assurance that public health and safety would continue to be protected, and that it is unlikely that the dose
25 TexReg 4850 May 26, 2000 Texas Register from all man-made sources combined, other than medical, would be that the contamination exceeds the limits specified in subsection more than the 1 mSv per year (100 mrem per year) limit specified in (ggg)(6) of this section. subsection (o) of this section, by submitting an analysis of possible (2) No licensee shall possess, receive, use, or transfer sources of exposure; radioactive material in such a manner as to cause contamination of (ii) reduces doses to ALARA levels, taking into soil in unrestricted areas, to the extent that the contamination exceeds, consideration any detriments such as traffic accidents expected to on a dry weight basis, the concentration limits specified in: potentially result from decontamination and waste disposal; and (A) subsection (ggg)(8) of this section; or (iii) has submitted a decommissioning plan to the (B) the effluent concentrations in Table II, Column 2 agency indicating the licensee’s intent to decommission in accordance of subsection (ggg)(2)(F) of this section, with the units changed from with the requirements in §289.252(l)(7) of this title, and specifying microcuries per milliliter to microcuries per gram, for radionuclides that the licensee proposes to decommission by use of alternate not specified in subsection (ggg)(8) of this section or paragraph (4) requirements. The licensee shall document in the decommissioning of this subsection. plan how the advice of individuals and institutions in the community who may be affected by the decommissioning has been sought and (3) Where combinations of radionuclides are involved, the addressed, as appropriate, following analysis of that advice. In sum of the ratios between the concentrations present and the limits seeking such advice, the licensee shall provide for the following: specified in paragraph (2) of this subsection shall not exceed one. (I) participation by representatives of a broad (4) Notwithstanding the limits specified in paragraph (2) cross section of community interests who may be affected by the of this subsection, no licensee shall cause the concentration of radium- decommissioning; 226 or radium-228 in soil in unrestricted areas, averaged over any 100 square meters (m2), to exceed the background level by more than: (II) an opportunity for a comprehensive, collec- tive discussion on the issues by the participants represented; and (A) 5 picocuries per gram (pCi/g) (0.185 becquerel per gram (Bq/g)), averaged over the first 15 cm of soil below the surface; (III) a publicly available summary of the results and of all such discussions, including a description of the individual viewpoints of the participants on the issues and the extent of (B) 15 pCi/g (0.555 Bq/g), averaged over 15 cm thick agreement and disagreement among the participants on the issues. layers of soil more than 15 cm below the surface. (B) The use of alternate requirements to terminate a (5) No licensee shall possess, receive, use, or transfer license requires the approval of the agency after consideration of the radioactive material in such a manner as to cause contamination of agency’s recommendations that will address any comments provided vegetation in unrestricted areas to exceed 5 pCi/g (0.185 Bq/g), based by the EPA and any public comments submitted in accordance with on dry weight, for radium-226 or radium-228. paragraph (4) of this subsection. (6) Notwithstanding the limits specified in paragraph (2) (4) Public notification and public participation. Upon of this subsection, no licensee shall cause the concentration of natural receipt of a decommissioning plan from the licensee, or a proposal uranium with no daughters present, based on dry weight and averaged from the licensee for release of a site in accordance with paragraph over any 100 m2 of area, to exceed the following limits: (3) of this subsection, or whenever the agency deems such notice to (A) 30 pCi/g (1.11 Bq/g), averaged over the top 15 cm be in the public interest, the agency will do the following: of soil below the surface; and (A) notify and solicit comments from the following: (B) 150 pCi/g (5.55 Bq/g), average concentration at (i) local and state governments in the vicinity of the depths greater than 15 centimeters below the surface so that no site and any Indian Nation or other indigenous people that have treaty individual member of the public will receive an effective dose or statutory rights that could be affected by the decommissioning; and equivalent in excess of 100 mrem (1 mSv) per year. (ii) the EPA for cases where the licensee proposes (fff) Exemption of specific wastes. to release a site in accordance with paragraph (3) of this subsection; (1) A licensee may discard the following licensed material and without regard to its radioactivity: (B) publish a notice in the Texas Register and a forum, (A) 0.05 microcurie (micro;Ci) (1.85 kilobecquerels such as local newspapers, letters to state of local organizations, or (kBq)), or less, of hydrogen-3, carbon-14, or iodine-125 per gram other appropriate forum, that is readily accessible to individuals in of medium used for liquid scintillation counting or in vitro clinical the vicinity of the site, and solicit comments from affected parties. or in vitro laboratory testing; and (5) Minimization of contamination. Applicants for li- (B) 0.05 micro;Ci (1.85 kBq), or less, of hydrogen-3, censes, other than renewals, after October 1, 2000, shall describe carbon-14, or iodine-125, per gram of animal tissue, averaged over in the application how facility design and procedures for operation the weight of the entire animal. will minimize, to the extent practical, contamination of the facility and the environment, facilitate eventual decommissioning, and mini- (2) A licensee shall not discard tissue in accordance with mize, to the extent practical, the generation of LLRW. paragraph (1)(B) of this subsection in a manner that would permit its use either as food for humans or as animal feed. (eee) Limits for contamination of soil, surfaces of facilities and equipment, and vegetation. (3) The licensee shall maintain records in accordance with subsection (tt) of this section. (1) No licensee shall possess, receive, use, or transfer radioactive material in such a manner as to cause contamination of (4) Any licensee may, upon agency approval of proce- surfaces of facilities or equipment in unrestricted areas to the extent dures required in paragraph (6) of this subsection, discard licensed
ADOPTED RULES May 26, 2000 25 TexReg 4851 material included in subsection (ggg)(7) of this section, provided that general environment. Table III of subparagraph (F) of this paragraph it does not exceed the concentration and total curie limits contained provides concentration limits for discharges to sanitary sewerage. therein, in a Type I municipal solid waste site as defined in the Mu- (ii) The values in Tables I, II, and III of subpara- nicipal Solid Waste Regulations of the authorized regulatory agency graph (F) of this paragraph are presented in the computer "E" nota- (31 Texas Administrative Code Chapter 330), unless such licensed tion. In this notation a value of 6E-02 represents a value of 6 x 10-2 material also contains hazardous waste, as defined in Section 3(15) or 0.06, 6E+2 represents 6 x 102 or 600, and 6E+0 represents 6 x 100 of the Solid Waste Disposal Act, Health and Safety Code, Chapter or 6. 361. Any licensed material included in subsection (ggg)(7) of this section and which is a hazardous waste as defined in the Solid Waste (B) Occupational values. Disposal Act may be discarded at a facility authorized to manage (i) Note that the columns in Table I of subpara- hazardous waste by the authorized regulatory agency. graph (F) of this paragraph captioned "Oral Ingestion ALI," "Inhala- (5) Each licensee who discards material described in tion ALI," and "DAC," are applicable to occupational exposure to paragraphs (1) or (4) of this subsection shall: radioactive material. (A) make surveys adequate to assure that the limits of (ii) The ALIs in subparagraph (F) of this paragraph paragraphs (1) or (4) of this subsection are not exceeded; and are the annual intakes of given radionuclide by "Reference Man" that would result in either a committed effective dose equivalent of 5 rems (B) remove or otherwise obliterate or obscure all (0.05 Sv), stochastic ALI, or a committed dose equivalent of 50 rems labels, tags, or other markings that would indicate that the material (0.5 Sv) to an organ or tissue, non-stochastic ALI. The stochastic or its contents is radioactive. ALIs were derived to result in a risk, due to irradiation of organs and (6) Prior to authorizations in accordance with paragraph tissues, comparable to the risk associated with deep dose equivalent (4) of this subsection, a licensee shall submit procedures to the agency to the whole body of 5 rems (0.05 Sv). The derivation includes for: multiplying the committed dose equivalent to an organ or tissue by a weighting factor, w . This weighting factor is the proportion of (A) the physical delivery of the material to the disposal T the risk of stochastic effects resulting from irradiation of the organ or site; tissue, T, to the total risk of stochastic effects when the whole body is
(B) surveys to be performed for compliance with irradiated uniformly. The values of wT are listed under the definition paragraph (5)(A) of this subsection; of "weighting factor" in subsection (c) of this section. The non- stochastic ALIs were derived to avoid non-stochastic effects, such as (C) maintaining secure packaging during transporta- prompt damage to tissue or reduction in organ function. tion to the site; and (iii) A value of w = 0.06 is applicable to each (D) maintaining records of any discards made under T of the five organs or tissues in the "remainder" category receiving paragraph (4) of this subsection. the highest dose equivalents, and the dose equivalents of all other (7) Nothing in this section relieves the licensee of main- remaining tissues may be disregarded. The following portions of the taining records showing the receipt, transfer, and discard of such GI tract; stomach, small intestine, upper large intestine, and lower radioactive material as specified in §289.201(d) of this title. large intestine, are to be treated as four separate organs. (8) Nothing in this section relieves the licensee from com- (iv) The dose equivalents for an extremity, skin, plying with other applicable federal, state, and local regulations gov- and lens of the eye are not considered in computing the committed erning any other toxic or hazardous property of these materials. effective dose equivalent, but are subject to limits that must be met separately. (9) Licensed material discarded under this section is exempt from the requirements of §289.252(t) of this title. (v) When an ALI is defined by the stochastic dose limit, this value alone is given. When an ALI is determined by the (ggg) Appendices. non-stochastic dose limit to an organ, the organ or tissue to which the (1) Protection factors for respirators. The following table limit applies is shown, and the ALI for the stochastic limit is shown contains protection factors for respiratorsa: in parentheses. Abbreviated organ or tissue designations are used as Figure: 25 TAC §289.202(ggg)(1) follows: (2) Annual limits on intake (ALI) and derived air concen- (I) LLI wall = lower large intestine wall; trations (DAC) of radionuclides for occupational exposure; effluent (II) St. wall = stomach wall; concentrations; concentrations for release to sanitary sewerage. (III) Blad wall = bladder wall; and (A) Introduction. (IV) Bone surf = bone surface. (i) For each radionuclide, Table I of subparagraph (F) of this paragraph indicates the chemical form that is to be used (vi) for selecting the appropriate ALI or DAC value. The ALIs and Figure: 25 TAC §289.202(ggg)(2)(B)(vi) (No change.) DACs for inhalation are given for an aerosol with an activity median (vii) The dose equivalents for an extremity, skin, aerodynamic diameter (AMAD) of 1 micron, and for three classes and lens of the eye are not considered in computing the committed (D, W, Y) of radioactive material, which refer to their retention effective dose equivalent, but are subject to limits that must be met (approximately days, weeks, or years) in the pulmonary region of the separately. lung. This classification applies to a range of clearance half-times for D if less than 10 days, for W from 10 to 100 days, and for Y greater (viii) The DAC values are derived limits intended than 100 days. Table II of subparagraph (F) of this paragraph provides to control chronic occupational exposures. The relationship between concentration limits for airborne and liquid effluents released to the the DAC and the ALI is given by:
25 TexReg 4852 May 26, 2000 Texas Register Figure: 25 TAC §289.202(ggg)(2)(B)(viii) (No change.) (III) a factor of 2 to adjust the occupational values, derived for adults, so that they are applicable to other age (ix) The DAC values relate to one of two modes of groups. exposure: either external submersion or the internal committed dose equivalents resulting from inhalation of radioactive materials. DACs (iv) For those radionuclides for which submersion, based upon submersion are for immersion in a semi-infinite cloud of that is external dose, is limiting, the occupational DAC in Column 3 uniform concentration and apply to each radionuclide separately. of Table I of subparagraph (F) of this paragraph was divided by 219. The factor of 219 is composed of a factor of 50, as described in clause (x) The ALI and DAC values include contributions (iii) of this subparagraph, and a factor of 4.38 relating occupational to exposure by the single radionuclide named and any in-growth exposure for 2,000 hours per year to full-time exposure (8,760 hours of daughter radionuclides produced in the body by decay of the per year). Note that an additional factor of 2 for age considerations parent. However, intakes that include both the parent and daughter is not warranted in the submersion case. radionuclides should be treated by the general method appropriate for mixtures. (v) The water concentrations were derived by taking the most restrictive occupational stochastic oral ingestion ALI and (xi) The values of ALI and DAC do not apply dividing by 7.3 x 107. The factor of 7.3 x 107 milliliters (ml) includes directly when the individual both ingests and inhales a radionuclide, the following components: when the individual is exposed to a mixture of radionuclides by either inhalation or ingestion or both, or when the individual is exposed (I) the factors of 50 and 2 described in clause to both internal and external irradiation. See subsection (g) of this (iii) of this subparagraph; and section. When an individual is exposed to radioactive materials which (II) a factor of 7.3 x 105 (ml) which is the annual fall under several of the translocation classifications of the same water intake of "Reference Man." radionuclide, such as, Class D, Class W, or Class Y, the exposure may be evaluated as if it were a mixture of different radionuclides. (vi) Note 2 of subparagraph (F) of this paragraph provides groupings of radionuclides that are applicable to unknown (xii) It should be noted that the classification of a mixtures of radionuclides. These groupings, including occupational compound as Class D, W, or Y is based on the chemical form of the inhalation ALIs and DACs, air and water effluent concentrations, compound and does not take into account the radiological half-life and releases to sewer, require demonstrating that the most limiting of different radionuclides. For this reason, values are given for Class radionuclides in successive classes are absent. The limit for the D, W, and Y compounds, even for very short-lived radionuclides. unknown mixture is defined when the presence of one of the listed (C) Effluent concentrations. radionuclides cannot be definitely excluded as being present either from knowledge of the radionuclide composition of the source or (i) The columns in Table II of subparagraph (F) from actual measurements. of this paragraph captioned "Effluents," "Air," and "Water" are applicable to the assessment and control of dose to the public, (D) Releases to sewers. The monthly average concen- particularly in the implementation of the provisions of subsection (o) trations for release to sanitary sewerage are applicable to the pro- of this section. The concentration values given in Columns 1 and 2 visions in subsection (gg) of this section. The concentration values of Table II of subparagraph (F) of this paragraph are equivalent to the were derived by taking the most restrictive occupational stochastic radionuclide concentrations which, if inhaled or ingested continuously oral ingestion ALI and dividing by 7.3 x 106 (ml). The factor of over the course of a year, would produce a total effective dose 7.3 x 106(ml) is composed of a factor of 7.3 x 105 (ml), the annual equivalent of 0.05 rem (0.5 mSv). water intake by "Reference Man," and a factor of 10, such that the concentrations, if the sewage released by the licensee were the only (ii) Consideration of non-stochastic limits has not source of water ingested by a "Reference Man" during a year, would been included in deriving the air and water effluent concentration result in a committed effective dose equivalent of 0.5 rem. limits because non-stochastic effects are presumed not to occur at or below the dose levels established for individual members of (E) List of elements. the public. For radionuclides, where the non-stochastic limit was Figure: 25 TAC §289.202(ggg)(2)(E) (No change.) governing in deriving the occupational DAC, the stochastic ALI was (F) Tables–Values for annual limits. The following ta- used in deriving the corresponding airborne effluent limit in Table II bles contain values for annual limits on intake (ALI) and derived air of subparagraph (F) of this paragraph. For this reason, the DAC and concentrations (DAC) of radionuclides for occupational exposure; ef- airborne effluent limits are not always proportional as they were in fluent concentrations; concentrations for release to sanitary sewerage: the previous radiation protection standards. Figure: 25 TAC §289.202(ggg)(2)(F) (No change.) (iii) The air concentration values listed in Column I (3) Quantities of licensed material requiring labeling. The of Table II of subparagraph (F) of this paragraph were derived by one following tables contain quantities of licensed material requiring of two methods. For those radionuclides for which the stochastic limit labeling: is governing, the occupational stochastic inhalation ALI was divided Figure: 25 TAC §289.202(ggg)(3) (No change.) by 2.4 x 109, relating the inhalation ALI to the DAC, as explained in subparagraph (B)(viii) of this paragraph, and then divided by a factor (4) Classification and characteristics of low-level radioac- of 300. The factor of 300 includes the following components: tive waste (LLRW). (I) a factor of 50 to relate the 5 rems (0.05 Sv) (A) Classification of radioactive waste for land dis- annual occupational dose limit to the 0.1 rem limit for members of posal. the public; (i) Considerations. Determination of the classifica- (II) a factor of 3 to adjust for the difference tion of LLRW involves two considerations. First, consideration must in exposure time and the inhalation rate for a worker and that for be given to the concentration of long-lived radionuclides (and their members of the public; and shorter-lived precursors) whose potential hazard will persist long af-
ADOPTED RULES May 26, 2000 25 TexReg 4853 ter such precautions as institutional controls, improved waste form, (II) If the concentration exceeds the value in and deeper disposal have ceased to be effective. These precautions Column 1 of subclause (VI) of this clause but does not exceed the delay the time when long-lived radionuclides could cause exposures. value in Column 2 of subclause (VI) of this clause, the waste is Class In addition, the magnitude of the potential dose is limited by the con- B. centration and availability of the radionuclide at the time of exposure. (III) If the concentration exceeds the value in Second, consideration must be given to the concentration of shorter- Column 2 of subclause (VI) of this clause but does not exceed the lived radionuclides for which requirements on institutional controls, value in Column 3 of subclause (VI) of this clause, the waste is Class waste form, and disposal methods are effective. C. (ii) Classes of waste. (IV) If the concentration exceeds the value in (I) Class A waste is waste that is usually seg- Column 3 of subclause (VI) of this clause, the waste is not generally regated from other waste classes at the disposal site. The physical acceptable for near-surface disposal. form and characteristics of Class A waste must meet the minimum (V) For wastes containing mixtures of the ra- requirements set forth in subparagraph (B)(i) of this paragraph. If dionuclides listed in subclause (VI) of this clause, the total concen- Class A waste also meets the stability requirements set forth in sub- tration shall be determined by the sum of fractions rule described in paragraph (B)(ii) of this paragraph, it is not necessary to segregate clause (vii) of this subparagraph. the waste for disposal. (VI) Classification table for short-lived radionu- (II) Class B waste is waste that must meet more clides. rigorous requirements on waste form to ensure stability after disposal. Figure: 25 TAC §289.202(ggg)(4)(A)(iv)(VI) (No change.) The physical form and characteristics of Class B waste must meet both the minimum and stability requirements set forth in subparagraph (v) Classification determined by both long- and (B) of this paragraph. short-lived radionuclides. If the radioactive waste contains a mixture of radionuclides, some of which are listed in clause (iii)(V) of this (III) Class C waste is waste that not only must subparagraph and some of which are listed in clause (iv)(VI) of this meet more rigorous requirements on waste form to ensure stability subparagraph, classification shall be determined as follows: but also requires additional measures at the disposal facility to protect against inadvertent intrusion. The physical form and characteristics of (I) If the concentration of a radionuclide listed Class C waste must meet both the minimum and stability requirements in clause (iii)(V) of this subparagraph is less than 0.1 times the set forth in subparagraph (B) of this paragraph. value listed in clause (iii)(V) of this subparagraph, the class shall be that determined by the concentration of radionuclides listed in (iii) Classification determined by long-lived ra- clause (iv)(VI) of this subparagraph. dionuclides. If the radioactive waste contains only radionuclides listed in subclause (V) of this clause, classification shall be deter- (II) If the concentration of a radionuclide listed mined as follows. in clause (iii)(V) of this subparagraph exceeds 0.1 times the value listed in clause (iii)(V) of this subparagraph, but does not exceed the (I) If the concentration does not exceed 0.1 value listed in clause (iii)(V) of this subparagraph, the waste shall be times the value in subclause (V) of this clause, the waste is Class Class C, provided the concentration of radionuclides listed in clause A. (iv)(VI) of this subparagraph does not exceed the value shown in (II) If the concentration exceeds 0.1 times the Column 3 of clause (iv)(VI) of this subparagraph. value in Table I, but does not exceed the value in subclause (V) of (vi) Classification of wastes with radionuclides this clause, the waste is Class C. other than those listed in clauses (iii)(V) and (iv)(VI) of this (III) If the concentration exceeds the value in subparagraph. If the waste does not contain any radionuclides listed subclause (V) of this clause, the waste is not generally acceptable for in either clauses (iii)(V) and (iv)(VI) of this subparagraph, it is Class land disposal. A. (IV) For wastes containing mixtures of radionu- (vii) The sum of the fractions rule for mixtures of clides listed in subclause (V) of this clause, the total concentration radionuclides. For determining classification for waste that contains shall be determined by the sum of fractions rule described in clause a mixture of radionuclides, it is necessary to determine the sum (vii) of this subparagraph. of fractions by dividing each radionuclide’s concentration by the appropriate limit and adding the resulting values. The appropriate (V) Classification table for long-lived radionu- limits must all be taken from the same column of the same table. clides. The sum of the fractions for the column must be less than 1.0 if the Figure: 25 TAC §289.202(ggg)(4)(A)(iii)(V) (No change.) waste class is to be determined by that column. Example: A waste (iv) Classification determined by short-lived ra- contains Sr-90 in a concentration of 50 curies per cubic meter (Ci/ dionuclides. If the waste does not contain any of the radionuclides m3) (1.85 terabecquerels per cubic meter (TBq/m3)) and Cs-137 in a listed in clause (iii)(V) of this subparagraph, classification shall be concentration of 22 Ci/m3 (814 gigabecquerels per cubic meter (GBq/ determined based on the concentrations shown in subclause (VI) of m3)). Since the concentrations both exceed the values in Column 1 this clause. However, as specified in clause (vi) of this subparagraph, of clause (iv)(VI) of this subparagraph, they must be compared to if radioactive waste does not contain any nuclides listed in either Column 2 values. For Sr-90 fraction, 50/150 = 0.33, for Cs-137 clause (iii)(V) of this subparagraph or subclause (VI) of this clause, fraction, 22/44 = 0.5; the sum of the fractions = 0.83. Since the sum it is Class A. is less than 1.0, the waste is Class B. (I) If the concentration does not exceed the value (viii) Determination of concentrations in wastes. in Column 1 of subclause (VI) of this clause, the waste is Class A. The concentration of a radionuclide may be determined by indirect methods such as use of scaling factors, which relate the inferred
25 TexReg 4854 May 26, 2000 Texas Register concentration of one radionuclide to another that is measured, or (II) Notwithstanding the provisions in clause radionuclide material accountability, if there is reasonable assurance (i)(III) and (IV) of this subparagraph, liquid wastes, or wastes that the indirect methods can be correlated with actual measurements. containing liquid, shall be converted into a form that contains as little The concentration of a radionuclide may be averaged over the volume free-standing and non-corrosive liquid as is reasonably achievable, but of the waste, or weight of the waste if the units are expressed as in no case shall the liquid exceed 1.0% of the volume of the waste nanocurie (becquerel) per gram. when the waste is in a disposal container designed to ensure stability, or 0.5% of the volume of the waste for waste processed to a stable (B) Radioactive waste characteristics. form. (i) The following are minimum requirements for all (III) Void spaces within the waste and between classes of waste and are intended to facilitate handling and provide the waste and its package shall be reduced to the extent practicable. protection of health and safety of personnel at the disposal site. (C) Labeling. Each package of waste shall be clearly (I) Wastes shall be packaged in conformance labeled to identify whether it is Class A, Class B, or Class C waste, with the conditions of the license issued to the site operator to which in accordance with subparagraph (A) of this paragraph. the waste will be shipped. Where the conditions of the site license are more restrictive than the provisions of this section, the site license (5) Time requirements for record keeping. conditions shall govern. Figure: 25 TAC §289.202(ggg)(5) (No change.) (II) Wastes shall not be packaged for disposal in (6) Acceptable surface contamination levels. cardboard or fiberboard boxes. Figure: 25 TAC §289.202(ggg)(6) (No change.) (III) Liquid waste shall be packaged in sufficient (7) Concentration and activity limits of nuclides for dis- absorbent material to absorb twice the volume of the liquid. posal in a Type I municipal solid waste site or a hazardous waste facility (for use in subsection (fff) of this section). The following (IV) Solid waste containing liquid shall contain table contains concentration and activity limits of nuclides for dis- as little free-standing and non-corrosive liquid as is reasonably posal in a Type I municipal solid waste site or a hazardous waste achievable, but in no case shall the liquid exceed 1.0% of the volume. facility. (V) Waste shall not be readily capable of deto- Figure: 25 TAC §289.202(ggg)(7) nation or of explosive decomposition or reaction at normal pressures (8) Soil contamination limits for selected radionuclides and temperatures, or of explosive reaction with water. (for use in subsection (ddd) of this section). (VI) Waste shall not contain, or be capable of Figure: 25 TAC §289.202(ggg)(8) (No change.) generating, quantities of toxic gases, vapors, or fumes harmful to (9) Cumulative occupational exposure form. The follow- persons transporting, handling, or disposing of the waste. This does ing, BRC Form 202-2, is to be used to document cumulative occu- not apply to radioactive gaseous waste packaged in accordance with pational exposure history: (Please find BRC Form 202-2 at the end subclause (VIII) of this clause. of this section.) (VII) Waste must not be pyrophoric. Pyrophoric Figure: 25 TAC §289.202(ggg)(9) materials contained in wastes shall be treated, prepared, and packaged (10) Occupational exposure form. The following, BRC to be nonflammable. Form 202-3, is to be used to document occupational exposure record (VIII) Wastes in a gaseous form shall be pack- for a monitoring period: (Please find BRC Form 202-3 at the end of aged at an absolute pressure that does not exceed 1.5 atmospheres at this section.) 20 degrees Celsius. Total activity shall not exceed 100 Ci (3.7 ter- Figure: 25 TAC §289.202(ggg)(10) abecquerels (TBq)) per container. This agency hereby certifies that the adoption has been re- (IX) Wastes containing hazardous, biological, viewed by legal counsel and found to be a valid exercise of the pathogenic, or infectious material shall be treated to reduce to the agency’s legal authority. maximum extent practicable the potential hazard from the non- Filed with the Office of the Secretary of State on May 15, 2000. radiological materials. TRD-200003359 (ii) The following requirements are intended to Susan K. Steeg provide stability of the waste. Stability is intended to ensure that the waste does not degrade and affect overall stability of the site General Counsel through slumping, collapse, or other failure of the disposal unit and Texas Department of Health thereby lead to water infiltration. Stability is also a factor in limiting Effective date: October 1, 2000 exposure to an inadvertent intruder, since it provides a recognizable Proposal publication date: December 3, 1999 and nondispersible waste. For further information, please call: (512) 458-7236 (I) Waste shall have structural stability. A ♦♦♦ structurally stable waste form will generally maintain its physical dimensions and its form, under the expected disposal conditions such Subchapter E. REGISTRATION REGULATIONS as weight of overburden and compaction equipment, the presence of 25 TAC §289.231 moisture, and microbial activity, and internal factors such as radiation effects and chemical changes. Structural stability can be provided by The Texas Department of Health (department) adopts new the waste form itself, processing the waste to a stable form, or placing §289.231, concerning general provisions and standards for the waste in a disposal container or structure that provides stability protection against machine-produced radiation with changes to after disposal. the proposed text published in the December 3, 1999, issue of the Texas Register (24 TexReg 10756).
ADOPTED RULES May 26, 2000 25 TexReg 4855 The new section consolidates general provisions and standards other current employer if the employee is concurrently employed for protection against machine- produced radiation that are cur- and receiving an occupational dose. rently combined with similar requirements for radioactive mate- Change: Concerning §289.231(s)(3), electronic personal rial in §289.201 of this title (relating to General Provisions for dosimeters were added to the individual monitoring devices Radioactive Material) and §289.202 of this title (relating to Stan- that do not require processing and evaluation by a dosimetry dards for Protection Against Radiation from Radioactive Mate- processor accredited by the National Voluntary Laboratory rial). The similar requirements for radioactive material are much Accreditation Program to clarify the processing requirements lengthier and more complex. Therefore, separating and con- for these devices. solidating these requirements for machine-produced radiation provides for a more efficient rule and less burden on the regis- The following comments were received concerning the pro- trants required to comply with these requirements. In addition posed section. Following the comment is the department’s re- to consolidation of requirements, the new section includes clar- sponses and any resulting change(s). ification of several definitions. Language was added to clarify Comment: Concerning §289.231(p)(2)(B), the commenter that persons who receive, possess, use, or acquire radiation noted that the rule states a need to demonstrate that a machines prior to receiving a certificate of registration are also total dose equivalent not exceed 0.050 rem for continuous subject to the requirements in this chapter. The language that occupation and questioned if this shouldn’t be 0.500 rem in allows the department to make exemptions to the requirements accordance with §289.231(o)(1)(A). of this chapter was revised to reflect changes made as a re- sult of House Bill 1172 passed by the 76th Legislature. Lan- Response: The department disagrees in part with the com- guage that specifies the department may enter public or private menter. This requirement was extracted from the similar re- property to determine compliance with department rules and quirement for exposures from radioactive materials. Licensees orders was added. Several of the routine inspection intervals using radioactive materials have two options in determining how were modified based upon the department’s evaluation of com- to demonstrate compliance with the dose limits to members of pliance history. Training requirements for department inspec- the public. The first option allows evaluation of the total ef- tors of lasers was added. The condition requiring monitoring fective dose equivalent from both internal and external expo- of radiation exposures to minors is modified. The condition re- sure and allows the use of occupancy factors. The second quiring monitoring of radiation exposures to a declared pregnant option requires the evaluation of internal and external dose woman was modified and clarified to state that the dose limit re- separately and does not allow the use of occupancy factors. quiring monitoring for a declared pregnant woman is applicable Therefore, allowance is made for only 0.050 rem from external only for the nine-month gestation period. Other minor gram- exposures, half of the 0.100 rem annual dose limit for mem- matical changes were made to the section for clarification. This bers of the public. However, since there is no internal exposure section is part of the department’s continuing effort to update, component from radiation machines, the requirement citing the clarify, and simplify its rules regarding the control of radiation separate limit for external exposures was erroneously extracted based upon technological changes, public concerns, legislative from another section. The department changed the requirement directives, or other factors. by deleting the proposed §289.231(p)(2)(B). The requirement, §289.132(p)(2) now reads, "A registrant shall show compliance The department is making the following minor changes due to with the annual dose limit in subsection (o) of this section by staff comments to clarify the intent and improve the accuracy of demonstrating by measurement or calculation that the TEDE to the section. the individual likely to receive the highest dose from the regis- Change: Concerning §289.231(b)(2), a comma was added tered operation does not exceed the annual dose limit." after the word "receive" in the first sentence for grammatical Comment: Concerning §289.231(x)(3), the commenter urged correctness. In addition, the words "for Radioactive Material" the department to eliminate both the words "grave" and "danger" were added after the word "Provisions" and the words "from from signs that are required to be posted in medical facilities. Radioactive Material" were added after the word "Radiation" to The commenter suggested that the word, "caution" on a sign state the correct title of the rules. is sufficient and that a danger sign of any kind can cause Change: Concerning §289.231(c)(6), commas were added to significant consternation for patients who are being asked to the sentence, "...from past nuclear accidents, such as Cher- enter these rooms, but don’t understand the meaning of the nobyl, that contribute to background radiation..." for grammati- signage. cal correctness and ease in reading. Response: The department disagrees with the commenter. The Change: Concerning §289.231(c)(29), the third sentence was rule requires such signage to be posted at very high radiation changed to, "Examples of individual monitoring devices include, areas. The rule also allows the word "grave" to be omitted from but are not limited to, film badges, ..." to provide an allowance for signs at very high radiation areas that involve medical treatment newly developed technologies in individual monitoring devices. of patients. The department believes such very high radiation areas should be posted with signs containing the word "danger" Change: Concerning §289.231(c)(72), the acronym "TAC" as a signal of the potential radiation exposure levels to workers was added after the title, "Texas Administrative Code" for and other members of the public. consistency with the way the title and acronym are used in this and other sections of this title. The individual commenter was generally in favor of the rule, but had a question and a suggestion for change. Change: Concerning §289.231(r)(2)(A) - (C), the phrase, "prior employers" was changed to, "prior or other current employers" to The new section is adopted under the Health and Safety clarify that a registrant may obtain information on an employee’s Code, Chapter 401, which provides the Texas Board of Health occupational dose for the current year from a prior employer or (board) with authority to adopt rules and guidelines relating to the control of radiation; and Health and Safety Code,
25 TexReg 4856 May 26, 2000 Texas Register §12.001, which provides the Texas Board of Health (board) and socioeconomic considerations, and in relation to utilization of with the authority to adopt rules for its procedure and for the ionizing radiation and radiation machines in the public interest. performance of each duty imposed by law on the board, the (6) Background radiation - Radiation from cosmic department, or the commissioner of health. sources; non-technologically enhanced naturally occurring radioac- §289.231. General Provisions and Standards for Protection Against tive material, including radon, except as a decay product of source Machine-Produced Radiation. or special nuclear material, and including global fallout as it exists in the environment from the testing of nuclear explosive devices or (a) Purpose. from past nuclear accidents, such as Chernobyl, that contribute to (1) This section establishes standards for protection background radiation and are not under the control of the registrant. against ionizing radiation resulting from the use of radiation "Background radiation" does not include radiation from sources of machines. radiation regulated by the agency. (2) The requirements in this section are designed to con- (7) Certificate of registration - A form of permission given trol the receipt, possession, use, and transfer of radiation machines by the agency to an applicant who has met the requirements for by any person so the total dose to an individual, including doses registration or mammography system certification set out in the Act resulting from all sources of radiation other than background radia- and this chapter. tion, does not exceed the standards for protection against radiation (8) Certification of mammography systems (state certifi- prescribed in this section. However, nothing in this section shall be cation) - A form of permission given by the agency to an applicant construed as limiting actions that may be necessary to protect health who has met the requirements for mammography system certification and safety in an emergency. A person who receives, possesses, uses, set out in the Act and this chapter. owns, or acquires radiation machines prior to receiving a certificate of registration is subject to the requirements of this chapter. (9) Chiropractor - An individual licensed by the Texas State Board of Chiropractic Examiners, with license in good standing. (b) Scope. (10) Collective dose - The sum of the individual doses (1) Except as specifically provided in other sections of received in a given period of time by a specified population from this chapter, this section applies to persons who receive, possess, use, exposure to a specified source of radiation. or transfer radiation machines. The dose limits in this section do not apply to doses due to background radiation, to exposure of patients to (11) Declared pregnant woman - A woman who has radiation for the purpose of medical diagnosis or therapy, to exposure voluntarily informed the registrant, in writing, of her pregnancy from individuals administered radioactive material and released in and the estimated date of conception. The declaration remains in accordance with this chapter, or to voluntary participation in medical effect until the declared pregnant woman voluntarily withdraws the research programs. However, no radiation may be deliberately declaration in writing or is no longer pregnant. applied to human beings except by or under the supervision of an (12) Deep dose equivalent (DDE), that applies to external individual authorized by and licensed in accordance with Texas’ whole body exposure - The DE at a tissue depth of 1 centimeter (cm) statutes to engage in the healing arts. (1,000 milligrams per square centimeter (mg/cm2)). (2) Registrants who are also licensed by the agency to (13) Dentist - An individual licensed by the Texas State receive, possess, use, and transfer radioactive materials must also Board of Dental Examiners, with license in good standing. comply with the requirements of §289.201 of this title (relating to General Provisions for Radioactive Material) and §289.202 of this (14) Dose - For external exposure to x-ray radiation from title (relating to Standards for Protection Against Radiation from radiation machines, a generic term that means absorbed dose, DE, or Radioactive Material). total effective dose equivalent. For purposes of this chapter, "radiation dose" is an equivalent term. (c) Definitions. The following words and terms when used in this section shall have the following meaning, unless the context (15) Dose equivalent (DE) - The product of the absorbed clearly indicates otherwise. dose in tissue, quality factor, and all other necessary modifying factors at the location of interest. The units of DE are the sievert (Sv) and (1) Absorbed dose - The energy imparted by ionizing rem. radiation per unit mass of irradiated material. The units of absorbed dose are the gray (Gy) and the rad. (16) Dose limits - The permissible upper bounds of radiation doses established in accordance with this chapter. For (2) Adult - An individual 18 or more years of age. purposes of this chapter, "limits" is an equivalent term. (3) Agency - The Texas Department of Health. (17) Dosimetry processor - A registrant that processes and (4) Agreement State - Any state with which the United evaluates personnel monitoring devices in order to determine the States Nuclear Regulatory Commission (NRC) has entered into an radiation dose delivered to the monitoring devices. effective agreement under Section 274b. of the Atomic Energy Act (18) Embryo/fetus - The developing human organism of 1954, as amended (73 Stat. 689). from conception until the time of birth. (5) As low as is reasonably achievable (ALARA) - (19) Entrance or access point - Any opening through Making every reasonable effort to maintain exposures to radiation as which an individual or extremity of an individual could gain access far below the dose limits in this chapter as is practical, consistent with to radiation areas or to radiation machines. This includes portals of the purpose for which the registered activity is undertaken, taking into sufficient size to permit human access, irrespective of their intended account the state of technology, the economics of improvements in use. relation to the state of technology, the economics of improvements in relation to benefits to the public health and safety, and other societal
ADOPTED RULES May 26, 2000 25 TexReg 4857 (20) Exposure - The quotient of dQ by dm where "dQ" is (35) Licensee - Any person who is licensed by the agency the absolute value of the total charge of the ions of one sign produced in accordance with the Act and this chapter. in air when all the electrons (negatrons and positrons) liberated by (36) Licensing state - Any state with rules equivalent to photons in a volume element of air having mass "dm" are completely the Suggested State Regulations for Control of Radiation relating stopped in air. The SI unit of exposure is the coulomb per kilogram to, and having an effective program for, the regulatory control (C/kg). The roentgen is the special unit of exposure. For purposes of naturally occurring or accelerator-produced radioactive material of this chapter, this term is used as a noun. (NARM) and has been designated as such by the Conference of (21) Exposure rate - The exposure per unit of time. Radiation Control Program Directors, Inc. (22) External dose - That portion of the DE received from (37) Lost or missing radiation machine(s) - A radiation any source of radiation outside the body. machine(s) whose location is unknown. (23) Extremity - Hand, elbow, arm below the elbow, foot, (38) Machine-produced radiation - A stimulated emission knee, and leg below the knee. The arm above the elbow and the leg of radiation from a manufactured product or device or component part above the knee are considered part of the whole body. of a manufactured product or device that has an electronic circuit that during operation can generate or emit a physical field of radiation. (24) Gray (Gy) - The SI unit of absorbed dose. One gray is equal to an absorbed dose of 1 joule per kilogram (J/kg) or 100 (39) Manufacture - To fabricate or mechanically produce. rad. (40) Member of the public - Any individual, except when (25) High radiation area - An area, accessible to individ- that individual is receiving an occupational dose. uals, in which radiation levels from sources of radiation external to (41) Minimal threat radiation machines - Those radiation the body could result in an individual receiving a DE in excess of 0.1 machines capable of generating or emitting fields of radiation that, rem (1 millisievert (mSv)) in one hour at 30 cm from any source of during the operation of which: radiation or from any surface that the radiation penetrates. (A) no deliberate exposure of an individual occurs; (26) Human use - For exposure to x-ray radiation from radiation machines, the external administration of radiation to human (B) the radiation is not emitted in an open beam beings for healing arts purposes or research and/or development configuration; and specifically authorized by the agency. (C) no known physical injury to an individual has (27) Individual - Any human being. occurred. (28) Individual monitoring - The assessment of DE to an (42) Minor - An individual less than 18 years of age. individual by the use of: (43) Monitoring - The measurement of radiation and (A) individual monitoring devices; or the use of the results of these measurements to evaluate potential exposures and doses. For purposes of this chapter, "radiation (B) survey data. monitoring" and "radiation protection monitoring" are equivalent (29) Individual monitoring devices - Devices designed terms. to be worn by a single individual for the assessment of DE. For (44) Occupational dose - The dose received by an individ- purposes of this chapter, "personnel dosimeter" and "dosimeter" are ual in the course of employment in which the individual’s assigned equivalent terms. Examples of individual monitoring devices include, duties involve exposure to sources of radiation from licensed/regis- but are not limited to, film badges, thermoluminescence dosimeters tered and unlicensed/unregistered sources of radiation, whether in the (TLDs), optically stimulated luminescence dosimeters (OSLs), pocket possession of the licensee/registrant or other person. Occupational ionization chambers (pocket dosimeters), and electronic personal dose does not include dose received from background radiation, from dosimeters. any medical administration the individual has received, from expo- (30) Inspection - An official examination and/or observa- sure to individuals administered radioactive material and released in tion including, but not limited to, records, tests, surveys, and mon- accordance with this chapter, from voluntary participation in medical itoring to determine compliance with the Act and rules, orders, re- research programs, or as a member of the public. quirements, and conditions of the agency. (45) Particle accelerator - Any machine capable of accel- (31) Ionizing radiation - Any electromagnetic or particu- erating electrons, protons, deuterons, or other charged particles in a late radiation capable of producing ions, directly or indirectly, in its vacuum and designed to discharge the resultant particulate or other passage through matter. Ionizing radiation includes gamma rays and associated radiation at energies usually in excess of 1 MeV. x rays, alpha and beta particles, high speed electrons, neutrons, and (46) Person - Any individual, corporation, partnership, other nuclear particles. firm, association, trust, estate, public or private institution, group, (32) Lens dose equivalent (LDE) - The external DE to the agency, local government, any other state or political subdivision or lens of the eye at a tissue depth of 0.3 cm (300 mg/cm2). agency thereof, or any other legal entity, and any legal successor, representative, agent, or agency of the foregoing, other than the NRC, (33) License - A form of permission given by the agency and other than federal government agencies licensed or exempted by to an applicant who has met the requirements for licensing set out in the NRC. the Act and this chapter. (47) Personnel monitoring equipment (See definition for (34) Licensed material - Radioactive material received, individual monitoring devices.) possessed, used, or transferred under a general or specific license issued by the agency. (48) Physician - An individual licensed by the Texas State Board of Medical Examiners, with license in good standing.
25 TexReg 4858 May 26, 2000 Texas Register (49) Podiatrist - An individual licensed by the Texas State (61) Restricted area - An area, access to which is limited Board of Podiatric Examiners, with license in good standing. by the registrant for the purpose of protecting individuals against undue risks from exposure to radiation. Restricted area does not (50) Public dose - The dose received by a member of the include areas used as residential quarters, but separate rooms in a public from exposure to sources of radiation released by a licensee, residential building may be set apart as a restricted area. or to any other source of radiation under the control of a licensee/ registrant. It does not include occupational dose or doses received (62) Roentgen (R) - The special unit of exposure. One from background radiation, from any medical administration the roentgen (R) equals 2.58 x 10-4 C/kg of air. (See definition for individual has received, from exposure to individuals administered exposure.) radioactive material and released in accordance with this chapter, or (63) Rule (as defined in the Government Code, Chapters from voluntary participation in medical research programs. 2001 and 2002, as amended) - Any agency statement of general (51) Quarter - A period of time equal to one-fourth of applicability that implements, interprets, or prescribes law or policy, the year observed by the registrant, approximately 13 consecutive or describes the procedure or practice requirements of an agency. weeks, providing that the beginning of the first quarter in a year The term includes the amendment or repeal of a prior section but coincides with the starting date of the year and that no day is omitted does not include statements concerning only the internal management or duplicated in consecutive quarters. or organization of any agency and not affecting private rights or procedures. The word "rule" was formerly referred to as "regulation." (52) Rad - The special unit of absorbed dose. One rad is equal to an absorbed dose of 100 ergs per gram (erg/g) or 0.01 J/kg (64) Shallow dose equivalent (SDE) - The DE at a tissue (0.01 gray). depth of 0.007 cm (7 mg/cm2) averaged over an area of 1 square centimeter (cm2) (applies to the external exposure of the skin or an (53) Radiation - One or more of the following: extremity). (A) gamma and x rays; alpha and beta particles and (65) SI - The abbreviation for the International System of other atomic or nuclear particles or rays; Units. (B) stimulated emission of radiation from any elec- (66) Sievert (Sv) - The SI unit of any of the quantities tronic device to such energy density levels as to reasonably cause expressed as DE. The DE in sievert is equal to the absorbed dose in bodily harm; or gray multiplied by the quality factor (1 Sv = 100 rem). (C) sonic, ultrasonic, or infrasonic waves from any (67) Site boundary - That line beyond which the land electronic device or resulting from the operation of an electronic or property is not owned, leased, or otherwise controlled by the circuit in an electronic device in the energy range to reasonably cause registrant. detectable bodily harm. (68) Source of radiation - Any radioactive material, or any (54) Radiation area - Any area, accessible to individuals, device or equipment emitting or capable of producing radiation. in which radiation levels could result in an individual receiving a DE in excess of 0.005 rem (0.05 mSv) in one hour at 30 cm from the (69) Special units - The conventional units historically radiation machine or from any surface that the radiation penetrates. used by registrants, i.e., rad (absorbed dose), and rem (DE). (55) Radiation machine - Any device capable of produc- (70) Survey - An evaluation of the radiological conditions ing ionizing radiation except those devices with radioactive material and potential hazards incident to the production, use, transfer, as the only source of radiation. disposal, and/or presence of sources of radiation. When appropriate, such survey includes, but is not limited to, tests, physical examination (56) Radiation safety officer (RSO) - An individual who of location of equipment, measurements of levels of radiation present, has a knowledge of and the authority and responsibility to apply and evaluation of administrative and/or engineered controls. appropriate radiation protection rules, standards, and practices, who must be specifically authorized on a certificate of registration, and (71) Termination - A release by the agency of the obli- who is the primary contact with the agency. gations and authorizations of the registrant under the terms of the certificate of registration. It does not relieve a person of duties and (57) Registrant - Any person issued a certificate of responsibilities imposed by law. registration by the agency in accordance with the Act and this chapter. (72) Texas Regulations for Control of Radiation (TRCR) (58) Regulation (See definition for rule.) - All sections of Title 25 Texas Administrative Code (TAC), Chapter (59) Rem - The special unit of any of the quantities 289. expressed as DE. The DE in rem is equal to the absorbed dose in rad (73) Total effective dose equivalent (TEDE) - For external multiplied by the quality factor (1 rem = 0.01 sievert (Sv)). exposures only to x- ray radiation from radiation machines, the (60) Research and development - Research and develop- TEDE is equal to the DDE. If an individual receives an occupational ment is defined as: dose from both radiation machines and radioactive materials, the TEDE is the sum of the DDE for external exposures and the (A) theoretical analysis, exploration, or experimenta- committed effective dose equivalent for internal exposures as defined tion; or in §289.201(b) of this title. (B) the extension of investigative findings and theories (74) Unrestricted area (uncontrolled area) - An area, of a scientific or technical nature into practical application for access to which is neither limited nor controlled by the registrant. experimental and demonstration purposes, including the experimental For purposes of this chapter, "uncontrolled area" is an equivalent production and testing of models, devices, equipment, materials, and term. processes.
ADOPTED RULES May 26, 2000 25 TexReg 4859 (75) Very high radiation area - An area, accessible to (1) Except where otherwise specified, all communications individuals, in which radiation levels from sources of radiation and reports concerning this chapter and applications filed under them external to the body could result in an individual receiving an should be addressed to the Bureau of Radiation Control, Texas absorbed dose in excess of 500 rads (5 grays) in one hour at 1 meter Department of Health, 1100 West 49th Street, Austin, Texas, 78756- (m) from a radiation machine or from any surface that the radiation 3189. Communications, reports, and applications may be delivered penetrates. At very high doses received at high dose rates, units of in person to the agency’s office located at 8407 Wall Street, Austin, absorbed dose, gray and rad, are appropriate, rather than units of DE, Texas. Sv and rem. (2) Documents transmitted to the agency will be deemed (76) Veterinarian - An individual licensed by the Texas submitted on the date of the postmark, telegram, telefacsimile, or Board of Veterinary Medical Examiners, with license in good electronic media transmission. standing. (j) Interpretations. Except as specifically authorized by the (77) Week - Seven consecutive days starting on Sunday. agency in writing, no interpretation of the meaning of this chapter by any officer or employee of the agency other than a written (78) Whole body - For purposes of external exposure, interpretation by the Office of General Counsel, Texas Department head, trunk including male gonads, arms above the elbow, or legs of Health, will be considered binding upon the agency. above the knee. (k) Mean quality factors and absorbed dose equivalencies. (79) Worker - An individual engaged in work under a certificate of registration issued by the agency and controlled by a (1) As used in this chapter, the quality factors for con- registrant, but does not include the registrant. verting absorbed dose to DE are shown in the following table: Figure: 25 TAC §289.231(k)(1) (80) Year - The period of time beginning in January used to determine compliance with the provisions of this chapter. The (2) If it is more convenient to measure the neutron fluence registrant may change the starting date of the year used to determine rate than to determine the neutron dose equivalent rate in sievert per compliance by the registrant provided that the change is made at the hour or rem per hour, as provided in paragraph (1) of this subsection, beginning of the year and that no day is omitted or duplicated in 1 rem (0.01 Sv) of neutron radiation of unknown energies may, for consecutive years. purposes of this section, be assumed to result from a total fluence of 25 million neutrons per square centimeter incident upon the body. (d) Exemptions. The agency may, upon application therefor If sufficient information exists to estimate the approximate energy or upon its own initiative, exempt a source of radiation or a kind of use distribution of the neutrons, the licensee or registrant may use the or user from the requirements of this chapter if the agency determines fluence rate per unit DE or the appropriate Q value from the following that the exemption is not prohibited by law and will not result in a table to convert a measured tissue dose in rad (gray) to DE in rem significant risk to public health and safety and the environment. In (Sv). determining such exemptions, the agency will consider: Figure: 25 TAC §289.231(k)(2) (1) state of technology; (l) As low as reasonably achievable (ALARA). The registrant (2) economic considerations in relation to benefits to the shall use, to the extent practical, procedures and engineering controls public health and safety; and based upon sound radiation protection principles to achieve occupa- tional doses and public doses that are ALARA. (3) other societal, socioeconomic, or public health and safety considerations. (m) Occupational dose limits. (e) Prohibited uses. (1) The registrant shall control the occupational dose to individuals to the following dose limits. (1) A hand-held fluoroscopic screen shall not be used unless accepted for certification by the United States Food and Drug (A) An annual limit shall be the TEDE being equal to Administration (FDA), Center for Devices and Radiological Health. 5 rems (0.05 Sv). (2) A shoe-fitting fluoroscopic device shall not be used. (B) The annual limits to the lens of the eye, to the skin, and to the extremities shall be: (f) Additional requirements. The agency may, by rule, order, or condition of certificate of registration, impose upon any registrant (i) an LDE of 15 rems (0.15 Sv); and such requirements in addition to those established in this chapter as it (ii) an SDE of 50 rems (0.5 Sv) to the skin or to deems appropriate or necessary to minimize danger to public health any extremity. and safety or property or the environment. (C) The annual limits for a minor shall be 10% of the (g) Violations. An injunction or other court order may be annual occupational dose limits specified in subparagraphs (A) and obtained prohibiting any violation of any provision of the Act or any (B) of this paragraph. rule or order issued thereunder. Any person who willfully violates any provision of the Act or any rule or order issued thereunder may be (D) If a woman declares her pregnancy, the registrant subject to civil and/or administrative penalties. Such person may also shall ensure that the DE to an embryo/fetus during the entire be guilty of a misdemeanor and upon conviction, may be punished pregnancy, due to occupational exposure of a declared pregnant by fine or imprisonment or both, as provided by law. woman, does not exceed 0.5 rem (5 mSv). If a woman chooses not to declare pregnancy, the occupational dose limits specified in paragraph (h) Impounding. Radiation machines shall be subject to (1)(A) and (B) of this subsection are applicable to the woman. impounding in accordance with §401.068 of the Act and §289.205 of this title (relating to Hearing and Enforcement Procedures). (i) The registrant shall make efforts to avoid sub- stantial variation above a uniform monthly exposure rate to a declared (i) Communications.
25 TexReg 4860 May 26, 2000 Texas Register pregnant woman so as to satisfy the limit in paragraph (1) of this sub- (n) Conditions requiring individual monitoring of occupa- section. The National Council on Radiation Protection and Measure- tional dose. ments recommended in NCRP Report No. 91 "Recommendations on (1) Each registrant shall monitor exposures from radiation Limits for Exposure to Ionizing Radiation" (June 1, 1987) that no machines at levels sufficient to demonstrate compliance with the more than 0.05 rem (0.5 mSv) to the embryo/fetus be received in any occupational dose limits of this section. As a minimum, each one month. registrant shall monitor occupational exposure to radiation from (ii) If by the time the woman declares pregnancy radiation machines and shall supply and require the use of individual to the registrant, the DE to the embryo/fetus has exceeded 0.45 rem monitoring devices by: (4.5 mSv), the registrant shall be deemed to be in compliance with (A) adults likely to receive, in one year from sources paragraph (1) of this subsection, if the additional DE to the embryo/ external to the body, a dose in excess of 10% of the limits in fetus does not exceed 0.05 rem (0.5 mSv) during the remainder of subsection (m)(1) of this section; the pregnancy. (B) minors likely to receive, in one year from sources (iii) The DE to an embryo/fetus shall be taken as of radiation external to the body, a DDE in excess of 0.1 rem (1 the DE that is most representative of the DE to the embryo/fetus from mSv), an LDE in excess of 0.15 rem (1.5 mSv), or an SDE to the external radiation, that is, in the mother’s lower torso region. skin or to the extremities in excess of 0.5 rem (5 mSv); (iv) If multiple measurements have been made, (C) declared pregnant women likely to receive during assignment of the DDE for the declared pregnant woman from the the entire pregnancy, from sources of radiation external to the body, individual monitoring device that is most representative of the DE to a DDE in excess of 0.1 rem (1 mSv); and the embryo/fetus shall be the DE to the embryo/fetus. Assignment of the highest DDE for the declared pregnant woman to the embryo/ (D) individuals entering a high or very high radiation fetus is not required unless that dose is also the most representative area. DDE for the region of the embryo/fetus. (2) Notwithstanding the requirements of paragraph (1)(A) (v) If multiple measurements have not been made, of this subsection, no personnel monitoring shall be required for assignment of the highest DDE for the declared pregnant woman shall personnel operating only minimal threat radiation machines as be the DE to the embryo/fetus. specified in subsection (ll)(2) of this section. (2) The assigned DDE and SDE shall be for the portion (o) Dose limits for individual members of the public. of the body receiving the highest exposure. (1) Each registrant shall conduct operations so that: (3) When a protective apron is worn while working (A) the TEDE to individual members of the public with fluoroscopic equipment used for clinical diagnostic or research from exposure to radiation from radiation machines does not exceed purposes, the effective dose equivalent (EDE) for external radiation 0.5 rem (5 mSv) in a year, exclusive of the dose contribution from shall be determined as follows. background radiation, exposure of patients to radiation for the purpose (A) When only one individual monitoring device is of medical diagnosis or therapy, or to voluntary participation in used and it is located at the neck (collar) outside the protective apron, medical research programs; and the reported DDE shall be the EDE for external radiation; or (B) the dose in any unrestricted area from registered (B) When only one individual monitoring device is external sources does not exceed 0.002 rem (0.02 mSv) in any one used and it is located at the neck (collar) outside the protective apron, hour. and the reported dose exceeds 25% of the limit specified in paragraph (2) If the registrant permits members of the public to (1) of this subsection, the reported DDE value multiplied by 0.3 shall have access to restricted areas, the limits for members of the public be the EDE for external radiation; or continue to apply to those individuals. (C) When individual monitoring devices are worn, (3) The agency may impose additional restrictions on both under the protective apron at the waist and outside the protective radiation levels in unrestricted areas in order to restrict the collective apron at the neck (collar), the EDE for external radiation shall dose. be assigned the value of the sum of the DDE reported for the individual monitoring device located at the waist under the protective (p) Compliance with dose limits for individual members of apron multiplied by 1.5 and the DDE reported for the individual the public. monitoring device located at the neck (collar) outside the protective (1) The registrant shall make or cause to be made surveys apron multiplied by 0.04. of radiation levels in unrestricted areas to demonstrate compliance (4) The DDE, LDE, and SDE may be assessed from with the dose limits for individual members of the public as required surveys, calculations, or radiation measurements for the purpose of in subsection (o) of this section. demonstrating compliance with the occupational dose limits, if the (2) A registrant shall show compliance with the annual individual monitoring device was not in the region of highest potential dose limit in subsection (o) of this section by demonstrating by exposure, or the results of individual monitoring are unavailable. measurement or calculation that the TEDE to the individual likely (5) The registrant shall reduce the dose that an individual to receive the highest dose from the registered operation does not may be allowed to receive in the current year by the amount of exceed the annual dose limit. occupational dose received from radiation machines or radioactive (3) Registrants exempt from individual monitoring re- materials while employed by any other person. See subsection (r)(4) quirements in accordance with subsection (n)(2) of this section are of this section. exempt from the requirements of paragraphs (1) and (2) of this sub- section.
ADOPTED RULES May 26, 2000 25 TexReg 4861 (q) Location and use of individual monitoring devices. discloses the nature and the amount of any occupational dose that the individual received during the current year; or (1) Each registrant shall ensure that individuals who are required to monitor occupational doses in accordance with subsection (C) obtain reports of the individual’s DE from prior or (n)(l) of this section wear and use individual monitoring devices as other current employer(s) for work involving radiation exposure, or follows. the individual’s current employer, if the individual is not employed by the registrant, by telephone, telegram, facsimile, or letter. The (A) An individual monitoring device shall be assigned registrant shall request a written verification of the dose data if the to and worn by only one individual. authenticity of the transmitted report cannot be established. (B) An individual monitoring device used for moni- (3) The registrant shall record the exposure data for the toring the dose to the whole body shall be worn at the unshielded current year, as required by paragraph (1) of this subsection, on BRC location of the whole body likely to receive the highest exposure. Form 231-3, or other clear and legible record, of all the information When a protective apron is worn, the location of the individual mon- required on BRC Form 231-3. itoring device is typically at the neck (collar). (4) If the registrant is unable to obtain a complete record (C) If an additional individual monitoring device is of an individual’s current occupational dose while employed by any used for monitoring the dose to an embryo/fetus of a declared other registrant or licensee, the registrant shall assume in establishing pregnant woman, in accordance with subsection (n)(1)(C) of this administrative controls in accordance with subsection (m)(5) of this section, it shall be located at the waist under any protective apron section for the current year, that the allowable dose limit for the being worn by the woman. individual is reduced by 1.25 rems (12.5 millisieverts (mSv)) for (D) An individual monitoring device used for monitor- each quarter; or 416 millirems (mrem) (4.16 mSv) for each month ing the LDE, to demonstrate compliance with subsection (m)(1)(B)(i) for which records were unavailable and the individual was engaged in of this section, shall be located at the neck (collar) or at a location activities that could have resulted in occupational radiation exposure. closer to the eye, outside any protective apron being worn by the (5) If an individual has incomplete (e.g., a lost or damaged monitored individual. personnel monitoring device) current occupational dose data for the (E) An individual monitoring device used for monitor- current year and that individual is employed solely by the registrant ing the dose to the extremities, to demonstrate compliance with sub- during the current year, the registrant shall: section (m)(1)(B)(ii) of this section, shall be worn on the extremity (A) assume that the allowable dose limit for the likely to receive the highest exposure. Each individual monitoring individual is reduced by 1.25 rems (12.5 mSv) for each quarter; device, to the extent practicable, shall be oriented to measure the highest dose to the extremity being monitored. (B) assume that the allowable dose limit for the individual is reduced by 416 mrem (4.16 mSv) for each month; or (F) An individual monitoring device shall be worn for the period of time authorized by the dosimetry processor’s certificate (C) assess an occupational dose for the individual dur- of registration or for no longer than three months, whichever is more ing the period of missing data using surveys, radiation measurements, restrictive. or other comparable data for the purpose of demonstrating compli- ance with the occupational dose limits. (2) Each registrant shall ensure that individual monitoring devices are returned to the dosimetry processor for proper processing. (6) Administrative controls established in accordance with paragraph (4) of this subsection shall be documented and maintained (3) Each registrant shall ensure that adequate precautions for inspection by the agency. Occupational dose assessments made are taken to prevent a deceptive exposure of an individual monitor- in accordance with paragraph (5) of this subsection and records of ing device. data used to make the assessment shall be maintained for inspection (r) Determination of occupational dose for the current year. by the agency. The registrant shall retain the records in accordance with subsection (ll)(5) of this section. (1) For each individual who is likely to receive, in a year, an occupational dose requiring monitoring in accordance with subsec- (s) General surveys and monitoring. tion (n) of this section, the registrant shall determine the occupational (1) Each registrant shall make, or cause to be made, radiation dose received during the current year. Occupational dose surveys that: includes doses received from exposure to registered/licensed or un- registered/unlicensed sources of radiation as defined in subsection (c) (A) are necessary for the registrant to comply with this of this section. section; and (2) In complying with the requirements of paragraph (1) (B) are necessary under the circumstances to evaluate: of this subsection, a registrant may: (i) the magnitude and extent of radiation levels; and (A) accept, as a record of the occupational dose that (ii) the potential radiological hazards. the individual received during the current year, BRC Form 231-3 from prior or other current employers, or other clear and legible record, of (2) The registrant shall ensure that instruments and equip- all information required on that form and indicating any periods of ment used for quantitative radiation measurements, for example, dose time for which data are not available; or rate, are operable and calibrated: (B) accept, as a record of the occupational dose that (A) by a person licensed or registered by the agency, the individual received during the current year, a written signed another agreement state, a licensing state, or the NRC to perform statement from the individual, or from the individual’s prior or such service; other current employer(s) for work involving radiation exposure, that
25 TexReg 4862 May 26, 2000 Texas Register (B) at intervals not to exceed 12 months unless a (relating to Use of Radiation Machines in the Healing Arts and different time interval is specified in another section of this chapter; Veterinary Medicine), and §289.255 of this title (relating to Radiation Safety Requirements and Licensing and Registration Procedures for (C) after each instrument or equipment repair; Industrial Radiography). (D) for the types of radiation used and at energies (u) Control of access to very high radiation areas. appropriate for use; and (1) In addition to the requirements in subsection (t) of (E) at an accuracy within 20% of the true radiation this section, the registrant shall institute measures to ensure that an level. individual is not able to gain unauthorized or inadvertent access to (3) All individual monitoring devices, except for direct areas in which radiation levels could be encountered at 500 rads (5 and indirect reading pocket dosimeters, electronic personal dosime- grays) or more in one hour at 1 m from a radiation machine or any ters, and those individual monitoring devices used to measure the surface through which the radiation penetrates at this level. dose to any extremity, that require processing to determine the radia- (2) The registrant is not required to control entrance or tion dose and that are used by registrants to comply with subsection access to rooms or other areas containing radiation machines capable (m) of this section, with other applicable provisions of this chapter, of producing a very high radiation area as described in paragraph (1) or with conditions specified in a certificate of registration, shall be of this subsection if the registrant has met all the specific requirements processed and evaluated by a dosimetry processor: for access and control specified in other applicable sections of this (A) holding current personnel dosimetry accredita- chapter, such as, §289.119 of this title, §289.227 of this title, and tion from the National Voluntary Laboratory Accreditation Program §289.255 of this title. (NVLAP) of the National Institute of Standards and Technology; (3) The entry control devices required by paragraphs (1) (B) approved in this accreditation process for the type and (2) of this subsection shall be established in such a way that no of radiation or radiations included in the NVLAP program that most individual will be prevented from leaving the area. closely approximates the type of radiation or radiations for which the (v) Security and control of radiation machines. individual wearing the dosimeter is monitored; and (1) The registrant shall secure radiation machines from (C) holding a current certificate of registration from unauthorized removal. the agency authorizing dosimetry processing. (2) The registrant shall use devices and/or administrative (t) Control of access to high radiation areas. procedures to prevent unauthorized use of radiation machines. (1) The registrant shall ensure that each entrance or access (w) Caution signs. Unless otherwise authorized by the point to a high radiation area has one or more of the following agency, the standard radiation symbol prescribed shall use the colors features: magenta, or purple, or black on yellow background. The standard (A) a control device that, upon entry into the area, radiation symbol prescribed is the three-bladed design as follows: causes the level of radiation to be reduced below that level at which Figure: 25 TAC §289.231(w) an individual might receive a DDE of 0.1 rem (1 mSv) in one hour at (1) the cross-hatched area of the symbol is to be magenta, 30 cm from the source of radiation from any surface that the radiation or purple, or black; and penetrates; (2) the background of the symbol is to be yellow. (B) a control device that energizes a conspicuous vis- ible or audible alarm signal so that the individual entering the high (x) Posting requirements. radiation area and the supervisor of the activity are made aware of (1) The registrant shall post each radiation area with a the entry; or conspicuous sign or signs bearing the radiation symbol and the words (C) entryways that are locked, except during periods "CAUTION, RADIATION AREA." when access to the areas is required, with positive control over each (2) The registrant shall post each high radiation area individual entry. with a conspicuous sign or signs bearing the radiation symbol and (2) In place of the controls required by paragraph (1) the words "CAUTION, HIGH RADIATION AREA" or "DANGER, of this subsection for a high radiation area, the registrant may HIGH RADIATION AREA." substitute continuous direct or electronic surveillance that is capable (3) The registrant shall post each very high radiation area of preventing unauthorized entry. with a conspicuous sign or signs bearing the radiation symbol and (3) The registrant may apply to the agency for approval words "GRAVE DANGER, VERY HIGH RADIATION AREA." If of alternative methods for controlling access to high radiation areas. the very high radiation area involves medical treatment of patients, the registrant may omit the word "GRAVE" from the sign or signs. (4) The registrant shall establish the controls required by paragraphs (1) and (3) of this subsection in a way that does not (y) Exceptions to posting requirements. A registrant is not prevent individuals from leaving a high radiation area. required to post caution signs in areas or rooms containing radiation machines for periods of less than 8 hours, if each of the following (5) The registrant is not required to control entrance conditions is met: or access to rooms or other areas containing radiation machines capable of producing a high radiation area as described in this (1) the radiation machines are constantly attended during subsection if the registrant has met all the specific requirements these periods by an individual who takes the precautions necessary for access and control specified in other applicable sections of to prevent the exposure of individuals to radiation in excess of the this chapter, such as, §289.119 of this title (relating to Radiation limits established in this section; and Safety Requirements for Particle Accelerators), §289.227 of this title
ADOPTED RULES May 26, 2000 25 TexReg 4863 (2) the area or room is subject to the registrant’s control. (i) The agency may take a reasonable period of time to determine whether information falls within one of the exceptions (z) Labeling radiation machines. Each registrant shall ensure to the Texas Public Information Act. that each radiation machine is labeled in a conspicuous manner that cautions individuals that radiation is produced when it is energized. (ii) If the information is determined to be public, it This label shall be affixed in a clearly visible location on the face of will be presented for inspection and/or copies of documents will be the control unit. furnished within a reasonable period of time. A fee will be charged to recover agency costs for copies. (aa) Open records. (C) Original copies of public records may not be (1) Subject to the limitations provided in the Texas Public removed from the agency. Under no circumstances shall material Information Act, Government Code, Chapter 552, all information and be removed from existing records. data collected, assembled, or maintained by the agency are public records open to inspection and copying during regular office hours. (bb) General provisions for records. (2) Any person who submits written information or data (1) Each registrant shall make and maintain records show- to the agency and requests that the information be considered ing the receipt, transfer, and disposal of all radiation machines. These confidential, privileged, or otherwise not available to the public records shall be maintained by the registrant in accordance with sub- under the Texas Public Information Act, shall justify such request section (ll)(5) of this section. Additional record requirements are in writing, including statutes and cases where applicable, addressed specified elsewhere in this chapter. All records required by this chap- to the agency. ter shall be accurate and factual. (A) Documents containing information that is claimed (2) Records are only valid if stamped, initialed, or signed to fall within an exception to the Texas Public Information Act shall and dated by authorized personnel or otherwise authenticated. be marked to indicate that fact. Markings shall be placed on the (3) Each registrant shall use the SI units gray, sievert, and document on origination or submission. coulomb per kilogram, or the special units rad, rem, and roentgen, (i) The words "NOT AN OPEN RECORD" shall be including multiples and subdivisions, and shall clearly indicate the placed conspicuously at the top and bottom of each page containing units of all quantities on records required by this chapter. information claimed to fall within one of the exceptions. (4) The registrant shall make a clear distinction among (ii) The following wording shall be placed at the the quantities entered on the records required by this section, such as bottom of the front cover and title page, or first page of text if there TEDE, SDE, LDE, or DDE. is no front cover or title page: (5) Records required in accordance with paragraph (1) of Figure: 25 TAC §289.231(aa)(2)(A)(ii) this subsection, and subsections (cc)-(ee) of this section shall include (B) The agency requests, whenever possible, that all the date and the identification of individual(s) making the record, information submitted under the claim of an exception to the Texas and, as applicable, a unique identification of survey instrument(s) Public Information Act be extracted from the main body of the used, and an exact description of the location of the survey. Records application and submitted as a separate annex or appendix to the of receipt, transfer, and disposal shall uniquely identify the radiation application. machine(s). (C) Failure to comply with any of the procedures de- (6) Copies of records required in accordance with para- scribed in subparagraphs (A) and (B) of this paragraph may result graph (1) of this subsection, and subsections (cc)-(ee) of this section, in all information in the agency file being disclosed upon an open and by certificate of registration conditions that are relevant to opera- records request. tions at an additional authorized use/storage site shall be maintained at that site in addition to the main site specified on a certificate of (3) The agency will determine whether information falls registration in accordance with subsection (ll)(5) of this section. within one of the exceptions to the Texas Public Information Act. The Office of General Counsel will be queried as to whether or not (cc) Records of surveys. there has been a previous determination that the information falls (1) Each registrant shall make and maintain records show- within one of the exceptions to the Texas Public Information Act. If ing the results of surveys and calibrations required by subsection (s) there has been no previous determination and the agency believes that of this section. The registrant shall retain these records in accordance the information falls within one of the exceptions, an opinion of the with subsection (ll)(5) of this section. Attorney General will be requested. If the agency agrees in writing to the request, the information shall not be open for public inspection (2) The registrant shall retain the results of surveys to unless the Attorney General’s office subsequently determines that it determine the dose from external sources of radiation used, in the does not fall within an exception. absence of or in combination with individual monitoring data, in the assessment of individual DEs in accordance with subsection (ll)(5) of (4) Requests for information. this section. (A) All requests for open records information must (dd) Records of individual monitoring results. be in writing and refer to documents currently in possession of the agency. (1) Each registrant shall make and maintain records in accordance with subsection (r) of this section of the doses received (B) The agency will ascertain whether the information by all individuals for whom monitoring was required in accordance may be released or whether it falls within an exception to the Texas with subsection (n) of this section, and records of doses received Public Information Act. during accidents, and emergency conditions. Assessments of DE and records made using units in effect before January 1, 1994, need not be changed. These records shall include, when applicable:
25 TexReg 4864 May 26, 2000 Texas Register (A) the DDE to the whole body, LDE, SDE to the (B) a description of the circumstances under which the skin, and SDE to the extremities; loss or theft occurred; (B) the data used to make occupational dose assess- (C) a statement of disposition, or probable disposition, ments in accordance with subsection (r)(5) of this section. of the radiation machine involved; (2) The registrant shall make entries of the records (D) exposures of individuals to radiation, circum- specified in paragraph (1) of this subsection at intervals not to exceed stances under which the exposures occurred, and the possible TEDE one year and within 60 days of the end of the year. to persons in unrestricted areas; (3) The registrant shall maintain the records specified in (E) actions that have been taken, or will be taken, to paragraph (1) of this subsection on BRC Form 231-3, in accordance recover the radiation machine; and with the instructions for BRC Form 231-3, or in clear and legible (F) procedures or measures that have been, or will be, records containing all the information required by BRC Form 231-3. adopted to ensure against a recurrence of the loss or theft of radiation (4) The registrant shall maintain the records of dose to machines. an embryo/fetus with the records of dose to the declared pregnant (3) Subsequent to filing the written report, the registrant woman. The declaration of pregnancy, including the estimated date shall also report additional substantive information on the loss or theft of conception, shall also be kept on file, but may be maintained within 30 days after the registrant learns of such information. separately from the dose records. (4) The registrant shall prepare any report filed with the (5) The registrant shall retain each required form or record agency in accordance with this subsection so that names of individuals required by this subsection in accordance with subsection (ll)(5) of who may have received exposure to radiation are stated in a separate this section. The registrant shall retain records used in preparing and detachable portion of the report. BRC Form 231-3 or equivalent in accordance with subsection (ll)(5) of this section. (hh) Notification of incidents. (ee) Records of dose to individual members of the public. (1) Notwithstanding other requirements for notification, each registrant shall immediately report each event involving a (1) Each registrant shall maintain records sufficient to radiation machine possessed by the registrant that may have caused demonstrate compliance with the dose limit for individual members or threatens to cause an individual to receive: of the public. See subsections (o) and (p) of this section. (A) a TEDE of 25 rems (0.25 Sv) or more; (2) The registrant shall retain the records required by paragraph (1) of this subsection in accordance with subsection (ll)(5) (B) an LDE of 75 rems (0.75 Sv) or more; or of this section. (C) an SDE to the skin or extremities of 250 rads (2.5 (ff) Form of records. grays) or more. (1) Each record required by this chapter shall be legible (2) Each registrant shall, within 24 hours of discovery of throughout the specified retention period. the event, report to the agency each event involving loss of control of a radiation machine possessed by the registrant that may have caused, (2) The record shall be the original or a reproduced or threatens to cause an individual to receive, in a period of 24 hours: copy or a microform, provided that the copy or microform is authenticated by authorized personnel and that the microform is (A) a TEDE exceeding 5 rems (0.05 Sv); capable of producing a clear copy throughout the required retention (B) an LDE exceeding 15 rems (0.15 Sv); or period. (C) an SDE to the skin or extremities exceeding 50 (3) The record may also be stored in electronic media with rems (0.5 Sv). the capability for producing legible, accurate, and complete records during the required retention period. (3) Registrants shall make the initial notification reports required by paragraphs (1) and (2) of this subsection by telephone to (4) Records, such as letters, drawings, and specifications, the agency and shall confirm the initial notification report within 24 shall include all pertinent information, such as stamps, initials, and hours by telegram, mailgram, or facsimile to the agency. signatures. (4) The registrant shall prepare each report filed with the (5) The registrant shall maintain adequate safeguards agency in accordance with this section so that names of individuals against tampering with and loss of records. who have received exposure to radiation are stated in a separate and (gg) Reports of stolen, lost, or missing radiation machines. detachable portion of the report. (1) Each registrant shall report to the agency by telephone (ii) Reports of exposures and radiation levels exceeding the a stolen, lost, or missing radiation machine immediately after its limits. occurrence becomes known to the registrant. (1) In addition to the notification required by subsection (2) Each registrant required to make a report in accor- (hh) of this section, each registrant shall submit a written report within dance with paragraph (1) of this subsection shall, within 30 days after 30 days after learning of any of the following occurrences: making the telephone report, make a written report to the agency that (A) incidents for which notification is required by includes the following information: subsection (hh) of this section; (A) a description of the radiation machine involved, (B) doses in excess of any of the following: including, the manufacturer, model and serial number;
ADOPTED RULES May 26, 2000 25 TexReg 4865 (i) the occupational dose limits for adults in sub- (2) Each registrant shall afford the agency, at all rea- section (m)(1)(A) of this section; sonable times, opportunity to inspect sources of radiation and the premises and facilities wherein such sources of radiation are used or (ii) the occupational dose limits for a minor in stored. subsection (m)(1)(C) of this section; (3) Each registrant shall make available to the agency for (iii) the limits for an embryo/fetus of a declared inspection, upon reasonable notice, records made and maintained in pregnant woman in subsection (m)(1)(D) of this section; accordance with this chapter. (iv) the limits for an individual member of the (4) Routine inspection of radiation machines and services. public in subsection (o) of this section; or (A) Routine inspections by agency personnel will be (v) any applicable limit in the registration; made no more frequently than the intervals specified in subsection (C) levels of radiation in: (ll)(1) of this section. Registrants having certificates of registration authorizing multiple uses will be inspected at the most frequent (i) a restricted area in excess of applicable limits in interval specified for the uses authorized. the certificate of registration; or (B) Notwithstanding the provisions of subparagraph (ii) an unrestricted area in excess of 10 times the (A) of this paragraph, for those radiation machines determined by applicable limit set forth in this section or in the registration, whether the agency to constitute a minimal threat to human health and safety, or not involving exposure of any individual in excess of the limits in the routine inspection interval will be five years. The applicable subsection (o) of this section. categories are listed in subsection (ll)(2) of this section. (2) Each report required by paragraph (1) of this subsec- (C) Notwithstanding the inspection intervals specified tion shall describe the extent of exposure of individuals to radiation, in this section, the agency may inspect registrants more frequently including, as appropriate: due to: (A) estimates of each individual’s dose; (i) the persistence or severity of violations found (B) the levels of radiation involved; during an inspection; (C) the cause of the elevated exposures, dose rates; (ii) investigation of an incident or complaint con- and cerning the facility; (D) corrective steps taken or planned to ensure against (iii) a request for an inspection by a worker(s) in a recurrence, including the schedule for achieving conformance with accordance with §289.203 of this title; applicable limits, and associated registration conditions. (iv) any change in a facility or equipment that might (3) Each report filed in accordance with paragraph (1) cause a significant increase in radiation output or hazard; or of this subsection shall include for each individual exposed: the (v) a mutual agreement between the agency and name, social security number, and date of birth. With respect to registrant. the limit for the embryo/fetus in subsection (m)(1)(D) of this section, the identifiers should be those of the declared pregnant woman. The (D) The agency will conduct inspections of medical, report shall be prepared so that this information is stated in a separate podiatric medical, veterinary, and chiropractic radiation machines or and detachable portion of the report. lasers in a manner designed to cause as little disruption of a medical, podiatric medical, veterinary, or chiropractic practice as is practicable. (4) All registrants who make reports in accordance with paragraph (1) of this subsection shall submit the report in writing to (5) A person who inspects medical, podiatric medical, the agency. veterinary, or chiropractic radiation machines or lasers will have training in the design and uses of the products and will receive training (jj) Notifications and reports to individuals. specified in subsection (ll)(3) and/or (4) of this section. (1) Requirements for notification and reports to individ- (6) Each registrant shall perform, upon instructions from uals of exposure to radiation are specified in §289.203 of this title the agency, or shall permit the agency to perform such reasonable (relating to Notices, Instructions and Reports to Workers; Inspec- surveys as the agency deems appropriate or necessary including, but tions). not limited to, surveys of: (2) When a registrant is required in accordance with (A) radiation machines; subsection (ii) of this section to report to the agency any exposure of an identified occupationally exposed individual, or an identified (B) facilities wherein radiation machines are used or member of the public, to radiation, the registrant shall also notify the stored; individual and provide a copy of the report submitted to the agency, (C) radiation detection and monitoring instruments; to the individual. Such notice shall be transmitted at a time not and later than the transmittal to the agency, and shall comply with the provisions of §289.203 of this title. (D) other equipment and devices used in connection with utilization or storage of radiation machines. (kk) Inspections. (ll) Appendices. (1) The agency may enter public or private property at reasonable times to determine whether, in a matter under the agency’s (1) Routine inspection intervals for registrants. jurisdiction, there is compliance with the Act, the agency’s rules, Figure: 25 TAC §289.231(ll)(1) certificate of registration conditions, and orders issued by the agency.
25 TexReg 4866 May 26, 2000 Texas Register (2) Minimal threat radiation machines. Minimal threat (I) documented continuing education earned in radiation machines include, but are not limited to, the following: an agency-accepted training format; and (A) electron microscope; (II) agency staff meetings. (B) x-ray fluorescence (machine); (ii) Failure to obtain 24 hours of continuing educa- tion within each 24 month interval may result in a reassessment by (C) x-ray gauges; the agency of an agency inspector’s proficiency level. (D) particle size analyzer (x-ray); (iii) After the initial training period, each inspector (E) airport baggage x-ray; of radiation machines will be evaluated by the agency, at intervals not to exceed 12 months. (F) electron beam welding; (D) Agency proficiency standards. The agency profi- (G) ion implantation devices; ciency standards for agency inspectors of radiation machines are as (H) cathodoluminescence devices; follows. (I) package x-ray; and (i) Level I. The agency inspector has not success- fully achieved the objectives in subparagraph (A) of this paragraph (J) certified cabinet x-ray. after the initial training period. Additional training is required. Un- (3) Training for agency inspectors of radiation machines. supervised inspections will not be performed. (A) Objectives. Training of agency inspectors of radi- (ii) Level II. The agency inspector has partially ation machines will be conducted by the agency. Upon completion achieved the objectives in subparagraph (A) of this paragraph, but has of training, the inspector will be able to: not achieved the objective in subparagraph (A)(ix) of this paragraph after the initial training period. Additional training is required. (i) select and operate the necessary testing equip- Unsupervised inspections are not permitted for the type of radiation ment used to perform an inspection of radiation machines; machines for which the objectives of subparagraph (A)(ix) of this (ii) utilize radiation protection principles; paragraph have not been achieved. Unsupervised inspections may be performed for the type of radiation machines for which the objectives (iii) operate radiation detection instruments; in subparagraph (A)(ix) of this paragraph have been successfully (iv) define basic regulatory terminology; achieved. (v) apply this section regarding radiation machines; (iii) Level III. The agency inspector has success- fully achieved the objectives in subparagraph (A) of this paragraph. (vi) perform routine agency inspections of radiation Supervision is not required for routine inspections. machines; (4) Training for agency inspectors of lasers. Initial (vii) complete agency inspection documentation; training will include an introduction to the requirements in this (viii) demonstrate knowledge of agency ethics, pro- chapter and inspection forms. Inspections of two medical and two fessional, and technical policies; and entertainment lasers, conducted by an inspector having completed the requirements of this paragraph, shall be observed before unsupervised (ix) successfully achieve the objectives in this sub- inspection of lasers is permitted. paragraph. (5) Time requirements for record keeping. The following (B) Initial training program. are time requirements for record keeping. (i) Initial training will be conducted during a six- Figure: 25 TAC §289.231(ll)(5) month period. (6) Occupational exposure form. The following, BRC (ii) All training evaluation instruments will be de- Form 231-3, is to be used to document occupational exposure record veloped by the agency. for a monitoring period: (Please find BRC Form 231-3 at the end of this section). (iii) Instruments to be used in determining a profi- Figure: 25 TAC §289.231(ll)(6) ciency level are as follows: This agency hereby certifies that the adoption has been re- (I) evaluation of each inspector’s training needs viewed by legal counsel and found to be a valid exercise of the prior to initial training; agency’s legal authority. (II) evaluation of knowledge obtained and veri- Filed with the Office of the Secretary of State on May 15, 2000. fication of tasks performed by each inspector subsequent to training received by the agency; and TRD-200003361 Susan K. Steeg (III) evaluation of each inspector’s task perfor- mance by the agency. General Counsel Texas Department of Health (C) Continuing education. Effective date: October 1, 2000 (i) The agency inspector of radiation machines will Proposal publication date: December 3, 1999 accumulate 24 hours of continuing education regarding radiation For further information, please call: (512) 458-7236 machines, at intervals not to exceed 24 months. These hours of ♦♦♦ continuing education may be acquired as follows:
ADOPTED RULES May 26, 2000 25 TexReg 4867 TITLE 37. PUBLIC SAFETY AND CORREC- program, is eligible to be moved to another program, released home, TIONS and/or placed on parole status. (b) Applicability. Part 3. TEXAS YOUTH COMMISSION (1) This rule does not address all types of disciplinary movements. See (GAP) Chapter 95, Subchapter A of this title Chapter 85. ADMISSION AND PLACEMENT (relating to Disciplinary Practices). Subchapter B. PLACEMENT PLANNING (2) This rule does not apply to sentenced offenders. See (GAP) §85.33 of this title (relating to Program Completion and 37 TAC §85.29, §85.33 Movement of Sentenced Offenders and §85.37 of this title (relating The Texas Youth Commission (TYC) adopts an amendment to Sentenced Offender Disposition). to §85.29 concerning Program Completion and Movement (3) This rule does not apply to movement strictly for of Other Than Sentenced Offenders with changes and new treatment reasons. §85.33, concerning Program Completion and Movement of Sen- tenced Offenders with changes to the proposed text as pub- (c) Explanation of Terms Used. lished in the April 7, 2000, issue of the Texas Register (25 (1) Program completion criteria - the criteria which a TexReg 2973). Changes to the proposed to text in §85.29 con- youth must meet while in the current program in order to move to an sist of adding conditions under which youth other than sen- equal or lesser level of restriction. tenced offenders and youth classified as Type A violent offend- ers may be considered for movement to a medium restriction (2) Disciplinary movement - a movement to equal or placement. Changes to the proposed to text in §85.33 consist more restriction as a disciplinary consequence if found during clarify that the TYC administrator of the sentenced offender dis- appropriate due process. A disciplinary movement may or may not be position department is the contact person for Texas Department accompanied by a new minimum length of stay requirement. There Criminal Justice (TDCJ). are several types of disciplinary movement consequences. These movements are subject to policies in this chapter and in Chapter 95, The justification for the rules is to ensure consistent and law- Subchapter A of this title (relating to Disciplinary Practices). For ful implementation of criteria and procedures for releasing sen- restriction levels see (GAP) §85.27 of this title (relating to Program tenced offenders and similar administratively classified violent Restriction Levels). offenders. The changes provide procedures to ensure appropri- ate and timely communication with the TDCJ regarding trans- (3) Administrative transfer - a lateral movement, i.e., a ferring sentenced offenders to TDCJ custody. movement from one program to another program within the same restriction level for an administrative purpose. Purposes may include The amendment to §85.29 will function by ensuring that youth but are not limited to proximity to a youth’s home, specific treatment committed to TYC under indeterminate sentences and classified needed becomes available, appropriateness of placement due to by TYC as type A violent offenders, will be treated similarly education needs, age, etc. to youth sentenced under determinate sentences. Specifically, the procedures for administrative approval of release of type A (4) Transition movement - also referred to as "a transi- violent offenders have been added. The proposed new §85.33 tion", any movement from one assigned program site to another as will replace the existing version. The new rule is much like a result of a youth’s progress toward meeting the program comple- the existing rule, but will add the newly created department tion criteria of his/her program. Transition is always to placement of of sentenced offender disposition to the release and transfer equal or less restriction than that of the current placement. Transition approval system. The administrator of the sentenced offender is not a type of placement or a status. disposition department will communicate with courts and/or the (5) Parole status - a status assigned to a youth when TDCJ regarding disposition of sentenced offenders. Prior to criteria have been met. The status assures that a youth, having parole communicating with the courts or TDCJ, the final TYC approval status, shall not be moved into a placement of high restriction without authority for release or transfer of youth is specified in the rules. a level I hearing. No comments were received regarding the adoption of the (d) Program Completion Processes. amendment and the new rule. (1) Program staff will explain completion criteria to every The amendment is adopted under the Human Resources Code, youth during orientation to each placement. §61.081, concerning Release Under Supervision, which pro- vides the Texas Youth Commission with the authority to release (2) Prior to a transition movement, a youth may request a child. The new rule is adopted under the Human Resources and in doing so will be granted a level II hearing. Code, §61.075, concerning Determination of Treatment, which (3) TYC shall not accept the presence of a detainer as an provides the Texas Youth Commission authority to determine automatic bar to earned release. The agency shall release a youth to certain disposition options for youth committed to the commis- authorities pursuant to a warrant. sion under a determinate sentence. (4) Progress toward successful completion of criteria shall The adopted rule implements the Human Resource Code, be evaluated at specific regular intervals. §61.034. (A) If, at the review, it is determined the youth has §85.29. Program Completion and Movement of Other Than Sen- completed criteria required for transition, movement is considered. tenced Offenders. A transition placement is always to a placement of equal or less (a) Purpose. The purpose of this rule is to provide criteria and restriction than the youth’s current placement. a process whereby staff may determine when a youth has completed a
25 TexReg 4868 May 26, 2000 Texas Register (B) If, at the review, it is determined the youth has not (viii) The assistant deputy executive director for completed criteria required for a transition or release movement, the juvenile corrections will recommend approval or disapproval of the youth may be continued in the placement. release. (5) TYC program staff where the youth is assigned shall (ix) The deputy executive director (final release determine when program completion criteria have been met. authority) must approve or disapprove the release. (e) Program Completion Criteria and Movement. (x) All documentation is returned to the adminis- trator of sentenced offender disposition who will confirm the final (1) Youth Whose Classifying Offense is Type A Violent disposition to the facility administrator and coordinate the release Offender. process. (A) Criteria. A type A violent offender youth will (2) Youth Whose Classifying Offense is Other Than Type be eligible for transition/release to a placement of less than high A Violent Offender. restriction when the following criteria have been met: (A) Criteria. A youth other than a type A violent (i) no major rule violations within 90 days prior to offender youth will be eligible for transition/release to a placement of the transition/release review; and less than high restriction when the following criteria have been met: (ii) completion of the Minimum Length of Stay (i) no major rule violations within 90 days prior to (MLS); and the transition/release review; and (iii) completion of phase 4 resocialization goals; (ii) minimum length of stay requirements; and (I) completion except three months for transition (iv) completion of Individual Case Plan (ICP) ob- to medium restriction for youth assigned a classification MLS of jectives; less than 12 months and is low risk to fail to complete program (I) completion of required ICP objectives for requirements at medium restriction placement; or transition to medium restriction except objectives which cannot be (II) completion except six months for transition completed in the current placement but which may be completed in to medium restriction for youth assigned a classification MLS of 12 or a medium restriction placement; or more months and is low risk to fail to complete program requirements (II) completion of all ICP objectives for release at medium restriction placement; or to home level restriction. (III) completion of the entire MLS for release to (B) Procedure. The release of a qualified youth from home level restriction; and a high restriction facility to either medium restriction or home level (iii) completion of phase requirements; restriction may occur as follows: (I) phase 3 of resocialization goals for transition (i) Staff must develop a release plan that identifies to medium restriction (for youth classified on or after January 1, risk factors and is adequate to ensure public safety and positive 1996), (not applicable to youth in contract placements); and reintegration. Staff must also develop a release packet of information. (II) phase 4 of resocialization goals for release (ii) The supervising program administrator must re- to home level restriction (for youth classified on or after January 1, view and approve the release packet for quality and make a recom- 1996), (not applicable to youth in contract placements); and mendation regarding the release. (iv) completion of required ICP objectives: (iii) The Special Services Committee must conduct an exit interview with the youth to determine whether the youth meets (I) completion of required ICP objectives for criteria. The committee must review and approve the release packet transition to medium restriction except objectives which cannot be and recommend the release. completed in the current placement but which may be completed in a medium restriction placement; or (iv) The superintendent/quality assurance adminis- trator must approve and recommend the release and forward the re- (II) completion of all ICP objectives for release lease packet to the department of sentenced offender disposition in to home level restriction. central office. (B) Procedure. The transition/release of a qualified (v) The administrator of sentenced offender disposi- youth either to medium restriction or home level restriction on parole tion will review the release packet and other supplemental information may occur as follows. including Incident Reports, delinquent history, chronological entries, (i) Staff must develop a release plan that identifies phase progression reports, and youth discipline/movement records to risk factors and is adequate to ensure public safety and positive determine and ensure compliance with agency policy regarding re- reintegration. lease criteria and sufficiency of the release plan. (ii) The supervising program administrator must (vi) The assistant deputy executive director for approve the transition/release. rehabilitation services will review the release packet for clinical integrity of the psychological evaluation, forensic risk assessment (iii) The Special Services Committee and/or treat- and release case plans. ment team must conduct an exit interview with the youth to determine whether the youth meets criteria, and must approve the transition/re- (vii) The appropriate director of juvenile correc- lease. tions will recommend approval or disapproval of the release.
ADOPTED RULES May 26, 2000 25 TexReg 4869 (iv) The superintendent/quality assurance adminis- (C) Of youth who meet criteria, release should begin trator (final release authority) must approve the release. with those having mastered the most objectives towards completion of phase four (4). (3) Program Completion Criteria: Returned to Residential Placement. A youth returned to any residential program via a TYC (D) Within 24 hours of making the decision to imple- level I or II hearing: ment the early release policy for population control on a campus, the superintendent will notify the appropriate juvenile corrections direc- (A) with a classification MLS, must meet initial crite- tor. ria for the classification; or (E) The deputy executive director may cancel or revise (B) with no classification MLS, must meet the initial any population control in effect or may implement any other criteria for the classification with one exception. Criterion for youth movement option when necessary to control population and/or completion of the resocialization phases (specified in paragraphs manage available funds concerning youth in residential placement. (1) and (2) of this subsection) or program goals in programs not providing TYC resocialization, will apply; however, the youth shall (4) Exceptions for Mentally Ill and Mentally Retarded be reassessed for degree of regression and shall begin at the phase Youth. Certain youth excluding sentenced offenders who have (or goal) indicated by the reassessment. completed their minimum lengths of stay and are unable to derive further benefit from the agency’s rehabilitation programs because of (f) Parole Status. mental illness or mental retardation, shall be discharged following (1) Parole status shall have been earned by the youth when application for appropriate services to address their mental illness he is deemed to have completed all program completion criteria for or mental retardation. See (GAP) §87.79 of this title (relating to release to home level restriction, subsection (e)(1)(A) or (e)(2)(A) of Discharge of Mentally Ill and Mentally Retarded Youth). this section depending on the classifying offense. (h) Notification. Parents or guardians will be notified of all (2) When a youth has earned parole status and release to movements. home restriction level placement is pending, he or she attains parole §85.33. Program Completion and Movement of Sentenced Offend- status in the current program prior to the release, unless the youth is ers. in a high restriction program, in which case, he or she attains parole status on leaving the facility. (a) Purpose. The purpose of this rule is to provide criteria (g) Movement Without Program Completion. and a process whereby staff may determine when a sentenced offender youth has completed a program, is eligible to be moved (1) Administrative Transfer Movements. Administrative to another program, released home, placed on parole status, or may transfer movements may be made among programs of equal restric- be transferred to the Texas Department of Criminal Justice (TDCJ). tions without a due process hearing. An administrative movement shall not be made in lieu of a movement for which a due process (b) Applicability. hearing is mandatory. (1) This rule does not address all types of disciplinary (2) Exceptions in Hardship Cases. Youth may be placed movements. See (GAP) Chapter 95, Subchapter A of this title on parole status at home without meeting completion criteria in (relating to Disciplinary Practices). hardship cases on the recommendation by parole officer and approval (2) This rule does not apply to youth committed to TYC by the deputy executive director. on indeterminate commitments. See (GAP) §85.29 of this title (3) Exceptions to Control Population. TYC recognizes (relating to Program Completion and Movement of Other Than that optimum program integrity, efficiency, and safety is possible only Sentenced Offenders). if programs are not overpopulated. When overpopulation occurs in (c) Explanation of Terms Used. any institution, certain remedial actions are taken by the facility. (1) Program completion criteria - See the term explanation (A) Invoking Early Release Procedures. in (GAP) §85.29 of this title, Program Completion and Movement of (i) When population in any TYC institution reaches Other Than Sentenced Offenders. three percent (3%) above general population budgeted capacity (2) Administrative transfer - See the term explanation in (excludes youth in specialized treatment), the superintendent may (GAP) §85.29 of this title, Program Completion and Movement of declare an overpopulation condition and may invoke early release Other Than Sentenced Offenders. criteria. (3) Transition movement - See the term explanation in (ii) When population in any TYC institution (GAP) §85.29 of this title, Program Completion and Movement of reaches five percent (5%) above general population budgeted capac- Other Than Sentenced Offenders. ity, the superintendent shall declare an overpopulation condition and shall invoke early release criteria. (4) Parole status - See the term explanation in (GAP) §85.29 of this title, Program Completion and Movement of Other (B) Early Release Criteria. Youth in specialized Than Sentenced Offenders. treatment programs and sentenced offenders are not eligible for early release under these procedures. Those who may be released early are (5) Category 1 offenses - The offenses, specifically the general population youth who: commission, attempted commission, conspiracy to commit, solicita- tion, solicitation of a minor to commit, or engaging in organized (i) have completed the minimum length on stay, and criminal activity to commit: murder, capital murder, sexual assault, (ii) have completed phase three of resocialization. or aggravated sexual assault, the commission of which was on or after January 1, 1996, and for which a youth has been given a determinate sentence.
25 TexReg 4870 May 26, 2000 Texas Register (6) Category 2 offenses - The offenses, except category 1 (i) transferred to TDCJ earlier in accordance with offenses, committed on or after January 1, 1996, for which a youth legal requirements or committing court approval; or has been given a determinate sentence. (ii) transitioned or released earlier under provisions (d) General Restrictions. Due to the nature of determinate in this section. sentences, some rules governing the classification, placement, release, (C) Parole. Sentenced offenders shall not attain parole transition, parole status, and disciplinary movement of sentenced status at any time prior to completion of serving the minimum period offenders must be applied differently. Specifically: of confinement unless approved by the committing court. (1) Classification. A youth classified at commitment as (D) Administrative Transfer. Administrative transfer a sentenced offender shall retain a sentenced offender classification movements may be made among programs of equal restrictions as long as the youth remains under the jurisdiction of TYC as a without a due process hearing. An administrative movement shall result of that commitment. See (GAP) §85.23 of this title (relating not be made in lieu of a movement for which a due process hearing to Classification). is mandatory. (2) Initial Placement. On initial placement, all sentenced (E) Jurisdiction Termination. TYC jurisdiction shall offenders shall be assigned to high restriction facilities unless the be terminated and a sentenced offender discharged when he/she is deputy executive director waives such placement for a particular transferred to TDCJ (by age 21) or his/her sentence is complete youth. (except as specified in subparagraph (F) of this paragraph). All (e) Program Completion Processes. sentenced offender youth in TYC custody at age 21 are transferred to TDCJ for completion of their sentence. (1) Program staff will explain completion criteria to every youth during orientation to each placement. (F) Concurrent Commitments. In the event that a youth is committed to TYC under concurrent determinate sentence (2) Prior to a transition movement, a youth may request and indeterminate commitment orders both commitment orders will and in doing so will be granted a level II hearing. be given effect, with the determinate sentence order having prece- (3) TYC shall not accept the presence of a detainer as an dence. Any movement and transfer options available under the deter- automatic bar to earned release. The agency shall release a youth to minate sentence order and determined to be appropriate must occur authorities pursuant to a warrant. prior to completion of the determinate sentence. Other exceptions are as follows: (4) Progress toward successful completion of criteria shall be evaluated by the Special Services Committee six months after (i) The youth will be classified and managed as admission to TYC and when the minimum period of confinement a sentenced offender until such time as the determinate sentence is complete and at other times as requested by the Committee. order is completed or TYC jurisdiction expires, whichever occurs The review will be documented on the Review of Progress Toward first. If a youth’s determinate sentence is complete prior to the Successful Completion of Release Criteria for Sentenced Offenders expiration of TYC jurisdiction, the youth will be newly classified CCF-155. in accordance with the classifying offense associated with the indeterminate commitment. (A) If, at the review, it is determined the youth has completed criteria required for transition, movement is considered. (ii) Both orders are given effect, i.e., the minimum A transition placement is always to a placement of equal or less period of confinement under the determinate sentence and the restriction than the youth’s current placement. Minimum Length of Stay (MLS) associated with the indeterminate commitment will run concurrently. If the applicable minimum period (B) If, at the review, it is determined the youth has not of confinement under the determinate sentence is completed before completed criteria required for a transition or release movement, the the applicable MLS under the indeterminate commitment, the youth youth may be continued in the placement or considered for transfer will not be considered for release until the MLS has also been to TDCJ under legal requirements and procedures herein. completed. (5) TYC program staff where the youth is assigned shall (iii) The youth is discharged from the determinate determine when program completion criteria have been met. sentence order upon completion of the determinate sentence, but the (f) Youth sentenced to commitment in the Texas Youth indeterminate commitment order will be given effect until normal Commission (TYC) for offenses committed on or after January 1, discharge criteria are met. Under this rule, the youth may remain 1996. under TYC supervision until age 21, regardless of the expiration date of the determinate sentence. (1) General Requirements. (2) Program Completion Criteria and Movement. (A) Minimum Period of Confinement. The minimum period of confinement is ten (10) years for youth sentenced for (A) Youth Whose Classifying Offense is a Category 1 capital murder; three (3) years for youth sentenced for an aggravated Offense. controlled substance felony or a felony of the first degree; two (2) (i) Criteria. A category 1 sentenced offender youth years for a felony of the second degree; one (1) year for a felony will be eligible for transition/release to a placement of less than high of the third degree; or completion of the sentence, whichever occurs restriction when the following criteria have been met: first. (I) no major rule violations within 90 days prior (B) Placement. Sentenced offenders shall serve the to the transition/release review; and entire minimum period of confinement applicable to the youth’s classifying offense in high restriction facilities unless the youth is: (II) completion of the minimum period of con- finement, except as provided in clause (iii) of this subparagraph; and
ADOPTED RULES May 26, 2000 25 TexReg 4871 (III) completion of phase 4 resocialization goals; (II) Procedure. Procedures for transition/release and from a high restriction facility as listed in clause (ii) of this subparagraph, with the following additional requirements: (IV) completion of Individual Case Plan (ICP) (-a-) The executive director (final TYC ap- objectives: proval authority) will approve or disapprove the request for a hearing (-a-) completion of required ICP objectives by the committing juvenile court for early release. for transition to medium restriction, except objectives which cannot (-b-) All documentation is returned to the be completed in the current placement, but which may be completed administrator of sentenced offender disposition who will confirm the in a medium restriction placement; or, final disposition to the facility administrator, request the hearing by (-b-) completion of all ICP objectives for the court, appoint the staff who will represent TYC in the hearing, release on parole to home level restriction. and coordinate the hearing and release process. (ii) Procedure. The release of a qualified youth (-c-) The court (final release authority) must from a high restriction facility to either medium restriction or home approve the early transition/release. level restriction may occur as follows: (B) Youth Whose Classifying Offense is a Category 2 (I) Staff must develop a release plan that identi- Offense. fies risk factors and is adequate to ensure public safety and positive (i) Criteria. A category 2 sentenced offender youth reintegration. Staff must also develop a release packet of information. will be eligible for transition/release to a placement of less than high (II) The supervising program administrator must restriction when the following criteria have been met. review and approve the release packet for quality and make a (I) no major rule violations within 90 days prior recommendation regarding the release. to the transition/release review; and (III) The Special Services Committee must con- (II) completion of the minimum period of con- duct an exit interview with the youth to determine whether the youth finement; and meets criteria. The Committee must review and approve the release packet and recommend the release. (III) completion of phase requirements: (-a-) phase 3 resocialization goals for transi- (IV) The superintendent/quality assurance ad- tion to medium restriction; or ministrator must approve and recommend the release and forward (-b-) phase 4 resocialization goals for release the release packet to the department of sentenced offender disposi- to home level restriction; and tion in central office. (IV) completion of ICP objective requirements: (V) The administrator of sentenced offender dis- (-a-) completion of required ICP objectives position will review the release packet and other supplemental infor- for transition to medium restriction, except objectives which cannot mation including Incident Reports, delinquent history, chronological be completed in the current placement, but which may be completed entries, phase progression reports, and youth discipline/movement in a medium restriction placement; or records to determine and ensure compliance with agency policy re- (-b-) completion of all ICP objectives for garding release criteria and sufficiency of the release plan. release to home level restriction. (VI) The assistant deputy executive director for (ii) Procedure. The release of a qualified youth rehabilitation services will review the release packet for clinical in- from a high restriction facility to either medium restriction or home tegrity of the psychological evaluation, forensic risk assessment and level restriction may occur as follows: release case plans. (I) Staff must develop a release plan that identi- (VII) The appropriate director of juvenile cor- fies risk factors and is adequate to ensure public safety and positive rections will recommend approval or disapproval of the release. reintegration. Staff must also develop a release packet of information. (VIII) The assistant deputy executive director for (II) The supervising program administrator must juvenile corrections will recommend approval or disapproval of the review and approve the release packet for quality and make a release. recommendation regarding the movement. (IX) The deputy executive director (final release (III) The Special Services Committee must con- authority) must approve or disapprove the release. duct an exit interview with the youth to determine whether the youth (X) All documentation is returned to the admin- meets criteria and must review and approve the release packet, and istrator of sentenced offender disposition who will confirm the final recommend the release. disposition to the facility administrator and coordinate the release (IV) The superintendent/quality assurance ad- process. ministrator must approve and recommend the release, and forward (iii) Exceptions for Youth Whose Classifying Of- the release packet to the department of sentenced offender disposi- fense Is Capital Murder. A youth sentenced for capital murder may tion in central office. be considered for transition/release prior to completion of the min- (V) The administrator of sentenced offender dis- imum period of confinement when the following criteria have been position will review the release packet and other supplemental infor- met. mation including Incident Reports, delinquent history, chronological (I) Criteria. Criteria as listed in clause (i) of this entries, phase progression reports, and youth discipline/movement subparagraph, with one exception: the youth has completed at least records to determine and ensure compliance with agency policy re- three (3) years of the minimum period of confinement. garding release criteria and sufficiency of the release plan.
25 TexReg 4872 May 26, 2000 Texas Register (VI) The appropriate director of juvenile correc- (I) youth has committed a felony or Class A tions (final release authority) will approve or disapprove the release. misdemeanor while assigned to residential placement; or (VII) All documentation is returned to the ad- (II) youth persistently has committed major rule ministrator of sentenced offender disposition who will confirm the violations (on three or more occasions); or final disposition to the facility administrator and coordinate the re- (III) youth has engaged in chronic disruption of lease process. program (five security admissions or extensions in one month or ten (C) Youth Who Have Been Disciplinarily Returned to in three months); or Residential Placement. (IV) youth has demonstrated an inability to (i) Following the youth’s completion of the min- progress in his/her resocialization program due to persistent non imum period of confinement and release on parole to home level compliance with treatment objectives; and restriction, a sentenced offender is subject to TDCJ transfer rules and (v) alternative interventions have been tried without TYC policies where specifically addressed. success. (For example: special treatment plans, disciplinary transfer, (ii) Should a youth be returned to a high or medium extended stay); and restriction placement via a level I or II disciplinary hearing, the (vi) youth’s conduct indicates that the welfare of youth’s eligibility criteria and release procedure for movement from the community requires the transfer. this placement is the criteria and release procedure stated in this policy with one exception: the corresponding minimum length of stay (D) Procedures. Procedures for effecting a transfer in (GAP) §85.29 of this title, Program Completion and Movement of requiring court approval in accordance with subparagraphs (B) and Other Than Sentenced Offenders shall apply rather than the minimum (C) of this paragraph are as follows: period of confinement. (i) The staff must prepare an early transfer request (3) Transfer From TYC High Restriction To TDCJ, Insti- packet that identifies risk factors and a treatment summary and review tution Division. Transfer from a high restriction facility to the Texas of alternative interventions tried. Department of Criminal Justice, Institutional Division may occur as (ii) The supervising program administrator must described in this paragraph. review and approve the transfer packet for quality and make a (A) Criteria For Certain Capital Murder Youth. A recommendation regarding the transfer. transfer shall occur (court approval is not required) for a youth, at (iii) The Special Services Committee must deter- age 21, who: mine whether the youth meets criteria, and must approve packet and (i) was sentenced for capital murder; and recommend transfer. (ii) has not completed the minimum period of (iv) The superintendent/quality assurance adminis- confinement applicable to the youth’s classifying offense (10 years) trator must approve and recommend transfer and forward the packet or the sentence if less than 10 years. to the department of sentenced offender disposition in central office. (B) Criteria For Youth Whose Parole Has Been Re- (v) The administrator of sentenced offender dispo- voked. A transfer shall occur if ordered by the juvenile court. TYC sition will review the packet for requesting transfer of a sentenced may request a juvenile court hearing for a youth whose parole has offender to TDCJ-ID and other supplemental information including been revoked and the following criteria have been met: Incident Reports, delinquent history, chronological entries, phase pro- gression reports, and youth discipline/movement records to determine (i) youth is at least age 16; and and ensure compliance with agency policy regarding transfer criteria. (ii) youth’s parole was revoked for: (vi) The assistant deputy executive director for (I) felony, Class A misdemeanor, or a high risk rehabilitation services will review the transfer packet for clinical offense; or integrity of the psychological evaluation, forensic risk assessment and justification or recommendation in the absence of or despite mental (II) any other violation which resulted in place- health issues. ment in an intermediate sanction program at which the youth has failed to progress; and (vii) The appropriate director of juvenile correc- tions will recommend approval or disapproval of the transfer. (iii) youth has not completed his/her sentence; and (viii) The assistant deputy executive director for (iv) youth’s conduct indicates that the welfare of juvenile corrections will recommend approval or disapproval of the the community require the transfer. transfer to the deputy executive director. (C) Criteria For Other Youth. A transfer shall occur (ix) The deputy executive director (final TYC ap- if ordered by the juvenile court. TYC may request a juvenile court proval authority) must approve or disapprove the early transfer and hearing for any other youth if the following criteria have been met: request for a hearing by the committing juvenile court. (i) youth is at least age 16; and (x) All documentation is returned to the adminis- (ii) youth has spent at least six months in a high trator of sentenced offender disposition who will confirm the final restriction facility; and disposition to the facility administrator, request the hearing by the court, appoint the staff who will represent TYC in the hearing, and (iii) youth has not completed his/her sentence; and coordinate the hearing and transfer process. (iv) youth has met at least one of the following behavior criteria:
ADOPTED RULES May 26, 2000 25 TexReg 4873 (xi) The court (final transfer authority) must ap- personnel will serve the Order of Transfer in person on that day, at prove the early transfer. which time the sentenced offender youth is discharged from the TYC and transferred to the TDCJ, Parole Division. (4) Transfer From TYC High or Medium Restriction To TDCJ, Parole Division. Transfer from a medium or high restriction (B) At Age 21. facility to the TDCJ, Parole Division shall occur (court approval is (i) Criteria. not required) based on the youth’s age as follows. (I) At age 21, a youth who was sentenced for (A) Age 19 Factor. any offense other than capital murder and who has not completed the (i) Criteria. A youth who reached age 19 while in sentence will be transferred to TDCJ, Parole Division. a high restriction facility will be transferred to TDCJ, Parole Division (II) At age 21, a youth sentenced for capital when he becomes eligible for parole release. murder, who has not completed the sentence and who has not been (ii) Procedure. transferred to TDCJ or released under supervision (movement from high restriction) by juvenile court order will be transferred to: (I) Staff must develop a release plan that identi- (-a-) TDCJ-Institution Division, if he has not fies risk factors and is adequate to ensure public safety and positive completed the 10-year minimum confinement period under paragraph reintegration. The plan should reflect communication with a TDCJ (f)(3) of this subsection; or parole officer regarding available resources. Staff must develop a re- (-b-) TDCJ-Parole Division, if he has com- lease packet of information. pleted the 10-year minimum confinement period. (II) The supervising program administrator must (ii) Procedure. review and approve packet for quality and make a recommendation regarding the release. (I) Prior to 90 days before the youth’s 21st birthday, staff must develop a transition plan. The plan should (III) Special Services Committee (or equivalent reflect communication with a TDCJ parole officer regarding available committee) must conduct an exit interview with the youth to resources. Staff must develop a packet requesting transfer of the determine whether the youth meets criteria, and must review and offender to TDCJ-PD. approve the packet, and recommend the release. (II) Prior to 90 days before the youth’s 21st (IV) The superintendent/quality assurance ad- birthday, the superintendent/ quality assurance administrator must ministrator must approve and recommend the release and forward send required documentation to the department of sentenced offender both the release packet and the packet for requesting transfer of the disposition. offender to TDCJ-PD to the department of sentenced offender dispo- sition in central office. (III) The administrator of sentenced offender disposition will review the documentation and submit to TDCJ, (V) The administrator of sentenced offender dis- Parole Division. Within 90 days of receipt, TDCJ will process position will review the release packet and other supplemental infor- the information and forward to the Texas Board of Pardons and mation including Incident Reports, delinquent history, chronological Paroles who will set the conditions for release. On receipt of the entries, phase progression reports, and youth discipline/movement conditions the administrator of sentenced offender disposition will records to determine and ensure compliance with agency policy re- notify the superintendent and/or quality assurance administrator of garding release criteria and sufficiency of the release plan and submit the conditions and coordinate the release process. the packet requesting transfer of the offender to TDCJ, Parole Divi- sion. Within 90 days of receipt, TDCJ will process the information (IV) The superintendent/quality assurance ad- and forward to the Texas Board of Pardons and Paroles who will set ministrator will contact the department of sentenced offender dis- the conditions for release. On receipt of the conditions, the adminis- position who will contact the TDCJ, Parole Division to confirm the trator of sentenced offender disposition will insert the conditions into transfer date (youth’s 21st birthday). TDCJ personnel will serve the the release packet and forward the packet to the juvenile corrections Order of Transfer in person on that day, at which time the sentenced department in central office. offender youth is discharged from TYC and transferred to TDCJ, Pa- role Division. (VI) The assistant deputy executive director for rehabilitation services will review the release packet for clinical (5) Transfer From TYC Home Parole To TDCJ, Parole integrity of the psychological evaluation, forensic risk assessment Division. and release case plans while considering the availability of resources (A) Criteria. Transfer from TYC parole at home level within TDCJ. restriction to TDCJ, Parole, shall occur (court approval not required) (VII) The appropriate director of juvenile cor- at age 21 if the youth has not completed his/her sentence. rections will recommend approval or disapproval of the release. (B) Procedure. (VIII) The assistant deputy executive director for (i) Prior to 90 days before the youth’s 21st birthday, juvenile corrections will review the release packet and recommend parole/quality assurance supervisor must develop a continuing parole approval or disapproval to the deputy executive director. plan. The plan should reflect communication with a TDCJ parole (IX) The deputy executive director (final TYC officer regarding available resources. Staff must develop a packet release authority) must approve the release. requesting transfer of the offender to TDCJ-PD. (X) The final arrangements for the transfer are (ii) Prior to 90 days before the youth’s 21st birth- made by the department of sentenced offender disposition. The day, the parole/quality assurance supervisor must send required doc- administrator of the department of sentenced offender disposition umentation to the department of sentenced offender disposition. will contact TDCJ, Parole Division to confirm transfer date. TDCJ
25 TexReg 4874 May 26, 2000 Texas Register (iii) The administrator of sentenced disposition will The repealed section is adopted under the Human Resources review the documentation and submit to TDCJ, Parole Division. Code, §61.075, concerning Determination of Treatment, which Within 90 days of receipt, TDCJ will process the information and provides the Texas Youth Commission authority to determine forward to the Texas Board of Pardons and Paroles who will set the certain disposition options of youth committed to the Commis- conditions for release. On receipt of the conditions the administrator sion under a determinate sentence. of sentenced offender disposition will notify the superintendent and/ The adopted rule implements the Human Resource Code, or quality assurance administrator of the conditions and coordinate §61.034. the transfer process. This agency hereby certifies that the adoption has been re- (iv) The parole/quality assurance supervisor will viewed by legal counsel and found to be a valid exercise of the contact the department of sentenced offender disposition and TDCJ, agency’s legal authority. Parole Division to confirm transfer date (youth’s 21st birthday), at which time the youth will be discharged from TYC and transferred Filed with the Office of the Secretary of State on May 9, 2000. to TDCJ, Parole Division. TRD-200003252 (g) Youth sentenced to commitment in TYC for offenses Steve Robinson committed before January 1, 1996. Executive Director (1) Movement and Parole. Sentenced offenders who meet Texas Youth Commission program completion criteria for transition or parole shall not be Effective date: June 1, 2000 released without proper authorization: Proposal publication date: April 7, 2000 For further information, please call: (512) 424-6244 (A) When a juvenile court orders that a sentenced offender be released under supervision, the youth shall be transitioned ♦♦♦ or paroled, as appropriate to the youth’s progress at the time of the court’s order. TITLE 40. SOCIAL SERVICES AND ASSIS- (B) When the juvenile court orders that a sentenced TANCE offender be recommitted to TYC without a determinate sentence, the youth’s eligibility for release on parole or transition or disciplinary Part 1. TEXAS DEPARTMENT OF HU- movements shall be governed by the release criteria and procedures MAN SERVICES for the classification the youth would have received if not a sentenced offender. Chapter 4. MEDICAID PROGRAMS– (2) Disciplinary Movement. A sentenced offender may CHILDREN AND PREGNANT WOMEN be assigned to any appropriate placement, including a high restriction facility, following a level I or II disciplinary hearing. Subchapter A. ELIGIBILITY REQUIREMENTS (h) Notification. Parents or guardians will be notified of all 40 TAC §4.1002 movements. The Texas Department of Human Services (DHS) adopts an This agency hereby certifies that the adoption has been re- amendment to §4.1002 in its Medicaid Programs–Children and viewed by legal counsel and found to be a valid exercise of the Pregnant Women chapter. The amendment is adopted with agency’s legal authority. changes to the proposed text as published in the March 17, Filed with the Office of the Secretary of State on May 9, 2000. 2000, issue of the Texas Register (25 TexReg 2321). TRD-200003250 Justification for the amendment is to implement House Bill Steve Robinson 2896, 76th Legislature, which amended Section 533.0075 of Executive Director the Government Code regarding pregnant women in managed Texas Youth Commission care plans. The department decided that the amendment Effective date: June 1, 2000 requiring that pregnant women have access to medical care within 30 days after application should be extended to all Proposal publication date: April 7, 2000 Medicaid applicants. For further information, please call: (512) 424-6244 ♦♦♦ The amendment will function by allowing expedited processing of Medicaid applications from pregnant women to ensure they 37 TAC §85.33 have access to medical care within 30 days after application. The Texas Youth Commission (TYC) adopts the repeal of During the comment period, DHS received comments from one §85.33, concerning Program Completion and Movement of individual. A summary of the comments and DHS’s response Sentenced Offenders without changes to the text published in follows: the April 7, 2000, issue of the Texas Register (25 TexReg 2973) Comment: A comment was received regarding proposed and will not be republished. §4.1002(3), which pointed out that the rule was not clear as The repealed section will allow for the publication of a new to what verification would be postponed and what the effect section. would be on an eligibility determination. No comments were received regarding adoption of the amend- Response: DHS agrees with the comment and, since the pur- ment. pose of the rule is to ensure that an applicant who is potentially eligible based upon their self-declaration of information at the
ADOPTED RULES May 26, 2000 25 TexReg 4875 time of application has access to medical care within 30 days March 24, 2000, issue of the Texas Register (25 TexReg 2556). after the application, the wording has been updated accordingly Sections 800.2 and 800.178 are adopted without changes and to allow access to services while verification is pending, if nec- will not be republished. essary. The adoption of the Review of 40 TAC, Chapter 800, Subchapter Additionally, DHS received a comment from the Texas Hospital E, is being published in this same issue. As part of this Association supporting the proposed change to this rule. review process, the Commission has adopted amendments to §§800.152, 800.177 and 800.181. The amendment is adopted under the Human Resources Code, Title 2, Chapter 32, which provides the department with Background and Purpose. As provided by WIA (29 U.S.C. the authority to administer medical assistance programs, and §2801 et seq.) and the federal regulations governing WIA (in- under Texas Government Code §531.021, which provides the cluding 20 CFR §666.100 et. seq.), the State is responsible for Health and Human Services Commission with the authority to the monitoring and oversight of WIA-funded activities adminis- administer federal medical assistance funds. tered by the local workforce development boards (Boards) and, when necessary, imposing sanctions for certain violations of the The amendment implements the Human Resources Code, statute or regulations. The State developed the WIA sanctions §§32.001-32.042. rules to meet these statutory and regulatory requirements. §4.1002. Application Procedures. The purpose of the changes is to provide a framework of Applicants for Medicaid programs follow the application procedures oversight reflective of the WIA principles and the principles for Temporary Assistance for Needy Families (TANF) described in of Texas’ vision as outlined in the Texas Strategic Five-Year §3.301(a)(1) through 3.301(a)(3); §3.301(a)(5); §3.301(b); §3.301(c) State Workforce Investment Plan for Title I of the Workforce of this title (relating to Responsibilities of Clients and the Texas Investment Act of 1998 and the Wagner-Peyser Act for the Department of Human Services (DHS)); §3.302 of this title (relating Period of July 1, 1999–June 30, 2004 – Transition Plan to Definitions Relating to the Application Process); §3.303(a) of (State Plan). Specifically, the WIA principles are: streamlining this title (relating to Receipt of Application - Acceptability Factors); services, empowering individuals, universal access, increased §3.304(a) of this title (relating to Application Interview); and accountability, strong role for Boards and the private sector, and §3.307(a) of this title (relating to Authorized Representative), with state and local flexibility. The four principles of Texas’ vision are: the following exceptions: limited and efficient state government, local control, personal (1) There are no conditions limiting the designation of an responsibility, and support for strong families. authorized representative for Medicaid applicants and clients. WIA and its implementing regulations have imposed on the (2) No application is required for children born to mothers Boards a number of duties and responsibilities for the adminis- who are eligible for and receiving Medicaid at the time of the tration of WIA-funded activities, including maintaining adequate children’s birth. fiscal systems, complying with the uniform rules for adminis- tration of grants and agreements, meeting the contract perfor- (3) Applications for Medicaid from pregnant women will mance measures, and complying with all applicable state and be processed in an expedited manner to ensure an applicant who is federal statutes and regulations. The Commission is respon- potentially eligible based on their self-declaration of information at sible for oversight of the Boards’ activities and for identifying the time of application has access to medical care within 30 days failure to meet contract performance levels or noncompliance after application. with WIA or the State Plan. This agency hereby certifies that the adoption has been re- The adopted rules emphasize the partnership between the viewed by legal counsel and found to be a valid exercise of the Commission and the Boards in assuring compliance with WIA agency’s legal authority. requirements. Section 800.178 describes the involvement Filed with the Office of the Secretary of State on May 11, 2000. of the Commission in preventive maintenance and related requirements under WIA to provide services through a One- TRD-200003328 Stop Service Delivery Network. The Commission requires Paul Leche that all workforce services, such as those funded under the General Counsel, Legal Services Department of Labor, Welfare-to-Work (WtW) block grant, be Texas Department of Human Services integrated into the One-Stop Centers. The Commission will Effective date: May 31, 2000 withhold WIA administrative funds for failure to establish a Proposal publication date: March 17, 2000 fully integrated One-Stop Service Delivery Network, which For further information, please call: (512) 438-3108 includes WtW, among other services for which the Boards receive funds under contract with the Commission. The ♦♦♦ purpose of preventive maintenance is to assist the Boards in correcting deficiencies and meeting WIA statutory, regulatory Part 20. TEXAS WORKFORCE COM- and contract responsibilities. If preventive maintenance and MISSION initial corrective actions are not successful in assisting the Boards with compliance, the Commission will consider the Chapter 800. GENERAL ADMINISTRATION sanction actions described in §800.178 to ensure that WIA services continue to be available in the workforce areas and The Texas Workforce Commission (Commission) adopts the that there is no interruption of services. The amendment to amendments to §800.2, relating to definitions, §800.191, re- §800.191 clarifies that appeals to sanctions relating to WIA are lating to Appeals and new §800.178, relating to Sanctions un- not governed by §800.191 and that the hearing officer submits der the Workforce Investment Act (WIA). Section 800.191 is adopted with changes to the proposed text as published in the
25 TexReg 4876 May 26, 2000 Texas Register the proposal for decision to the Commission’s executive director strategies for improving performance can only be successful for final decision. if time permits. Comments were received from Boards including the Dallas RESPONSE: The WIA performance system does require the County Workforce Development Board, the North Central Work- use of UI wage record data. This is part of the WIA performance force Development Board, the Permian Basin Workforce De- system that is specifically described in the statute. The velopment Board, the South East Texas Workforce Develop- Commission did not choose this model but is complying with ment Board, the Texoma Workforce Development Board, and federal requirements. The time lag for UI wage record data will the West Central Workforce Development Board. Responses require consideration as part of the sanctions process but the to the comments are as follows. Any changes to the language five month lag for the entered employment measures should of the proposed rules are explained in the responses to the allow for a more reasonable time between performance and comments or for the purposes of clarity. results than cited in the comment. There is an eleven month lag in obtaining performance data for the measures requiring a two The review, amendments and new section are adopted under quarter period for wage gain and job retention, and these will Texas Labor Code §301.061 and §302.002, which provide the be difficult to apply to the sanctions process. The Commission Commission with the authority to adopt, amend, or repeal such is currently researching performance measures for WIA that rules as it deems necessary for the effective administration of are based on data that does not require UI wage records. Commission services and activities. However, the state will have to maintain compliance with the COMMENT: Regarding §800.177, the commenter recognized WIA performance system required by federal law. Boards the need for sanctions related to participation rates since these must take intermediate steps, closely monitor performance, and are federal requirements; however, since the Commission has anticipate meeting standards. One effective tool the Boards not been able to provide accurate information in a timely man- may utilize is the Funds Utilization Service Level reports and ner, the commenter recommended that this section be removed monthly expenditure reports as referenced in the proposed until the appropriate data can be provided to the Commission reallocation rules, published in the Texas Register on April 28, and Boards. A commenter also expressed concern that fail- 2000, that are anticipated to be adopted after public comments ure to attain participation rates results in a loss of funds and are considered by the Commission. For these reasons, the stated that it seems to imply that there is a direct relationship Commission does not agree that the language in the rule between expenditures and participation rates. The commenter requires modification. further stated that if this can be documented as consistently COMMENT: Regarding §800.178, one commenter asked valid, this would be an appropriate sanction; however, if this whether, under WIA rules for second year non-performance, cannot be demonstrated, alternate sanctions already identified the sanctions are set in the rule or are these Commission’s in §800.171 would be more reasonable. The commenter en- rules. The commenter stated that the sanctions are too severe. couraged the Commission to examine the data to determine if The commenter asked how a Board can be decertified when there is in fact a direct relationship between expenditures and the chief elected officials (CEO) are involved in the creation participation rates prior to considering implementation of this of the Board. The commenter stated that merging workforce section. areas creates a political as well as logistic problem. The RESPONSE: Section §800.177 was not amended nor part of commenter also stated that having two areas merge with the proposed changes as published in the Texas Register.In areas having different interests or problems goes back to a addition, this section has been in place since April 1998, at centralized form of governmental management and takes away which time the rules were adopted after a 30 day public com- local control. The commenter further stated a concern that ment period and the Commission considered public comments decisions are made without due consideration of the difference prior to adopting the existing rule. in areas such as the size and complexity of a merged work- force area. The commenter stated that political and logistical COMMENT: One commenter stated observations regarding the problems arose several times while the Board was getting up context and effect of the rules as follows: the WIA performance and organized and that the problem could be even larger when issues are new and there is little history concerning correcting other programs are added because a Board might end up over performance; early figures from the wage data for the JTPA two operations, which would be confusing and stressful for the completions and results cause concern; the model includes Board’s Executive Director and management staff. too much time between actions and recorded results; Boards will require equal time to correct poor performance; through RESPONSE: The Commission asserts that the sanctions set efforts in the TANF program two to four month delays were forth in §800.178 reiterate the sanctions set forth in WIA experienced in performance reporting and a three to four §136 and §184 and in state law in Texas Government Code month period is necessary to register the results for any §2308.268 and §2308.269 that are applicable to the federal systemic correction; and the WIA program and the chosen funding. Additionally, the sanctions are the same as the sanc- performance model will amplify the delay to between 13 and tions provided for in predecessor law and those that have been 15 months between performance and recorded results. The applied in Texas. Furthermore, the formation of a Board is gov- commenter strongly urged the Commission to consider the erned by prior consistent law contained in Texas Government relevance of any performance improvement plan within this Code Chapter 2308, and the authority for decertifying a Board model and the proposed rule, and commented that it would is expressly set forth in §136(h)(2) as within the authority of the appear that a second year of failed performance might already State. The Commission appreciates the significant efforts en- be guaranteed prior to reporting a first year failure. The tailed in ensuring effective local coordination and regional coop- commenter requested that the Commission research the issue eration and the added efforts by Boards to address all interests prior to formal acceptance of this rule and stated that the as well as the complexities that arise when a Board is faced with decertification. Likewise, the Commission encourages the
ADOPTED RULES May 26, 2000 25 TexReg 4877 Boards to strive to ensure that decertification and reorganiza- Department of Labor that local level negotiations occur prior to tion are never necessary. The Commission anticipates making setting state standards to ensure reasonable local and state per- every effort to work with Boards to avoid having to recommend formance measures. The State developed a multiple regression such an admittedly drastic action. However, the Commission model to adjust performance to account for local economic con- is required by Texas Government Code Chapter 2308 and WIA ditions and characteristics of participants served. The model to ensure effective administration of workforce training and ser- allows the Commission to establish reasonable and appropri- vices to workforce areas and acknowledges the need to main- ate performance standards for local areas. Compliance with tain the ability to make the full range of sanctions available. For program designs should be embedded in any service delivery these reasons, the Commission does not agree that the lan- and performance should reflect the quality of the implemen- guage in the rule requires modification. tation of a compliant program design. The purpose of each performance standard is designed to effectuate utilization of COMMENT: Regarding §800.178, one commenter also recom- funding throughout the State in a manner consistent with as- mended that when the Commission analyzes the second year sisting as many eligible participants as possible with accessing reorganization plan, the Commission should include a state- and availing themselves of the workforce training and services ment where the Commission’s Technical Assistance Division offered through federal and state and local funding resources. would be working with the Board’s preventive measures. Local The Commission does not set the number of performance mea- communities and customers suffer when a Board’s local struc- sures. Rather, the number of performance measures are set ture is reorganized. through federal statute and the State General Appropriations RESPONSE: The Commission asserts that preventive mainte- Act. For these reasons, the Commission does not agree that nance would have been provided prior to second year reorga- the language in the rule requires modification. nization. For this reason, the Commission does not agree that COMMENT: Regarding §800.178(d)(1) and (2), one com- the language in the rule requires modification. menter recommended that the phrase "chief elected officials" COMMENT: Regarding §800.178, one commenter observed be deleted from both these sections. The commenter stated that if every Board decided to re-procure for service provider that the chief elected officials may not be grant recipients and contracts to operate the workforce centers, the Commission have not been parties to the Board’s Master Contract with the could discover that there is a shortage of good quality service Commission. providers in the market. RESPONSE: WIA §184 specifically requires that the CEOs RESPONSE: The Commission agrees that service providers comply with the appropriate uniform administrative require- may vary in the degree of quality and effectiveness and ments and provides that a substantial violation of a specific encourages Boards to avoid the need for the Commission provision of Title I of WIA requires the imposition of sanctions. to impose the sanction of prohibiting a Board from using For these reasons, the Commission does not agree that the a particular service provider. Specifically, the Commission language in the rule requires modification. encourages the Boards to utilize effective monitoring tools as COMMENT: Regarding §800.178(d)(4)(B), one commenter sug- referenced in Chapter 800 Subchapter I relating to monitoring. gested that it is unclear why the Texas Council on Workforce Likewise, the Commission encourages the Boards to take other and Economic Competitiveness (TCWEC) would issue a notice proactive oversight and other contract management actions of intent to cease immediately reimbursement of all program as appropriate to ensure that the Commission is not required costs when TCWEC does not have a contractual relationship to impose a sanction. The Commission’s experience is that with the Board. The commenter asked whether this language sufficient numbers of providers emerge when there is free and should be changed to reflect that TCWEC will instruct the Com- open competition. For these reasons, the Commission does not mission to issue a notice. agree that the language in the rule requires modification. RESPONSE: Texas Government Code §2308.269 requires that COMMENT: Regarding §800.178, one commenter stated that TCWEC impose sanctions if the Commission finds a substantial performance standards are a very real issue for Boards and will violation, and one of the possible sanctions is to issue a notice impact the status of sanctions in various ways. The commenter of intent to cease reimbursement. The Commission anticipates stated that the Commission and the Boards must be careful to that TCWEC will issue notice to the Commission and the negotiate realistic performance standards in the next cycle. The Commission would then issue a notice to the Board. For these commenter asserted that the programs that serve the needs reasons, the Commission does not agree that the language in of individuals do not necessarily meet performance standards. the rule requires modification. The commenter stated that lag time for WIA reporting can also affect those standards. The commenter urged the Commission COMMENT: Regarding §800.178(f), one commenter requested to be very careful in setting local performance standards for that the definition of repayment reflect the language within each board. A second commenter stated that it is highly the master contract and recommended the following language: possible that a Board’s service provider could have all the "The Board shall be held liable for all debts to the Commission program designs in place and still fail to meet performance and shall resolve such matters in accordance with §30 of the standards. The second commenter strongly encouraged the Master Contract. After exhausting all other possible remedies, Commission to negotiate realistic performance standards for and provided no other resolution is acceptable, the Board and Boards and stated that there are far too many performance the chief elected officials (CEOs) shall be liable in accordance standards. with WIA §117(d)(3)(B)(i)(I), to the extent allowed by law." The commenter asked if the Commission will exercise the RESPONSE: The Commission is required by state and federal same sequential remedies that are included in Section 30 of law, including WIA and prior consistent state law, to ensure the Master Board Contract prior to requiring repayment from effective administration of workforce training and services. The State in the past has obtained agreement from the United States
25 TexReg 4878 May 26, 2000 Texas Register both the Board and chief elected officials under this proposed proposed rules. For these reasons, the Commission does not section. agree that the language in the rule requires modification. RESPONSE: The language in the rule is general in nature and COMMENT: Regarding §800.191(b), two commenters tracks the language of WIA §117(d)(3)(B)(i)(I) as it relates to suggested that the Commission change the language to CEO’s liability. This provision in WIA provides that the CEOs read,"...within ten working days of the date of receipt of notice are ultimately and finally responsible. However, the Commission ..." One commenter stated that it is impossible to hold the agrees that the language in the Master Contract sets forth Board liable for a response in correspondence that is delayed more specific provisions, including the sequential remedies, internally, delayed by the post office, or never sent through for methods of recouping funds from the Board and CEOs, some internal mix-up. One commenter also stated that the including providing for the timely collection of funds from specific date of delivery should be verified through "return receipt resources or other entities in a manner to reduce the CEO’s requested," and the clock should begin from that date. One liability. The Commission would add that all avenues under the commenter also asserted that fax should not be an allowable contract to resolve disputes will be pursued to assist CEO’s in substitute for something of this legal weight. One commenter meeting their liability. For these reasons, the Commission does further stated that if the Commission elects to incorporate not agree that the language in the rule requires modification. the proposed change, the language should be incorporated Likewise the section number referenced in the rule may change throughout the sanction and de-obligation policies and asserted making it impractical to reference specifically. that the language agreement throughout the process is critical to the integrity of the process. A second commenter stated COMMENT: Regarding §800.191, one commenter asked "Why that counting from the date of receipt would allow for adequate is an appeal to TCWEC prohibited?" and "If TCWEC made the time for local response. decision to decertify then why couldn’t the Board appeal the decision and have a chance to state the Board’s case?" RESPONSE: The Commission agrees with the recommenda- tion of the commenter to change the date to the date of receipt RESPONSE: The purpose of the language in the rule is to of notice to afford the Boards of a full ten working days after no- clarify that actions by other entities such as TCWEC would not tice has been received. The rule will be changed accordingly. be governed by the provisions in this rule. The Commission can only establish procedures related to its own authority, not COMMENT: Regarding §800.191(c), two commenters recom- another agency. The rule is not intended to indicate that an mended that language be added to clarify that the hearing offi- appeal to TCWEC is prohibited. The appeal provisions relating cer will be an individual outside of the Commission and outside to decertification are set forth in WIA §136. For these reasons, the supervision of the Commission’s Executive Director. One the Commission does not agree that the language in the rule commenter suggested that the use of a Commission employee requires modification. could be perceived as a conflict-of-interest or lack of impartial- ity in the hearing. A second commenter asked whether this is Commenter: Regarding §800.191, one commenter questioned the formal hearing process or some interim step. The second why there is no provision for Boards to appeal the Commission’s commenter stated that the commenter was under the impres- decision to forward recommendations to the TCWEC under sion that the formal appeal would go to a specific state entity §§800.178(b), 800.178(c), and 800.178(d)(4) of the proposed charged with hearing such appeals. The second commenter be- rule. Another commenter asked if TCWEC was apprised of this lieved that both processes should exist: a less formal internal rule and of TCWEC’s need to have an appeals procedure for appeal, and the formal appeal to be conducted by an indepen- actions TCWEC may take on Commission recommendations dent third party. under this subsection. RESPONSE: Section 800.191(c) was included to clearly estab- RESPONSE: The Commission believes that judicial economy lish the right of a Board to appeal the imposition of a sanction. would require that any appeal regarding the forwarding of rec- The procedures of that appeal would be determined by the re- ommendations to TCWEC would be duplicative or subsumed quirements of the federally funded program involved and the within an appeal of any resulting adverse action taken by nature of the Board’s deficiency. The Commission may utilize TCWEC. The Commission also asserts that there are a number impartial hearing officers from inside the agency or outside the of other reasons that support not developing an appeal process agency. The Commission asserts that an impartial hearing of- from mere recommendations to TCWEC, including the follow- ficer is free from bias relating to any findings resulting from a ing: The added appeal process would potentially cause undue hearing, whether that hearing is conducted within the agency delays and added administrative costs that would potentially or outside the agency because the hearing officers are bound hamper the Commission’s ability to efficiently make recommen- by ethics. To further clarify and resolve any perceived conflict dations to TCWEC and thereby hamper the Commission’s and of interest, the Commission recognizes the need to modify the the State’s ability to ensure that federal and state funds are not appeals procedure to allow for another level of review. To add wasted. For that reason, the Commission does not see a need this level of review, the Commission will amend the appeals pro- to modify the rule at this time. The role of TCWEC regarding cedure to enable the Workforce Development Director to make sanctions is set forth in part in WIA and in part in the provisions the initial decision regarding any sanctions to be imposed. If a in Texas Government Code Chapter 2308. In cases of second timely appeal from the initial decision is filed, the sanction will year non-performance of any kind, TCWEC has final author- then be reviewed by the Commission’s Executive Director. The ity to determine the necessity for the imposition of sanctions Commission feels that modifying the review process in this way and the sanction to impose under the law. In the case of non- will ensure integrity in the review process and this should ade- compliance with requirements, TCWEC has the final authority quately address the commenter’s concerns. to determine the appropriate sanction under the law. The Com- mission has given TCWEC the opportunity to comment on the COMMENT: In general, one commenter expressed hope that the comments would assist the Commission in the decision
ADOPTED RULES May 26, 2000 25 TexReg 4879 making process and that the Commission will continue to pro- 40 TAC §800.178, §800.191 vide meaningful comment opportunities to local partners. Fur- The amendment and new section are adopted under Texas La- ther, the commenter expressed appreciation for the opportunity bor Code §301.061 and §302.002, which provide the Commis- to offer verbal and formal written comments on the proposed sion with the authority to adopt, amend, or repeal such rules as sanction rules. The commenter also expressed thanks for the it deems necessary for the effective administration of Commis- Commission working to make this process inclusive and mean- sion services and activities. ingful. Another commenter also stated that the Board appreci- ated the opportunity to provide comments on these proposed §800.191. Appeal. rules. (a) Boards may appeal the actions of the Commission’s RESPONSE: The Commission benefits greatly from the com- Director of Workforce Development; however, a recommendation to ments provided by the Boards and the public, and appreciates another entity by the Commission under §800.178 of this section, the time spent by Board chairs, Board members and Board relating to Sanctions Under the Workforce Investment Act, may not executive directors, as well as other members of the public in be appealed under this section. sending comments to the Commission for consideration. (b) Requests for appeal must be submitted within ten Subchapter A. GENERAL PROVISIONS working days following the receipt of the notice of sanction action. 40 TAC §800.2 The appeal must be submitted to the General Counsel, Texas Workforce Commission, 101 East 15th Street, Room 614, Austin, The amendment is adopted under Texas Labor Code §301.061 Texas 78778. and §302.002, which provide the Commission with the authority (c) Requests for appeal will be referred to a hearing officer. to adopt, amend, or repeal such rules as it deems necessary The hearing officer will receive oral and written evidence from both for the effective administration of Commission services and parties and prepare a written proposal for decision to be submitted to activities. the Commission’s executive director for final decision. This agency hereby certifies that the adoption has been re- This agency hereby certifies that the adoption has been re- viewed by legal counsel and found to be a valid exercise of the viewed by legal counsel and found to be a valid exercise of the agency’s legal authority. agency’s legal authority. Filed with the Office of the Secretary of State on May 11, 2000. Filed with the Office of the Secretary of State on May 11, 2000. TRD-200003325 TRD-200003326 J. Randel (Jerry) Hill J. Randel (Jerry) Hill General Counsel General Counsel Texas Workforce Commission Texas Workforce Commission Effective date: May 31, 2000 Effective date: May 31, 2000 Proposal publication date: March 24, 2000 Proposal publication date: March 24, 2000 For further information, please call: (512) 463-8812 For further information, please call: (512) 463-8812 ♦♦♦ ♦♦♦ Subchapter E. SANCTIONS RULES
25 TexReg 4880 May 26, 2000 Texas Register TEXAS DEPARTMENT OF INSURANCE Notification Pursuant to the Insurance Code, Chapter 5, Subchapter L As required by the Insurance Code, Article 5.96 and 5.97, the Texas Register publishes notice of proposed actions by the Texas Board of Insurance. Notice of action proposed under Article 5.96 must be published in the Texas Register not later than the 30th day before the board adopts the proposal. Notice of action proposed under Article 5.97 must be published in the Texas Register not later than the 10th day before the Board of Insurance adopts the proposal. The Administrative Procedure Act, the Government Code, Chapters 2001 and 2002, does not apply to board action under Articles 5.96 and 5.97. The complete text of the proposal summarized here may be examined in the offices of the Texas Department of Insurance, 333 Guadalupe Street, Austin, Texas 78714-9104.) This notification is made pursuant to the Insurance Code, Article 5.96, which exempts it from the requirements of the Administrative Procedure Act. Texas Department of Insurance A copy of the petition, including exhibits with the full text of the proposed amendments to the Manual, is available for review in the Proposed Action on Rules office of the Chief Clerk of the Texas Department of Insurance, 333 The Commissioner of Insurance, at a public hearing under Docket Guadalupe Street, Austin, Texas. For further information or to request Number 2448 on June 28, 2000 at 10:00 a.m., in Room 100 of the copies of the petition, please contact Angie Arizpe at (512) 463-6326; William P. Hobby Jr. State Office Building, 333 Guadalupe Street refer to (Reference Number P-0500-12-I). in Austin, Texas, will consider a proposal made in a staff petition. Comments on the proposed changes must be submitted in writing Staff’s petition seeks amendments to the Homeowners and Dwelling within 30 days after publication of the proposal in the Texas Register, Sections of the Texas Personal Lines Manual (Manual) relating to to the Office of the Chief Clerk, Texas Department of Insurance, Homeowners and Dwelling policies. Staff’s petition (Reference P.O. Box 149104, MC 113-2A, Austin, Texas, 78714-9104. An Number P-0500-12-I), was filed on May 17, 2000. additional copy of the comments is to be submitted to Marilyn Staff proposes adoption of amendments to the Manual rules, which Hamilton, Deputy Commissioner, Personal and Commercial Lines would provide a second category for an optional credit on Homeown- Division, Texas Department of Insurance, P.O. Box 149104, MC 104- ers and Dwelling policies for stovetop fire suppression devices. The PC, Austin, Texas, 78714-9104. proposed amendments: (1) make Category 1 devices eligible for the This notification is made pursuant to the Insurance Code, Article current stovetop fire suppression credits; (2) provide the amount of 5.96, which exempts it from the requirements of the Government credits for Category 2 devices; and (3) require that the suppression Code, Chapter 2001 (Administrative Procedure Act). device or devices have been approved by the State Fire Marshal in accordance with 28 TAC §§34.1001 - 34.1004. TRD-200003428 Lynda Nesenholtz Amendments to §34.1004 are being proposed concurrently with this General Counsel and Chief Clerk amendment concerning stovetop fire suppression device approval and are published in a separate rule in this issue of the Texas Register. Texas Department of Insurance The amendments to §34.1004 are necessary to set forth the criteria Filed: May 17, 2000 that will allow insurers to offer a second category of credits for a ♦♦♦ correctly installed residential stovetop fire suppression device and to add requirements for all categories of devices.
EXEMPT FILINGS May 26, 2000 25 TexReg 4881 REVIEW OF AGENCY RULES This Section contains notices of state agency rules review as directed by the 75th Legislature, Regular Session, House Bill 1 (General Appropriations Act) Art. IX, Section 167. Included here are: (1) notices of plan to review; (2) notices of intention to review, which invite public comment to specified rules; and (3) notices of readoption, which summarize public comment to specified rules. The complete text of an agency’s plan to review is available after it is filed with the Secretary of State on the Secretary of State’s web site (http://www.sos.state.tx.us/texreg). The complete text of an agency’s rule being reviewed and considered for readoption is available in the Texas Adminis- trative Code on the web site (http://www.sos.state.tx.us/tac).
For questions about the content and subject matter of rules, please contact the state agency that is reviewing the rules. Questions about the web site and printed copies of these notices may be directed to the Texas Register office. Proposed Rule Reviews Finance Commission of Texas Finance Commission of Texas Filed: May 2, 2000 ♦♦♦ Title 7, Part 1 (Due to an error by the Texas Register, the following rule review notice General Services Commission was omitted from publication in the May 12, 2000, issue of the Texas Register.) Title 1, Part 5 The Finance Commission of Texas files this notice of intention to Proposed Notice of Intent to Complete the Review of Title 1, review Texas Administrative Code, Title 7, Chapter 3, Subchapters T.A.C., Chapter 125 - Support Services Division–Travel and E and F, consisting of §3.91, Loan Production Offices, §3.92, Vehicle User Safety at Unmanned Teller Machine, and §3.111, Confidential The General Services Commission (the "Commission") proposes Information. a second review of Title 1, Texas Administrative Code, Part 5, This review is undertaken pursuant to Government Code, §2001.039, Chapter 125, Subchapter A–Travel Management Services; Subchapter under a rule review plan filed pursuant to the Appropriations Act of B - State Vehicle Fleet Management ; and Subchapter C–Texas 1997, House Bill 1, Article IX, §167. The commission will accept Alternative Fuels Program in order to complete the rule review comments for 30 days following the publication of this notice in the process for Chapter 125. Texas Register as to whether the reasons for adopting the sections As a part of this review process, the General Services Commission under review continue to exist. Final consideration of this rules proposes amendments Title 1, TAC, Chapter 125, Subchapter A– review is scheduled for the Finance Commission meeting on June Travel Management Services, §§125.1-125.29 that may be found in 16, 2000. the proposed rule section of this publication of the Texas Register. The Texas Department of Banking, which administers these rules, A prior Notice of Intent to Review Title 1, T.A.C., Chapter believes that the reasons for adopting the rules continue to exist. 125, Subchapter A–Travel Management Services, was adopted and The Department recognizes that the rules encompassed in this review published in the October 8, 1999, publication of the Texas Register will require minor modifications in statutory references in order to (24 TexReg 8763). accommodate changes enacted by the 76th Legislature, and effective September 1, 1999. The Department anticipates that conforming A prior Notice of Intent to Review Title 1, T.A.C., Chapter 125, proposed rules will be published in the Texas Register for comment Subchapter B–State Vehicle Management and Subchapter C - Texas by September 1, 2000. Alternative Fuels Program was adopted and published in the May 21, 1999, publication of the Texas Register (24 TexReg 3871). Any questions or written comments pertaining to this notice of intention to review should be directed to Everette D. Jobe, The assessment by the Commission at this time indicates that the General Counsel, Texas Department of Banking, 2601 North reason for adopting or readopting these rules continues to exist. Lamar Boulevard, Austin, Texas 78705, or by e-mail to ev- Comments on the review of Title 1, T.A.C., Chapter 125 may be [email protected]. Any proposed changes to rules as a submitted in writing within 30 days following the publication of this result of the review will be published in the Proposed Rules Section notice in the Texas Register to Ann Dillon, General Counsel, General of the Texas Register and will be open for an additional 30 day public Services Commission, P.O. Box 13047, Austin, Texas, 78711-3047. comment period prior to final adoption or repeal by the commission. TRD-200003263 TRD-200003074 Ann Dillon Everette D. Jobe General Counsel Certifying Official General Services Commission
RULE REVIEW May 26, 2000 25 TexReg 4883 Filed: May 9, 2000 Filed: May 10, 2000 ♦♦♦ ♦♦♦ Texas Department of Health Adopted Rule Reviews Title 25, Part 1 Texas Department of Agriculture The Texas Department of Health (department) will review and con- Title 4, Part 1 sider for readoption, revision or repeal Title 25, Texas Administrative Due to a Texas Register error, the following Adopted Rule Review Code, Part I, Chapter 29. Purchased Health Services, Subchapter filed by the Texas Department of Agriculture was omitted from the A. Medicaid Procedures for Providers, §§29.1 - 29.6; Subchapter May 12, 2000 issue of the Texas Register. A duplicate of a Notice B. Medicaid Vision Care Program, §§29.101 - 29.105; Subchapter that was submitted as TRD-200002869 was published instead of the D. Medicaid Home Health Services, §§29.301 - 29.308; Subchap- Notice that was filed as TRD-200003027. ter E. Medicaid Chiropractic Program, §§29.401, 29.403; Subchap- ter F. Physician Services, §§29.501-29.503; Subchapter G. Hospi- The Texas Department of Agriculture (the department) adopts the tal Services, §§29.602 - 29.605, 29.607; Subchapter H. Laboratory, review of the rules in Title 4, Texas Administrative Code, Part 1, X-ray, and Radiation Therapy, §29.701, §29.702; Subchapter I. Po- Chapter 8, concerning Agricultural Hazard Communication Regula- diatry Services, §§29.801 - 29.802; Subchapter J. Ambulance Ser- tions, Chapter 14, concerning Vegetable and Citrus Fruit Handling vices, §§29.901 - 29.903; Subchapter K. Definitions, §29.1001; Sub- and Marketing, Chapter 15, concerning Egg Law, Chapter 21, con- chapter L. General Administration, §§29.1101, 29.1103, 29.1105 - cerning Citrus, and Chapter 23, concerning Rose Grading, pursuant 29.1130; Subchapter M. §29.1201, §29.1202, 29.1204; Subchapter to the Texas Government Code, §2001.039 and the General Appro- N. §29.1301, §29.1302; Subchapter O. Dentists’ Services, §29.1402; priations Act, Article IX, §9-10.13, 76th Legislature, 1999 (Section Subchapter P. Hearing Aid Services, §§29.1501 - 29.1504; Subchap- 9-10.13), and readopts these chapters with the amendment and repeals ter Q. Nurse-Midwife Services, §§29.1601 - 29.1603; Subchapter R. proposed in its notice of intention to review, The proposed notice of Birthing Center Services, §§29.1701 - 29.1703; Subchapter S. Ma- intention to review was published in the March 24, 2000 issue of the ternity Clinic Services, §§29.1801 - 29.1804; Subchapter T. Psychol- Texas Register (25 TexReg 2663). ogists’ Services, §29.1901, §29.1902; Subchapter U. Physical Ther- Section 9-10.13 and §2001.039 require state agencies to review apists’ Services, §29.2001, §29.2002; Subchapter V. Certified Regis- and consider for readoption each of their rules every four years. tered Nurse Anesthetists’ Services, §§29.2101 - 29.2103; Subchap- The review must include an assessment of whether the original ter W. Chemical Dependency Treatment Facility Services, §29.2201, justification for the rules continues to exist. §29.2202; Subchapter Y. Federally Qualified Health Center Services, §§29.2401, 29.2402, 29.2404; Subchapter Z. Certified Family Nurse As part of the review process, the department proposed an amendment Practitioner and Pediatric Nurse Practitioner, §29.2501, §29.2502; to Title 4, §21.22. and the repeal of §§8.13, 14.5, 15.11, 15.14, Subchapter AA. School Health and Related Services, §29.2601, 21.8 and 23.6. These proposals were also published in the March §29.2602; Subchapter BB. Coordinated Care, §29.2701; Subchapter 24, 2000 issue of the Texas Register (25 TexReg 2497 - 25 TexReg CC. Lonestar Select Contracting Program, §29.2801; Subchapter DD. 2500). The amendment to §21.22 is adopted to clarify that section and Tuberculosis, §29.2901; and Subchapter EE. Licensed Professional make it consistent with current practice. Sections 8.13, 14.5, 15.11, Counselors, Licensed Master Social Worker Advanced Clinical Prac- 15.14, 21.8 and 23.6 have been repealed to eliminate unnecessary titioners, and Licensed Marriage and Family Therapists, §29.3001, regulations. No comments were received regarding the department’s §29.3002. notice of intention to review or on the proposed amendments and repeals. The adopted amendment and repeals may be found in This review is in accordance with the requirements of the Texas the adopted rule section of the May 12, 2000 issue of the Texas Government Code, §2001.039, the General Appropriations Act, Register. The department has determined that with the exception Article IX, §9-10.13, 76th Legislature, 1999. of sections adopted with amendment or repealed, the reason for An assessment will be made by the department as to whether the readopting without changes all remaining sections in Chapters 8, 14, reasons for adopting or readopting these rules continue to exist. This 15, 21 and 23 continues to exist. assessment will be continued during the rule review process. Each TRD-200003027 rule will be reviewed to determine whether it is obsolete, whether the Dolores Alvarado Hibbs rule reflects current legal and policy considerations, and whether the Deputy General Counsel rule reflects current procedures of the department. The review of all Texas Department of Agriculture rules must be completed by August 31, 2003. Filed: April 28, 2000 Comments on the review may be submitted in writing within 30 ♦♦♦ days following the publication of this notice in the Texas Register to Linda Wiegman, Office of General Counsel, Texas Department of Texas State Board of Barber Examiners Health, 1100 West 49th Street, Austin, Texas, 78756. Any proposed changes to these rules as a result of the review will be published in Title 22, Part 2 the Proposed Rule Section of the Texas Register and will be open for The Texas State Board of Barber Examiners files this notice of adop- an additional 30 day public comment period prior to final adoption tion of the review of §§51.1-51.2, concerning The Board; §§51.91- or repeal by the department. 51.97, concerning Barber Shops; §51.101, concerning Advertis- TRD-200003317 ing; §51.111, concerning Contested Cases; §51.121, concerning Susan K. Steeg Personnel-Qualifications and Duties; §51.131, concerning Informal General Counsel Disposition, pursuant to the General Appropriations Act, Article IX Section 167, 75th Legislature was published in the April 7, 2000, Texas Department of Health issue of the Texas Register (25 TexReg 3062).
25 TexReg 4884 May 26, 2000 Texas Register As part of the adoption process, the board is adopting amendments to As part of this adoption process, the board is adopting amendments §51.92 of this title (Barber Pole (symbol of Barbering Since Ancient to §51.13 of this title (relating to Change of Ownership of Barber Days)), §51.95 of this title (No Other Businesses in a Barber Shop or School), §51.15 of this title (relating to Barber Chairs Per Student), Specialty Shop), §51.97 of this title (Booth Rental Permit), §51.101 of §51.16 of this title (relating to Equipment for Students), §51.17 of this this title (Barber Advertisements). The adoption of the amendments title (relating to Specialty Equipment), §51.18 of this title (relating to may be found in the Adopted Rules section of the Texas Register. Classroom Consultants), §51.19 of this title (relating to Absence of The board did not receive comments regarding whether the reasons Teachers), §51.20 of this title (relating to Applying for Enrollment), for adopting the rules continue to exist or any substantive comments §51.21 of this title (relating to Enrollment Application Deadline), concerning the proposed amendments. The board has determined that §51.23 of this title (relating to Student Certificate), §51.24 of this title the reasons for adopting these rules, as amended, continue to exist. (relating to Interruption of Attendance), §51.25 of this title (relating to Reenrollment or Notification), §51.26 of this title (relating to Student The Board is also proposing the repeal of §51.91 of this title Progress Reports), §51.30 of this title (relating to Registered Barber (Separation of Barber Shop and Beauty Parlor), §51.93 of this title Course), §51.39 of this title (relating to Barber Refresher Course), (Inspection Report). The adoption of the repeals maybe found in §51.40 of this title (relating to All Other Businesses Prohibited in the Adopted Rules section of the Texas Register. The board did not a Barber College). The adoption of the amendments may be found receive comments regarding whether the reasons for adopting the in the Adopted Rules section of the Texas Register. The board did rules continue to exist or any substantive comments concerning the not receive comments regarding whether the reasons for adopting the proposed repeals. rules continue to exist or any substantive comments concerning the Finally, the board is proposing to readopt§51.01 of this title (Regular proposed amendments. The board has determined that the reasons Meetings and Examinations), §51.02 of this title (Quorum), §51.94 for adopting these rules, as amended, continue to exist. of this title (Regulation of Dress in a Barber Shop, Specialty Shop, The board is also adopting the repeal of §51.22 of this title or School), §51.96 of this title (Animals Prohibited in a Barber (relating to Date of Enrollment), §51.36 of this title (relating to Shop, Specialty Shop, or School), §51.111 of this title (Admission Enrollment Application Form), §51.37 of this title (relating to Student of Parties), §51.121 of this title (Barber Inspector), §51.131 of this Certificate Form). The adoption of the repeals may be found in the title (Informal Disposition). The agency’s reasons for adopting these Adopted Rules section of the Texas Register. The board did not rules continue to exist in order to discharge the agency’s statutory receive comments regarding whether the reasons for adopting the examination and licensing responsibilities. rules continue to exist or any substantive comments concerning the Adopted Amendments: proposed repeals. §51.92. Barber Pole (Symbol of Barbering Since Ancient Days). Finally, the board is readopting §51.11 of this title (relating to Barber School Contract), §51.12 of this title (relating to Inspection of New §51.95. No Other Businesses in a Barber Shop or Specialty Shop. Barber School or College), §51.14 of this title (relating to Business §51.97. Booth Rental Permit. Hours of Barber School), §51.28 of this title (relating to Teacher Course), §51.29 of this title (relating to Mandatory Curriculum), §51.101. Barber Advertisements. §51.31 of this title (relating to Manicurist Course), §51.32 of this Adopted Repeals: title (relating to Wig Specialist Course), §51.33 of this title (relating to Wig Instructor Course), §51.34 of this title (relating to Barber §51.91. Separation of Barber Shop and Beauty Parlor. Technician Course), §51.35 of this title (relating to Definition of §51.93. Inspection Report. Barber’s Technician), §51.38 of this title (relating to Progress Report Barber School Monthly Records of Student Hours). The agency’s Rules to be Readopted: reasons for adopting these rules continue to exist in order to discharge §51.1. Regular Meetings and Examinations. the agency’s statutory examination and licensing responsibilities. §51.2. Quorum. Adopted Amendments: §51.94. Regulation of Dress in a Barber Shop, Specialty Shop, or §51.13 Change of Ownership of Barber School School. §51.15 Barber Chairs per Student §51.111. Admission of Parties. §51.16 Equipment for Students §51.121. Barber Inspector. §51.17 Specialty Equipment §51.131. Informal Disposition. §51.18 Classroom Consultants TRD-200003234 §51.19 Absence of Teachers Will K. Brown Executive Director §51.20 Applying for Enrollment Texas State Board of Barber Examiners §51.21 Enrollment Application Deadline Filed: May 8, 2000 ♦♦♦ §51.23 Student Certificate §51.24 Interruption of Attendance The Texas State Board of Barber Examiners files this notice of adop- tion of the review of §§51.11 - 51.40, concerning Barber Colleges, §51.25 Reenrollment or Transfer Schools and Student, pursuant to the General Appropriations Act, Ar- §51.26 Student Progress Reports ticle IX, Section 167, 75th Legislature was published April 7, 2000, issue of the Texas Register (25 TexReg 3061). §51.30 Registered Barber Course
RULE REVIEW May 26, 2000 25 TexReg 4885 §51.39 Barber Refresher Course by the 75th Legislature (1997), the board readopts all of the rules in the chapters listed below. §51.40 All Other Businesses Prohibited in a Barber College The notice of intent to review was published in the April 7, 2000 Adopted Repeals: issue of the Texas Register (25 TexReg 3063). §51.22 Date of Enrollment The board received no comments regarding the readoption of these §51.36 Enrollment Application Form rules. The Board determined at the April 18, 2000 meeting that the reason for adopting these rules continue to exist. At the same §51.37 Student Certificate Form meeting, the Board proposed amendments to §341.6, Restoration of Rules to be Readopted: License, and §341.8, Inactive Status, both of which are in Chapter 341, License Renewal. §51.11 Barber School Contract Chapter 321, DEFINITIONS §51.12 Inspection of New Barber School or College Chapter 322, PRACTICE §51.14 Business Hours of Barber School Chapter 323, POWERS AND DUTIES OF THE BOARD §51.28 Teacher Course Chapter 325, ORGANIZATION OF THE BOARD §51.29 Mandatory Curriculum Chapter 327, COMPENSATION §51.31 Manicurist Course Chapter 329, LICENSING PROCEDURE §51.32 Wig Specialist Course Chapter 335, PROFESSIONAL TITLE §51.33 Wig Instructor Course Chapter 337, DISPLAY OF LICENSE §51.34 Barber Technician Course Chapter 339, FEES §51.35 Definition of Barber’s Technician Chapter 341, LICENSE RENEWAL §51.38 Progress Report Barber School Monthly Records of Student Hours Chapter 342, OPEN RECORDS TRD-200003231 Chapter 343, CONTESTED CASE PROCEDURE Will K. Brown Chapter 344, ADMINISTRATIVE FINES AND PENALTIES Executive Director Texas State Board of Barber Examiners Chapter 345, ACCESSIBLE SERVICES Filed: May 8, 2000 Chapter 346, PRACTICE SETTINGS FOR PHYSICAL THERAPY ♦♦♦ Chapter 347, REGISTRATION OF PHYSICAL THERAPY FACIL- Texas State Board of Pharmacy ITIES TRD-200003349 Title 22, Part 15 John P. Maline The Texas State Board of Pharmacy adopts the review of Chapter Executive Director 291 (§291.36), concerning Class A Pharmacies Dispensing Sterile Texas Board of Physical Therapy Examiners Pharmaceuticals, pursuant to the Appropriations Act, 76th Legisla- Filed: May 12, 2000 ture, Section 9-10.13. The proposed rule review was published in the March 31, 2000, issue of the Texas Register (25 TexReg 2827). ♦♦♦ In conjunction with this review, the agency adopts amendments to Texas Workforce Commission §291.36 published elsewhere in this issue of the Texas Register. Title 40, Part 20 The agency finds that the reason for adopting the rule continues to The Texas Workforce Commission (Commission), adopts the review exist. No comments were received regarding adoption of this review. of rules in Subchapter E of Chapter 800 relating to Sanctions TRD-200003358 in accordance with the requirements of Texas Government Code, Gay Dodson, R.Ph. §2001.039, and the General Appropriations Act, Article IX, §9-10.13, Executive Director/Secretary 76th Legislature, 1999 (formerly 1997 General Appropriations Act, Texas State Board of Pharmacy Article IX, §167). The proposed Notice of Intention to Review was Filed: May 15, 2000 published in the March 24, 2000, issue of the Texas Register (25 ♦♦♦ TexReg 2665). The Commission received comments on the rules as indicated in the Texas Board of Physical Therapy Examiners adoption of rules relating to sanctions that appear in this issue of the Texas Register. The information contained in the adoption of the Title 22, Part 16 rules relating to sanctions, including but not limited to the names of The Texas Board of Physical Therapy Examiners has completed the commenters, comment summaries and responses, is incorporated here review of the rules in the chapters listed below. Pursuant to the by reference. General Appropriations Act, House Bill 1, Article IX, §167, passed
25 TexReg 4886 May 26, 2000 Texas Register The Commission finds the reasons for originally adopting the rules in §800.177, the program specific sanctions; continues to exist and are respectively to set forth provisions as in §800.181, the enforcement provisions; follows: in §800.182, the notice provisions; and in §800.151, the scope and purpose of the sanction rules; in §800.191, the appeal provisions. in §800.152, the definitions in the sanctions rules; The Commission readopts its rules in their entirety. in §800.161, the preventive maintenance provisions; TRD-200003395 in §800.171, the level one sanctions provisions; J. Randel (Jerry) Hill in §800.172, the level two sanctions provisions; General Counsel in §800.173, the level three sanctions; Texas Workforce Commission Filed: May 15, 2000 in §800.174, the violations subject to level one sanctions; ♦♦♦ in §800.175, the violations subject to level two sanctions; in §800.176, the violations subject to level three sanctions;
RULE REVIEW May 26, 2000 25 TexReg 4887 TABLES & GRAPHICS Graphic material from the emergency, proposed, and adopted sections is published separately in this tables and graphics section. Graphic material is arranged in this section in the following order: Title Number, Part Number, Chapter Number and Section Number. Graphic material is indicated in the text of the emergency, proposed, and adopted rules by the fol- lowing tag: the word “Figure” followed by the TAC citation, rule number, and the appropriate sub- section, paragraph, subparagraph, and so on.
IN ADDITION The Texas Register is required by statute to publish certain documents, including applications to purchase control of state banks, notices of rate ceilings, changes in interest rate and applications to install remote service units, and consultant proposal requests and awards. To aid agencies in communicating information quickly and effectively, other information of general interest to the public is published as space allows. Agricultural Resources Protection Authority nuisance. Defendant has also failed to keep records of all hazardous and industrial solid waste activities and has failed to classify the Notice of Taking of Public Comment on Pesticide Regulation waste. In accordance with the Texas Agriculture Code, §76.009(i), and Proposed Agreed Judgment: The judgment requires Defendant to policies adopted by the Agriculture Resources Protection Authority remedy the violations by complying with injunctive provisions (the Authority), notice is hereby provided that the Authority will designed to bring the facility into compliance. The Agreed Judgment take public comment on the status of the state’s pesticide regulation requires Defendant to pay Thirty Thousand Dollars and no cents efforts at its next regularly scheduled meeting. The meeting will be ($30,000.00) in civil penalties and Seven Thousand Five Hundred held on Wednesday, June 14, 2000, beginning at 10:00 a.m. at the Dollars and no cents ($7,500.00) in attorney fees. Defendant is also offices of the Texas Department of Agriculture located at 1700 North required to pay all cost of court. Congress, Room 911, Austin, Texas. For more information, please contact Donnie Dippel at (512) 463-1093. For a complete description of the proposed settlement, the complete proposed Agreed Final Judgment should be reviewed. Requests TRD-200003402 for copies of the judgment, and written comments on the proposed Dolores Alvarado Hibbs settlement should be directed to Lisa Sanders Richardson, Assistant Deputy General Counsel, Texas Department of Agriculture Attorney General, Office of the Texas Attorney General, P. O. Box Agricultural Resources Protection Authority 12548, Austin, Texas 78711-2548, (512) 463-2012, facsimile (512) Filed: May 16, 2000 320-0911. Written comments must be received within 30 days of ♦♦♦ publication of this notice to be considered. TRD-200003414 Office of the Attorney General Rick Gilpin Texas Health and Safety Code and Texas Water Code En- Assistant Attorney General forcement Settlement Notice Office of the Attorney General Filed: May 17, 2000 Notice is hereby given by the State of Texas of the following proposed resolution of an environmental enforcement lawsuit under the Texas ♦♦♦ Health and Safety Code and the Texas Water Code. Before the State may settle a judicial enforcement action under the Water Code, Coastal Coordination Council the State shall permit the public to comment in writing on the Notice and Opportunity to Comment on Requests for Consis- proposed judgment. The Attorney General will consider any written tency Agreement/Concurrence under the Texas Coastal comments and may withdraw or withhold consent to the proposed Management Program agreed judgment if the comments disclose facts or considerations that indicate that the consent is inappropriate, improper, inadequate, January 10, 1997, the State of Texas received federal approval of or inconsistent with the requirements of the Code. the Coastal Management Program (CMP) (62 Federal Register pp. 1439-1440). Under federal law, federal agency activities and actions Case Title and Court: Harris County, Texas, and the State of Texas, et affecting the Texas coastal zone must be consistent with the CMP al. v. Powerhouse Marine International Inc., Case No. 1999-15951, goals and policies identified in 31 TAC Chapter 501. Requests for 234th District Court of Harris County, Texas. federal consistency review were received for the following projects(s) Nature of Defendant’s Operations: Defendant is a facility that paints during the period of May 3, 2000, through May 11, 2000: and sandblasts oil field related structures and equipment. Defendant FEDERAL AGENCY ACTIONS: is in violation of discharging and emitting air contaminants without a permit and causing adverse affect on human health and/or creating a
IN ADDITION May 26, 2000 25 TexReg 4917 Applicant: Pogo Producing Company; Location: The site is located for the applications listed above may be obtained from Ms. Janet in the northeast quadrant of State Tract 11 in Sabine Lake, Orange Fatheree, Council Secretary, Coastal Coordination Council, 1700 County, Texas. CCC Project No.: 00-0148-F1; Description of North Congress Avenue, Room 617, Austin, Texas 78701-1495, Proposed Action: The applicant proposes to install and maintain a or [email protected]. Persons are encouraged to submit shell pad and structures for oil/gas exploration and production. The written comments as soon as possible within 30 days of publication shell pad will be placed on the lake bottom, which is approximately 8 of this notice. Comments should be sent to Ms. Fatheree at the above feet below 0.00 NGVD. The shell pad will be approximately 210 feet address or by fax at 512/475-0680. long by 64 feet wide by 3 feet deep. The total amount of fill material TRD-200003423 to be discharged will be approximately 1,493 cubic yards. Type of Larry R. Soward Application: U.S.A.C.E. permit application #21934 under §10 of the Rivers and Harbors Act of 1899 (33 U.S.C.A. 403) and §404 of the Chief Clerk, General Land Office Clean Water Act (33 U.S.C.A. §§125-1387). Coastal Coordination Council Filed: May 17, 2000 Applicant: The Port of Brownsville; Location: The project site is located on 7400 Foust road, Port of Brownsville, Brownsville, ♦♦♦ Cameron County, Texas, near Corps of Engineers Station 86+700. CCC Project No.: 00-0149-F1; Description of Proposed Action: The Comptroller of Public Accounts applicant proposes to amend an existing permit by constructing an Notice of Request for Proposals L-shaped timber dock on the west side of an existing structure on the Brownsville Ship Channel. The addition will be 10 feet wide Notice of Request for Proposals: Pursuant to Chapter 2254, Subchap- and extend westward 40 feet and northward 90 feet. Water depth ter B, Texas Government Code, the Comptroller of Public Accounts in the dock’s vicinity ranges from approximately -5.0 to -17.0 feet (Comptroller) announces the issuance of its Request for Proposals MLT. The total area of the project will be 1,300 square feet. Type of (RFP) from qualified, independent firms to provide consulting ser- Application: U.S.A.C.E. permit application #11055(01) under §10 of vices to the Comptroller. The successful respondent will assist the the Rivers and Harbors Act of 1899 (33 U.S.C.A. 403). Comptroller in conducting financial management reviews, including information technology (IT) solutions reviews and electronic infras- Applicant: Davis Gulf Coast, Incorporated; Location: The project is tructure, of selected local government services of up to four (4) city located in State Tract 885-S, in the Gulf of Mexico, approximately and four (4) county governments throughout the state. The services 2,600 feet east from the shoreline of Mustang Island, at a point sought under this RFP will culminate in final reports, which shall approximately 8.5 miles south of Port Aransas, Nueces County, Texas. contain findings, recommendations, implementation timelines, plans, CCC Project No.: 00-0150-F1; Description of Proposed Action: The best practices, if any, and be a component part of the reviews. The applicant proposes to erect and maintain a typical posted barge rig successful respondent will be expected to begin performance of the or small jack up rig, production platform, and/or caisson type well contract on or about June 26, 2000. This is a reissuance of the RFP, protector with appurtenant structures and equipment necessary to with revisions, originally issued on March 31, 2000, and published conduct oil and gas drilling/production operations. No dredging or fill in the following Texas Register issue: 25 TexReg 2844. material is required for the proposed activities. Type of Application: U.S.A.C.E. permit application #21914 under §10 of the Rivers and Contact: Parties interested in submitting a proposal should contact Harbors Act of 1899 (33 U.S.C.A. 403). Clay Harris, Assistant General Counsel, Contracts, Comptroller of Public Accounts, 111 E. 17th St., ROOM G-24, Austin, Texas, 78744, Applicant: Mr. Robert Jenkins; Location: The project is located in telephone number: (512) 305-8673, to obtain a copy of the RFP. The Redfish Bay, south of SH 361, east of Aransas Pass, Nueces County, Comptroller will mail copies of the RFP only to those specifically Texas. CCC Project No.: 00-0151-F1; Description of Proposed requesting a copy. The RFP will be available for pick-up at the Action: The applicant proposes to construct a single pier commercial above-referenced address on Friday, May 26, 2000, between 2 p.m. sports marina and four sets of private boat slips, with living quarters and 5 p.m., Central Zone Time (CZT), and during normal business above the slips. All structures will be pile-supported and no dredging hours thereafter. The Comptroller will also make the complete RFP or fill discharge is required. Type of Application: U.S.A.C.E. permit available electronically on the Texas Marketplace after Friday, May application #21094 under §10 of the Rivers and Harbors Act of 1899 26, 2000, 2 p.m. (CZT). All written inquiries, questions, and non- (33 U.S.C.A. 403). mandatory Letters of Intent to propose must be received at the FEDERAL AGENCY ACTIVITIES: above-referenced address prior to 2 p.m. (CZT) on Monday, June 12, 2000. Prospective respondents are encouraged to fax Letters of Applicant: U.S. Coast Guard - MSO Port Arthur Moorings Boat Intent and Questions to (512) 475-0973 to ensure timely receipt. The Ramp Repair; CCC Project No.: 00-0152-F2; Description of Letter of Intent must be addressed to Clay Harris, Assistant General Proposed Activity: The applicant proposes to return the boat ramp Counsel, Contracts, and must contain the information as stated in the slope to the original condition and to prevent future erosion. Repairs corresponding Section of the RFP and be signed by an official of will involve jacking up the deformed portion of the ramp and pumping that entity. Non-Mandatory Letters of Intent and Questions received concrete underneath into the portions that have eroded. Forms will be after this time and date will not be considered. The responses to used to keep the concrete under the ramp. The jacks and forms will questions and other information pertaining to this procurement will be be removed once the concrete has cured. To prevent further erosion, posted on the Texas Marketplace http://www.marketplace.state.tx.us. rip-rap will be placed on the sides of the ramp around the tidal zone. Prospective respondents are encouraged to attend a non-mandatory Pursuant to §306(d)(14) of the Coastal Zone Management Act of Pre-Proposal Conference on Thursday, June 8, 2000, beginning at 1972 (16 U.S.C.A. §§1451-1464), as amended, interested parties 10:00 a.m., at the LBJ State Office Building, 111 E. 17th St., Austin, are invited to submit comments on whether a proposed action is Texas, 78774, in Room 212B. or is not consistent with the Texas Coastal Management Program Closing Date: Proposals must be received in Deputy General Counsel goals and policies and whether the action should be referred to for Contracts Office at the location specified above (ROOM G24) the Coastal Coordination Council for review. Further information
25 TexReg 4918 May 26, 2000 Texas Register no later than 2 p.m. (CZT), on Tuesday, June 20, 2000. Proposals indicated to practice shorthand reporting pursuant to Chapter 52 of received in Room G24 after this time and date will not be considered. the Texas Government Code, V.T.C.A.: Evaluation and Award Procedure: All proposals will be subject MACHINE SHORTHAND: Sherry Lynn Boehmer-Waxahachie; to evaluation by a committee based on the evaluation criteria and Mary Elizabeth Bonney-Radium Springs; Stacie Janene Bradshaw- procedures set forth in the RFP. The Comptroller will make the final Dallas; Leslie Dawn Brewer-Odessa; Kristi Gayle Cooke-Arlington; decision. Brandy Bailey Cooper-Frisco; Carmen Hernandez-Dallas; Michelle Lynn Hon-Wylie; Mary Elizabeth La Bounty-Plano; Lisa Carol The Comptroller reserves the right to accept or reject any or all Love-Amarillo; Patricia Rivera Madrid- El Paso; Kathryn Colette proposals submitted. The Comptroller of Public Accounts is under Miller- Ft. Worth; Evangelina Morales-El Paso; Kirk Wayne no legal or other obligation to execute a contract on the basis of this Moss-Ft. Worth; Valerie Sladecek Murray-League City; Deborah notice or the distribution of any RFP. The Comptroller shall pay for Kay Navarette- Houston; Gay R Richey- Irving; Luz Melanie no costs incurred by any entity in responding to this Notice or the Rosario- Arlington; Alison Leann Stodder- Houston; Claudia Webb- RFP. McKinney; Stephanie Webb- Needville; Diane Williams- El Paso; The anticipated schedule of events is as follows: Issuance of RFP - Darlene Ann Zuehl- San Antonio; Linda Marie Osborne- Las Vegas, May 26, 2000, 2 p.m. CZT; Non-Mandatory Pre-Proposal Conference NV; Claudia Fahrenthold- Albuquerque, NM; Trashuna Roshae - June 8, 2000, at 10:00 a.m.; Non-Mandatory Notice of Intent Form Salaam- Grand Prairie; Nancy Paralee Ripple- Midwest City, OK; and Questions Due - June 12, 2000, 2 p.m. CZT; Proposals Due - Stephanie Ann Wimmer- Muenster June 20, 2000, 2 p.m. CZT; Contract Execution - June 26, 2000, or TRD-200003353 as soon thereafter as practical; Commencement of Project Activities Sheryl Jones - June 26, 2000. Director of Administration TRD-200003429 Court Reporters Certification Board Pamela Ponder Filed: May 15, 2000 Deputy General Counsel, Contracts Section ♦♦♦ Comptroller of Public Accounts Filed: May 17, 2000 Credit Union Department ♦♦♦ Application(s) to Amend Articles of Incorporation Office of Consumer Credit Commissioner Notice is given that the following application has been filed with the Notice of Rate Ceilings Credit Union Department and is under consideration: An application for a name change was received for AT&T Employees The Consumer Credit Commissioner of Texas has ascertained the Credit Union, Dallas, Texas. The proposed new name is Texas following rate ceilings by use of the formulas and methods described Telcom Credit Union. in §§303.003, 303.009, and 304.003, Tex. Fin. Code. Comments or a request for a meeting by any interested party relating The weekly ceiling as prescribed by §303.003 and §303.009 for the to an application must be submitted in writing within 30 days from period of 05/22/00 - 05/28/00 is 18% for Consumer 1/Agricultural/ the date of this publication. Any written comments must provide Commercial 2/credit thru $250,000. all information that the interested party wishes the Department to The weekly ceiling as prescribed by §303.003 and §303.009 for the consider in evaluating the application. All information received will period of 05/22/00 - 05/28/00 is 18% for Commercial over $250,000. be weighed during consideration of the merits of an application. Comments or a request for a meeting should be addressed to the The judgment ceiling as prescribed by §304.003 for the period of Texas Credit Union Department, 914 East Anderson Lane, Austin, 06/01/00 - 06/30/00 is 10% for Consumer/Agricultural/Commercial/ Texas 78752-1699. credit thru $250,000. TRD-200003426 The judgment ceiling as prescribed by §304.003 for the period of 06/ Harold E. Feeney 01/00 - 06/30/00 is 10% for Commercial over $250,000. Commissioner 1Credit for personal, family or household use. Credit Union Department 2Credit for business, commercial, investment or other similar purpose. Filed: May 17, 2000 TRD-200003399 ♦♦♦ Leslie L. Pettijohn Application(s) to Expand Field of Membership Commissioner Office of Consumer Credit Commissioner Notice is given that the following applications have been filed with Filed: May 16, 2000 the Credit Union Department and are under consideration: ♦♦♦ An application was received from North East Texas Credit Union, Lone Star, Texas to expand its field of membership. The proposal Court Reporters Certification Board would permit persons who reside, work or attend school within a 10- mile radius of any North East Texas Credit Union office to be eligible New Certified Shorthand Reporters for membership in the credit union. Following the examination of applicants on March 31, 2000, the Texas An application was received from GPS Credit Union, Galena Park, Court Reporters Certification Board certified to the Supreme Court Texas to expand its field of membership. The proposal would permit of Texas the following individuals who are qualified in the method persons who work or reside in the Sheldon Independent School
IN ADDITION May 26, 2000 25 TexReg 4919 District, excluding persons eligible for membership in any occupation Credit Union Department or association based credit union with less than 20,000 members as of Filed: May 17, 2000 the date of this amendment (April 18, 2000) having an office within ♦♦♦ this area to be eligible for membership in the credit union. An application was received from Austin Metropolitan Financial Notice of Final Action Taken Credit Union, Austin, Texas to expand its field of membership. The In accordance with the provisions of 7 TAC Section 91.103, the Credit proposal would permit persons who live or work within a 10-mile Union Department provides notice of the final action taken on the radius of any Austin Metropolitan Financial Credit Union branch following application(s): location, excluding persons eligible for primary membership in any occupation or association based credit union with a full service office Application(s) to Expand Field of Membership in the specified geographic area and having a total membership of Southwest Resource Credit Union, Baytown, Texas - See Texas less than 20,000 on May 1, 2000 to be eligible for membership in Register issue dated February 25, 2000. the credit union. Texans Credit Union, Richardson, Texas - See Texas Register issue An application was received from San Antonio Teachers Credit dated February 25, 2000. Union, San Antonio, Texas to expand its field of membership. The proposal would permit students (Grades 6-8) who attend institutions Texans Credit Union, Richardson, Texas - See Texas Register issue of education in Bexar County to be eligible for membership in the dated February 25, 2000. credit union. Texans Credit Union, Richardson, Texas - See Texas Register issue An application was received from Community Credit Union, Plano, dated February 25, 2000. Texas to expand its field of membership. The proposal would permit Aldine Teachers Credit Union, Houston, Texas - See Texas Register persons who work or reside within a 5-mile radius of the following issued dated February 25, 2000. CCU branch locations: 3040 N. Josey Lane, Carrollton, TX 75007 and 2150 S. Hwy. 121, Lewisville, TX 75067 to be eligible for Educational Employees Credit Union, Fort Worth, Texas - See Texas membership in the credit union. Register issue dated February 25, 2000. An application was received from Community Credit Union, Plano, VATAT Credit Union, Austin, Texas - See Texas Register issue dated Texas to expand its field of membership. The proposal would permit February 25, 2000. persons who work or reside within Dallas County excluding persons Galveston Government Employees Credit Union, Galveston, Texas - primarily eligible for membership in any occupation or association See Texas Register issue dated January 28, 2000. based credit union with less than 20,000 members as of the date of this amendment (March 14, 2000) having an office within this area TRD-200003424 to be eligible for membership in the credit union. Harold E. Feeney Commissioner An application was received from Community Credit Union, Plano, Credit Union Department Texas to expand its field of membership. The proposal would permit persons who work or reside within Grayson County excluding persons Filed: May 17, 2000 primarily eligible for membership in any occupation or association ♦♦♦ based credit union with less than 20,000 members as of the date of this amendment (March 14, 2000) having an office within this area Texas Council for Developmental Disabilities to be eligible for membership in the credit union. Intent to Award Funds An application was received from Texas Dow Employees Credit The Texas Council for Developmental Disabilities announces its Union, Lake Jackson, Texas to expand its field of membership. The intention to award grant funds to the Texas Health and Human proposal would permit employees and retirees of Dow Chemical Services Commission to continue activities initiated by the Office of Company USA, its operating subsidiaries and its joint ventures (in Community Transportation Services to develop Local Transportation which Dow Chemical Company owns at least 50% interest), including Coordination Models. employees and retirees of companies acquired by or merged into those entities that operate in the State of Texas to be eligible for membership Background: The Health and Human Services Commission (HHSC), in the credit union. Office of Community Transportation Services (OCTS) submitted a proposal in response to a Request for Proposals for coordination of Comments or a request for a meeting by any interested party relating community transportation posted in the Texas Register in June 1995. to an application must be submitted in writing within 30 days from the That RFP invited proposals for a grant project that would coordinate date of this publication. Credit unions that wish to comment on any and support the development of at least four local transportation application must also complete a Notice of Protest form. The form coordination models in the state and the development of a statewide may be obtained by contacting the Department at (512) 837-9236. consolidated planning process for public and client transportation Any written comments must provide all information that the interested funding and service delivery. OCTS has been successful in their party wishes the Department to consider in evaluating the application. efforts to create and maintain local coordinated transportation models All information received will be weighed during consideration of to demonstrate consolidated planning and funding processes for the merits of an application. Comments or a request for a meeting public and client transportation. should be addressed to the Texas Credit Union Department, 914 East Anderson Lane, Austin, Texas 78752-1699. Description of Project: The Texas Council for Developmental TRD-200003425 Disabilities intends to award funds to the Health and Human Services Commission for the Office of Community Transportation to continue Harold E. Feeney its efforts to develop local transportation coordination models. Commissioner
25 TexReg 4920 May 26, 2000 Texas Register Terms and Funds: Funding for this grant will be made available so that you may be eligible for future catalogue opportunities: (http:/ in three one-year grant periods beginning June 1, 2000. The final /www.gsc.state.tx.us/hubbid/bidsrvs.html). grant-year will end May 31, 2003. Estimated funding will not EVALUATION AND SELECTION: The Texas Forest Service exceed $260,000 per year for the three-year duration. The initial intends to evaluate proposals and award to the proposer offering the funding period will begin June 1, 2000 through May 31, 2001. best proposal based on the following criteria: 40% - Qualifications; Continuation funding for years two and three will be contingent 30% - References; 30% - Price. upon satisfactory annual review of performance and submission of approved continuation funding work plans. The Texas Council for DEADLINE: Request for Proposals are due back to the Texas Forest Developmental Disabilities reserves the right to discontinue funding Service Purchasing Office by June 26, 2000. Announcement of the if grant performance criteria are not met or funds are not available selected vendor will be made within twenty days after award. due to changes in grants funding priorities. CONTRACT PERIOD: Contract period will be from time of award For information regarding this announcement, please contact Carl through August 31, 2001, with optional annual renewals. Risinger, Grants Management Director, Texas Council for Develop- CONTACT PERSON: To obtain a complete RFP Package and any mental Disabilities, (512) 424-4084. additional RFP information please contact the following office and TRD-200003408 reference RFP-0-001. Roger A. Webb Jimmy Stephens, Purchasing Manager, Texas Forest Service, Pur- Executive Director chasing Office Phone: 979-458-3300; Fax: 979-458-3304; Email: Texas Council for Developmental Disabilities [email protected] Filed: May 16, 2000 TRD-200003420 ♦♦♦ James B. Hull Texas Forest Service Director and State Forester Texas Forest Service Request for Proposal for an Information Resources Consul- Filed: May 17, 2000 tant Contract for: ERP Strategic Planning and Independent ♦♦♦ Project Management Service. TEXAS FOREST SERVICE, A Member of the Texas A&M General Services Commission University System Guideline Memo The Texas Forest Service is seeking an IR Consultant to coordinate the To: Qualified Information Systems Vendors design and implementation of information management systems that provide useful, accurate and up-to-date agency-related information From: Jamie Spiegel - Program Director to all Texans, using the most efficient, cost-effective, versatile, and Original Date: July 1, 2000 user-friendly methods available. Re: Guideline Statement #Q0001; Catalogue Purchasing Program; The Texas Forest Service (TFS) is issuing a Request for Proposal Eligible Products and Services allowed within QISV program cata- (RFP) with the intent of acquiring information resource consulting logues services to assist in the following; preliminary planning, needs as- sessment and requirements definition for administrative systems and This guideline will be used to determine if a particular automated for systems that support TFS programs, development of an RFP for information system product or service is acceptable for inclusion in a an enterprise resource planning (ERP) system, which will include QISV’s catalogue. The guideline indicates by description and class- requirements for TFS programs functionality and associated imple- item number what is allowed, and give directions on how to petition mentation services, software/implementation services evaluation and the General Services Commission (GSC) for a particular type of item selection, contract negotiations, and independent project management or service to be added to the list, if it is not currently accepted. for the project’s duration. The following guideline has been adopted by the GSC QISV ELIGIBLE VENDOR: Because the selected vendor for this project Catalogue Purchasing Program. Please make note of the guideline will be actively involved in the evaluation and selection process for the number and retain this information for future reference. If you ERP system, it is critical that the vendor be independent and objective have any questions concerning this guideline, please e-mail the QISV in fact and in appearance. Therefore, vendors are not eligible to Catalogue Purchasing group at [email protected]. propose on this engagement if: they are in the business of selling and/ Guideline Statement #Q0001 or implementing ERP software; or they are implementation partners or have alliances with ERP software vendors. Description of Guideline: Eligible products and services allowed within QISV program catalogues Additionally, the vendor engaged to perform the services solicited in this RFP will not be eligible to participate in future procurement Statement: This guideline will be used to determine if an item or opportunities associated with the ERP system project. service is eligible for inclusion in a QISV’s catalogue for purchase or lease by qualified entities as stated in Texas Administrative Code VENDOR QUALIFICATIONS: This RFP is for the purchase/lease 113.19. of an automated information system type product/service. For a vendor to receive an award from this offer, they must be on the Procedure for identifying acceptable/non-acceptable products or ser- General Services Commission (GSC) Centralized Master Bidders vices: List (CMBL) and an approved Qualified Information Systems Vendor (QISV). If your company is not currently an approved QISV, you may download the CMBL and QISV applications at the following address
IN ADDITION May 26, 2000 25 TexReg 4921 Automation Products or Services: If any of the following statements 6. This is a service for the installation, maintenance or upgrade for were determined to be true, then the product/service is considered to any telecommunications hardware items. be a QISV item. 7. This is a consulting service for the installation, design or upgrade 1. The item is a CPU, monitor, mouse, printer, scanner, software of any telecommunications item. package, or alphanumeric. 8. This is an integrated system including non-AIS components, in 2. The item is a required element for the basic functioning of one of which the telecommunications devices/services (meeting #1-7 above) the items listed in #1 (cables, boards/cards, routers, etc.). are greater than 50% of the cost of the entire system 3. The item is used for storage or retrieval of computer data (this Example of items/services that are acceptable for QISV catalogues does not include blank media - i.e. blank floppy disks, blank CD- (this list is not all inclusive): Computers, printers, cellular tele- ROMS, blank data tapes, etc.). phone service, software products/development, scanners, pager ser- vice, Mouse/joysticks/keyboards, modems, internet-based training, 4. This is a service for the installation, maintenance or upgrade of peripheral cables, digital cameras, retrieval systems (jukebox, etc.), any of the components listed in #1-3. modems, boards/cards, and teleprocessing of databases. 5. This is a consulting service for the installation, design or upgrade Example of items/services that are not acceptable within QISV cat- of any items/services listed in #1-3. alogues (this list is not all inclusive): Mouse pads, fax/printer pa- 6. This a service in which a vendor uses a computer or network per, televisions, computer furniture/workstation, labels, VCRs, key- components in order to store, transmit or convert data on behalf of a board drawers, blank CD-ROMs, diskettes, audio equipment, network qualified entity (teleprocessing via proprietary databases, etc.). equipment/cable racks, mobile radios and equipment, tools/cleaning kits, wrist rests, cable ties, and glare screens. 7. This is an integrated system including non-AIS components, driven by a computer, in which the computer and equipment (items/services Procedure for identifying acceptable/non-acceptable products or ser- meeting #1-5 above) are greater than 50% of the cost of the entire vices: Petitions to include certain technology items or services in the system. QISV program may be filed with the General Services Commission. The petition form can be download at www.gsc.state.tx.us/stpurch/ 8. The item is a service involving an Internet subscription directly petition.html, requested by email at [email protected], or by related to automation defined in #1 above (i.e. a website that provides phone at 512-463-8889. information or purchasing transactions for a fee, for a specific period of time). Petitions will only be accepted from state agencies or cooperative purchasing program members. If a vendor wishes to have a product Telecommunications Products or Services: If any of the following or service included on the list, they must have a sponsoring agency/ statements were determined to be true, then the product/service is entity submit the petition stating that they will be purchasing the item/ considered to be a QISV item. service through the QISV program if it is deemed acceptable. 1. The component is used in the transmission of data across a TRD-200003412 telecommunications network (hub, router, and multiplexor). Ann Dillon 2. This is a hardware or software component, or a service used in the General Counsel transmission of voice data (including telephones, telephone systems, General Services Commission pagers, cell phones, pager service or cell phone service). Filed: May 16, 2000 3. This is a service used in the transmission of voice data (local/long ♦♦♦ distance service, cell phone service, pager service or cell phone ser- vice) Petition to Add Products and/or Services to the QISV Eligi- 4. This is a required element for the basic functioning of a ble Items List telecommunications network or network component. 5. This is a required element for the basic functioning of a telephone, telephone system, pager, or cell phone.
25 TexReg 4922 May 26, 2000 Texas Register
During the 76th Texas Legislative Session, the Legislature enacted automated information systems. Chapter 2157, the more specific Senate Bill 1127, relating to the purchase of goods and services by provision, prevails to the extent of conflict. The General Services the state. Among others requirements of the legislation, there is a Commission or other state agency is precluded form purchasing reference to the Department of Information Resources ("DIR") and an automated information system except in compliance with the General Services Commission ("GSC") to establish guidelines on Chapter 2157. what constitutes "automated information systems". This provision The opinion helped to clarify what law controls when the products of the bill provides the statutory definition of "automated information or services involved are defined as "automated information systems." systems" to read as follows in Texas Government Code, §2157.001(1). However, the opinion did not address what is or is not an "automated Language amended by S.B. 1127 is shown in bold. information system". These guidelines do address this issue. §2157.001. Definitions. These guidelines are not administrative rules. The GSC welcomes In this chapter: comments and suggestions on the proposed guidelines and petition published in this issue of the Texas Register to streamline the proposed (1) "Automated information system" includes: process. Please submit your comments to: (A) the computers and computer devices on which an information Jamie L. Spiegel, Programs Director, General Services Commis- system is automated, including computers and computer devices sion Cooperative Services & Catalogue Purchasing Programs, that the commission identifies in guidelines developed by the Central Procurement Services, 1711 San Jacinto Blvd., P.O. Box commission in consultation with the Department of Information 13047, Austin, Texas 78711-3047. Resources and in accordance with Chapter 2054 and rules adopted under that chapter; Phone: 512/463-6367 (B) a service related to the automation of the system, including Fax: 512/463-3503 computer software, or the computers; Email: [email protected] (C) a telecommunications apparatus or devise that serves as a com- The effective date to implement the guidelines is July 7, 2000. ponent of a voice, data, or video communications network for trans- Comments shall be accepted no later than June 26, 2000. mitting, switching, routing, multiplexing, modulating, amplifying, or receiving signals on the network; and TRD-200003411 Ann Dillon (D) for the General Services Commission, as telecommunications provider for the State, the term includes any service provided by General Counsel a telecommunications provider, as that term is defined in the Public General Services Commission Utility Regulatory Act of 1995 (Article 1446c-0, Vernon’s Texas Civil Filed: May 16, 2000 Statutes). ♦♦♦ In creating these guidelines, the guidelines become a part of the GSC Procurement Manual. The manual is the step-by-step process Texas Department of Health state agencies are required to follow in making purchases. The Correction of Error guidelines incorporate some standard Qualified Information System Vendor ("QISV") purchasing procedures and elements from the Texas The Texas Department of Health proposed new 25 TAC, §289.232 Information Resources Management Act, in particular, the Biennial concerning Radiation Control. The rule was published in the April Operating Plan ("BOP"). The guidelines provide key criteria for state 21, 2000, issue of the Texas Register (25 TexReg 3366). agencies on what is an automated information system in order to add On page 3379, column 2, §289.232(i)(6)(J)(i)(III), the third sentence or remove items on a list. State agencies can petition the GSC on should state "...shall be accurate to within ±10% of the indicated such products or services. If the products or services are defined setting(s)." instead of "...shall be accurate to within ¤ 10% of the as automated information systems, then they come under the QISV indicated setting(s)." (Agency error) program governed by Government Code, Chapter 2157. On page 3385, column 1, §289.232(k)(1)(V), this subparagraph was One of the reasons relating to the requirement to develop guidelines published as a subclause instead of as a subparagraph. (Agency error) rests with the decision of Attorney General Opinion DM-496 (1998). The opinion dealt with a statutory conflict between Texas Council TRD-200003476 On Purchasing from People with Disabilities ("Council") mandatory ♦♦♦ purchasing program under Chapter 122, Human Resources Code and chapter 2157 of the Government Code whose procedures govern Correction of Error the purchase of automated information systems by state agencies. The Texas Department of Health adopted final rules for 25 TAC The Council decided to place computers provided by a community Chapter 157, Emergency Medical Care. The rules were published rehabilitation program on mandatory set aside for purchase by state in the April 28, 2000, issue of the Texas Register (25 TexReg 3749). agencies in accordance with its authority under Chapter 122. Since computers are "automated information systems" under Chapter 2157, On page 3769, column 2, §157.16(e)(4) should state "having a history the GSC needed guidance on what law to follow given it is required of criminal activity or disciplinary action while licensed, certified, or to follow both statutes. permitted as an EMS provider in another state;" instead of "EMS provider in another state;" (Agency Program Error). The language On December 21, 1998, the Attorney General answered the question was proposed in the in the October 29, 1999, issue of the Texas as follows: Register (24 TexReg 9550). Human Resources Code, Chapter 122 and Government Code, On page 3811 (Tables and Graphics Section of the Texas Register), Chapter 2157 conflict with respect to state agency purchases of §157.125(s), graphics, in A2b, the second and third sentences should
25 TexReg 4924 May 26, 2000 Texas Register state, "There shall be a defined job description and organizational publish notice of its designations in the Texas Register and to provide chart delineating the Trauma Nurse Coordinator’s/Trauma Program an opportunity for public comment on the designations. Manager’s role and responsibilities. This should be a full-time Accordingly, the department has designated the following as a site position in "lead" trauma facilities." instead of "There shall be serving medically underserved populations: Federal Correctional a defined job description and organizational chart delineating the Complex/UTMB Managed Care, located at 4550 Herbert Road, Trauma Nurse Coordinator’s role and responsibilities. This should Beaumont, Texas, 77720. Designation is based on proven eligibility be a full-time position in Alead@ trauma facilities." as a site serving a disproportionate number of clients eligible for On page 3827 and 3828, §157.125(t), graphics, in "3. Nursing federal, state, or locally funded health care programs. Services, a." should state "An identified Trauma Nurse Coordinator/ Oral and written comments on this designation may be directed to Trauma Program Manager, who is a registered nurse, with overall Bruce Gunn, Ph.D., Director, Health Professions Resource Center, management responsibility for the trauma program. There should Office of Policy and Planning, Texas Department of Health, 1100 be a defined job description and organizational chart delineating West 49th Street, Austin, Texas, 78756, Telephone (512) 458-7261. the Trauma Nurse Coordinator’s/Trauma Program Manager’s role Comments will be accepted for 30 days from the publication date of and responsibilities. The functions of trauma coordination may be this notice. delegated to other positions within the organization." instead of "An identified Trauma Nurse Coordinator/Trauma Program Manager, who TRD-200003415 is a registered nurse, with overall management responsibility for the Susan K. Steeg trauma program . There should be a defined job description and General Counsel organizational chart delineating the Trauma Nurse Coordinator’s role Texas Department of Health and responsibilities. The functions of trauma coordination may be Filed: May 17, 2000 delegated to other positions within the organization." ♦♦♦ TRD-200003477 ♦♦♦ Licensing Action for Radioactive Materials The Texas Department of Health has taken actions regarding Licenses Designation of Federal Correctional Complex/UTMB for the possession and use of radioactive materials as listed in the Managed Care as a Site Serving Medically Underserved Pop- tables. The subheading "Location" indicates the city in which the ulations radioactive material may be possessed and/or used. The location The Texas Department of Health (department) is required under listing "Throughout Texas" indicates that the radioactive material may the Occupations Code §157.052 to designate sites serving medically be used on a temporary basis at job sites throughout the state. underserved populations. In addition, the department is required to
IN ADDITION May 26, 2000 25 TexReg 4925
safety of the public or the environment; and the applicants satisfy The consultant will work with the department project team, oversight any applicable requirements of 25 TAC Chapter 289. committee(s) and work group(s), as necessary, and produce the required products. This notice affords the opportunity for a hearing on written request of a licensee, applicant, or "person affected" within 30 days of the The department initiates this RFP to facilitate in the most cost ef- date of publication of this notice. A "person affected" is defined fective manner possible, the development of strategies and associated as a person who is a resident of a county, or a county adjacent work plans to contract for independent consulting services for the to the county, in which the radioactive materials are or will be Texas Medicaid program. The study is required for submitting a re- located, including any person who is doing business or who has port to the governor, lieutenant governor, and speaker of the house a legal interest in land in the county or adjacent county, and any of representatives. local government in the county; and who can demonstrate that he Brief Description of Services has suffered or will suffer actual injury or economic damage. A licensee, applicant, or "person affected" may request a hearing by The County Indigent Health Care Program (CIHCP) was mandated writing Richard A. Ratliff, P.E., Chief, Bureau of Radiation Control by state legislation in 1985 and was implemented September 1, 1986. (Director, Radiation Control Program), Texas Department of Health, The Texas Department of Human Services was legally mandated to 1100 West 49th Street, Austin, Texas 78756-3189. For information establish minimal rules for CIHCP. On September 1, 1993, CIHCP call (512) 834-6688. was transferred to the department. Section 61 of the Health and Safety TRD-200003374 Code mandates that department must establish CIHCP rules based on the Temporary Assistance to Needy Families (TANF) program. Susan K. Steeg House Bill 1398, passed in 1999, made the first major changes to the General Counsel program. Texas Department of Health Filed: May 15, 2000 Proposers are invited to submit proposals in accordance with the requirements outlined in this document. The consultant will also ♦♦♦ be required to address all project requirements in this RFP. The Notice of Request for Proposals for Independent Consultant consultant must provide progress reports and preliminary reports prior to submission of any final reports. The successful proposer will be to Perform a Study of the Provision of Basic Health Care required to complete the different projects and submit final reports to Services by Texas Counties, Hospital Districts, and Public the department no later than the dates specified for each particular task Hospitals, and the Cost of Providing Those Services and/or phase, and may be required to participate in discussions before Pursuant to Chapter 2254, Subchapter A, Texas Government Code, representatives of the Texas Legislature and/or the Texas Health and the Texas Department of Health (department) announces the issuance Human Services Commission officials during the contract period. of its Request For Proposals (RFP) from qualified independent Eligible Applicants consultants to study the provision of basic health care services by counties, hospital districts, and public hospitals under Chapter 61, Eligible applicants include qualified independent consultants. Pro- Health and Safety Code, and the cost of providing those services. posers must disclose any existing or potential conflicts of interest The RFP will be released on or about May 26, 2000. relative to the performance of the requirements of the RFP. Examples of potential conflicts of interest may include an existing business or Purpose personal relationship between the proposer, its principal(s), or any af- The department seeks to procure the services of a qualified indepen- filiate or subcontractor, with the department, other participating state dent consultant to complete three studies relating to basic health care agencies, county officials, or any other entity or person involved in services for non-Medicaid indigent residents of the state’s 254 coun- any way in any project that is subject to this RFP. Any such rela- ties. The first study will include the provision of basic health care tionship that might be perceived or represented as a conflict must be services under Chapter 61, Health and Safety Code, and the cost of disclosed. Failure to disclose any such relationship may be cause for providing those services by the 138 counties with County Indigent contract termination or disqualification of the proposal. programs, approximately 135 hospital districts and 33 public hospi- Prospective Proposer’s Conference tals. A proposer’s conference is scheduled for Monday, June 5, 2000, The second study will include the threshold for eligibility for state at 10:00 a.m., in Austin Texas in the Second Floor Palo Duro assistance to a county established under §61.037, Health and Safety Canyon Conference Room at the department’s office located at 12555 Code. The study will need to include a threshold to replace that Riata Vista Circle, Building III. Attendees are requested to allow threshold that is stated as a formula and that reflects a county’s fiscal enough time for entry through Building II, Riata Security. For capacity, health care resources, and the relevant characteristics of the maps and directions, please reference the following web site: http:// county’s residents, including the percentage of the county’s residents www.tdh.state.tx.us/visitor.htm#hcf. living below the federal poverty level. Closing Date The third will be a study of the financing of basic health care services by counties, hospital districts, and public hospitals under Chapter 61, Each potential proposer is required to submit a non-binding Letter Health and Safety Code. Financing will include the use of local, state of Intent To Propose (Letter of Intent), which must be received in and federal funds and the funds distributed to political subdivisions the issuing office no later than 4:00 p.m., June 12, 2000. The Letter under the Agreement Regarding Disposition of Settlement Proceeds of Intent must state that the proposer is considering submitting a filed on July 24, 1998, in the United States District Court, Eastern proposal. Only the proposals of those proposers who submit a Letter District of Texas, in the case styled, " The state of Texas vs. The of Intent will be considered. The Letter of Intent must identify the American Tobacco Company, et al., No. 5-96CV-91". entity that may submit a proposal in response to the RFP, and must be signed by an official of that entity. Proposals must be submitted by
25 TexReg 4928 May 26, 2000 Texas Register the following date and time: June 30, 2000, 4:00 p.m. Late proposals Hooks–$250,000, Houston County–$250,000, Huxley–$250,000, will not be considered. Irion County–$174,999, Jacksonville–$250,000, Jefferson–$250,000, Jefferson County–$245,995, Joaquin–$250,000, Johnson City– For a Copy of the RFP $250,000, Jourdanton–$250,000, Kermit–$350,000, Kingsville– Potential proposers may obtain a copy of the RFP on or about May $300,000, Kinney County–$113,611, Kleberg County–$300,000, 26, 2000. Requests for the RFP must be submitted in writing to: La Grulla–$662,343, Laguna Vista–$315,240, Lamar County– Rodger Love, Mail Code Y-927, Texas Department of Health, 1100 $152,229, Lamesa–$210,000, League City–$99,982, Leakey– West 49th Street, Austin, Texas 78756; Fax: (512) 794-5148. A copy $105,804, Liberty County–$350,000, Llano County–$250,000, of the RFP will also be available to download at the following web Lockney–$250,000, Los Indios–$315,240, Lufkin–$250,000, Luling– site: http://www.tdh.state.tx.us/hcf/rfp/phs-rfp.htm. $250,000, Lyford–$315,240, Lytle–$250,000, Magnolia–$350,000, Malakoff–$218,000, Marble Falls–$250,000, Marion–$250,000, Contact Person Mathis–$300,000, Medina County–$250,000, Melvin–$149,999, Questions regarding this RFP must be directed to: Rodger Love, Mail Mexia–$250,000, Moody–$250,000, Moulton–$250,000, Muleshoe– Code Y-927, Texas Department of Health, 1100 West 49th Street, $246,935, Nacogdoches–$250,000, Navasota–$250,000, New Austin, Texas 78756; Telephone: (512) 338-6505, Fax: (512) 794- Boston–$247,500, Newark–$250,000, Newcastle–$150,000, Nixon– 5148. $250,000, Nocona–$150,000, Nolanville–$250,000, Nome–$250,000, TRD-200003375 Nordheim–$250,000, Normangee–$250,000, O’Donnell–$250,000, Odem–$300,000, Oglesby–$250,000, Orange County–$250,000, Susan K. Steeg Ore City–$250,000, Paducah–$150,000, Palmer–$250,000, Pi- General Counsel lot Point–$250,000, Port Isabel–$315,240, Poteet–$250,000, Texas Department of Health Presidio–$594,408, Quanah–$95,834, Raymondville–$315,240, Filed: May 15, 2000 Red Oak–$250,000, Redwater–$209,400, Reklaw–$250,000, ♦♦♦ Rhome–$250,000, Richland Springs–$168,455, Rio Grande City– $662,343, Rio Hondo–$315,240, Rio Vista–$249,800, Robert Texas Department of Housing and Community Lee–$174,999, Roby–$250,000, Roma–$662,343, Roscoe $250,000, Rose City–$198,540, Rosebud–$248,250, Rule–$250,000, Sabine Affairs County–$250,000, Santa Anna–$250,000, Santa Rosa–$315,240, Notice of 2000 Texas Community Development Program Sealy–$350,000, Shelby County–$250,000, Smith County–$250,000, Grant Awards Smithville–$250,000, Spearman–$250,000, Spofford–$119,742, Springlake–$120,856, Springtown–$250,000, Stanton–$350,000, The Texas Department of Housing and Community Affairs announces Sterling City–$149,990, Stratford–$249,525, Strawn–$250,000, that the units of general local government listed as follows have been Taft–$242,235, Talco–$225,900, Terrell–$250,000, Three Rivers– selected as contract recipients for 2000 program year Community $300,000, Tom Bean–$146,036, Trinidad–$250,000, Tyler County– Development Funds under the Texas Community Development Pro- $250,000, Uvalde County–$304,722, Val Verde County–$437,300, gram established pursuant to Texas Government Code, Chapter 2306, Vega–$250,000, Vernon–$150,000, Vidor–$249,890, Walker County– §2306.096. $350,000, Walnut Springs–$250,000, Waxahachie–$250,000, Webb A contract is not effective until executed by the unit of general local County–$662,343, West Orange–$250,000, Whitesboro–$250,000, government and the Executive Director of the Texas Department of Whitewright–$250,000, Willacy County–$315,240, Willis–$350,000, Housing and Community Affairs. Wood County–$250,000, Yorktown–$218,874. Abernathy–$250,000, Albany–$217,600, Alice–$295,000, Alto– TRD-200003310 $250,000, Amherst–$202,000, Anderson County–$250,000, Daisy Stiner Anna–$250000, Anthony–$297,204, Aransas Pass–$300,000, Executive Director Asherton–$140,000, Bangs–$250,000, Bardwell–$249,993, Texas Department of Housing and Community Affairs Big Spring–$350,000, Blossom $250,000, Bogata–$235,000, Filed: May 10, 2000 Boyd–$250,000, Brewster County–$297,000, Bronte–$174,999, ♦♦♦ Brookshire–$350,000, Buffalo–$217,700, Burkburnett–$150,000, Camp Wood–$105,804, Campbell–$250,000, Celina–$151,048, Notice of 2000 Texas Community Development Program Centerville–$250,000, Christine–$250,000, Clarendon–$248,034, Grant Awards Claude–$250,000, Colorado City–$250,000, Colorado County– $350,000, Comanche–$250,000, Commerce–$250,000, Cotulla– The Texas Department of Housing and Community Affairs announces $237,830, Covington–$250,000, Crane–$350,000, Crowell– that the units of general local government listed as follows have been $150,000, Culberson County–$298,200, Del Rio–$472,041, Dell selected as contract recipients for 2000 program year Planning and City–$297,204, Denver City–$250,000, Deport–$250,000, Devine– Capacity Building Funds under the Texas Community Development $250,000, Diboll–$250,000, Dickinson–$218,000, Dodd City Program established pursuant to Texas Government Code, Chapter $250,000 Eagle Pass–$800,000, East Tawakoni–$250,000, Ector 2306, §2306.096. County–$350,000, El Paso County–$295,000, Fayetteville–$226,732, A contract is not effective until executed by the unit of general local Flatonia–$250,000, Ganado–$250,000, Garrison–$250,000, government and the Executive Director of the Texas Department of Gladewater–$202,268, Glen Rose–$250,000, Glenn Heights– Housing and Community Affairs. $250,000, Goldthwaite–$250,000, Gonzales–$250,000, Granite Shoals–$250,000, Gregory–$300,000, Hale Center–$250,000, Harker Anna–$23,800, Bandera–$12,650, Commerce–$32,300, Driscoll– Heights–$250,000, Hays County–$250,000, Hearne–$241,233, $23,800, Fairfield–$30,400, Haskell–$12,600, Holiday Lakes– Hedley–$247,695, Henderson County–$250,000, Henrietta– $29,350, Howe–$36,400, Idalou–$42,400, Joaquin–$22,545, $150,000, Hico–$250,000, Hitchcock–$350,000, Hondo–$250,000, Jonestown–$23,800, Josephine–$23,800, La Vernia–$17,800,
IN ADDITION May 26, 2000 25 TexReg 4929 Little Elm–$29,050, Los Indios–$32,750, Lyford–$30,900, Staff’s petition seeks amendments to the Homeowners and Dwelling Morgan–$17,800, New Deal–$25,300, O’Donnell–$31,050, Oak Sections of the Texas Personal Lines Manual (Manual) relating to Ridge–$19,200, Palmer–$36,400, Ponder–$17,800, Ranger–$20,300, Homeowners and Dwelling policies. Staff’s petition (Reference Roaring Springs–$19,200, San Saba–$36,200, Thrall–$25,300, Number P-0500-12-I), was filed on May 17, 2000. Weimar–$38,400, Wilson–$25,300, Woodsboro–$29,250 Staff proposes adoption of amendments to the Manual rules, which TRD-200003311 would provide a second category for an optional credit on Homeown- Daisy Stiner ers and Dwelling policies for stovetop fire suppression devices. The Executive Director proposed amendments: (1) make Category 1 devices eligible for the Texas Department of Housing and Community Service current stovetop fire suppression credits; (2) provide the amount of Filed: May 10, 2000 credits for Category 2 devices; and (3) require that the suppression device or devices have been approved by the State Fire Marshal in ♦♦♦ accordance with 28 TAC §§34.1001 - 34.1004. Notice of 2000 Texas Community Development Program Amendments to §34.1004 are being proposed concurrently with this Grant Awards amendment concerning stovetop fire suppression device approval and are published in a separate rule in this issue of the Texas Register. The Texas Department of Housing and Community Affairs announces The amendments to §34.1004 are necessary to set forth the criteria that the units of general local government listed as follows have that will allow insurers to offer a second category of credits for a been selected as contract recipients for 2000 program year Housing correctly installed residential stovetop fire suppression device and to Rehabilitation Funds under the Texas Community Development add requirements for all categories of devices. Program established pursuant to Texas Government Code, Chapter 2306, §2306.096. A copy of the petition, including exhibits with the full text of the proposed amendments to the Manual, is available for review in the A contract is not effective until executed by the unit of general local office of the Chief Clerk of the Texas Department of Insurance, 333 government and the Executive Director of the Texas Department of Guadalupe Street, Austin, Texas. For further information or to request Housing and Community Affairs. copies of the petition, please contact Angie Arizpe at (512) 463-6326; Browndell–$250,000, Crane County–$250,000, Lampasas County– refer to (Reference Number P-0500-12-I). $250,000, Mills County–$250,000, Rains County–$250,000 Comments on the proposed changes must be submitted in writing If you have any questions or need additional information, please within 30 days after publication of the proposal in the Texas Register, contact Jeff Vistein at (512) 475-3855. to the Office of the Chief Clerk, Texas Department of Insurance, P.O. Box 149104, MC 113-2A, Austin, Texas, 78714-9104. An TRD-200003312 additional copy of the comments is to be submitted to Marilyn Daisy Stiner Hamilton, Deputy Commissioner, Personal and Commercial Lines Executive Director Division, Texas Department of Insurance, P.O. Box 149104, MC 104- Texas Department of Housing and Community Affairs PC, Austin, Texas, 78714-9104. Filed: May 10, 2000 This notification is made pursuant to the Insurance Code, Article ♦♦♦ 5.96, which exempts it from the requirements of the Government Code, Chapter 2001 (Administrative Procedure Act). Texas Department of Insurance TRD-200003427 Insurer Services Bernice Ross The following application has been filed with the Texas Department Deputy Chief Clerk of Insurance and is under consideration: Texas Department of Insurance Filed: May 17, 2000 Application to change the name of BRADFORD NATIONAL LIFE INSURANCE COMPANY to ULLICO LIFE INSURANCE COM- ♦♦♦ PANY, a domestic life company. The home office is in Austin, Texas. Third Party Administrator Applications Any objections must be filed with the Texas Department of Insurance, addressed to the attention of Godwin Ohaechesi, 333 Guadalupe The following third party administrator (TPA) applications have Street, M/C 305-2C, Austin, Texas, 78701. been filed with the Texas Department of Insurance and are under consideration. TRD-200003419 Bernice Ross Application for admission to Texas of Rewards Plus of America Deputy Chief Clerk Insurance Agency, Inc., a foreign third party administrator. The home office is Baltimore, Maryland. Texas Department of Insurance Filed: May 17, 2000 Application for admission to Texas of Insurance Answer Center, Inc., ♦♦♦ a foreign third party administrator. The home office is Wilmington, Delaware. Notice of Public Hearing Application for incorporation in Texas of webTPA.com Employer The Commissioner of Insurance, at a public hearing under Docket Services, L.L.C., a domestic third party administrator. The home Number 2448 on June 28, 2000 at 10:00 a.m., in Room 100 of the office is Grand Prairie, Texas. William P. Hobby Jr. State Office Building, 333 Guadalupe Street in Austin, Texas, will consider a proposal made in a staff petition.
25 TexReg 4930 May 26, 2000 Texas Register Any objections must be filed within 20 days after this notice was filed A. Display Printing–That area of the instant game ticket outside of with the Secretary of State, addressed to the attention of Charles M. the area where the Overprint and Play Symbols appear. Waits, MC 107-5A, 333 Guadalupe, Austin, Texas 78714-9104. B. Latex Overprint–The removable scratch-off covering over the Play TRD-200003407 Symbols on the front of the ticket. Bernice Ross C. Play Symbol–One of the symbols which appears under the Latex Deputy Chief Clerk Overprint on the front of the ticket. Each Play Symbol is printed Texas Department of Insurance in Symbol font in black ink in positive. The possible play symbols Filed: May 16, 2000 are: 2, 3, 4, 5, 6, 7, 8, 9, $1.00, $2.00, $3.00, $9.00, $19.00, $49.00, ♦♦♦ $99.00, $199, $900. D. Play Symbol Caption–the small printed material appearing below Texas Lottery Commission each Play Symbol which explains the Play Symbol. One and only Instant Game Number 185–"9’s in a Line" one of these Play Symbol Captions appears under each Play Symbol and each is printed in caption font in black ink in positive. The 1.0 Name and Style of Game. Play Symbol Caption which corresponds with and verifies each Play A. The name of Instant Game Number 185 is "9’S IN A LINE". The Symbol is as follows: play style of the game is a "row/column/diagonal" play style. Table 1 of this section 1.1 Price of Instant Ticket. Figure 1:16 TAC GAME NO. 185 - 1.2D A. Tickets for Instant Game Number 185 shall be $1.00 per ticket. 1.2 Definitions in Instant Game Number 185.
IN ADDITION May 26, 2000 25 TexReg 4931
12. The Play Symbols, Serial Number, Retailer Validation Code and the Texas Lottery. If the claim is validated by the Texas Lottery, a Pack-Ticket Number must be right side up and not reversed in any check shall be forwarded to the claimant in the amount due. In the manner; event the claim is not validated, the claim shall be denied and the claimant shall be notified promptly. A claimant may also claim any 13. The ticket must be complete and not miscut, and have exactly of the above prizes under the procedure described in Section 2.3.B 10 Play Symbols under the latex overprint on the front portion of and 2.3.C of these Game Procedures. the ticket, exactly one Serial Number, exactly one Retailer Validation Code, and exactly one Pack-Ticket Number on the ticket; B. To claim a "9’S IN A LINE" Instant Game prize the claimant must sign the winning ticket and present it at one of the Texas Lottery’s 14. The Serial Number of an apparent winning ticket shall correspond Claim Centers. If the claim is validated by the Texas Lottery, payment with the Texas Lottery’s Serial Numbers for winning tickets, and a will be made to the bearer of the validated winning ticket for that prize ticket with that Serial Number shall not have been paid previously; upon presentation of proper identification. When paying a prize of 15. The ticket must not be blank or partially blank, misregistered, $600 or more, the Texas Lottery shall file the appropriate income defective or printed or produced in error; reporting form with the Internal Revenue Service (IRS) and shall withhold federal income tax at a rate set by the IRS if required. In 16. Each of the 10 Play Symbols must be exactly one of those the event that the claim is not validated by the Texas Lottery, the described in Section 1.2.C of these Game Procedures. claim shall be denied and the claimant shall be notified promptly. 17. Each of the 10 Play Symbols on the ticket must be printed in the C. As an alternative method of claiming a "9’S IN A LINE" Instant Symbol font and must correspond precisely to the artwork on file at Game prize, the claimant must sign the winning ticket, thoroughly the Texas Lottery; the ticket Serial Numbers must be printed in the complete a claim form, and mail both to: Texas Lottery Commis- Serial font and must correspond precisely to the artwork on file at sion, Post Office Box 16600, Austin, Texas, 78761-6600. The risk the Texas Lottery; and the Pack-Ticket Number must be printed in of sending a ticket remains with the claimant. In the event that the the Pack-Ticket Number font and must correspond precisely to the claim is not validated by the Texas Lottery, the claim shall be denied artwork on file at the Texas Lottery; and the claimant shall be notified promptly. 18. The display printing on the ticket must be regular in every respect D. Prior to payment by the Texas Lottery of any prize, the Texas and correspond precisely to the artwork on file at the Texas Lottery; Lottery shall deduct a sufficient amount from the winnings of a person and who has been finally determined to be: 19. The ticket must have been received by the Texas Lottery by 1. delinquent in the payment of a tax or other money collected by the applicable deadlines. Comptroller, the Texas Workforce Commission, or Texas Alcoholic B. The ticket must pass all additional validation tests provided for Beverage Commission; in these Game Procedures, the Texas Lottery’s Rules governing the 2. delinquent in making child support payments administered or award of prizes of the amount to be validated, and any confidential collected by the Attorney General; or validation and security tests of the Texas Lottery. 3. delinquent in reimbursing the Texas Department of Human C. Any Instant Game ticket not passing all of the validation Services for a benefit granted in error under the food stamp program requirements is void and ineligible for any prize and shall not be or the program of financial assistance under Chapter 31, Human paid. However, the Executive Director may, solely at the Executive Resource Code; Director’s discretion, refund the retail sales price of the ticket. In the event a defective ticket is purchased, the only responsibility or 4. in default on a loan made under Chapter 52, Education Code; or liability of the Texas Lottery shall be to replace the defective ticket 5. in default on a loan guaranteed under Chapter 57, Education Code with another unplayed ticket in that Instant Game (or a ticket of equivalent sales price from any other current Instant Lottery game) F. If a person is indebted or owes delinquent taxes to the State, other or refund the retail sales price of the ticket, solely at the Executive than those specified in the preceding paragraph, the winnings of a Director’s discretion. person shall be withheld until the debt or taxes are paid. 2.2 Programmed Game Parameters. 2.4 Allowance for Delay of Payment. A. Consecutive non-winning tickets will not have identical play data, The Texas Lottery may delay payment of the prize pending a final spot for spot. determination by the Executive Director, under any of the following circumstances: B. A ticket will not contain three or more of a kind of a symbol other than the 9 symbol. A. if a dispute occurs, or it appears likely that a dispute may occur, regarding the prize; 2.3 Procedure for Claiming Prizes. B. if there is any question regarding the identity of the claimant; A. To claim a "9’S IN A LINE" Instant Game prize of $1.00, $2.00, $3.00, $9.00, $19.00, $49.00, $99.00 or $199 a claimant shall sign C. if there is any question regarding the validity of the ticket presented the back of the ticket in the space designated on the ticket and present for payment; or the winning ticket to any Texas Lottery Retailer. The Texas Lottery D. if the claim is subject to any deduction from the payment otherwise Retailer shall verify the claim and, if valid, and upon presentation of due, as described in Section 2.3.D of these Game Procedures. No proper identification, make payment of the amount due the claimant liability for interest for any delay shall accrue to the benefit of the and physically void the ticket; provided that the Texas Lottery Retailer claimant pending payment of the claim. may, but is not, in some cases, required to pay a $49.00, $99.00 or $199 ticket. In the event the Texas Lottery Retailer cannot verify 2.5 Payment of Prizes to Persons Under 18. the claim, the Texas Lottery Retailer shall provide the claimant with a claim form and instruct the claimant on how to file a claim with
25 TexReg 4934 May 26, 2000 Texas Register
1.1 Price of Instant Ticket. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, $1.00, $2.00, $5.00, $10.00, $100 or $2,000. A. Tickets for Instant Game Number 188 shall be $1.00 per ticket. D. Play Symbol Caption–the small printed material appearing below 1.2 Definitions in Instant Game Number 188. each Play Symbol which explains the Play Symbol. One and only A. Display Printing–That area of the instant game ticket outside of one of these Play Symbol Captions appears under each Play Symbol the area where the Overprint and Play Symbols appear. and each is printed in caption font in black ink in positive. The Play Symbol Caption which corresponds with and verifies each Play B. Latex Overprint–The removable scratch-off covering over the Play Symbol is as follows: Symbols on the front of the ticket. Table 1 of this section C. Play Symbol–One of the symbols which appears under the Latex Overprint on the front of the ticket. Each Play Symbol is printed in Figure 1:16 TAC GAME NO. 188 - 1.2D Symbol font in black ink in positive. The possible play symbols are:
25 TexReg 4936 May 26, 2000 Texas Register
5. The ticket shall be intact; B. There will be no duplicate non-winning prize symbols on a ticket. 6. The Serial Number, Retailer Validation Code and Pack-Ticket C. There will be no duplicate non-winning Rolls on a ticket (in any Number must be present in their entirety and be fully legible; order). 7. The Serial Number must correspond, using the Texas Lottery’s 2.3 Procedure for Claiming Prizes. codes, to the Play Symbols on the ticket; A. To claim an "ON A ROLL" Instant Game prize of $1.00, $2.00, 8. The ticket must not have a hole punched through it, be mutilated, $4.00, $6.00, $10.00, $15.00, $20.00, $30.00, $100 or $300 a altered, unreadable, reconstituted or tampered with in any manner; claimant shall sign the back of the ticket in the space designated on the ticket and present the winning ticket to any Texas Lottery 9. The ticket must not be counterfeit in whole or in part; Retailer. The Texas Lottery Retailer shall verify the claim and, if 10. The ticket must have been issued by the Texas Lottery in an valid, and upon presentation of proper identification, make payment of authorized manner; the amount due the claimant and physically void the ticket; provided that the Texas Lottery Retailer may, but is not, in some cases, required 11. The ticket must not have been stolen, nor appear on any list of to pay a $30.00, $100 or $300 ticket. In the event the Texas Lottery omitted tickets or non-activated tickets on file at the Texas Lottery; Retailer cannot verify the claim, the Texas Lottery Retailer shall 12. The Play Symbols, Serial Number, Retailer Validation Code and provide the claimant with a claim form and instruct the claimant on Pack-Ticket Number must be right side up and not reversed in any how to file a claim with the Texas Lottery. If the claim is validated by manner; the Texas Lottery, a check shall be forwarded to the claimant in the amount due. In the event the claim is not validated, the claim shall be 13. The ticket must be complete and not miscut, and have exactly denied and the claimant shall be notified promptly. A claimant may 10 Play Symbols under the latex overprint on the front portion of also claim any of the above prizes under the procedure described in the ticket, exactly one Serial Number, exactly one Retailer Validation Section 2.3.B and 2.3.C of these Game Procedures. Code, and exactly one Pack-Ticket Number on the ticket; B. To claim an "ON A ROLL" Instant Game prize the claimant must 14. The Serial Number of an apparent winning ticket shall correspond sign the winning ticket and present it at one of the Texas Lottery’s with the Texas Lottery’s Serial Numbers for winning tickets, and a Claim Centers. If the claim is validated by the Texas Lottery, payment ticket with that Serial Number shall not have been paid previously; will be made to the bearer of the validated winning ticket for that prize 15. The ticket must not be blank or partially blank, misregistered, upon presentation of proper identification. When paying a prize of defective or printed or produced in error; $600 or more, the Texas Lottery shall file the appropriate income reporting form with the Internal Revenue Service (IRS) and shall 16. Each of the 10 Play Symbols must be exactly one of those withhold federal income tax at a rate set by the IRS if required. In described in Section 1.2.C of these Game Procedures. the event that the claim is not validated by the Texas Lottery, the 17. Each of the 10 Play Symbols on the ticket must be printed in the claim shall be denied and the claimant shall be notified promptly. Symbol font and must correspond precisely to the artwork on file at C. As an alternative method of claiming an "ON A ROLL" Instant the Texas Lottery; the ticket Serial Numbers must be printed in the Game prize, the claimant must sign the winning ticket, thoroughly Serial font and must correspond precisely to the artwork on file at complete a claim form, and mail both to: Texas Lottery Commission, the Texas Lottery; and the Pack-Ticket Number must be printed in Post Office Box 16600, Austin, Texas 78761-6600. The risk of the Pack-Ticket Number font and must correspond precisely to the sending a ticket remains with the claimant. In the event that the artwork on file at the Texas Lottery; claim is not validated by the Texas Lottery, the claim shall be denied 18. The display printing on the ticket must be regular in every respect and the claimant shall be notified promptly. and correspond precisely to the artwork on file at the Texas Lottery; D. Prior to payment by the Texas Lottery of any prize, the Texas and Lottery shall deduct a sufficient amount from the winnings of a person 19. The ticket must have been received by the Texas Lottery by who has been finally determined to be: applicable deadlines. 1. delinquent in the payment of a tax or other money collected by the B. The ticket must pass all additional validation tests provided for Comptroller, the Texas Workforce Commission, or Texas Alcoholic in these Game Procedures, the Texas Lottery’s Rules governing the Beverage Commission; award of prizes of the amount to be validated, and any confidential 2. delinquent in making child support payments administered or validation and security tests of the Texas Lottery. collected by the Attorney General; or C. Any Instant Game ticket not passing all of the validation 3. delinquent in reimbursing the Texas Department of Human requirements is void and ineligible for any prize and shall not be Services for a benefit granted in error under the food stamp program paid. However, the Executive Director may, solely at the Executive or the program of financial assistance under Chapter 31, Human Director’s discretion, refund the retail sales price of the ticket. In Resource Code; the event a defective ticket is purchased, the only responsibility or liability of the Texas Lottery shall be to replace the defective ticket 4. in default on a loan made under Chapter 52, Education Code; or with another unplayed ticket in that Instant Game (or a ticket of 5. in default on a loan guaranteed under Chapter 57, Education Code equivalent sales price from any other current Instant Lottery game) or refund the retail sales price of the ticket, solely at the Executive F. If a person is indebted or owes delinquent taxes to the State, other Director’s discretion. than those specified in the preceding paragraph, the winnings of a person shall be withheld until the debt or taxes are paid. 2.2 Programmed Game Parameters. 2.4 Allowance for Delay of Payment. A. Consecutive non-winning tickets will not have identical play data, spot for spot.
IN ADDITION May 26, 2000 25 TexReg 4939
Smith, Somervell, Titus, Travis, Trinity, Tyler, Upshur, Van Zandt, XVI, Section 59, Texas Constitution, and Chapter 65 of the Texas Victoria, Walker, Washington, Wharton, Williamson, Wilson, Wise, Water Code, as amended. The District shall have the purposes and and Wood." The commission will interpret and apply this rule as if the powers provided in Chapter 65 of the Texas Water Code and CCN published version did not contain the word "Judge." The commission No. 12406 shall be transferred as provided in Chapter 13, of the will correct this error through the rule amendment process. Texas Water Code, as amended. The nature of the services presently TRD-200003475 performed by Southwest Fannin County Water Supply Corporation is to purchase, own, hold, lease and otherwise acquire sources of water ♦♦♦ supply; to build, operate and maintain facilities for the transporta- tion of water; and to sell water to individual members, towns, cities, Invitation to Comment - Notice of Availability of the Draft private businesses, and other political subdivisions of the State. The April 2000 Update to the Water Quality Management Plan nature of the services proposed to be provided by Southwest Fan- for the State of Texas nin County Special Utility District is to purchase, own, hold, lease, The Water Quality Management Plan (WQMP) is developed and and otherwise acquire sources of water supply; to build, operate, and promulgated pursuant to the requirements of the Federal Clean Water maintain facilities for the storage, treatment, and transportation of Act (CWA), §208. The Draft April 2000 WQMP Update includes water; and to sell water to individuals, towns, cities, private business projected effluent limits of indicated domestic dischargers useful for entities and other political subdivisions of the State. Additionally, water quality management planning in future permit actions. Once it is proposed that the District will protect, preserve and restore the the TNRCC certifies a WQMP update, the update is submitted to the purity and sanitary condition of the water within the District. It is United States Environmental Protection Agency (EPA) for approval. anticipated that conversion will have no adverse effects on the rates For some Texas Pollutant Discharge Elimination System (TPDES) and services provided to the customers. The proposed District is permits, EPA’s approval of a corresponding WQMP update is a located within Fannin and Grayson Counties, Texas, with a total ap- necessary precondition to TPDES permit issuance by the TNRCC. proximate acreage of 106,502 acres. The proposed District is located within portions of the extra-territorial jurisdiction of the cities of Ec- A copy of the Draft April 2000 Update may be viewed on the tor, Whitewright, Bells, Trenton, Savoy and Bonham. The territory TNRCC’s web page at http://www.tnrcc.state.tx.us/water/quality/ to be included within the proposed District includes all of the singly wqmp, and at the TNRCC Central Office at 12015 North Interstate certified service area covered by CCN No. 12406. CCN No. 12406 35, Building A, Library. will be transferred after a positive confirmation election. Comments on the Draft April 2000 Update to the Water Quality The TNRCC may grant a contested case hearing on this petition if Management Plan shall be provided in written form and sent to a written hearing request is filed within 30 days after the newspaper Suzanne Vargas, Texas Natural Resource Conservation Commission, publication of this notice. The Executive Director may approve the Water Permits and Resource Management Division, MC 150, P.O. petition unless a written request for a contested case hearing is filed Box 13087, Austin, Texas 78711-3087, (512) 239-4619. Comments within 30 days after the newspaper publication of this notice. To may be faxed to (512) 239-4420, but must be followed up with request a contested case hearing, you must submit the following: (1) the submission and receipt of the written comments within three your name (or for a group or association, an official representative), working days of when they were faxed. Written comments must mailing address, daytime phone number, and fax number, if any; (2) be received by 5:00 p.m., June 26, 2000. For further information or the name of the petitioner and the TNRCC Internal Control Number; questions, contact Suzanne Vargas at (512) 239-4619 or by e-mail at (3) the statement "I/we request a contested case hearing"; and (4) [email protected]. a brief description of how you would be affected by the petition TRD-200003417 in a way not common to the general public. You may also submit Margaret Hoffman your proposed adjustments to the petition which would satisfy your Director, Environmental Law Division concerns. Requests for a contested case hearing must be submitted in writing to the Office of the Chief Clerk at the address provided Texas Natural Resource Conservation Commission in the information section below. If a hearing request is filed, the Filed: May 17, 2000 Executive Director may not approve the petition and will forward the ♦♦♦ petition and hearing request to the TNRCC Commissioners for their consideration at a scheduled Commission meeting. If a contested Notice of Application for Conversion of a Water Supply Cor- case hearing is held, it will be a legal proceeding similar to a civil poration to a Special Utility District trial in state district court. SOUTHWEST FANNIN COUNTY WATER SUPPLY CORPORA- Written hearing requests should be submitted to the Office of the TION has filed a petition with the Texas Natural Resource Conser- Chief Clerk, MC 105, TNRCC, P.O. Box 13087, Austin, TX 78711- vation Commission (TNRCC) to convert Southwest Fannin County 3087. For information concerning the hearing process, contact the Water Supply Corporation to Southwest Fannin County Special Util- Public Interest Counsel, MC 103, the same address. For additional ity District and to transfer Certificate of Convenience and Necessity information, individual members of the general public may contact (CCN) No. 12406 from Southwest Fannin County Water Supply Cor- the Office of Public Assistance, at 1(800) 687-4040. General poration to Southwest Fannin County Special Utility District. South- information regarding the TNRCC can be found at our web site at west Fannin County Special Utility District’s business address will www.tnrcc.state.tx.us. be Route 1, Box 67, Savoy, Texas 75479. The petition was filed TRD-200003404 pursuant to Chapters 13 and 65 of the Texas Water Code; 30 Texas Administrative Code Chapters 291 and 293; and under the procedural LaDonna Castañuela rules of the TNRCC. The nature and purpose of the petition are for Chief Clerk the conversion of Southwest Fannin County Water Supply Corpora- Texas Natural Resource Conservation Commission tion and the organization, creation and establishment of Southwest Filed: May 16, 2000 Fannin County Special Utility District under the provisions of Article ♦♦♦
25 TexReg 4942 May 26, 2000 Texas Register Notice of District Creation district; (3) the proposed District will contain approximately 228.05 acres located within Travis County, Texas; and (4) the proposed Petitioners filed a petition for creation of GALVESTON COUNTY District is within the extraterritorial jurisdiction of the Village of MUNICIPAL UTILITY DISTRICT NUMBER 31 with the Texas Bee Cave, Texas, and is not within such jurisdiction of any other Natural Resource Conservation Commission (TNRCC). The petition city. The petition further states that the proposed District will (1) was filed pursuant to Article XVI, Section 59 of the Constitution of construct, acquire, maintain and operate a waterworks and sanitary the State of Texas; Chapters 49 and 54 of the Texas Water Code; 30 sewer system for residential and commercial purposes; (2) construct, Texas Administrative Code Chapter 293; and the procedural rules of acquire, improve, extend, maintain and operate works, improvements, the TNRCC. The petition states that: (1) the petitioners are owners facilities, plants, equipment and appliances helpful or necessary to of a majority in value of the land to be included in the proposed provide more adequate drainage for the property in the proposed District; (2) there are no lienholders on the land to be included in the District; and (3) control, abate and amend local storm waters or proposed district; (3) the proposed District will contain approximately other harmful excesses of waters, as more particularly described 215.2299 acres located within Galveston County, Texas; and (4) all in an engineer’s report filed simultaneously with the filing of the of the land to be included in the proposed District is within the petition. According to the petition, a preliminary investigation has corporate boundaries of the city of Texas City, Texas. The petition been made to determine the cost of the project, and it is estimated by further states that the proposed District will (1) construct, acquire, the petitioners, from the information available at this time, that the maintain and operate a waterworks and sanitary sewer system for cost of said project will be approximately $2,080,000. residential and commercial purposes; (2) construct, acquire, improve, extend, maintain and operate works, improvements, facilities, plants, Petitioners filed a petition for creation of WEST TRAVIS COUNTY equipment and appliances helpful or necessary to provide more MUNICIPAL UTILITY DISTRICT NUMBER 8 with the Texas adequate drainage for the property in the proposed District; and Natural Resource Conservation Commission (TNRCC). The petition (3) control, abate and amend local storm waters or other harmful was filed pursuant to Article XVI, Section 59 of the Constitution of excesses of waters, as more particularly described in an engineer’s the State of Texas; Chapters 49 and 54 of the Texas Water Code; 30 report filed simultaneously with the filing of the petition. According Texas Administrative Code Chapter 293; and the procedural rules of to the petition, a preliminary investigation has been made to determine the TNRCC. The petition states that: (1) the petitioners are owners of the cost of the project, and it is estimated by the petitioners, from the a majority in value of the land to be included in the proposed District; information available at this time, that the cost of said project will be (2) there are no lienholders on the land to be included in the proposed approximately $11, 730,000. district; (3) the proposed District will contain approximately 300.80 acres located within Travis County, Texas; and (4) the proposed Petitioners filed a petition for creation of WEST TRAVIS COUNTY District is within the extraterritorial jurisdiction of the Village of MUNICIPAL UTILITY DISTRICT NUMBER 6 with the Texas Bee Cave, Texas, and is not within such jurisdiction of any other Natural Resource Conservation Commission (TNRCC). The petition city. The petition further states that the proposed District will (1) was filed pursuant to Article XVI, Section 59 of the Constitution of construct, acquire, maintain and operate a waterworks and sanitary the State of Texas; Chapters 49 and 54 of the Texas Water Code; 30 sewer system for residential and commercial purposes; (2) construct, Texas Administrative Code Chapter 293; and the procedural rules of acquire, improve, extend, maintain and operate works, improvements, the TNRCC. The petition states that: (1) the petitioners are owners of facilities, plants, equipment and appliances helpful or necessary to a majority in value of the land to be included in the proposed District; provide more adequate drainage for the property in the proposed (2) there are no lienholders on the land to be included in the proposed District; and (3) control, abate and amend local storm waters or district; (3) the proposed District will contain approximately 259.81 other harmful excesses of waters, as more particularly described acres located within Travis County, Texas; and (4) the proposed in an engineer’s report filed simultaneously with the filing of the District is within the extraterritorial jurisdiction of the Village of petition. According to the petition, a preliminary investigation has Bee Cave, Texas, and is not within such jurisdiction of any other been made to determine the cost of the project, and it is estimated by city. The petition further states that the proposed District will (1) the petitioners, from the information available at this time, that the construct, acquire, maintain and operate a waterworks and sanitary cost of said project will be approximately $6,440,000. sewer system for residential and commercial purposes; (2) construct, acquire, improve, extend, maintain and operate works, improvements, To request a contested case hearing, you must submit the following: facilities, plants, equipment and appliances helpful or necessary to (1) your name (or for a group or association, an official represen- provide more adequate drainage for the property in the proposed tative), mailing address, daytime phone number, and fax number, if District; and (3) control, abate and amend local storm waters or any; (2) the name of the petitioner and the TNRCC Docket Number; other harmful excesses of waters, as more particularly described (3) the statement "I/we request a contested case hearing"; and (4) a in an engineer’s report filed simultaneously with the filing of the brief description of how you would be affected by the request in a petition. According to the petition, a preliminary investigation has way uncommon to the general public. You may also submit your been made to determine the cost of the project, and it is estimated by proposed adjustments to the petition which would satisfy your con- the petitioners, from the information available at this time, that the cerns. Requests for a contested case hearing must be submitted in cost of said project will be approximately $8,725,000. writing to the Office of the Chief Clerk at the address provided in the information section below. If a contested case hearing is held, it will Petitioners filed a petition for creation of WEST TRAVIS COUNTY be a legal proceeding similar to a civil trial in state district court. MUNICIPAL UTILITY DISTRICT NUMBER 7 with the Texas Natural Resource Conservation Commission (TNRCC). The petition Written hearing requests should be submitted to the Office of the was filed pursuant to Article XVI, Section 59 of the Constitution of Chief Clerk, MC 105, TNRCC, P.O. Box 13087, Austin, TX 78711- the State of Texas; Chapters 49 and 54 of the Texas Water Code; 30 3087. For information concerning the hearing process, contact the Texas Administrative Code Chapter 293; and the procedural rules of Public Interest Counsel, MC 103, the same address. For additional the TNRCC. The petition states that: (1) the petitioners are owners of information, individual members of the general public may contact a majority in value of the land to be included in the proposed District; the Office of Public Assistance, at 1 (800) 687-4040. General (2) there are no lienholders on the land to be included in the proposed
IN ADDITION May 26, 2000 25 TexReg 4943 information regarding the TNRCC can be found at our web site at As per §335.344(b), the TNRCC will hold a public meeting to receive www.tnrcc.state.tx.us. comment on this intended deletion. This meeting will not be a TRD-200003403 contested case hearing within the meaning of Texas Government Code, Chapter 2001. The meeting will be held Thursday, June LaDonna Castañuela 29, 2000, 2:00 p.m. at the Texas Natural Resource Conservation Chief Clerk Commission, 12100 Park 35 Circle, Building E, Room 201S, Austin, Texas Natural Resource Conservation Commission Texas 78753. The meeting will consist of two parts: an informal Filed: May 16, 2000 discussion period and a formal comment period. ♦♦♦ All persons desiring to make comments regarding the proposed Public Notice deletion of the site may do so prior to or at the public meeting. All comments submitted prior to the public meeting must be The executive director of the Texas Natural Resource Conservation received by 5:00 p.m., June 29, 2000 and should be sent in Commission (TNRCC) is issuing a Public Notice of Intent to Delete writing to Mr. Dean Perkins, Texas Natural Resource Conservation (delist) the Sonics International State Superfund site (the site) from Commission, Remediation Division, MC 143, P.O. Box 13087, the state registry, the list of state superfund sites which may constitute Austin, Texas 78711-3087 or by facsimile to (512) 239-2450. For an imminent and substantial endangerment to public health and safety further information you may also contact Mr. Perkins by telephone or the environment due to a release or threatened release of hazardous at 1 (800) 633-9363 (within Texas only) or (512) 239-2482. substances into the environment. The TNRCC is proposing this Persons with disabilities who have special communication or other delisting because the executive director has determined that the site accommodation needs who are planning to attend the meeting should no longer presents such an endangerment due to the remedial actions contact the agency at 1 (800) 633-9363 or (512) 239-2141. Requests that have been performed at the site. This notice was also published should be made as far in advance as possible. in the May 25, 2000, edition of the Ranger Times. A portion of the record for this site, including documents pertinent to The site, including all land, structures, appurtenances, and other the executive director’s determination, is available for review during improvements, is approximately 40 acres, located in Eastland County, regular business hours at the Ranger College Golemon Library, 1100 about two miles west of Ranger, Texas, adjacent to Farm-to-Market College Circle, Ranger, Texas 76470, telephone (817) 647-3234. The Road 101. The site also includes any areas outside the site boundary complete public file may be obtained during regular business hours where hazardous substance(s) came to be located as a result, either at the Texas Natural Resource Conservation Commission, Records directly or indirectly, of releases of hazardous substance(s) from the Management Center, Building D, North Entrance, Room 190, 12100 site. There are two plugged and abandoned hazardous waste disposal Park 35 Circle, Austin, Texas 78753, telephone 1 (800) 633-9363 wells of which previous operations had resulted in the contamination or (512) 239-2920. Photocopying of file information is subject to of the soil and the shallow perched groundwater. payment of a fee. From 1990 to 1993, the Sonics Steering Committee performed a TRD-200003418 remedial investigation at the site to determine the nature and extent Margaret Hoffman of contamination. The remedial investigation included the collection and analysis of surface and subsurface soils, the installation of Director, Environmental Law Division groundwater monitoring wells, and the collection of surface water Texas Natural Resource Conservation Commission samples. The investigation concluded that four areas of the site had Filed: May 17, 2000 soils impacted at concentrations above protective limits established ♦♦♦ by the TNRCC. Texas State Superfund Registry From 1994 to 1999, the Sonics Steering Committee performed a re- medial action at these four locations that entailed the excavation and The Texas Natural Resource Conservation Commission (TNRCC or disposal of approximately 2,070 cubic yards of contaminated soil. commission) is required under the Texas Solid Waste Disposal Act, Soil samples collected after the remedial action was completed indi- Texas Health and Safety Code, Chapter 361 (the Act) to identify, cated the soils remediation achieved the cleanup criteria established to the extent feasible, and evaluate facilities which may constitute an for the site. imminent and substantial endangerment to public health and safety or to the environment due to a release or threatened release of hazardous The on-site shallow groundwater has been affected by the chemical substances into the environment. The first registry identifying these constituents at the site; however, the shallow groundwater zone sites was published in the Texas Register on January 16, 1987 (12 beneath the site is not a current source of drinking water and is TexReg 205). Pursuant to the Act, §361.181, the commission must incapable of supplying water in useable quantities. The TNRCC update the registry (state Superfund registry) annually to add new equates "useable quantities" as 150 gallons per day. For these reasons, facilities in accordance with the Act, §361.184(a) and §361.188(a)(1) existing concentrations of the chemical constituents found in the (see also 30 TAC §335.343) or to delete facilities in accordance groundwater do not pose a threat to human health. Also, post closure with the Act, §361.189 (see also the Act, §361.183(a) and 30 TAC monitoring of the shallow groundwater is continuing to ensure that the §335.344). The current notice also includes facilities where state concentration of the chemical constituents remain stable or decrease Superfund action has ended, or where cleanup is being adequately over time. addressed by other means. Because of the remedial actions that have been performed at the site, Pursuant to the Act, §361.188, the state Superfund registry identifying the executive director has determined that the site no longer presents those facilities that are listed and have been determined to pose an an imminent and substantial endangerment to public health and safety imminent and substantial endangerment in descending order of hazard and the environment. Therefore, the site is eligible for delisting from ranking system (HRS) scores are as follows. the state registry as provided by 30 TAC §335.344(c).
25 TexReg 4944 May 26, 2000 Texas Register 1. Col-Tex Refinery, both sides of Business Interstate 20 (U.S. 80) proposed to the state Superfund registry, are set out in descending in Colorado City, Mitchell County: tank farm and refinery. order of HRS scores as follows. 2. Precision Machine and Supply, 500 West Olive Street, Odessa, 1. Kingsland, in the vicinity of the 2100 block of FM 1431 and Ector County: chrome plating and machine shop. in the vicinity of the 2400 block of FM 1431 in the community of Kingsland, Llano County: two groundwater plumes. 3. Sonics International, Inc., north of Farm Road 101, approximately two miles west of Ranger, Eastland County: industrial waste injection 2. First Quality Cylinders, 931 West Laurel Street, San Antonio, wells. Bexar County: aircraft cylinder rebuilder. 4. Maintech International, 8300 Old Ferry Road, Port Arthur, 3. J. C. Pennco Waste Oil Service, 4927 Higdon Road, San Antonio, Jefferson County: chemical cleaning and equipment hydroblasting. Bexar County: waste oil and used drum recycler. 5. Federated Metals, 9200 Market Street, Houston, Harris County: 4. Phipps Plating, 305 East Grayson Street, San Antonio, Bexar Magnesium dross/sludge disposal, inactive landfill. County: metal plating. 6. Gulf Metals, on Telean Street, northeast of the intersection of 5. Pioneer Oil and Refining Co., 20280 South Payne Road, outside Mykawa Road and Almeda- Genoa Road, Houston, Harris County: of Somerset, Bexar County: oil refinery. disposal of hazardous materials. 6. Higgins Wood Preserving, inside the bordering streets of North 7. Texas American Oil, approximately three miles north of Midloth- Timberland Drive (U.S. 59) on the west, Warren Street on the east, ian on Old State Highway 67, Ellis County: waste oil recycling. and Paul Avenue on the north, Lufkin, Angelina County: wood treatment. 8. Niagara Chemical, west of the intersection of Commerce Street and Adams Avenue, Harlingen, Cameron County: pesticide formulation. 7. Marshall Wood Preserving, 2700 West Houston Street, Marshall, Harrison County: wood treatment. 9. International Creosoting, 1110 Pine Street, Beaumont, Jefferson County: wood treatment. 8. Thompson Hayward Chemical Company, on the east side of U.S. 277, 0.5 mile south of Munday, Knox County: pesticide formulating. 10. McBay Oil & Gas, approximately three miles northwest of Grapeland on Farm Road 1272, Houston County: oil refinery and 9. Avinger Development Company (ADCO), on the south side of oil reclamation plant. Texas 155, approximately 1/4 mile east of the intersection with Texas 49, Avinger, Cass County: wood treatment. 11. Solvent Recovery Services, 5502 FM 521 approximately 0.2 mile south of its intersection with Highway 6, Arcola, Fort Bend County: 10. Old Lufkin Creosoting, 1411 East Lufkin Avenue, Lufkin, paint solvent recycling. Angelina County: wood treatment. 12. Harris Sand Pits, 23340 South Texas 16, approximately 10.5 11. Materials Recovery Enterprises, about 4 miles southwest of miles south of San Antonio at Von Ormy, Bexar County: commercial Ovalo, near U.S. 83 and Farm Road 604, Taylor County: Class I sand and clay pit. industrial solid waste disposal site. 13. Butler Ranch, 11.8 miles west of Falls City off Farm Road 12. Harvey Industries, Inc., southeast corner of Farm Road 2495 and 791, Karnes County: two abandoned uranium mining pits containing Texas 31 (One Curtis Mathes Drive), Athens, Henderson County: drums of hazardous substances. television cabinets and circuit board manufacturing. 14. JCS Company, north of Phalba on County Road 2415, approxi- 13. Hu-Mar Chemicals, McGothlin Road between 4th and 12th mately 1.5 miles west of the intersection of County Road 2403 and streets, Palacios, Matagorda County: pesticide and herbicide formu- Texas 198, Van Zandt County: lead-acid battery recycling. lation. 15. Jerrell B. Thompson Battery, north of Phalba on County Road 14. American Zinc, approximately 3.5 miles north of Dumas on U.S. 2410, approximately one mile north of the intersection of County 287 and five miles east on Farm Road 119, Moore County: zinc Road 2410 and Texas 198, Van Zandt County: lead-acid battery smelter. recycling. 15. Toups, on the west side of Texas 326, 2.1 miles north of its 16. Hayes-Sammons Warehouse, Miller Avenue and East Eighth intersection with Texas 105 in Sour Lake, Hardin County: wood Street, Mission, Hidalgo County: commercial grade pesticide storage. treatment. 17. Jensen Drive Scrap, 3603 Jensen Drive, Houston, Harris County: 16. El Paso Plating Works, 2422 Wyoming Avenue, El Paso, El Paso scrap salvage. County: metal plating. 18. Baldwin Waste Oil Company, on County Road 44 approximately 17. Aztec Ceramics, 4735 Emil Road, San Antonio, Bexar County: 0.1 mile west of its intersection with Farm Road 1889, Robstown, tile manufacturing. Nueces County: waste oil processing. 18. Spector Salvage Yard, Tenth Street, Orange, Orange County: 19. Hall Street, north of intersection of 20th Street East with military surplus and chemical salvage yard. California Street, north of Dickinson, Galveston County: waste 19. Permian Chemical Company, 325 Pronto Avenue (formerly listed disposal and landfill/open field dumping. as 1901 Pronto Road), southeast of Odessa, Ector County: chemical 20. Unnamed Plating, 6816-6824 Industrial Avenue, El Paso, El Paso manufacturer. County: metals processing and recovery. 20. Sampson Horrice, 2000 and 2006 Plainfield Drive (formerly listed Pursuant to the Act, §361.184(a), those facilities that may pose as 8460 Sparrow Street and 1 Sparrow Street), Dallas, Dallas County: an imminent and substantial endangerment, and which have been inactive gravel pit landfill that illegally accepted hazardous and solid waste.
IN ADDITION May 26, 2000 25 TexReg 4945 21. Barlow’s Wills Point Plating, south side of U.S. 80, approx- The Application: MCImetro Access Transmission Services, L.L.C. imately 3.4 miles east of its intersection with Texas 64, in Wills (MCIM) filed an application for designation as an eligible telecommu- Point, Van Zandt County: inactive electroplating. nications carrier (ETC) pursuant to P.U.C. Substantive Rule §26.418. MCIM is requesting ETC designation in order to be eligible to re- 22. McNabb Flying Service, located 1.5 miles northwest of Alvin, ceive support from the Federal Universal Service Fund. approximately 1 mile east of State Highway 6, at the intersection of Brazoria County roads 146 and 539, Brazoria County: aerial pesticide Persons who wish to comment on this application or intervene should applicator. notify the Public Utility Commission of Texas by June 1, 2000. Requests for further information should be mailed to the Public Utility 23. Poly-Cycle Industries, Inc. on Texas 75 about 0.5 miles north Commission of Texas, P.O. Box 13326, Austin, Texas, 78711-3326, of Palmer, Ellis County: lead-acid battery chips (plastic and rubber) or you may call the commission’s Office of Customer Protection at storage and disposal. (512) 936-7120 or (888) 782-8477. Hearing- and speech-impaired 24. Tricon America, Inc., 101 East Hampton Road, Crowley, Tarrant individuals with text telephone (TTY) may contact the commission County: aluminum and zinc smelting and casting. at (512) 936-7136 or use Relay Texas (800) 735-2989 to reach the commission’s toll free number (888) 782-8477. Since the last publication on November 26, 1999, the TNRCC has determined that three facilities, Avinger Development Company TRD-200003321 (ADCO), Hu-Mar Chemicals, and El Paso Plating Works, may pose Rhonda Dempsey an imminent and substantial endangerment to public health and safety Rules Coordinator or the environment and pursuant to the Act, §361.184(a), have been Public Utility Commission of Texas added to the list of sites proposed to the state Superfund registry. Filed: May 11, 2000 Also, one site (Houston Scrap) has been deleted since the last publication. ♦♦♦ To date, 18 sites Aztec Mercury, Brazoria County; Bestplate, Inc., Notice of Application for Service Provider Certificate of Op- Dallas County; Double R Plating Company, Cass County; Hagerson erating Authority Road Drum, Fort Bend County; Hart Creosoting, Jasper County; Hi- Yield, Hunt County; Houston Lead, Harris County; Houston Scrap, Notice is given to the public of the filing with the Public Utility Harris County; LaPata Oil Company, Harris County; Munoz Borrow Commission of Texas (commission) of an application on May Pits, Hidalgo County; Newton Wood Preserving, Newton County; PIP 15, 2000, for a service provider certificate of operating authority Minerals, Liberty County; Rio Grande Refinery I, Hardin County; Rio (SPCOA), pursuant to §§54.151 - 54.156 of the Public Utility Grande Refinery II, Hardin County; South Texas Solvents, Nueces Regulatory Act (PURA). A summary of the application follows. County; State Marine, Jefferson County; Waste Oil Tank Services, Docket Title and Number: Application of Madison River Communi- Harris County and Wortham Lead Salvage, Henderson County have cations LLC for a Service Provider Certificate of Operating Author- been deleted from the state registry pursuant to the Act, §361.189 ity, Docket Number 22529 before the Public Utility Commission of (see also the Act, §361.183(a) and 30 TAC §335.344). Texas. The public records for each of the sites are available for inspection Applicant intends to provide a full range of telecommunications and copying during regular TNRCC business hours at the TNRCC services, including, but not limited to, local exchange service, basic Records Management Center, Building D, North Entrance, Room local telecommunications service, interexchange long distance and 190, 12100 Park 35 Circle, Austin, Texas 78753, telephone 1(800) switched access service. 633-9363 (within Texas only) or (512) 239-2920. Copying of file information is subject to payment of a fee. Applicant’s requested SPCOA geographic area includes the entire state of Texas. TRD-200003347 Margaret Hoffman Persons who wish to comment upon the action sought should contact the Public Utility Commission of Texas, P.O. Box 13326, Austin, Director, Environmental Law Division Texas 78711-3326, or call the commission’s Office of Customer Texas Natural Resource Conservation Commission Protection at (512) 936-7120 no later than May 31, 2000. Hearing and Filed: May 12, 2000 speech-impaired individuals with text telephone (TTY) may contact ♦♦♦ the commission at (512) 936-7136. TRD-200003400 Public Utility Commission of Texas Rhonda Dempsey Notice of Application Filed for Designation as an Eligible Rules Coordinator Telecommunications Carrier Under 47 United States Code Public Utility Commission of Texas §214(e) Filed: May 16, 2000 Notice is given to the public of an application filed with the Public ♦♦♦ Utility Commission of Texas (commission) on May 8, 2000 for designation as an eligible telecommunications carrier under 47 United Notice of Application Pursuant to P.U.C. Substantive Rule States Code §214(e). §26.208 Project Title and Number: Application of MCImetro Access Trans- Notice is given to the public of the filing with the Public Utility mission Services, L.L.C. For Designation as an Eligible Telecommu- Commission of Texas (commission) an application on May 11, 2000, nications Carrier (ETC) Pursuant to 47 United States Code §214(e) pursuant to P.U.C. Substantive Rule §26.208 for approval of a tariff and P.U.C. Substantive Rule §26.418. Project Number 22511. change.
25 TexReg 4946 May 26, 2000 Texas Register Tariff Title and Number: Application of Central Telephone Company 9, 2000, to amend a certificated service area boundary in Hays of Texas doing business as Sprint’s Notification of Tariff Revision County pursuant to §§14.001, 37.051, 37.054, 37.056, and 37.057 to the Access Service Tariff, Pursuant to P.U.C. Substantive Rule of the Public Utility Regulatory Act, Texas Utilities Code Annotated §26.208. Tariff Number 22525. (Vernon 1998 & Supp. 2000) (PURA). A summary of the application follows. The Application: Central Telephone Company of Texas doing business as Sprint (Sprint) is filing this revision to remove all USOCs, Docket Style and Number: Application of Bluebonnet Electric obsolete interface groups and reference to electromechanical offices. Cooperative, Inc. (Bluebonnet Electric) to Amend Certificated Sprint requests a June 12, 2000, tariff effective date. Service Area Boundaries Within Hays County. Docket Number 22514. Persons who wish to intervene in the proceeding or comment upon the action sought should contact the Public Utility Commission of Texas, The Application: Bluebonnet Electric requests the boundary change P.O. Box 13326, Austin, Texas 78711-3326, or call the commission’s for one area. The area is the Tanger Factory Outlet Mall (TFOM). Office of Customer Protection at (512) 936-7120 or (888) 782-8477. The TFOM proposed expansion would enter into Pedernales Electric Hearing- and speech-impaired individuals with text telephones (TTY) Cooperative’s (PEC) service area. The expansion involves construct- may contact the commission at (512) 936-7136 or use Relay Texas ing an additional 110,000-120,000 square feet of shopping center. (toll-free) 1(800) 735-2989. The deadline for comments in the Bluebonnet Electric would relocate existing facilities as needed to proceeding will be no later than May 31, 2000. Please reference facilitate building and site improvements. PEC has no objections to Tariff Number 22525. Bluebonnet Electric serving the proposed expansion. Copies of the TRD-200003378 application and additional associated maps are available for review at Bluebonnet Electric’s office, Giddings, Texas. Persons with ques- Rhonda Dempsey tions about this project should contact David Peterson, Bluebonnet Rules Coordinator Electric at (409) 542-3151. Public Utility Commission of Texas Filed: May 15, 2000 Persons who wish to comment upon the action sought should contact the Public Utility Commission of Texas at P.O. Box 13326, Austin, ♦♦♦ Texas, 78711-3326 or call the commission’s Office of Customer Notice of Application Pursuant to P.U.C. Substantive Rule Protection at (512) 936-7120 or (888) 782-8477. Hearing and speech- impaired individuals with text telephone (TTY) may contact the §26.208 commission at (512) 936-7136 or use Relay Texas (toll-free) 1- Notice is given to the public of the filing with the Public Utility 800-735-2989. The deadline for intervention in the proceeding will Commission of Texas (commission) an application on May 11, 2000, be established. The commission should receive a letter requesting pursuant to P.U.C. Substantive Rule §26.208 for approval of a tariff intervention. change. TRD-200003327 Tariff Title and Number: Application of United Telephone Company Rhonda Dempsey of Texas, Inc. doing business as Sprint’s Notification of Tariff Rules Coordinator Revision to the Access Service Tariff, Pursuant to P.U.C. Substantive Public Utility Commission of Texas Rule §26.208. Tariff Number 22526. Filed: May 11, 2000 The Application: United Telephone Company of Texas, Inc. doing ♦♦♦ business as Sprint (Sprint) is filing this revision to remove all USOCs, obsolete interface groups and reference to electromechanical offices. Notice of Workshop to Amend P.U.C. Substantive Rules Sprint requests a June 12, 2000, tariff effective date. §§25.211 and 25.212 Persons who wish to intervene in the proceeding or comment upon the The Staff of the Public Utility Commission (commission) will hold action sought should contact the Public Utility Commission of Texas, a workshop to initiate the process of amending P.U.C. Substantive P.O. Box 13326, Austin, Texas 78711-3326, or call the commission’s Rule §§25.211, Interconnection of On-Site Distributed Generation Office of Customer Protection at (512) 936-7120 or (888) 782-8477. (DG) and 25.212, Technical Requirements for Interconnection and Hearing- and speech-impaired individuals with text telephones (TTY) Parallel Operation of On-Site Distributed Generation on Friday, June may contact the commission at (512) 936-7136 or use Relay Texas 16, 2000, at 9:30 a.m. in the Commissioners’ Hearing Room at 1701 (toll-free) 1(800) 735-2989. The deadline for comments in the North Congress Avenue, Austin, Texas. proceeding will be no later than May 31, 2000. Please reference The commission has determined that the existing rules for DG need Tariff Number 22526. further refinement. This rulemaking will address operational terms TRD-200003379 and conditions for interaction between DG and the utilities and Rhonda Dempsey between DG and the Independent System Operator. The rulemaking Rules Coordinator will also address issues raised by the DG tariffs, particularly the study Public Utility Commission of Texas fees, conditions and other potential obstacles to DG interconnection. Filed: May 15, 2000 The commission is reconvening the successful collaborative process ♦♦♦ that produced technical standards for the interconnection of on-site distributed generation in order to implement Public Utility Regulatory Notice of Application to Amend Certificated Service Area Act §39.101(b)(3) (PURA). PURA §39.101(b)(3) entitles all Texas Boundaries electric customers to access on-site generation, to provide cost savings and reliability benefits to customers, to establish technical Notice is given to the public of the filing with the Public Utility requirements that will promote the safe and reliable parallel operation Commission of Texas (commission) of an application on May of on-site generation resources, to enhance both the reliability
IN ADDITION May 26, 2000 25 TexReg 4947 of electric service and economic efficiency in the production and authority given to a presiding officer pursuant to P.U.C. Procedural consumption of electricity, and to promote the use of distributed Rule §22.202. The commission may identify issues raised by the joint resources in order to provide electric system benefits during periods application and comments and establish a schedule for addressing of capacity constraints. those issues, including the submission of evidence by the applicants, if necessary, and briefing and oral argument. The commission may For Further Information. Please contact Ed Ethridge, Office of conduct a public hearing. Interested persons who file comments are Regulatory Affairs, Public Utility Commission of Texas, P.O. not entitled to participate as intervenors in the public hearing. Box 13326, Austin, Texas 78711-3326, Fax (512) 936-7361, [email protected]. Hearing and speech-impaired individ- Persons with questions about this project or who wish to comment uals with text telephones (TTY) may contact the commission at on the joint application should contact the Public Utility Commission (512) 936-7136. All correspondence should refer to Project Number of Texas, 1701 North Congress Avenue, P.O. Box 13326, Austin, 22540. Texas, 78711-3326. You may call the commission’s Office of TRD-200003405 Customer Protection at (512) 936-7120. Hearing and speech-impaired individuals with text telephones (TTY) may contact the commission at Rhonda Dempsey (512) 936-7136. All correspondence should refer to Docket Number Rules Coordinator 22513. Public Utility Commission of Texas TRD-200003314 Filed: May 16, 2000 Rhonda Dempsey ♦♦♦ Rules Coordinator Public Notice of Amendment to Interconnection Agreement Public Utility Commission of Texas Filed: May 10, 2000 On May 8, 2000, Deloach’s Home Entertainment Centers, Inc. and GTE Southwest, Inc., collectively referred to as applicants, filed a ♦♦♦ joint application for approval of amendment to an existing intercon- Public Notice of Amendment to Interconnection Agreement nection agreement under §252(i) of the federal Telecommunications Act of 1996, Public Law Number 104-104, 110 Statute 56, (cod- On May 11, 2000, Southwestern Bell Telephone Company and ified as amended in scattered sections of 15 and 47 United States Allegiance Telecom of Texas, Inc., collectively referred to as Code) (FTA) and the Public Utility Regulatory Act, Texas Utilities applicants, filed a joint application for approval of amendment to Code Annotated, Chapters 52 and 60 (Vernon 1998) (PURA). The an existing interconnection agreement under §252(i) of the federal joint application has been designated Docket Number 22513. The Telecommunications Act of 1996, Public Law Number 104-104, 110 joint application and the underlying interconnection agreement are Statute 56, (codified as amended in scattered sections of 15 and 47 available for public inspection at the commission’s offices in Austin, United States Code) (FTA) and the Public Utility Regulatory Act, Texas. Texas Utilities Code Annotated, Chapters 52 and 60 (Vernon 1998) (PURA). The joint application has been designated Docket Number The commission must act to approve the interconnection agreement 22522. The joint application and the underlying interconnection within 35 days after it is submitted by the parties. agreement are available for public inspection at the commission’s The commission finds that additional public comment should be al- offices in Austin, Texas. lowed before the commission issues a final decision approving or The commission must act to approve the interconnection agreement rejecting the amendment to the interconnection agreement. Any in- within 35 days after it is submitted by the parties. terested person may file written comments on the joint application by filing ten copies of the comments with the commission’s filing clerk. The commission finds that additional public comment should be Additionally, a copy of the comments should be served on each of the allowed before the commission issues a final decision approving applicants. The comments should specifically refer to Docket Num- or rejecting the amendment to the interconnection agreement. Any ber 22513. As a part of the comments, an interested person may interested person may file written comments on the joint application request that a public hearing be conducted. The comments, includ- by filing ten copies of the comments with the commission’s filing ing any request for public hearing, shall be filed by June 7, 2000, and clerk. Additionally, a copy of the comments should be served on each shall include: of the applicants. The comments should specifically refer to Docket Number 22522. As a part of the comments, an interested person may 1) a detailed statement of the person’s interests in the agreement, request that a public hearing be conducted. The comments, including including a description of how approval of the agreement may any request for public hearing, shall be filed by June 13, 2000, and adversely affect those interests; shall include: 2) specific allegations that the agreement, or some portion thereof: 1) a detailed statement of the person’s interests in the agreement, a) discriminates against a telecommunications carrier that is not a including a description of how approval of the agreement may party to the agreement; or adversely affect those interests; b) is not consistent with the public interest, convenience, and 2) specific allegations that the agreement, or some portion thereof: necessity; or a) discriminates against a telecommunications carrier that is not a c) is not consistent with other requirements of state law; and party to the agreement; or 3) the specific facts upon which the allegations are based. b) is not consistent with the public interest, convenience, and necessity; or After reviewing any comments, the commission will issue a notice of approval, denial, or determine whether to conduct further proceedings c) is not consistent with other requirements of state law; and concerning the joint application. The commission shall have the 3) the specific facts upon which the allegations are based.
25 TexReg 4948 May 26, 2000 Texas Register After reviewing any comments, the commission will issue a notice of c) is not consistent with other requirements of state law; and approval, denial, or determine whether to conduct further proceedings 3) the specific facts upon which the allegations are based. concerning the joint application. The commission shall have the authority given to a presiding officer pursuant to P.U.C. Procedural After reviewing any comments, the commission will issue a notice of Rule §22.202. The commission may identify issues raised by the joint approval, denial, or determine whether to conduct further proceedings application and comments and establish a schedule for addressing concerning the joint application. The commission shall have the those issues, including the submission of evidence by the applicants, authority given to a presiding officer pursuant to P.U.C. Procedural if necessary, and briefing and oral argument. The commission may Rule §22.202. The commission may identify issues raised by the joint conduct a public hearing. Interested persons who file comments are application and comments and establish a schedule for addressing not entitled to participate as intervenors in the public hearing. those issues, including the submission of evidence by the applicants, if necessary, and briefing and oral argument. The commission may Persons with questions about this project or who wish to comment conduct a public hearing. Interested persons who file comments are on the joint application should contact the Public Utility Commission not entitled to participate as intervenors in the public hearing. of Texas, 1701 North Congress Avenue, P. O. Box 13326, Austin, Texas 78711-3326. You may call the commission’s Office of Persons with questions about this project or who wish to comment Customer Protection at (512) 936-7120. Hearing and speech-impaired on the joint application should contact the Public Utility Commission individuals with text telephones (TTY) may contact the commission at of Texas, 1701 North Congress Avenue, P.O. Box 13326, Austin, (512) 936-7136. All correspondence should refer to Docket Number Texas, 78711-3326. You may call the commission’s Office of 22522. Customer Protection at (512) 936-7120. Hearing and speech-impaired TRD-200003377 individuals with text telephones (TTY) may contact the commission at (512) 936-7136. All correspondence should refer to Docket Number Rhonda Dempsey 22516. Rules Coordinator Public Utility Commission of Texas TRD-200003331 Filed: May 15, 2000 Rhonda Dempsey ♦♦♦ Rules Coordinator Public Utility Commission of Texas Public Notice of Amendment to Interconnection Agreement Filed: May 11, 2000 On May 9, 2000, Southwestern Bell Telephone Company and State ♦♦♦ Discount Telephone, LLC, collectively referred to as applicants, filed Public Notice of Amendment to Interconnection Agreement a joint application for approval of amendment to an existing intercon- nection agreement under §252(i) of the federal Telecommunications On May 9, 2000, Southwestern Bell Telephone Company and Na- Act of 1996, Public Law Number 104-104, 110 Statute 56, (cod- tionwide Communication, collectively referred to as applicants, filed ified as amended in scattered sections of 15 and 47 United States a joint application for approval of amendment to an existing intercon- Code) (FTA) and the Public Utility Regulatory Act, Texas Utilities nection agreement under §252(i) of the federal Telecommunications Code Annotated, Chapters 52 and 60 (Vernon 1998) (PURA). The Act of 1996, Public Law Number 104-104, 110 Statute 56, (cod- joint application has been designated Docket Number 22516. The ified as amended in scattered sections of 15 and 47 United States joint application and the underlying interconnection agreement are Code) (FTA) and the Public Utility Regulatory Act, Texas Utilities available for public inspection at the commission’s offices in Austin, Code Annotated, Chapters 52 and 60 (Vernon 1998) (PURA). The Texas. joint application has been designated Docket Number 22517. The joint application and the underlying interconnection agreement are The commission must act to approve the interconnection agreement available for public inspection at the commission’s offices in Austin, within 35 days after it is submitted by the parties. Texas. The commission finds that additional public comment should be The commission must act to approve the interconnection agreement allowed before the commission issues a final decision approving within 35 days after it is submitted by the parties. or rejecting the amendment to the interconnection agreement. Any interested person may file written comments on the joint application The commission finds that additional public comment should be by filing ten copies of the comments with the commission’s filing allowed before the commission issues a final decision approving clerk. Additionally, a copy of the comments should be served on each or rejecting the amendment to the interconnection agreement. Any of the applicants. The comments should specifically refer to Docket interested person may file written comments on the joint application Number 22516. As a part of the comments, an interested person may by filing ten copies of the comments with the commission’s filing request that a public hearing be conducted. The comments, including clerk. Additionally, a copy of the comments should be served on each any request for public hearing, shall be filed by June 9, 2000, and of the applicants. The comments should specifically refer to Docket shall include: Number 22517. As a part of the comments, an interested person may request that a public hearing be conducted. The comments, including 1) a detailed statement of the person’s interests in the agreement, any request for public hearing, shall be filed by June 9, 2000, and including a description of how approval of the agreement may shall include: adversely affect those interests; 1) a detailed statement of the person’s interests in the agreement, 2) specific allegations that the agreement, or some portion thereof: including a description of how approval of the agreement may a) discriminates against a telecommunications carrier that is not a adversely affect those interests; party to the agreement; or 2) specific allegations that the agreement, or some portion thereof: b) is not consistent with the public interest, convenience, and necessity; or
IN ADDITION May 26, 2000 25 TexReg 4949 a) discriminates against a telecommunications carrier that is not a 1) a detailed statement of the person’s interests in the agreement, party to the agreement; or including a description of how approval of the agreement may adversely affect those interests; b) is not consistent with the public interest, convenience, and necessity; or 2) specific allegations that the agreement, or some portion thereof: c) is not consistent with other requirements of state law; and a) discriminates against a telecommunications carrier that is not a party to the agreement; or 3) the specific facts upon which the allegations are based. b) is not consistent with the public interest, convenience, and After reviewing any comments, the commission will issue a notice of necessity; or approval, denial, or determine whether to conduct further proceedings concerning the joint application. The commission shall have the c) is not consistent with other requirements of state law; and authority given to a presiding officer pursuant to P.U.C. Procedural 3) the specific facts upon which the allegations are based. Rule §22.202. The commission may identify issues raised by the joint application and comments and establish a schedule for addressing After reviewing any comments, the commission will issue a notice of those issues, including the submission of evidence by the applicants, approval, denial, or determine whether to conduct further proceedings if necessary, and briefing and oral argument. The commission may concerning the joint application. The commission shall have the conduct a public hearing. Interested persons who file comments are authority given to a presiding officer pursuant to P.U.C. Procedural not entitled to participate as intervenors in the public hearing. Rule §22.202. The commission may identify issues raised by the joint application and comments and establish a schedule for addressing Persons with questions about this project or who wish to comment those issues, including the submission of evidence by the applicants, on the joint application should contact the Public Utility Commission if necessary, and briefing and oral argument. The commission may of Texas, 1701 North Congress Avenue, P.O. Box 13326, Austin, conduct a public hearing. Interested persons who file comments are Texas, 78711-3326. You may call the commission’s Office of not entitled to participate as intervenors in the public hearing. Customer Protection at (512) 936-7120. Hearing and speech-impaired individuals with text telephones (TTY) may contact the commission at Persons with questions about this project or who wish to comment (512) 936-7136. All correspondence should refer to Docket Number on the joint application should contact the Public Utility Commission 22517. of Texas, 1701 North Congress Avenue, P.O. Box 13326, Austin, TRD-200003330 Texas, 78711-3326. You may call the commission’s Office of Customer Protection at (512) 936-7120. Hearing and speech-impaired Rhonda Dempsey individuals with text telephones (TTY) may contact the commission at Rules Coordinator (512) 936-7136. All correspondence should refer to Docket Number Public Utility Commission of Texas 22519. Filed: May 11, 2000 TRD-200003329 ♦♦♦ Rhonda Dempsey Public Notice of Amendment to Interconnection Agreement Rules Coordinator Public Utility Commission of Texas On May 10, 2000, Southwestern Bell Telephone Company and Logix Filed: May 11, 2000 Communications Corporation, collectively referred to as applicants, filed a joint application for approval of amendment to an existing ♦♦♦ interconnection agreement under §252(i) of the federal Telecommu- Public Notice of Interconnection Agreement nications Act of 1996, Public Law Number 104-104, 110 Statute 56, (codified as amended in scattered sections of 15 and 47 United States On May 8, 2000, Southwestern Bell Telephone Company and Code) (FTA) and the Public Utility Regulatory Act, Texas Utilities Millennium One Communications, Inc., collectively referred to as Code Annotated, Chapters 52 and 60 (Vernon 1998) (PURA). The applicants, filed a joint application for approval of interconnection joint application has been designated Docket Number 22519. The agreement under §252(i) of the federal Telecommunications Act joint application and the underlying interconnection agreement are of 1996, Public Law Number 104-104, 110 Statute 56, (codified available for public inspection at the commission’s offices in Austin, as amended in scattered sections of 15 and 47 United States Texas. Code) (FTA) and the Public Utility Regulatory Act, Texas Utilities Code Annotated, Chapters 52 and 60 (Vernon 1998) (PURA). The The commission must act to approve the interconnection agreement joint application has been designated Docket Number 22512. The within 35 days after it is submitted by the parties. joint application and the underlying interconnection agreement are The commission finds that additional public comment should be available for public inspection at the commission’s offices in Austin, allowed before the commission issues a final decision approving Texas. or rejecting the amendment to the interconnection agreement. Any The commission must act to approve the interconnection agreement interested person may file written comments on the joint application within 35 days after it is submitted by the parties. by filing ten copies of the comments with the commission’s filing clerk. Additionally, a copy of the comments should be served on each The commission finds that additional public comment should be of the applicants. The comments should specifically refer to Docket allowed before the commission issues a final decision approving or Number 22519. As a part of the comments, an interested person may rejecting the interconnection agreement. Any interested person may request that a public hearing be conducted. The comments, including file written comments on the joint application by filing ten copies any request for public hearing, shall be filed by June 9, 2000, and of the comments with the commission’s filing clerk. Additionally, a shall include: copy of the comments should be served on each of the applicants. The comments should specifically refer to Docket Number 22512. As a part of the comments, an interested person may request that a
25 TexReg 4950 May 26, 2000 Texas Register public hearing be conducted. The comments, including any request The comments should specifically refer to Docket Number 22520. for public hearing, shall be filed by June 7, 2000, and shall include: As a part of the comments, an interested person may request that a public hearing be conducted. The comments, including any request 1) a detailed statement of the person’s interests in the agreement, for public hearing, shall be filed by June 13, 2000, and shall include: including a description of how approval of the agreement may adversely affect those interests; 1) a detailed statement of the person’s interests in the agreement, including a description of how approval of the agreement may 2) specific allegations that the agreement, or some portion thereof: adversely affect those interests; a) discriminates against a telecommunications carrier that is not a 2) specific allegations that the agreement, or some portion thereof: party to the agreement; or a) discriminates against a telecommunications carrier that is not a b) is not consistent with the public interest, convenience, and party to the agreement; or necessity; or b) is not consistent with the public interest, convenience, and c) is not consistent with other requirements of state law; and necessity; or 3) the specific facts upon which the allegations are based. c) is not consistent with other requirements of state law; and After reviewing any comments, the commission will issue a notice of 3) the specific facts upon which the allegations are based. approval, denial, or determine whether to conduct further proceedings concerning the joint application. The commission shall have the After reviewing any comments, the commission will issue a notice of authority given to a presiding officer pursuant to P.U.C. Procedural approval, denial, or determine whether to conduct further proceedings Rule §22.202. The commission may identify issues raised by the joint concerning the joint application. The commission shall have the application and comments and establish a schedule for addressing authority given to a presiding officer pursuant to P.U.C. Procedural those issues, including the submission of evidence by the applicants, Rule §22.202. The commission may identify issues raised by the joint if necessary, and briefing and oral argument. The commission may application and comments and establish a schedule for addressing conduct a public hearing. Interested persons who file comments are those issues, including the submission of evidence by the applicants, not entitled to participate as intervenors in the public hearing. if necessary, and briefing and oral argument. The commission may conduct a public hearing. Interested persons who file comments are Persons with questions about this project or who wish to comment not entitled to participate as intervenors in the public hearing. on the joint application should contact the Public Utility Commission of Texas, 1701 North Congress Avenue, P.O. Box 13326, Austin, Persons with questions about this project or who wish to comment Texas, 78711-3326. You may call the commission’s Office of on the joint application should contact the Public Utility Commission Customer Protection at (512) 936-7120. Hearing and speech-impaired of Texas, 1701 North Congress Avenue, P. O. Box 13326, Austin, individuals with text telephones (TTY) may contact the commission at Texas 78711-3326. You may call the commission’s Office of (512) 936-7136. All correspondence should refer to Docket Number Customer Protection at (512) 936-7120. Hearing and speech-impaired 22512. individuals with text telephones (TTY) may contact the commission at TRD-200003313 (512) 936-7136. All correspondence should refer to Docket Number 22520. Rhonda Dempsey Rules Coordinator TRD-200003376 Public Utility Commission of Texas Rhonda Dempsey Filed: May 10, 2000 Rules Coordinator ♦♦♦ Public Utility Commission of Texas Filed: May 15, 2000 Public Notice of Interconnection Agreement ♦♦♦ On May 10, 2000, Alltel Communications Service Corporation and Public Notice of Workshop on Capacity Auctions Rulemaking State Telephone Texas, collectively referred to as applicants, filed a joint application for approval of interconnection agreement under The Public Utility Commission of Texas (commission) will hold a §252(i) of the federal Telecommunications Act of 1996, Public Law workshop in the Commissioners’ Hearing Room on Tuesday, May 30, Number 104-104, 110 Statute 56, (codified as amended in scattered 2000 beginning at 10:00 a.m. and concluding no later than 4:00 p.m. sections of 15 and 47 United States Code) (FTA) and the Public Utility to discuss Project Number 21405, Capacity Auctions Rulemaking. Regulatory Act, Texas Utilities Code Annotated, Chapters 52 and 60 The purpose of the workshop will be to discuss the comments filed in (Vernon 1998) (PURA). The joint application has been designated response to the questions issued by staff on March 17, 2000 as well as Docket Number 22520. The joint application and the underlying discussion of a staff strawman. An updated schedule has been posted interconnection agreement are available for public inspection at the on the commission’s web site. The strawman and a more detailed commission’s offices in Austin, Texas. agenda will be issued prior to the workshop. The commission must act to approve the interconnection agreement Questions concerning the workshop or this notice should be referred within 35 days after it is submitted by the parties. to Brian Lloyd, Office of Policy Development, (512) 936-7234. The commission finds that additional public comment should be Hearing and speech-impaired individuals with text telephones (TTY) allowed before the commission issues a final decision approving or may contact the commission at (512) 936-7136. rejecting the interconnection agreement. Any interested person may TRD-200003322 file written comments on the joint application by filing ten copies Rhonda Dempsey of the comments with the commission’s filing clerk. Additionally, a copy of the comments should be served on each of the applicants. Rules Coordinator Public Utility Commission of Texas
IN ADDITION May 26, 2000 25 TexReg 4951 Filed: May 11, 2000 Section 125 cafeteria plans, the Texas Optional Retirement Program, ♦♦♦ I.R.C. Section 403(b), Section 415(m) and Section 457(a) and (f) plans. Income tax matters will also include unrelated business income Southwest Texas State University tax as it relates to universities; and federal tax matters regarding compensation issues related to university hospitals and physicians. Contract Award Although the law firm will not be required to prepare the System tax Contract number 00-0037 return, it will be required to give legal advice on issues relating to the filing of tax returns and the appropriate treatment of tax matters Southwest Texas State University has awarded a contract to the on such returns. This legal counsel will include interaction with Associates of Channel Islands Harbor, California in an amount not and representation before the Internal Revenue Service and other to exceed $110,000.00 to review Southwest Texas State University’s taxing authorities in any tax controversy. The legal counsel will also parking and transportation (shuttle bus operation) services. advise and represent the System in matters relating to tax liens, tax TRD-200003319 garnishments, tax levies, tax assessments, tax valuations, as well as William A. Nance summonses, subpoenas, and discovery relating to tax matters. The law firm should be admitted to practice before Texas district courts, Vice President for Finance and Support Services the United States Tax Court, United States District Court and the U.S. Southwest Texas State University Court of Claims. Filed: May 11, 2000 U. T. System invites responses to this RFI from qualified firms for the ♦♦♦ provision of such legal services under the direction and supervision Consultant Contract Extension of U. T. System’s Office of General Counsel. Southwest Texas State University is extending the consulting contract Responses. Responses to this RFI should include at least the with Anderson-Strickler to August 31, 2000 to enable them to finalize following information: (1) a description of the firm’s or attorney’s their report. No additional funds are required. Anderson-Strickler qualifications for performing the legal services, including the firm’s was hired to do comprehensive consulting and planning services for prior experience in federal tax-related matters including experience Southwest Texas State University’s student housing and residence life handling state pension issues and plans available only to universities, program. the names and experience of the attorneys who will be assigned to work on such matters, the availability of the lead attorney and TRD-200003318 others assigned to the project, and appropriate information regarding William A. Nance efforts made by the firm to encourage and develop the participation Vice President for Finance and Support Services of minorities and women in the provision of legal services; (2) the Southwest Texas State University submission of fee information (either in the form of hourly rates for Filed: May 11, 2000 each attorney who may be assigned to perform services in relation to U. T. System’s federal tax matters, comprehensive flat fees, or ♦♦♦ other fee arrangements directly related to the achievement of specific goals and cost controls) and billable expenses; (3) a comprehensive The University of Texas System description of the procedures to be used by the firm to supervise the Request for Information (Federal Tax) provision of legal services in a timely and cost-effective manner; (4) disclosures of conflicts of interest (identifying each and every matter The University of Texas System (U. T. System) requests information in which the firm has, within the past calendar year, represented any from law firms interested in representing U. T. System and its entity or individual with an interest adverse to the U. T. System or component institutions in certain federal tax matters. This RFI is to the State of Texas, or any of its boards, agencies, commissions, issued for the purpose of establishing (for the time frame beginning universities, or elected or appointed officials); and (5) confirmation September 1, 2000 to August 31, 2001) a referral list from which U. of willingness to comply with policies, directives and guidelines of T. System, by and through its Office of General Counsel, will select the U. T. System and the Attorney General of the State of Texas. appropriate counsel for representation on specific federal tax matters as the need arises. Format and Person to Contact. Two copies of the response are requested. The response should be typed, preferably double spaced, Description. The U. T. System comprises six health component on 8 1/2 x 11 inch paper with all pages sequentially numbered, universities and nine academic component universities supported and either stapled or bound together. They should be sent by mail, by legislative appropriations, tuition, fees, income from auxiliary facsimile, electronic mail, or delivered in person, marked "Response enterprises, the Permanent University Fund, the Available University to Request for Information" and addressed to David W. Lacy, Fund, grants, gifts, sponsored research and other sources of revenues, Attorney, Office of General Counsel, The University of Texas System, all of which may be impacted by the Internal Revenue Code and 201 West 7th Street, Austin, Texas 78701 ([email protected]; fax: Regulations of the Internal Revenue Service. Subject to approval (512) 499-4523; telephone (512) 499-4462 for questions). by the Texas Attorney General, U. T. System will engage outside legal counsel to provide legal counsel and advice to the U. T. System Deadline for Submission of Response. All responses must be received on matters pertaining to federal income, estate, gift, employment, by the Office of General Counsel of U. T. System at the address set and excise taxes. This legal counsel and advice will include, but forth above not later than 5:00 p.m., Friday, June 23, 2000. not be limited to, the following: matters regarding taxation of any TRD-200003394 kind, representation in tax audits, appeals of tax issues, tax hearings Francie A. Frederick before administrative law judges and magistrates, appeals to IRS Executive Secretary, Board of Regents appeals officers, district court, U.S. Tax Court, U.S. District Court, the U.S. Court of Claims and other venues on tax matters. Tax The University of Texas System counsel will also advise regarding employee benefits such as I.R.C. Filed: May 15, 2000
25 TexReg 4952 May 26, 2000 Texas Register ♦♦♦ Format and Person to Contact. Two copies of the response are requested. The response should be typed, preferably double spaced, Request for Information (Health Law and Contracting) on 8 1/2 x 11 inch paper with all pages sequentially numbered, The University of Texas System (U. T. System) requests information and either stapled or bound together. They should be sent by mail, from law firms interested in representing U. T. System and its facsimile, electronic mail, or delivered in person, marked "Response health component institutions regarding Medicare/Medicaid/Managed to Request for Information" and addressed to R. Carlton Presley, Health Care questions, Medicare/Medicaid, third party reimbursement Office of General Counsel, The University of Texas System, 201 matters and appeal of adverse Medicare reimbursement decisions West 7th Street, Austin, Texas 78701 ([email protected]; fax: and complex contracting issues related to affiliation agreements with (512) 499-4523; telephone (512) 499-4462 for questions.) health care delivery networks, including contracts with private and Deadline for Submission of Response. All responses must be received public entities. This RFI is issued for the purpose of establishing (for by the Office of General Counsel of U. T. System at the address set the time frame beginning September 1, 2000 to August 31, 2001) a forth above no later than 5:00 p.m., Friday, June 23, 2000. health care panel from which U. T. System, by and through its Office of General Counsel, will select appropriate counsel for representation TRD-200003393 and advice of legal issues raised by complex contracting issues, Francie A. Frederick complex managed care arrangements and third party reimbursement Executive Secretary, Board of Regents matters, including certified non-profit health corporations, fraud and The University of Texas System abuse issues, antitrust concerns. Filed: May 15, 2000 Description. The U. T. System operates six health institutions located ♦♦♦ in Houston, Dallas, Galveston, San Antonio and Tyler, Texas. Uni- versity physician and hospital services are provided through a broad Request for Information (Intellectual Property) range of contractual arrangements with Health Maintenance Organiza- The University of Texas System (U. T. System) requests information tions, Preferred Provider Organizations, Medicare, Medicaid, private from law firms interested in representing U. T. System and its health insurance carriers, as well as directly with employers. These component institutions in intellectual property matters. This RFI is managed care arrangements may be impacted by state and federal issued to establish (for the time frame beginning September 1, 2000 laws and regulations governing insurance, third party reimbursement, to August 31, 2001) a referral list from which U. T. System, by and antitrust matters, and fraud and abuse issues. Subject to approval by through its Office of General Counsel, will select appropriate counsel the Texas Attorney General, U. T. System will engage outside counsel for representation on specific intellectual property matters as the need with experience in establishing certified non-profit health corporations arises. and other complex managed care contracting arrangements. In ad- dition, outside counsel must have a working knowledge of state and Description. The U. T. System comprises six health institutions federal laws and regulations governing safe harbors, antitrust matters, and nine academic institutions located in eleven cities in Texas. health privacy and security standards, Medicare and Medicaid regu- Research activities and other educational pursuits at each institution lations, and appeals of adverse determinations by third party payor produce intellectual property that is carefully evaluated for protection intermediaries. U. T. System invites responses to this RFI from qual- and licensing to commercial entities. Subject to approval by the ified firms for the provision of such legal services under the direction Texas Attorney General, U. T. System will engage outside counsel and supervision of U. T. System’s Office of General Counsel. to prepare, file, prosecute, and maintain patent applications in the United States and other countries; secure copyright protection for Responses. Responses to the RFI should include at least the following computer software; and to prepare, file and prosecute applications to information: (1) a description of the firm’s or attorney’s qualifications register trademarks and service marks in the United States and other for performing the legal services, including the firm’s prior experience countries. U.T. System also will engage outside counsel from time in complex health delivery and reimbursement matters, the names, to time to pursue litigation against infringers of these intellectual experience, and expertise of the attorneys who may be assigned property rights and to handle other related matters. U. T. System to work on such matters, the availability of the lead attorney and invites responses to this RFI from qualified firms for the provision others assigned to the project, and appropriate information regarding of such legal services under the direction and supervision of U. T. efforts made by the firm to encourage and develop the participation System’s Office of General Counsel. of minorities and women in the provision of legal services; (2) the submission of fee information (either in the form of hourly rates for Responses. Responses to this RFI should include at least the each attorney who may be assigned to perform services in relation to following information: (1) a description of the firm’s or attorney’s U. T. System’s complex health delivery and reimbursement matters, qualifications for performing the legal services, including the firm’s comprehensive flat fees, or other fee arrangements directly related prior experience in intellectual property-related matters, the names, to the achievement of specific goals and cost controls) and billable experience, and scientific or technical expertise of the attorneys who expenses; (3) a comprehensive description of the procedures to be may be assigned to work on such matters, and appropriate information used by the firm to supervise the provision of legal services in regarding efforts made by the firm to encourage and develop the a timely and cost-effective manner; (4) disclosures of conflicts of participation of minorities and women in the provision both of the interest (identifying each and every matter in which the firm has, firm’s legal services generally and intellectual property matters in within the past calendar year, represented any entity or individual particular; (2) the submission of fee information (either in the form with an interest adverse to the U. T. System or to the State of Texas, of hourly rates for each attorney who may be assigned to perform or any of its boards, agencies, commissions, universities, or elected services in relation to U. T. System’s intellectual property matters, flat or appointed officials); and (5) confirmation of willingness to comply fees, or other fee arrangements directly related to the achievement of with policies, directives and guidelines of the U. T. System and the specific goals and cost controls) and billable expenses; (3) disclosures Attorney General of the State of Texas. of conflicts of interest (identifying each and every matter in which the firm has, within the past calendar year, represented any entity or individual with an interest adverse to the U. T. System or to the State
IN ADDITION May 26, 2000 25 TexReg 4953 of Texas, or any of its boards, agencies, commissions, universities, or "Revenue Financing System"). Advance refunding of bonds, interest elected or appointed officials); and (4) confirmation of willingness to rate swaps and escrow restructures of previously defeased bonds, comply with policies, directives and guidelines of the U. T. System based on market timing, may be expected. Federal tax related matters and the Attorney General of the State of Texas. regarding bonds issued by the U. T. System, including strategies and management practices in the conduct of an exempt debt program Format and Person to Contact. Two copies of the response are requires a close working relationship with bond counsel. In addition, requested. The response should be typed, preferably double spaced, the System works with counsel regarding the preparation of the annual on 8 1/2 x 11 inch paper with all pages sequentially numbered, S.E.C. filings. Contact is frequent, particularly in regard to the and either stapled or bound together. They should be sent by mail, Revenue Financing System program due to the significant level of facsimile, or electronic mail or delivered in person, marked "Response capital improvements anticipated throughout the system over the next to Request for Information," and addressed to Georgia K. Harper, two years. U. T. System invites responses to this RFI from qualified Section Manager for Intellectual Property, Office of General Counsel, firms for the provision of such legal services under the direction and The University of Texas System, 201 West 7th Street, Austin, Texas supervision of U. T. System’s Office of General Counsel. 78701 ([email protected]; fax: (512) 499-4523; telephone (512) 499-4462 for questions). Responses. Responses to this RFI should include at least the following information: (1) a description of the firm’s or attorney’s Deadline for Submission of Response. All responses must be received qualifications for performing the legal services, including the firm’s by the Office of General Counsel of U. T. System at the address set prior experience in bond issuance matters, the names, experience, forth above no later than 5:00 p.m., Friday, June 23, 2000. and technical expertise of the attorneys who may be assigned to TRD-200003392 work on such matters, and appropriate information regarding efforts Francie A. Frederick made by the firm to encourage and develop the participation of Executive Secretary, Board of Regents minorities and women in the provision both of the firm’s legal services The University of Texas System generally and bond matters in particular; (2) the submission of fee Filed: May 15, 2000 information (either in the form of hourly rates for each attorney who may be assigned to perform services in relation to U. T. System’s ♦♦♦ bond matters, flat fees, or other fee arrangements directly related Request for Information (Tax-Exempt Bond) to the achievement of specific goals and cost controls) and billable expenses; (3) disclosures of conflicts of interest (identifying each and The University of Texas System (U. T. System) requests information every matter in which the firm has, within the past calendar year, from law firms interested in representing U. T. System and its represented any entity or individual with an interest adverse to the component institutions in tax-exempt bond matters. This RFI is U. T. System or to the State of Texas, or any of its boards, agencies, issued for the purpose of establishing (for the time frame beginning commissions, universities, or elected or appointed officials); and (4) September 1, 2000 to August 31, 2001) a referral list from which U. confirmation of willingness to comply with policies, directives and T. System, by and through its Office of General Counsel and subject guidelines of the U. T. System and the Attorney General of the State to approval by the Texas Attorney General, will select appropriate of Texas. counsel for representation on specific bond matters as the need arises. Format and Person to Contact. Two copies of the response are These needs include the usual and necessary services of a bond requested. The response should be typed, preferably double spaced, counsel in connection with the issuance, sale and delivery of bonds on 8 1/2 x 11 inch paper with all pages sequentially numbered, and notes on which the interest is excludable from gross income under either stapled or bound together. They should be sent by mail, existing federal tax law. facsimile, electronic mail, or delivered in person, marked "Response Description. The U. T. System comprises six health institutions and to Request for Information," and addressed to Ray Farabee, Vice nine academic institutions located in eleven cities in Texas. Public, Chancellor and General Counsel, Office of General Counsel, The tax-exempt bond issuance is conducted under two major programs University of Texas System, 201 West 7th Street, Austin, Texas 78701 and is rated by three major rating agencies. Bonds are issued under ([email protected]; fax: (512) 499-4523; telephone (512) 499- authority granted the U. T. System in Article VII, Section 18 of 4462 for questions). the Texas Constitution (Permanent University Fund). A variable Deadline for Submission of Response. All responses must be received rate demand note program is frequently used to raise new funds in by the Office of General Counsel of U. T. System at the address set support of the Capital Improvement Program. During the 2001 fiscal forth above no later than 5:00 p.m., Friday, June 23, 2000. year, one such note sale is anticipated in the approximate amount of $150 million. Fixed rate bond sales occur each two to three TRD-200003391 years in the amount of approximately $100 million to refund variable Francie A. Frederick rate notes. Advance refunding of Permanent University Fund bonds Executive Secretary, Board of Regents are conducted periodically based on potential savings opportunities. The University of Texas System Under authority granted in Chapter 55, Texas Education Code and Filed: May 15, 2000 Vernon’s Ann. Tex. Civ. St. Articles 717k and 717q, and other applicable laws, the U. T. System issues revenue bonds for capital ♦♦♦ improvements. A tax-exempt commercial paper program is used for Request for Information (FCC) interim financing with long-term fixed rate bonds sold to provide more permanent financing. The commercial paper program is presently The University of Texas System (U. T. System) requests information authorized up to $350 million and has approximately $93 million from law firms interested in representing U. T. System and its outstanding. Two fixed rate bond sales of approximately $100 million component institutions in communications law matters involving the each in size will likely occur during fiscal year 2001. The U. T. Federal Communications Commission (FCC). This RFI is issued to System employs a revenue bond program which offers a combined establish (for the time frame beginning September 1, 2000 to August pledge of all legally available revenues with certain exceptions (the 31, 2001) a referral list from which U. T. System, by and through
25 TexReg 4954 May 26, 2000 Texas Register its Office of General Counsel, will select appropriate counsel for Texas Department of Transportation representation on specific communications law matters as the need arises. Public Notice–Aviation Description. The U. T. System, with offices in Austin, Texas, is Pursuant to Transportation Code, §21.111, and 43 TAC §30.209, composed of six health institutions and nine academic institutions the Texas Department of Transportation conducts public hearings located in eleven cities in Texas. Distance learning, radio, television to receive comments from interested parties concerning proposed and journalism curriculum, research activities and other educational approval of various aviation projects. pursuits at each institution result in the need for various licenses For information regarding actions and times for aviation public hear- and permits to be obtained from the FCC in order to operate non- ings, please go to the following web site - http://www.dot.state.tx.us commercial FM radio stations and low power UHF educational - click on Aviation, click on Aviation Public Hearing or, contact channels; construct various antenna and satellite dish structures; Karon Wiedemann, Aviation Division, 150 East Riverside, Austin, and to expand and enhance current telecommunications networks Texas, 78704, (512) 416-4520 or 1-800-68 PILOT. involving distance learning via a virtual campus program linking TRD-200003324 the component institutions and other telecommunications links with institutions of higher education in the United States and Mexico. Bob Jackson Subject to approval by the Texas Attorney General, the U. T. System Deputy General Counsel may engage outside counsel to prepare, file, prosecute, maintain and Texas Department of Transportation renew various permits, licenses and license applications with the FCC. Filed: May 11, 2000 U. T. System invites responses to this RFI from qualified firms for the ♦♦♦ provision of such legal services under the direction and supervision of the U. T. System’s Office of General Counsel. Public Notice of DEIS Responses. Responses to this RFI should include at least the Public Notice of DEIS: Pursuant to Title 43, Texas Administrative following information: (1) a description of the firm’s or attorney’s Code, §2.43(e)(4)(B), the Texas Department of Transportation is qualifications for performing the legal services, including the firm’s advising the public of the availability of the Draft Environmental prior experience in communications law, the names, experience, and Impact Statement (DEIS) for the proposed construction of Segment scientific or technical expertise of the attorneys who may be assigned C of State Highway 99 (the Grand Parkway) southwest of Houston to work on such matters, and appropriate information regarding in Fort Bend and Brazoria Counties, Texas. Comments regarding efforts made by the firm to encourage and develop the participation the DEIS should be submitted to James G. Darden, P.E. prior to of minorities and women in the provision both of the firm’s legal 5:00 p.m. on Thursday, July 13, 2000, at the Texas Department of services generally and communications matters in particular; (2) the Transportation’s Houston District Office located at 7721 Washington submission of fee information (either in the form of hourly rates for Avenue, Houston, Texas. The mailing address is P.O. Box 1386, each attorney who may be assigned to perform services in relation Houston, Texas, 77251-1386. to U. T. System’s communications law matters, flat fees, or other fee arrangements directly related to the achievement of specific goals The proposed project consists of the construction of a controlled and cost controls) and billable expenses; (3) disclosures of conflicts access highway from U.S. Highway 59 in Fort Bend County to State of interest (identifying each and every matter in which the firm has, Highway 288 in Brazoria County, a distance ranging from 25.3 to 29.7 within the past calendar year, represented any entity or individual miles, depending on the alternative considered. The proposed facility with an interest adverse to the U. T. System or to the State of Texas, will consist of a four-lane divided roadway with both parkway and or any of its boards, agencies, commissions, universities, or elected freeway sections, depending on the existing use of surrounding land. or appointed officials); and (4) confirmation of willingness to comply A total of eight alternatives, in addition to the no-build alternative, with policies, directives and guidelines of the U. T. System and the have been presented in the DEIS for this project. All eight alternatives Attorney General of the State of Texas. lie between US 59 and SH 288 in a northwest-southeast direction, but differ in their alignments to the north and/or east. Format and Person to Contact. Two copies of the response are requested. The response should be typed, preferably double spaced, Alternative 1 is the alternative that connects with US 59 and SH on 8 1/2 x 11 inch paper with all pages sequentially numbered, 288 closest to Houston and is 25.3 miles in length. Alternative 2 and either stapled or bound together. They should be sent by mail, follows the same general path as Alternative 1 except that it connects facsimile, or delivered in person, marked "Response to Request for with SH 288 farther south and is 27.4 miles in length. Alternative 3 Information," and addressed to Robert Giddings, Office of General has the same connections with US 59 and SH 288 as Alternative 1, Counsel, The University of Texas System, 201 West 7th Street, but extends further south in the middle portion and is 27.4 miles in Austin, Texas 78701 (fax: (512) 499-4523; telephone (512) 499- length. Alternative 4 uses the same alignment as Alternative 3, but 4462 for questions). connects with SH 288 along the same route as Alternative 2 and is 29.5 miles in length. Alternative 5 connects with US 59 farther to the Deadline for Submission of Response. All responses must be received west than Alternatives 1 through 4, but uses the same northerly route by the Office of General Counsel of U. T. System at the address set to SH 288 and is 25.5 miles in length. Alternative 6 uses the western forth above no later than 5:00 p.m., Friday, June 23, 2000. connection to US 59 and northerly route to the east of Alternative 5, TRD-200003390 but uses the southern connection to SH 288 of Alternatives 2 and 4 Francie A. Frederick and is 27.6 miles in length. Alternative 7 uses the western connection of Alternatives 5 and 6, the more southerly route to the east used Executive Secretary, Board of Regents in Alternatives 3 and 4, and the northern connection to US 288 of The University of Texas System Alternatives 1, 3, and 5 and is 27.6 miles in length. Alternative 8 Filed: May 15, 2000 uses the alignment of Alternative 7 and the southern connection to ♦♦♦ SH 288 of Alternatives 2, 4, and 6 and is 29.7 miles in length.
IN ADDITION May 26, 2000 25 TexReg 4955 The proposed Segment C facility is intended to relieve congestion and ambient air sample will be collected at each building for comparison increase mobility on local and regional transportation facilities and to with interior samples. supplement existing roadways for hurricane evacuation. The social, Testing for volatile organic compounds (V.O.C.’s) will be performed economic, and environmental impacts of the Segment C project have using OSHA Method 7 and up to four samples will be collected from been analyzed in the DEIS. selected areas of each facility. One ambient sample will be collected Copies of the DEIS and other information about the project may at each building. be obtained at the Texas Department of Transportation’s Houston A sampling of total airborne dust levels will be performed using District Office at the previously mentioned address. For further direct reading electronic instrumentation at each building. Total information, please contact James G. Darden, P.E. at (713) 802-5241. dust level readings will be compared with American Society of Copies of the DEIS may also be reviewed at the offices of the Grand Heating, Refrigeration, and Air Conditioning Engineer’s (ASHRAE) Parkway Association, located at 4544 Post Oak Place, Suite 222, maximum exposure limits. Houston, Texas; at the Houston Public Library in the Texas Room, 500 McKinney, Houston, Texas; at the George Memorial Library, At the completion of the Indoor Air Quality Survey A/E will provide a 1001 Golfview Drive, Richmond, Texas; and at the Angleton Branch final written report which will present the project information, method of the Brazoria County Library, 401 East Cedar, Angleton, Texas. of analysis utilized, a floor plan detailing date and location of where TRD-200003416 samples were taken and cost estimates to remedy problem areas. Findings and observations will also be provided along with a list Richard Monroe of any applicable generalized recommendations. General Counsel Texas Department of Transportation The estimated budget for this project is $25,000.00, including testing Filed: May 17, 2000 costs, architectural fees, contingencies, and other project related services. The building (1) 1117 Trinity contains approximately ♦♦♦ 106,715 square feet of gross building area (2) 1411 Brazos contains approximately 212,840 square feet of gross building area (3) 101 Texas Workforce Commission East 15th Street contains approximately 171,399 square feet of gross Request for Qualifications for Selection of Professional Ar- building area and (4) 1215 Guadalupe Street contains approximately chitectural/Engineering Services 21,320 square feet of gross building area. The Texas Workforce Commission (TWC), Facilities, Construction If your firm is interested in being considered to serve as prime and Maintenance Department, 101 E. 15th St., Room 226T, Austin, professional services contractor for this project, please provide Texas 78778-0001, hereby issues this request for statement of interest information about your company and associates who will perform and qualifications (RFQ) for the purpose of selecting a professional professional services under this contract. Please complete the architectural/engineering (A/E) firm for an Indoor Air Quality Survey enclosed questionnaire and return it to the following address (a project at the following TWC facilities located in Austin, Texas: (1) company brochure or project proposal can be submitted in lieu of 1117 Trinity, (2) 1411 Brazos, (3) 101 East 15th Street and (4) 1215 the questionnaire): Guadalupe Street. The following work is being considered for the Texas Workforce Commission project (this list is not exhaustive, but is intended to give a reasonable understanding of the scope of the project): Attn: Jim McKaskle Conduct an indoor air quality survey using multi-disciplinary engi- 101 E. 15th Street, Room 226T neering and industrial hygiene techniques. Austin, Texas 78778-0001 Sample typical indicators and contaminants of indoor air quality in Selection will be based on respondent’s demonstrated experience on the four office buildings. projects of similar size and complexity; quality of design; budgetary Conduct an inspection and review of the related mechanical systems. experience and responsibility; the size, availability, expertise and ex- perience of respondent’s staff; respondent’s workload, to the extent Evaluate the results of these tests and inspections and, where possible it might impact on the design schedule for this project; respondent’s provide recommendations to improve overall indoor air quality. willingness to accept owner-required design, contract and construc- The survey will be conducted after normal building occupancy hours tion standards; and respondent’s organization and management, in- (8 a.m. to 5 p.m. Monday through Friday) and on weekends. cluding type of ownership, number of years respondent has been established, and the experience of respondent’s members in working This survey will document the overall indoor air quality and ana- together as a team. lyze typical indicators and contaminants of indoor air quality, includ- ing carbon dioxide, carbon monoxide, volatile organic compounds The Texas Workforce Commission recognizes the benefits of aiding (V.O.C.’s) and total airborne dust. and stimulating the growth of small disadvantaged and small women- owned business enterprises, and therefore requires that your firm Sampling for carbon dioxide and carbon monoxide will be performed consider in its proposal the participation of qualified, certified using direct reading electronic instrumentation and be performed Historically Underutilized Businesses (HUBs) as subcontractors. It is during normal building occupancy hours. TWC’s intention that qualified HUBs receive a minimum of twenty Biological screening for the presence and relative abundance of percent (20%) of this professional services contract. If your firm is airborne molds and bacteria (bioaerosols) using American Council of not certified as a HUB, your response to this RFQ should include a Government Industrial Hygienist (ACGIH) protocol for bioaerosols plan for utilization of HUBs in providing architectural/engineering and a two plate selective growth medical test for each of the facilities. services to TWC in connection with any contractual agreement A total of five samples will be collected from each building. One awarded you as a result of this RFQ.
25 TexReg 4956 May 26, 2000 Texas Register The Texas Workforce Commission in no way obligates itself to enter agent and preference shall be given to HUB’s (certification number into any contract or agreement, and reserves the right to reject any provided with quote if applicable). or all proposals. The Texas Workforce Commission reserves the 1.2 Scope of Work right to enter into negotiations with any and all respondents hereto. Any respondent hereto may be requested to appear for an in-person The awarded vendor will be expected to perform the following interview. Depending on available resources, TWC reserves the primary tasks: right to award this project based on individual buildings. The RFQ Assess and document Texas Youth Commission’s organizational, response should contain a cost estimate for services to be performed technical and systems environment; per each building. Assess and document Texas Youth Commission’s high level needs for To be considered, your response must be received at the above address critical financial and procurement functions, including the following on or before 5:00 p.m. on June 26, 2000. Any questions concerning areas: this request may be directed to Jim McKaskle at (512) 305-9693. - General Ledger If your firm is interested in being considered to serve as prime pro- fessional services vendor for this project, please provide information - Accounts Payable/Encumbrance Accounting about your company and associates who will perform services under - Budgetary Control this contract. - Grant and Project Accounting Firm Name; Business Address; Telephone Number; Business Office Hours; Years in Business; Texas Professional License Number; Is - Billing and Accounts Receivable company certified as a historically underutilized business (HUB)?; - Cash Management Number of employees available to work on this project; Name of project manager for this project; List projects over $150,000.00 - Cost Allocation completed in the last five years for which you served as prime - Budget Development administrator. TRD-200003345 - Purchasing J. Randel (Jerry) Hill - Asset Management General Counsel - Warehouse Inventory Control Texas Workforce Commission Filed: May 12, 2000 - Student Trust Funds ♦♦♦ - Youth Court Ordered Child Support Texas Youth Commission - Payroll Identify, evaluate and document the advantages, disadvantages and Consultant Request for Offer feasibility of alternative solutions from an organizational, technical Financial and Procurement Systems Strategic Planning and systems perspective, to include: Texas Youth Commission (TYC or the Agency) is issuing this Request - Compare and document the high level functionality, risks, benefits, for Offer (RFO) with the intent of acquiring consulting services, under costs, potential issues and concerns associated with implementation the provisions of the Government Code, Chapter 2254. of each. 1.0 INTRODUCTION - Document required interfaces to/from internal agency systems. 1.1 Purpose - Document required interfaces to/from statewide systems. Texas Youth Commission (TYC or the Agency) is issuing this Request - Document technological enhancements required to support each for Offer (RFO) with the intent of acquiring consulting services, solution. under the provisions of the Government Code, Chapter 2254, 2157 - Develop high level estimate of resources necessary to implement and General Services Commission (GSC) Rule 1 TAC §113.19, to each solution. provide strategic planning for its automated financial and procurement systems. - Evaluate agency’s ability to support each alternative solution. 1.1.1 Eligible Applicants - Make recommendation of best solution to meet TYC’s long term needs. Because the selected vendor for this project may be actively involved in the evaluation and selection process for any procurement that - Develop high level work-plan that supports recommended solution. results from this strategic planning effort, it is critical that the vendor - Develop a definitive scope statement for recommended solution. be independent and objective in fact and in appearance. Therefore, vendors are not eligible to propose on this engagement if they, their 1.3 Reporting firm, or any firm they are associated with are in the business of The selected vendor will be required to provide the following report selling Enterprise Resource Planning (ERP) software; or they are information: implementation partners or have alliances with ERP software vendors. - Provide a final report of work supporting proposed alternative Vendor must be approved by GSC as a Qualified Information solutions and strategic planning recommendation by the thirtieth day Systems Vendor (QISV) to be eligible to receive an award under of the month following the last day that work is performed. this quotation. Quotes must be signed by the QISV’s authorizing
IN ADDITION May 26, 2000 25 TexReg 4957 - Make an oral presentation of the report and findings to TYC Rehabilitation–To rehabilitate and re-establish in society youth com- management. mitted to the agency through a competency-based program of reso- cialization. - Provide a monthly project status report of work by the fifteenth day of the month following the last day of the calendar month that work Prevention–To study problems of juvenile delinquency, focus public is performed. attention on special solutions for problems, and assist in developing, strengthening, and coordinating programs aimed at preventing delin- The above list of tasks should not be considered all-inclusive of the quency. tasks that the awarded vendor will be expected to perform. The agency’s automated accounting system is an internally developed, 1.4 Planned Schedule of RFO Activities on-line, real-time legacy mainframe system written in Model 204. It is TYC’s intention to comply with the following procurement Internally developed modules for student trust funds, warehouse schedule: inventory control and asset management have been added. The systems service 1,000+ users in 30+ facilities and field offices Date Activity. statewide. May 26, 2000–Distribution and Notice of Request for Offer to The agency’s current technical environment is based on the Microsoft Prospective Vendors Windows platform. The agency operates a LAN at each major agency June 20, 2000–Initial Offers Due to TYC location and minor locations are networked via a WAN System. All LAN/WAN systems operate with the TCP/IP protocol and most utilize June 30, 2000–Complete Evaluation Process Cisco based routers and switches. Currently all workstations are July 20, 2000–TYC Board Authorizes Negotiations with Top Ranked utilizing Microsoft Windows NT and have a minimum of a 166 mhz Firms processor and 64 mb of ram. The servers are of various configurations and each is configured to provide a specific purpose (i.e., BDC, SQL, July 28, 2000–Complete Negotiation Process APPS, Shared, etc.). July 28, 2000–Best and Final Offers Due to TYC 2.0 TERMS, CONDITIONS AND EXCEPTIONS September 5, 2000–Execute Contract This section of the RFO identifies the Terms and Conditions associ- September 11, 2000–Project Commences ated with this procurement. The offeror’s signature on Appendix A: Compliance with Terms and Conditions is an assurance of compli- All offers timely received that meet the offer submittal instruction ance with all provisions stated in this RFO. requirements will be reviewed by a Technical Review Board, which will evaluate them based on the criteria included in this RFO. A 2.1 General short list will then be developed and those firms will be invited The content of this RFO will become a part of the written contract on or about June 23, 2000 to make an oral presentation to the between TYC and the awarded vendor. Exceptions to any of the Executive Review Board. Presentations are tentatively scheduled for requirements in the RFO must be specifically noted and explained by June 29, 2000 at TYC Central Office in Austin, Texas. The Executive the offeror as a condition to becoming part of the subsequent contract. Review Board will evaluate the oral presentations, and will submit The contract between the parties will consist of a written contract, the a recommendation to the Texas Youth Commission Board. Upon RFO (including appendices) together with any modifications thereto, approval, TYC will negotiate a fee with the selected firm to provide the offeror’s initial offer, the offeror’s best and final offer, together the required services at compensation that is within statutory limits with any modifications and clarifications thereto that are submitted and which TYC determines to be fair and reasonable. at the request of TYC during the evaluation and negotiation process. NOTE: These dates represent a tentative schedule of events. TYC In the event of any conflict or contradiction between or among these reserves the right to modify these dates at any time, with appropriate documents, the documents shall control in the following order of notice to prospective offerors. precedence; the final executed contract, the RFO, any modifications and clarifications to the awarded vendor’s offer, and the awarded 1.5 Background Information vendor’s offer. Specific exceptions to this general rule may be noted Texas Youth Commission provides for the care, custody, rehabilita- in the final executed contract. The contract may be amended only in tion, and reestablishment in society of persons who are committed by writing and by mutual agreement. the court for having engaged in delinquent conduct under Title 3, the This RFO does not commit TYC to award a contract. TYC reserves Juvenile Justice Code, of the Texas Family Code. Delinquent conduct the right to reject all offers, and at its discretion, may withdraw or is defined under the Juvenile Justice Code as a violation of a penal amend this RFO at any time. law punishable by imprisonment or confinement in jail. TYC operates secure institutional and community-based residential halfway house TYC may, by written notice, revise and amend the solicitation prior programs and provides supervision for youth upon their release to the to the due date for the offer. If, in the opinion of TYC, revisions or community. In addition, TYC contracts with private sector providers amendments will require substantive changes in offers, the due date for secure and community residential and nonresidential services. may be extended. Mission Statement TYC reserves the right to reject any and all offers received, for specific reasons, which include, but are not limited to, non- Protection–To protect the public and control the commission of compliance with RFO requirements. unlawful acts by youth committed to the agency by confining them under conditions that emphasize their positive development, Responses to this RFO will be the primary source of information accountability for their conduct and discipline training. Productivity used in the evaluation process. Therefore, each offeror is requested - To habilitate youth committed to the agency to become productive and advised to be as complete as possible in its response. However, and responsible citizens through education and productive work. TYC reserves the right to contact any offeror to clarify any response.
25 TexReg 4958 May 26, 2000 Texas Register It is understood and agreed that this bid/offer shall constitute an offer, assurances that no person having any such known interests shall be which when accepted in writing by Texas Youth Commission, and employed during the performance of this contract. subject to the terms and conditions of such acceptance, will constitute 2.4 Offer Preparation Costs a valid and binding contract between the undersigned and the State of Texas. TYC shall not incur any liability for any costs incurred by offerors in replying to this RFO. Bid/offer preparation expense: Any expense related to the submission of a bid/offer is the sole responsibility of the bidder/offeror. The State 2.5 Assignment by the Awarded Vendor will not reimburse bidders/offerors for any cost related to bid/offer The awarded vendor shall not assign or transfer any interest in the preparation or submission. contract without the prior written consent of TYC. Late bids/offers will not be considered under any circumstances. 2.6 Governing Law The State reserves the right to accept or reject all or any part of a The contract shall be governed in all respects by the laws and statutes bid/offer, waive minor technicalities and make an award in the best of the State of Texas. Unless otherwise mutually agreed, venue will interest of the State. be Travis County, Texas. Bids/offers do not become contracts until a signed Notice of Award 2.7 Force Majeure is issued. The awarded vendor shall not be liable for any excess cost to TYC The contract shall be governed, construed and interpreted under the if a failure to perform the contract arises from causes beyond the laws of the State of Texas. control and without the fault or negligence of the awarded vendor. TYC shall be the sole judge of "the best interest of the State." Such causes may include, but are not limited to, acts of God, fire, strikes, epidemics and quarantine restriction. The awarded vendor A contract may be canceled without the consent of the vendor for shall take all possible steps to recover from such occurrences. failure to meet contractual obligations. 2.8 Payment Information HUB Subcontracting Program-Good Faith Effort - State agencies are required to make a good faith effort to assist Historically Terms of payment shall be in accordance with Chapter 2251 Texas Underutilized Businesses (HUBs) in receiving contract awards issued Government Code. by the state, reference Texas Government Code Ann. Title 10, Payments will be processed on a monthly basis using actual hours Subtitle D, Chapter 2161 (formerly Texas Revised Civil Statute worked by consulting staff. The awarded vendor is responsible for Annotated Article 601b). The goal of this program is to promote fair submitting invoices for services rendered in an accurate and timely and competitive business opportunities for all businesses contracting manner. The invoices will identify consultant names, hours worked by with the State of Texas. The desired HUB goal for this service is workplan task, fully-loaded fixed hourly rates, and extended amounts 33% HUB participation. by task and total, and contract/purchase order number reference. Bid/offer must be manually signed or it will be disqualified. The per- Payment to vendors will occur 30 days after the delivery date or of son signing the bid/offer must have authority to bind the represented receipt of invoice, whichever is later. company to a contract. An unsigned bid/offer cannot be signed after submission. 2.9 Indemnity Warning: Any added terms or conditions may result in disqualifica- The awarded vendor agrees to indemnify and hold TYC harmless tion of a bid/offer, e.g., bid/offer subject to laws of a state other than against any and all claims for damages, costs, and expenses to persons Texas, requirement for prepayment, limitations on remedies, etc. or property that may arise or be occasioned by any negligent act or omission of awarded vendor or any officer, agent, servant, employee, 2.2 Personnel or associate of the awarded vendor in the execution or performance The awarded vendor shall warrant that all persons assigned to the of this agreement. project shall be employees or subcontractors of the offeror, and shall 2.10 Confidentiality be fully qualified to perform the work required herein. All materials and information provided by TYC or acquired by the Personnel commitments made in the awarded vendor’s offer shall not awarded vendor on behalf of TYC shall be regarded as confidential be changed without the prior written approval of TYC. Replacement information in accordance with Federal and State law, and ethical of key personnel, if approved by the TYC, shall be with personnel of standards. The awarded vendor must ensure the confidentiality of equal or greater ability and qualifications. such materials or information. 2.3 Conflict of Interest No employee or subcontractors of the awarded vendor may participate Prior to award of any contract, the awarded vendor shall certify in in any aspect of this project until he or she has signed a confidentiality writing, if requested by the TYC, that no relationship exists between statement and it has been delivered to TYC. The confidentiality the awarded vendor and the procuring or contracting agency that statements will survive the completion of the project and completion interferes with fair competition or is a conflict of interest, and no of the contract executed in connection with this RFO. Confidentiality relationship exists between the awarded vendor and another person statements will be presented to the awarded vendor upon contract or organization that constitutes a conflict of interest with respect to a execution. state contract. 2.11 Severability Provision The awarded vendor shall provide assurances that it presently has no If any term or condition of this RFO is declared by a court to be interest and shall not acquire any interest, either directly or indirectly, illegal or in conflict with any law, the validity of the remaining terms which will conflict in any manner or degree with the performance and conditions shall not be affected, and the rights and obligations of its services hereunder. The awarded vendor shall also provide
IN ADDITION May 26, 2000 25 TexReg 4959 of the parties shall be construed and enforced as if the RFO did not 2. presenting information, including prompts used for interactive contain the particular provision held to be invalid. communications, in formats intended for nonvisual use, and 2.12 Proprietary Information 3. being integrated into networks for obtaining, retrieving and disseminating information used by individuals who are not blind or Data contained in the offer and all documentation provided therein visually impaired. becomes the property of Texas Youth Commission and the data be- comes public information upon final award. Proprietary information For purposes of this paragraph, the phrase "equivalent access" means must be submitted in a separate package and clearly marked so. a substantially similar ability to communicate with or make use of the technology, either directly by features incorporated within the 2.13 Required Disclosures technology or by other reasonable means such as assistive devices or Each offeror must include in its offer a complete disclosure of Disabilities Act or similar state or federal laws. Examples of methods any alleged significant prior or ongoing contract failures, any civil by which equivalent access may be provided include, but are not or criminal litigation or investigation pending which involves the limited to, keyboard alternatives to mouse commands and other means offeror or in which the offeror has been judged guilty or liable. of navigating graphical displays and customizable display appearance. This is a continuing disclosure requirement. Specifically, for the 2.17 Bidder/Offeror Affirmation Clauses period ending on the date of termination of the contract resulting from this RFO, any litigation or investigation must be disclosed in a The bidder/offeror has not given, offered to give, nor intends to give written statement to TYC within fifteen (15) days of its occurrence. at anytime hereafter any economic opportunity, future employment, Failure to comply with the terms of this provision will disqualify gift, loan, gratuity, special discount, trip, favor, or service to a public any offer, and/or serve as grounds for termination of the contract servant in connection with the submitted bid/offer. entered into with respect to this project. TYC reserves the right The bidder/offeror is not currently delinquent in the payment of any to reject any offer based upon the offeror’s prior history with franchise tax owed to the State of Texas. the TYC or with any other party, which documents, without limitation, unsatisfactory performance, adversarial or contentious Neither the bidder/offeror or the firm, corporation, partnership, or demeanor, significant failure(s) to meet contract milestones or institution represented by the bidder/offeror, or anyone acting for such other contractual failures. a firm, corporation or institution has violated the antitrust laws of the State or the Federal Antitrust Laws nor communicated directly or 2.14 Changes indirectly the bid/offer made to any competitor or any other persons TYC may, from time to time, require changes in the scope of the engaged in such line of business. services of the awarded vendor to be performed hereunder. Such The bidder/offeror has not received compensation for the participation changes, which are mutually agreed upon by and between TYC and in the preparation of the specifications for this IFB. the awarded vendor, shall be incorporated in written amendment to this agreement. Under §231.006, of the Family Code (relating to child support) the bidder/offeror certifies that the individual or business entity named 2.15 Exceptions to Terms and Conditions in this bid/offer is not eligible to receive the specified payment and Offerors are expected to closely read the Terms and Conditions acknowledges that this contract may be terminated and/or payment documented within this RFO and provide a binding signature of may be withheld if certification is inaccurate. Bid/offer must intent to comply with such terms and conditions in Appendix A: include name and social security number of each person with at Compliance with Terms and Conditions. Additionally, the offeror least 25% ownership of the business entity submitting the bid/offer. must clearly identify any exceptions to the Terms and Conditions Bidders/offerors that have pre-registered this information on the GSC identified. All exceptions must be explicitly identified by sub-section Centralized Master Bidders List have satisfied this requirement. number, include an explanation as to why the offeror cannot comply Under §2155.004 of the Texas Government Code (relating to the with the specific Term or Condition, and a statement recommending collection of state and local sales and use taxes) the bidder/offeror Terms and Conditions the offeror would find acceptable. It is certifies that the individual or business entity named in the bid/offer mandatory that a completed Appendix A be included in the submitted is not ineligible to receive the specified contract and acknowledges offer. that this contract may be terminated and/or payment withheld if this Any Term or Condition not explicitly listed as an exception by the certification is inaccurate. offeror will be considered acceptable. If no exceptions to the Terms The contractor shall defend, indemnify, and hold harmless the State and Conditions are explicitly identified in the offeror’s response, all of Texas, all of its officers, agents and employees from and against Terms and Conditions included in this RFO are considered acceptable. all claims, actions, suits, demands, proceedings costs, damages, and 2.16 Technology Access Clause liabilities, arising out of, connected with, or resulting from any acts or omissions of contractor or agent, employee, subcontractor, or supplier The vendor expressly acknowledges that state funds may not be ex- of contractor in the execution or performance of this contract. pended in connection with the purchase of an automated information system unless that system meets certain statutory requirements relat- In accordance with Texas Government Code Annotated §403.055(h) ing to accessibility by persons with visual impairments. Accordingly, that "any payments owing to the contractor under this contract will the Vendor represents and warrants to the qualified ordering entity that be applied toward elimination of the contractor’s indebtedness to the the technology provided to the qualified ordering entity for purchase state, delinquency in payment of taxes to the state, or delinquency is capable of, either by virtue of features included within the technol- in payment of taxes that the Comptroller administers or collects until ogy or because it is readily adaptable by use with other technology, the indebtedness or delinquency is paid in full." of: 2.18 Standard Clause 1. providing equivalent access for effective use by both visual and nonvisual means;
25 TexReg 4960 May 26, 2000 Texas Register Note to Bidder/Offeror–any terms and conditions attached to a bid/ or deliver to: offer will not be considered unless specifically referred to on this bid/ Texas Youth Commission offer form and may result in disqualification of the bid/offer. 4900 North Lamar 2.19 Texas Resident Affirmation Clause Second Floor Human Resource Receptionist By signing this bid/offer, bidder/offeror certifies that if a Texas address is shown as the address of the bidder/offeror, bidder/offeror Austin, Texas 78751 qualifies as a Texas Resident Bidder as defined in GSC Rule 1 TAC Clearly marked to the attention of: Cynthia Ellis, Finance Department §111.2. The master copy must be clearly marked "Master Copy". No fax 2.20 Funding Out Clause offers will be accepted. This contract is subject to cancellation, without penalty, either in Packages/boxes containing the RFO’s should be clearly marked as whole or in part if funds are not appropriated by the Texas Legislature. follows: 2.21 Dispute Resolution Request for Offer No. CO-11-00-RFO The dispute resolution process provided for in Chapter 2260 of the FINANCIAL AND PROCUREMENT SYSTEMS STRATEGIC Government Code shall be used, by Texas Youth Commission and PLANNING CONSULTING SERVICES the Contractor to attempt to resolve any claim for breach of contract made the contractor. The submission, processing and resolution of Offers must be received by 3:00 p.m. Central Standard Time, 06/ the contractor’s claim is governed by the published rules adopted 20/2000. Offers received after this deadline will not be considered. by TYC pursuant to Chapter 2260, as currently effective, hereafter Offerors may submit their offer any time prior to the above stated enacted or subsequently amended. deadline. 2.22 Texas Government Code Annotated §2155.004, Government 3.2 Offer Format Code Offers submitted in response to this RFO must comply with the A bid/offer or award is subject to the requirements of this section. following format. Vendor must certify that the individual or business entity named in 3.2.1 Letter of Transmittal this bid/offer or contract is not ineligible to receive the specified contract and acknowledges that this contract may be terminated and The letter of transmittal should be limited to two pages and must payment withheld if this certification is inaccurate. If suggested include: vendor is foreign (not a Texas entity), vendor must certify that it - A brief statement of the offeror’s understanding of the work to be is not subject to state and local taxes. A signed and dated statement done; that vendor does not sell tangible personal property or services that are subject to the state and local sales and use taxes. If a state - The names, titles, addresses, and telephone numbers of the agency determines that an individual or business entity holding a state individuals who are authorized to make representations on behalf of contract was ineligible to have the contract accepted or awarded, the the offeror; state agency may immediately terminate the contract without further - A statement that the person signing the transmittal letter is obligation to the vendor. If this certification is shown to be false, the authorized to legally bind the offeror; vendor is liable to the state for attorney’s fees, the costs necessary to complete the contract including the cost of advertising and awarding a - Signature of person(s) authorized to legally bind the offeror; second contract, and any other damages provided by law or contract. - A statement that this offer and the price contained therein shall (Appendix B) remain firm for a period of 240 days from contract award; and A corporation that is delinquent in a tax owed the state under Chapter - A statement indicating which vendor, if multiple vendors are 171, Tax Code, may not be awarded a contract by the state or any offering jointly, intends to act as prime point of contact for offer agency of the state and may not be granted a permit or license by the evaluation questions and the delivery and maintenance of the vendor’s state or any agency of the state. proposed offerings. 3.0 OFFER SUBMITTAL INSTRUCTIONS 3.2.2 Title Page 3.1 Submittal Procedure The title page must include: Offerors shall submit offers in accordance with the requirements FINANCIAL AND PROCUREMENT SYSTEMS STRATEGIC outlined in this document. The offers are required to address all PLANNING aspects of this RFO. Five copies of the offer, including one original master copy, signed in ink, are to be submitted to: CONSULTING SERVICES Mail to: RFO No. CO-11-00-RFOF Cynthia Ellis Name and address of the offeror. Finance Department 3.2.3 Table of Content Texas Youth Commission A table of contents should be included to reference offer contents by section to the appropriate pages. P.O. Box 4260 3.2.4 Executive Summary Austin, Texas 78765
IN ADDITION May 26, 2000 25 TexReg 4961 The executive summary should be limited to no more than five (5) TYC intends to award the contract to the vendor whose offer reflects pages and must provide a concise summarization of the services being the best value for TYC. All offers will be consistently evaluated by an offered to meet TYC needs, the offeror’s approach to providing the independent evaluation committee comprised solely of representatives services, and documentation as to why the offeror is best qualified to of TYC in accordance with the following criteria: perform this engagement. Proposed consultants’ professional accounting knowledge and expe- 3.2.5 References rience; Vendor must provide three references, as vendor provided attach- Proposed consultants’ experience with public sector financial systems; ments, that are firms or other entities to which the offeror provided Proposed consultants’ experience with Texas public sector financial similar services relating to those being offered. Each reference must systems; include the name of the firm or entity, the name and telephone num- ber of an individual that is knowledgeable of the services being refer- Proposed consultants’ experience in performing requirements studies enced, the name or other identifying information of the project, and and developing requests for offer for financial systems for public the period during which the referenced services were provided. Fail- sector entities; ure to provide the required references may result in that vendor’s offer Proposed consultants’ experience in software evaluation and contract being disqualified from consideration for an award resulting from this negotiations; solicitation. Proposed consultants’ experience in independent project management 3.2.6 Qualifications and Personnel and quality assurance in a government environment; Vendor must provide, in a narrative form, information responding to Vendor’s project management approach; the following for each person being proposed to perform the work: Vendor’s objectivity and independence; - Experience with the State of Texas Uniform Statewide Accounting System (USAS) preferred; Quality of references, and; - Experience in operating in the financial sector with Texas govern- Total cost. ment preferred; FORM: - Project management experience; Appendix A - Professional accounting experience; Compliance with Terms and Conditions - Project management experience in implementing a financial system By signing below, your firm agrees to provide the services described in the State of Texas preferred. Vendor must provide, as an herein and agrees to abide by all the terms and conditions as specified attachment, the name of the person(s) being proposed to perform in this document. Any exceptions taken to the terms and conditions as the work. set forth in this document must be identified by sub-section number, 3.2.7 Task Summary include an explanation as to why the offeror cannot comply with the specific Term or Condition, and a statement recommending Terms Offerors must provide a written proposed summary of tasks to be and Conditions the offeror would find acceptable. Any exceptions performed and resources with total number of hours allocated to each not identified will not be considered. task as it relates to the scope of work. The final task is not considered complete until the final report is received by TYC. Offerors shall Vendor:— provide two samples of previous work products they have performed Signature of Authorized Representative— that will support their knowledge, experience and training relating to the tasks included in Section 1.2. When providing supporting Printed Name of Authorized Representative:— materials, Offerors must indicate which of the above tasks that the Title of Authorized Representative:— document supports. Date:— 3.2.8 Cost Proposal Exceptions— Offerors must provide the total estimated number of hours to complete the project and the total estimated cost to complete the project. FORM: Offerors must provide hourly rates for the staff being proposed to Appendix B perform the services identified in this RFO. The hourly rates should be fully loaded to include travel (not to exceed State of Texas travel This certification is to be completed by vendor and signed by rates) and other out-of-pocket expenses. person who is authorized to do so. 3.3 Contract Term Texas Youth Commission Requisition Number: The term of the contract shall begin on the date of award and end no CERTIFICATION OF NON TAXABLE GOODS later than 180 days after the contract award date. It is further agreed I certify that (Business Name):——-, Tax ID #——–, does not sell and understood that TYC reserves the right to extend the contract tangible personal property or services that are subject to the state and period covered by any contract award, resulting from this bid/offer local sales and use taxes. Signature:——–Title:——-Date: a maximum of 90 days beyond the normal expiration date of such contract. Under §2155.004 of the Texas Government Code, the bidder/offeror certifies that the individual or business entity in the bid/offer is not 4.0 EVALUATION CRITERIA ineligible to receive the specified contract and acknowledges that
25 TexReg 4962 May 26, 2000 Texas Register this contract may be terminated and/or payment withheld if this TRD-200003336 certification is inaccurate. Steve Robinson In accordance with Texas Government Code Annotated §403.055(h) Executive Director that "payment owing to the contractor under this contract will be Texas Youth Commission applied toward elimination of the contractor’s indebtedness to the Filed: May 11, 2000 state, delinquency in payment of taxes to the state, or delinquency ♦♦♦ in payment of taxes that the Comptroller administers or collects until the indebtedness or delinquency is paid in full."
IN ADDITION May 26, 2000 25 TexReg 4963 How to Use the Texas Register cover or call the Texas Register at (800) 226-7199. Information Available: The 13 sections of the Texas Register represent various facets of state government. Documents Texas Administrative Code contained within them include: The Texas Administrative Code (TAC) is the compilation of Governor - Appointments, executive orders, and all final state agency rules published in the Texas Register. proclamations. Following its effective date, a rule is entered into the Texas Attorney General - summaries of requests for opinions, Administrative Code. Emergency rules, which may be adopted opinions, and open records decisions. by an agency on an interim basis, are not codified within the Secretary of State - opinions based on the election laws. TAC. Texas Ethics Commission - summaries of requests for The TAC volumes are arranged into Titles (using Arabic opinions and opinions. numerals) and Parts (using Roman numerals). The Titles are Emergency Rules- sections adopted by state agencies on an broad subject categories into which the agencies are grouped as emergency basis. a matter of convenience. Each Part represents an individual Proposed Rules - sections proposed for adoption. state agency. Withdrawn Rules - sections withdrawn by state agencies The complete TAC is available through the Secretary of from consideration for adoption, or automatically withdrawn State’s website at http://www.sos.state.tx.us. The following by the Texas Register six months after the proposal publication companies also provide complete copies of the TAC: Lexis- date. Nexis (1-800-356-6548), LOIS, Inc. (1-800-364-2512 ext. Adopted Rules - sections adopted following a 30-day 152), and West Publishing Company (1-800-328-9352). public comment period. Texas Department of Insurance Exempt Filings - notices The Titles of the TAC, and their respective Title numbers of actions taken by the Texas Department of Insurance are: pursuant to Chapter 5, Subchapter L of the Insurance Code. 1. Administration Texas Department of Banking - opinions and exempt 4. Agriculture rules filed by the Texas Department of Banking. 7. Banking and Securities Tables and Graphics - graphic material from the proposed, 10. Community Development emergency and adopted sections. 13. Cultural Resources Open Meetings - notices of open meetings. 16. Economic Regulation In Addition - miscellaneous information required to be 19. Education published by statute or provided as a public service. 22. Examining Boards Review of Agency Rules - notices of state agency rules 25. Health Services review. 28. Insurance Specific explanation on the contents of each section can be 30. Environmental Quality found on the beginning page of the section. The division also 31. Natural Resources and Conservation publishes cumulative quarterly and annual indexes to aid in 34. Public Finance researching material published. 37. Public Safety and Corrections 40. Social Services and Assistance How to Cite: Material published in the Texas Register is 43. Transportation referenced by citing the volume in which the document appears, the words “TexReg” and the beginning page number How to Cite: Under the TAC scheme, each section is on which that document was published. For example, a designated by a TAC number. For example in the citation 1 document published on page 2402 of Volume 24 (1999) is cited TAC §27.15: as follows: 24 TexReg 2402. 1 indicates the title under which the agency appears in the In order that readers may cite material more easily, page Texas Administrative Code; TAC stands for the Texas numbers are now written as citations. Example: on page 2 in Administrative Code; §27.15 is the section number of the rule the lower-left hand corner of the page, would be written “23 (27 indicates that the section is under Chapter 27 of Title 1; 15 TexReg 2 issue date,” while on the opposite page, page 3, in the represents the individual section within the chapter). lower right-hand corner, would be written “issue date 23 TexReg 3.” How to update: To find out if a rule has changed since the publication of the current supplement to the Texas How to Research: The public is invited to research rules and Administrative Code, please look at the Table of TAC Titles information of interest between 8 a.m. and 5 p.m. weekdays at Affected. The table is published cumulatively in the blue-cover the Texas Register office, Room 245, James Earl Rudder quarterly indexes to the Texas Register (January 8, April 9, Building, 1019 Brazos, Austin. Material can be found using July 9, and October 8, 1999). If a rule has changed during the Texas Register indexes, the Texas Administrative Code, time period covered by the table, the rule’s TAC number will be section numbers, or TRD number. printed with one or more Texas Register page numbers, as shown in the following example. Both the Texas Register and the Texas Administrative Code TITLE 40. SOCIAL SERVICES AND ASSISTANCE are available online through the Internet. The address is: http:// Part I. Texas Department of Human Services www.sos.state.tx.us. The Register is available in an .html 40 TAC §3.704...... 950, 1820 version as well as a .pdf (portable document format) version The Table of TAC Titles Affected is cumulative for each through the Internet. For subscription information, see the back volume of the Texas Register (calendar year). Texas Register Services The Texas Register offers the following services. Please check the appropriate box (or boxes).
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