TITLE 25.HEALTH SERVICES

Part 1. TEXAS DEPARTMENT OF HEALTH

Chapter 37. MATERNAL AND INFANT HEALTH SERVICES

Subchapter F. HEMOPHILIA ASSISTANCE PROGRAM

The Texas Department of Health (department) proposes the repeal of §§37.111 - 37.125 and new §§37.111 - 37.119, concerning the hemophilia assistance program. The repeal and new sections provide for clarity and consistency of language and facilitate compliance with and administration of the rules.

In accordance with the requirements of the Government Code, §2001.039, the sections have been reviewed and the department has determined that reasons for adopting the sections continue to exist because rules on this subject are needed. However, the sections require revision as described in the preamble.

The department published a Notice of Intention to Review for §§37.111 - 37.125 in the Texas Register on April 28, 2000 (25 TexReg 2799). No comments were received due to publication of this notice.

Specifically, the sections cover general requirements; recipient eligibility requirements; residency and residency documentation requirements; application and eligibility date; financial criteria; limitations and benefits provided; participating providers; forms; and confidentiality of information.

The new rules define medical, financial and residency requirements, benefits and limitations, and participation criteria for providers.

Phillip Walker, Chief, Bureau of Kidney Health Care, has determined that for each year of the first five years the sections are in effect, there will be no fiscal implications for state and local government as a result of enforcing or administering the sections as proposed.

Mr. Walker has also determined that for each year of the first five years the sections are in effect, the public benefit anticipated as a result of enforcing the sections is that program access and eligibility will be easier to comply with and understand. There will be no costs to small businesses or micro-businesses resulting from compliance with these sections as proposed because none of the entities or persons affected constitute micro-businesses or small businesses. There are no anticipated economic costs to persons who are required to comply with the sections as proposed. There is no anticipated impact on local employment.

Comments may be submitted to Mr. Phillip Walker, Chief, Bureau of Kidney Health Care, Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756, (512) 834-6770. Comments will be accepted for 30 days following publication of the proposal in the Texas Register .

25 TAC §§37.111 - 37.125

(Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Department of Health or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)

The repeals are proposed under Health and Safety Code, §12.001, which provides the Texas Board of Health (board) with the authority to adopt rules for the performance of every duty imposed by law on the board, the department, and the commissioner of health; and Health and Safety Code, Chapter 41, relating to hemophilia.

The repeals affect Health and Safety Code, Chapter 41. The review of the rules implements Government Code, §2001.039.

§37.111.Purpose.

§37.112.Definitions.

§37.113.Eligibility for Patient Services.

§37.114.Services Provided to Patients.

§37.115.Application Process.

§37.116.Authorization of Blood Product Purchases.

§37.117.Denial/Modification/Suspension/Termination of Program Benefits.

§37.118.Rights and Responsibilities of Parents/Guardian/Conservator or the Adult Patient.

§37.119.Providers.

§37.120.Contracts and Written Agreements.

§37.121.Payment of Services.

§37.122.Payment Suspension or Cancellation.

§37.123.Cooperation with Other Agencies.

§37.124.Appeals, Confidentiality, Gifts, and Nondiscrimination.

§37.125.Income Guidelines.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on January 16, 2004.

TRD-200400324

Susan K. Steeg

General Counsel

Texas Department of Health

Earliest possible date of adoption: February 29, 2004

For further information, please call: (512) 458-7236


25 TAC §§37.111 - 37.119

The new sections are proposed under Health and Safety Code, §12.001, which provides the Texas Board of Health (board) with the authority to adopt rules for the performance of every duty imposed by law on the board, the department, and the commissioner of health; and Health and Safety Code, Chapter 41, relating to hemophilia.

The new sections affect Health and Safety Code, Chapter 41. The review of the rules implements Government Code, §2001.039.

§37.111.General.

(a) Purpose. The purpose of this chapter is to establish rules for the Hemophilia Assistance Program (HAP). The authority for these rules is granted in the Texas Health and Safety Code, Chapter 41.

(b) Definitions. The following words and terms, when used in this chapter, shall have the following meaning unless the context clearly indicates otherwise.

(1) Allowable product--Blood derivatives, blood concentrates, and manufactured pharmaceutical products indicated for the treatment of hemophilia and approved for payment by the Hemophilia Assistance Program.

(2) Applicant--An individual whose application has been submitted through a participating provider and has not received a final determination of eligibility. This includes an individual whose application is submitted by a representative or person with legal authority to act for the individual.

(3) Department--The Texas Department of Health.

(4) HAP--The Hemophilia Assistance Program.

(5) Hemophilia--A human physical condition, characterized by bleeding, resulting from a genetically determined deficiency of a blood coagulation factor or hereditarily resulting in an abnormal or deficient plasma procoagulant.

(6) Inhibitor--A type of antibody, more common in severe hemophilia A than hemophilia B, which requires the use of higher doses of blood factor to contain a bleeding episode. This is usually confirmed by the Bethesda inhibitor assay and reported as the Bethesda titer. The development of an inhibitor rarely occurs in those with mild hemophilia.

(7) Participating provider--Any individual or entity with HAP approval to provide allowable products to HAP recipients.

(8) Recipient--An individual who is eligible to receive HAP benefits.

§37.112.Recipient Requirements.

(a) A person shall meet all of the following requirements to be eligible for benefits from the Hemophilia Assistance Program (HAP):

(1) have a diagnosis of hemophilia certified by a licensed physician;

(2) be 21 years of age or older;

(3) be a resident of Texas as determined in §37.113 of this title (relating to Residency and Residency Documentation Requirements) and not be:

(A) incarcerated in a city, county, state, or federal jail, or prison; or

(B) a ward of the state.

(4) submit an application for benefits to the HAP;

(5) meet, or the person(s) who have a legal obligation to support the applicant meet, the financial guidelines as outlined in §37.115 of this title (relating to Financial Criteria). The person or persons who have a legal obligation to support the recipient will be determined by the applicable state law; and

(6) not be eligible for Medicare or Medicaid.

(b) A recipient may have all HAP benefits modified, suspended, or terminated for any of the following reasons:

(1) failure to maintain Texas residency or, upon demand, furnish evidence of such using the criteria in §37.113 of this title;

(2) failure to provide income data as requested to determine continued HAP eligibility;

(3) recipient is incarcerated in a city, county, state, or federal jail, or prison;

(4) recipient becomes a ward of the state;

(5) recipient makes a material misstatement or misrepresentation on their application or any document required to support their application;

(6) failure to continue premium payments on individual or group insurance, prepaid medical plan, and health insurance plans under the Social Security Act, Title XVIII, as amended, where such plans provide benefits for the care and treatment of persons who have hemophilia and the person's eligibility for benefits under the plan(s) was effective prior to eligibility for HAP, or provide a statement on the application form outlining the reason(s) why such insurance cannot be maintained; or

(7) failure to receive services through a participating provider.

(c) When eligibility for HAP benefits is terminated for any of the reasons outlined in subsection (b) of this section, an applicant shall reapply for HAP benefits.

(d) A recipient whose benefits are modified, suspended, or terminated may appeal the HAP decision under the procedure contained in §§1.51 - 1.55 of this title (relating to Fair Hearing Procedures).

§37.113.Residency and Residency Documentation Requirements.

(a) The following conditions shall be met by an applicant and maintained by a recipient to satisfy the residency requirements in this section:

(1) physically reside within the state; and

(2) maintain a home or abode within the state.

(b) If the applicant is a legal dependent of, and residing with, a resident (such as an adult child or spouse); or is a person under legal guardianship, then the resident providing support or the legal guardian of the applicant shall meet the requirements of subsection (a) of this section.

(c) If the applicant is a parent residing with their adult child who is a resident of Texas, residency may be determined through the adult child. If the applicant is a parent being supported by their adult child, whether or not the child is a resident of Texas, the residency may be determined by the adult child providing the required documents supporting the Texas residency of the parent. These provisions apply even if no legal guardianship has been established.

(d) All documents submitted to establish the residency of an applicant shall be in English or accompanied by an accurate English translation, if required by the Hemophilia Assistance Program (HAP).

(e) An applicant, or person establishing residency for the applicant under subsections (b) and (c) of this section, who is currently a Texas resident and has been currently approved to receive benefits from Texas Medicaid, Temporary Assistance for Needy Families (TANF), or Food Stamps, is not required to provide additional residency verification.

(f) An applicant, or person establishing residency for the applicant under subsections (b) and (c) of this section, may submit a copy of any one of the following documents as evidence of residency. All documents shall be in the applicant's name, or in the name of the person establishing residency for the applicant, and provide some verification of a Texas address or domicile:

(1) a valid Texas driver's license, or an identification card issued by the Texas Department of Public Safety;

(2) a valid Texas voter's registration card, or a copy of a validated (at the county clerk's office) application for a voter's registration card;

(3) a current Texas motor vehicle registration or automobile license plate registration renewal form;

(4) a mortgage payment receipt from any of the three months immediately preceding the date of the application;

(5) a rent payment receipt from any of the three months immediately preceding the date of the application;

(6) a statement reflecting that the applicant is currently receiving rent-free housing. The statement must be signed by the individual providing the rent-free housing and must include the address and phone number of the individual providing the rent-free housing;

(7) a utility payment receipt from any of the three months immediately preceding the date of the application;

(8) a Texas property tax receipt for the most recently completed tax year;

(9) a payroll or retirement check dated within the three months immediately preceding the date of the application;

(10) employment/unemployment records prepared within the three months immediately preceding the date of the application;

(11) a statement from a financial institution issued within the three months preceding the date of the application; or

(12) social security supplemental income or disability income records, or social security retirement benefit records issued within the three months immediately preceding the date of the application.

(g) Applications submitted under subsections (b) and (c) of this section shall also include evidence of the legal relationship between the applicant and the resident, such as:

(1) a marriage license or declaration of non-ceremonial marriage to document the marriage of the applicant and spouse;

(2) a birth certificate establishing the parent/child relationship between the applicant and the resident;

(3) a final order naming the applicant's managing conservator; or

(4) an income tax return showing name and relationship of the applicant to the resident.

(h) Any difference between the name of the applicant and the name on any document must be explained by additional documentation (Example: marriage license, divorce decree, or adoption decree).

§37.114.Applications and Eligibility Date.

Persons meeting the eligibility requirements set forth in §37.112(a)(1), (2), (3), (5) and (6) of this title (relating to Recipient Requirements) must make an application for benefits through the Hemophilia Assistance Program (HAP).

(1) Complete application. A complete application is required before any eligibility determination will be made. A complete application shall consist of all of the following:

(A) a complete Application for Benefits, with the applicant's, or the applicant's representative's, original signature or "mark";

(B) a diagnosis of hemophilia certified by a licensed physician;

(C) documentation of Texas residency as required by §37.113 of this title (relating to Residency and Residency Documentation Requirements);

(D) applicant financial data. Acceptable data to establish the applicant's financial qualifications shall be submitted with the application. If the applicant, or person(s) who has a legal obligation to support the applicant is currently approved to receive benefits from Texas Medicaid, Temporary Assistance for Needy Families (TANF), or Food Stamps, no verification of income is required. Changes in income or financial qualifications that would affect the applicant's eligibility shall be reported to the HAP.

(i) The applicant, or the person(s) who has a legal obligation to support the applicant, may submit any of the following documents to verify income:

(I) copy of the most recent paycheck;

(II) copy of the most recent paycheck stub or monthly employee earnings statement;

(III) employee's written verification of gross monthly income;

(IV) pension/allotment award letters;

(V) a copy of the IRS individual income tax return form and supporting schedules for the most recently completed tax year; or

(VI) any other documents considered valid by HAP.

(ii) If the applicant, or person(s) who has a legal obligation to support the applicant, is unemployed, a statement of termination from the employer, or other documentation acceptable to HAP, is required.

(2) Incomplete applications. Any application which does not meet all of the requirements of paragraph (1) of this subsection is incomplete. Incomplete applications may be returned to the submitting person for correction or completion.

(3) Eligibility date for HAP benefits. The HAP eligibility date will be either:

(A) the date HAP receives a completed application; or

(B) the date of conditional authorization for allowable products, if all written information to establish eligibility is received within 30 days of the date of conditional authorization.

(4) Eligibility date for reinstatement of HAP benefits. If HAP benefits are terminated, the eligibility date for any subsequent benefit period will be the date on which HAP receives a subsequent completed application for HAP benefits.

(5) An applicant whose eligibility for benefits is denied may appeal HAP's decision under the procedure contained in §§1.51 - 1.55 of this title (relating to Fair Hearing Procedures).

§37.115.Financial Criteria.

Financial need is established on the basis of income legally available to the applicant or the person(s) who have a legal obligation to support the applicant.

(1) The income used to determine eligibility is the combined gross income of the applicant and of all persons who have a legal obligation to support the applicant.

(2) Income includes earned wages, pensions or allotments, alimony, or any monies received on a regular basis for support purposes. Supplemental Security Income (SSI) for the disabled applicant is not included as income. Verification of income data will be required as set out in §37.114(1)(D) of this title (relating to Applications and Eligibility Date).

(3) The income level for eligibility is based on a percentage of the Federal Poverty Level Guidelines currently published by the U.S. Health and Human Services and adopted by the Texas Department of Health (department). Priority levels are based on available funds and may be adjusted by the department in order to meet budgetary limitations. Priority levels are as follows.

(A) Priority 1 - 100% or below;

(B) Priority 2 - 101% - 115%;

(C) Priority 3 - 116% - 130%;

(D) Priority 4 - 131% - 145%;

(E) Priority 5 - 146% - 160%;

(F) Priority 6 - 161% - 185%; or

(G) Priority 7 - 186% - 200%.

§37.116.Limitations and Benefits Provided.

(a) The Hemophilia Assistance Program (HAP) provides limited reimbursement to participating providers for blood derivatives, blood concentrates, and manufactured pharmaceutical products indicated for the treatment of hemophilia and prescribed to eligible recipients for use in medical or dental facilities or in the home.

(b) All HAP benefits are limited to those prescribed by a licensed physician and received in Texas from a participating provider.

(c) Depending on the recipient's eligibility status, HAP will pay for allowable products based upon:

(1) available funds;

(2) established limits for allowable products by type or category of product; and

(3) the reimbursement rates established by the Texas Department of Health (department).

(d) Recipients eligible for coverage of allowable products under a private/group health insurance plan are not eligible to receive HAP benefits. A recipient that has exhausted this coverage may be eligible to receive benefits from HAP.

(e) To meet budgetary limitations, the department may:

(1) adjust the priority level for receipt of benefits, as outlined in §37.115(3) of this title (relating to Financial Criteria);

(2) adjust the reimbursement rates established by the department;

(3) restrict the allowable products paid for under the HAP;

(4) adjust the established limits for allowable products;

(5) adjust the limits established based on the inhibitor status of the recipient or applicant;

(6) limit the number of providers approved to participate in the HAP; or

(7) establish a waiting list of persons eligible for HAP. Appropriate information will be collected from each applicant who is placed on a waiting list. The information will be used to facilitate contacting the applicant when benefits become available and to allow efficient enrollment of the applicant for those benefits.

§37.117.Participating Providers.

In order for a provider to qualify for participation in the Hemophilia Assistance Program (HAP), the provider shall meet the following criteria:

(1) enter into an agreement to participate in HAP;

(2) submit a completed HAP provider enrollment form to HAP;

(3) be a current Texas Medicaid provider;

(4) reimburse HAP for any overpayments made to the provider by HAP upon request; and

(5) not currently be on suspension as a HAP provider or a Texas Medicaid provider.

§37.118.Forms.

Forms which have been developed by the Texas Department of Health (department) for use in the Hemophilia Assistance Program (HAP) will be provided to applicants, recipients and providers, as necessary.

§37.119.Confidentiality of Information.

(a) All information required by this chapter to be submitted may be verified at the discretion of the Texas Department of Health (department) and without notice to the applicant or recipient of benefits of the Hemophilia Assistance Program (HAP), or to the providers of HAP services. This information is confidential to the extent authorized by law.

(b) Information may be disclosed in summary, statistical, or other forms which do not identify particular individuals.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on January 16, 2004.

TRD-200400325

Susan K. Steeg

General Counsel

Texas Department of Health

Earliest possible date of adoption: February 29, 2004

For further information, please call: (512) 458-7236


Chapter 61. CHRONIC DISEASES

Subchapter B. DIABETIC EYE DISEASE DETECTION INITIATIVE

25 TAC §§61.21 - 61.24

The Texas Department of Health, Diabetes Program/Council proposes amendments to §§61.21 - 61.24, concerning the Diabetic Eye Disease Program (DEDP). The amended sections update language, clarify eligibility requirements and procedures for eligible persons, and update program benefits.

The sections are being amended to comply with Government Code, §2001.039, that requires a state agency to review a rule not later than the fourth anniversary of the date on which the rule takes effect and every four years after that date. The department has reviewed the rules and has determined that revisions are necessary in order to reflect changes in program administration.

Health and Safety Code, Chapter 103, §103.013(a), "Texas Diabetes Council," requires the Texas Diabetes Council to "develop and implement a state plan for diabetes treatment." Health and Safety Code, Chapter 103, §103.013(c), states that "The council shall make written recommendations for performing its duties under this chapter to the (board) and the legislature. If the council considers a recommendation that will affect an agency not represented on the council, the council shall seek the advice and assistance of the agency before taking action on the recommendation. The council's recommendations shall be implemented by the agencies affected by the recommendations." Furthermore, Health and Safety Code, §103.014(e), states "the department shall accept funds appropriated for the purposes of this chapter and shall allocate those funds." The Diabetes Program budget has included funds for the DEDP since 1989, and the council at its October 2003, meeting approved of these changes to the rules.

A notice of intent to review for §§61.21 - 61.24 was published in the January 7, 2000, issue of the Texas Register (25 TexReg 218). No comments were received as a result of publication of the notice.

The proposed amendments to §61.21 update language, provide current contact information, and clarify the scope of coverage.

The proposed amendments to §61.22 clarify patient/client eligibility criteria and change the financial eligibility reference from the department's guidelines for clinical health services to the HHS-TDH poverty guidelines.

The proposed amendments to §61.23 include editorial changes and clarify that the reimbursement rate for funduscopic eye exams is up to $60 as recommended by the Texas Diabetes Council rather than the previously published $40.

The proposed amendments to §61.24 are editorial for consistent terminology and provide updated contact information.

At their public meeting in El Paso on October 16, 2003, the Texas Diabetes Council approved these proposed amendments to affirm previous recommendations on provider reimbursement and client financial eligibility and to update the language overall regarding diabetes and the use of TDH-HHS poverty guidelines.

Jan Ozias, Program Director, has determined that for each year of the first five years the sections are in effect, there are no foreseeable fiscal implications to state or local government as a result of enforcing or administering the sections as proposed. The program can increase payment rate to providers and limit the number of referral forms available annually statewide in order to not exceed the budget for this function within the Diabetes Program allocation.

Dr. Ozias, has also determined that for each year of the first five years the rules are in effect, the public benefit anticipated as a result of enforcing the sections will be a more effective and efficient provision of the Diabetic Eye Disease Program. Additionally, the proposed sections will provide more specific guidance to providers and recipients. The amendments will have no adverse economic effect on small businesses or micro-businesses because the sections do not add any new or additional requirements on either eligible providers or recipients. There is no fee for eligible providers or recipients, thus there are no economic costs to persons who are required to comply with the sections as proposed, as the purpose of the amendments are to clarify and update current requirements. There is no anticipated effect on local employment.

Comments on the proposal may be submitted to Jan Ozias, Program Director, Texas Department of Health, Diabetes Program/Council, 1100 West 49th Street, Austin, Texas 78756, (512) 458-7490. Comments will be accepted for 30 days following publication of this proposal in the Texas Register .

The amendments are proposed under Health and Safety Code, §103.13, which requires affected state agencies to implement recommendations of the Texas Diabetes Council; and §12.001, which provides the Texas Board of Health with the authority to adopt rules for the performance of each duty imposed by law on the board, the department, and the commissioner.

The amendments affect the Health and Safety Code, Chapter 103.

§61.21.General Information.

(a) Background. Diabetes is a major cause of blindness in the United States and in Texas. It is estimated that up to 50% of blindness due to proliferative diabetic retinopathy could be prevented, or at least delayed, by prompt detection and treatment. Annual funduscopic examinations are recommended for nearly all people with diabetes [ diabetics ] to detect retinopathy before vision is compromised. Unfortunately, many people [ persons ] with diabetes are not presently being referred to ophthalmic specialists to receive these annual examinations. While several factors contribute to the problem, lack of resources is a significant factor. The [ It also happens that the ] prevalence of diabetes is greater among minority populations [ who historically have been financially disadvantaged ]. Specifically, the prevalence of diabetes is higher [ three to five times greater ] among Hispanics/Latinos American Indians, Asian Americans and African Americans [ Mexican Americans ] than non-Hispanic whites. [ Blacks also have a 33% higher prevalence of diabetes than non-Hispanic whites. ] Existing evidence also [ There is also evidence which ] indicates that minority populations suffer disproportionately higher rates of complications from diabetes. For these reasons, the Texas Department of Health (TDH), through Texas Diabetes Program/ Council funds, supports [ is supporting ] diabetic eye disease screening activities. [ The diabetic eye disease detection initiative is an attempt to provide needed eye examinations to many persons with diabetes who might otherwise not receive services because of a lack of resources. ]

(b) Introduction. The purpose of the Diabetic Eye Disease Program [ Detection Initiative ] is to provide dilated funduscopic examinations to eligible persons with diabetes who might otherwise not receive services so that vision-threatening conditions, such as retinopathy, can be identified and treated. These [ Diabetes Control Program (DCP) ] services are provided to Texas residents who are at high risk for vision loss due to diabetes, and who meet the program's [ TDH ] income eligibility criteria for services.

(c) Participating providers. Health care professionals [ Persons ] providing DEDP services [ under the DCP ] must have a current Texas license to practice ophthalmology [ medicine ] or optometry and must be in good standing with the Texas Board of Medical Examiners or Texas Board of Optometry, whichever is applicable. Persons wishing to become [ be ] providers should complete [ furnish ] the information requested on the department's fee-for-service contract and return the completed contract to the Texas Diabetes [ Chronic Disease Prevention ] Program, Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756.

[ (d) Civil rights. Providers of services under the DCP are subject to the provisions of the Federal Civil Rights Act of 1964, Public Law 88-532, and Texas Civil Statutes, Article 6252-16, so that no person will be excluded from participation in the DCP or otherwise subjected to discrimination on the grounds of race, color, or national origin. ]

(d) [ (e) ] Procedures for eligible persons receiving services from the DEDP [ DCP ]. Individuals must be referred by [ to ] the staff of TDH regions, local health departments, or others who have been approved as nominators by the program [ DCP, TDH ]. The nominator's responsibility is to assess whether a prospective client with diabetes meets DEDP [ DCP ] eligibility criteria, and to [ obtain approval from the TDH regional dental office to ] refer the client to a participating provider. Nominators should [ may ] also assist in follow-up with clients and providers regarding missed appointments and any need for subsequent treatment for eye disease. [ The regional office will confirm (usually by phone) the client's eligibility and authorize the nominator to refer the client to the participating provider of the client's choice. ] The nominator will then refer the client and send a tracking form to the provider. This form is the written authorization for the provider to perform services. Upon completion of the client's examination, the provider will forward a copy of the tracking form to the DEDP [ appropriate regional ] office and retain a copy for the provider's record. If treatment is recommended and the client is to be referred to another facility for treatment, then the provider will forward a copy [ the remaining copies ] of the tracking form to the treatment facility. If the provider is also performing treatment, the results of the treatment will be documented on the tracking form and sent to the Texas Diabetes Program [ DCP ] in Austin. However, the DEDP will pay only for the funduscopic eye exam and is not authorized to pay for eyeglasses, contact lenses, any additional examinations, or any indicated follow-up care.

§61.22. Client [ Patient ] Eligibility.

(a) Eligible persons[ . ]

[ (1) ] [ Eligible persons ] include individuals with diabetes who:

(1) [ (A) ] meet the DEDP [ Diabetes Control Program (DCP) ] criteria (i.e., [ being ] at high risk for developing diabetic eye disease);

(2) [ (B) ] are not covered for funduscopic examinations from any other third-party payer; [ and ]

(3) [ (C) ] have been certified by a program nominator to have a family income at or below 150% of the TDH-HHS poverty guidelines [ the TDH regional office as meeting eligibility requirements for DCP ] ; and

(4) reside in the State of Texas .

[ (2) To be eligible for services, the prospective patient must meet the basic income criteria established by the Texas Department of Health and participating local health departments as described in the department's guidelines for clinical health services in §1.91(b)(1) of this title (relating to Fees for Clinical Health Services). ]

(b) People [ Persons ] at high risk for diabetic eye disease. People [ Persons ] considered to be at high risk for diabetic eye disease include:

(1) people with type 1 diabetes [ Type I (insulin dependent) diabetics who are 18 years of age or older and ] who have had the disease [ diabetes ] for five years or longer; and

(2) all people with type 2 diabetes, regardless of when they were diagnosed [ Type II (non-insulin dependent) diabetics ].

§61.23.Program Benefits.

(a) Scope of services.

(1) Reimbursement will be limited to a maximum of $60 [ $40 ] per examination for a complete dilated funduscopic examination on both eyes.

(2) These examinations will also include acuity testing, tonometry, and assessment of lens opacity[ , and blood pressure measurement ].

(b) Maximum allowable benefits. Maximum allowable benefits per client [ patient ] per year are limited to one annual screening examination. In instances where eye disease (retinopathy, maculopathy) is detected in the initial exam, a maximum of two additional follow-up exams may be administered within any given twelve month period if needed. [ Total benefits are not to exceed $120 per patient per year ], unless written approval is obtained from the DEDP [ Diabetes Control Program (DCP) ].

(c) Funding limitations. Payment will not be made for any diagnostic test , corrective lenses, or [ for ] treatment of eye disease.

§61.24.Payment for Services.

(a) Payee identification number. Payment for services is made to providers who have a State of Texas payee identification number. To obtain a payee identification number, providers must complete the State of Texas Application For Payee Identification Number, Form AP-107, and return it to the Texas Diabetes [ Control ] Program [ DCP ] in Austin. A form may be obtained from the Chronic Disease and Tobacco Prevention Program, Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756.

(b) Conditions for payment. The DEDP [ DCP ] will pay providers only for approved services that [ which ] have been authorized by the nominator [ TDH regional dental office ] prior to the performance of such services. Payment for any service will be made only after the delivery of the service. Providers must agree to accept program fees as payment in full for service rendered, although such fee may be less than [ below ] usual and customary charges.

(c) Time limit. The eye examination must be completed within 60 days of the service approval date and the signed tracking forms described in §61.21(e) of this title (relating to General Information) must be received by the DEDP [ DCP ] within 75 days of the date service was authorized.

(d) Procedures for claims payment. The procedures for claims payment shall be in accordance with the DEDP [ department ]-developed publication titled Manual for Providers of Services.

(e) Claim denials. Payment for eye examinations will not be made if:

(1) the patient is ineligible;

(2) the services provided were not specifically covered by benefits of the DEDP [ DCP ];

(3) the patient failed to appear for treatment and no service was rendered (no-shows); or

(4) claims for the same eye examination were previously paid for by the DEDP [ DCP ] (duplicate claims).

(f) Reconsideration of denied claims. A claim that has been denied in error by the DEDP [ DCP ] will be reconsidered for payment if:

(1) the original claims with the error identified and corrected is returned to the DEDP [ DCP ] within 30 days from receipt of the notice of denial; and

(2) the claim is accompanied by a copy of the DEDP [ DCP ] notice of denial.

(g) Payment of claims that [ which ] exceed time limit. Eye examinations must be completed within 60 days from the date services were approved and the tracking form must be forwarded to the TDH Texas Diabetes Program [ regional dental office ] within 75 days of the date that service was authorized. If special or extenuating circumstances exist that [ which ] make it impossible or impractical for the provider to complete services within that time period, such claims will be evaluated by the [ chief, ] Bureau of [ Dental and ] Chronic Disease and Tobacco Prevention, Texas Department of Health, on an individual basis, with due consideration given to the circumstances.

(h) Due process hearing. In the event the provider contract is terminated or suspended, or any claim for payment is denied following reconsideration, the provider will be afforded an opportunity for a due process hearing. The provider must request such a hearing in writing to the Chief, Bureau of [ Dental and ] Chronic Disease and Tobacco Prevention, Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756, within 10 days from the provider's receipt of notice of termination, suspension, or denial of claim for payment.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on January 15, 2004.

TRD-200400288

Susan K. Steeg

General Counsel

Texas Department of Health

Earliest possible date of adoption: February 29, 2004

For further information, please call: (512) 458-7236


Chapter 100. IMMUNIZATION REGISTRY

The Texas Department of Health (department) proposes the repeal of §§100.1-100.11 and new §§100.1-100.8, concerning the immunization registry.

The immunization registry is a statewide repository for immunization information on Texas children. The information is available to public health districts, local health departments, physicians, schools, child-care facilities, and parents when record request criteria are met. The proposed rules are necessary to simplify reporting immunization histories to the department and to enhance the effectiveness of the immunization registry under its current authorized legislation. As mandated by House Bill 1921, 78th Legislature, Regular Session (2003), amended Health and Safety Code, §161.007, the proposed rules will help populate the registry by relieving payors and providers of the responsibility for maintaining consent for the registry; will allow parents to submit immunization histories directly to the department; will require healthcare providers to send immunization records directly to the department; will require the department to verify parental consent for each record submitted; and will expand data access to any provider authorized to administer vaccines, payors, and state agencies with legal custody of a child.

Government Code, §2001.039, requires that each state agency review and consider for readoption each rule adopted by that agency pursuant to the Government Code, Chapter 2001 (Administrative Procedure Act). The department has reviewed §§100.1-100.11 and has determined that reasons for adopting the sections continue to exist; however, a repeal of the current rules and the proposal of new rules are necessary to simplify the rules and implement House Bill 1921.

The department published a Notice of Intention to Review for §§100.1-100.11 in the Texas Register on May 31, 2002 (27 TexReg 4745).

Casey S. Blass, Chief, Bureau of Immunization and Pharmacy Support, has determined that for each year of the first five years the sections are in effect there will be no fiscal implications to state government as a result of enforcing and administering the sections as proposed. Additional immunization histories submitted by providers and parents will be processed using existing resources. There will be no fiscal impact on local government, because the immunization registry is a state registry maintained by the department.

Mr. Blass has also determined that for each year of the first five years the sections are in effect the public benefit anticipated through enforcement and administration of the sections as proposed will be to enhance the effectiveness of the registry by providing parents with more complete and accurate immunization histories for their children. The proposed changes will benefit small and micro- businesses such as clinics and physicians' offices by reducing confusion regarding parental consent and eliminating the responsibility for providers to maintain evidence of consent. Providers and payors will benefit from expanded access to more complete immunization histories. Providers who currently report immunization records to payors are not required to report those records to the registry. Under House Bill 1921, as reflected in the proposed rules, these providers will be required to report to the registry. There will be no impact on local employment.

Comments on the proposal may be submitted to Janie Garcia, Immunization Division, Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756, (512) 458-7284, extension 6430, or (800) 252-9152. Comments will be accepted for 30 days following publication of this proposal in the Texas Register .

25 TAC §§100.1 - 100.11

(Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Department of Health or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)

The repeals are proposed under the authority of Health and Safety Code, §161.007, which gives the Texas Board of Health (board) the right to develop rules to implement the immunization registry; and Health and Safety Code, §12.001, which provides the board with the authority to adopt rules for the performance of every duty imposed by law on the board, the department, and the commissioner of health.

The repeals affect the Health and Safety Code, Chapters 12 and 161. The review of the rules implements Government Code, §2001.039.

§100.1.Definitions.

§100.2.Inclusion of Information and Confidentiality.

§100.3.Providers and Health Plans.

§100.4.Withdrawal of Consent.

§100.5.Reportable Information.

§100.6.Information Included in the Immunization Registry Prior to September 1, 1997.

§100.7.Data Quality Assurance.

§100.8.Health Plans Shall Provide Immunization History to the Department.

§100.9.Reports.

§100.10.Acceptability As An Immunization Record.

§100.11.Confidentiality.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on January 15, 2004.

TRD-200400289

Susan K. Steeg

General Counsel

Texas Department of Health

Earliest possible date of adoption: February 29, 2004

For further information, please call: (512) 458-7236


25 TAC §§100.1 - 100.8

The new sections are proposed under the authority of Health and Safety Code, §161.007, which gives the Texas Board of Health (board) the right to develop rules to implement the immunization registry; and Health and Safety Code, §12.001, which provides the board with the authority to adopt rules for the performance of every duty imposed by law on the board, the department, and the commissioner of health.

The new sections affect the Health and Safety Code, Chapters 12 and 161. The review of the rules implements Government Code, §2001.039.

§100.1.Definitions.

The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise.

(1) Child--The person or individual younger than 18 years of age to whom a vaccine has been administered.

(2) Consent--A statement signed by a parent agreeing that the child's immunization history can be included in the registry and that the child's immunization record may be released from the registry.

(3) Data elements--Consistent with 42 U.S.C. §300aa-25, as amended, data elements are defined as the information a provider who administers a vaccine is required to record in a medical record, including:

(A) the date the vaccine is administered;

(B) the type of vaccine administered, vaccine manufacturer and lot number; and

(C) the name, address, and, if appropriate, the title of the provider administering the vaccine.

(4) Department--The Texas Department of Health.

(5) Immunization history--An accounting of all vaccines that a child has received, or evidence of immunity, and other identifying information.

(6) Immunization record--An immunization record contains the name and date of birth of the person to whom a vaccine was administered; dates of vaccine administration; types of vaccine administered; and name and address of the provider that administered the vaccines; or other evidence of immunity to a vaccine-preventable disease. The report generated from the immunization registry is considered an official immunization record.

(7) Immunization registry--The database or single repository that contains immunization histories, which include necessary personal data for identification. This database is confidential, and access to content is limited to authorized users.

(8) Parent--A parent, managing conservator, or legal guardian.

(9) Payor--An insurance company, a health maintenance organization, or another organization that pays a health care provider to provide health care benefits, including the administration of vaccines to a person younger than 18 years of age.

(10) Provider--Any physician, health care professional, or facility personnel duly licensed or authorized to administer vaccines.

(11) User--An entity or individual authorized by the department to access immunization registry data.

(12) Vaccine--Includes toxoids and other immunologic agents which are administered to children to elicit an immune response and thus protect against infectious diseases.

§100.2.Confidentiality.

(a) Information that individually identifies a child, and is received by the department for the immunization registry, is confidential and may be used by the department for registry purposes only. Unless specifically authorized by Health and Safety Code, Chapter 161, Subchapter A, the department may not release registry information to any individual or entity without the written consent of the person or, if a minor, the parent.

(b) A written confidentiality statement shall be signed by an authorized representative of the user. Any user of the registry shall protect the confidentiality of all immunization histories, records, and reports. A person required to report information to the department for registry purposes or authorized to receive information from the registry may not disclose individually identifiable information to any individual or entity without the written consent of the person or, if a minor, the parent, or except as provided by the Occupations Code, Chapter 159, or the Insurance Code, Article 28B.04.

(c) Registry information is not subject to discovery, subpoena, or other means of legal compulsion for release to any person or entity, except as provided by Health and Safety Code, Chapter 161, Subchapter A. Registry information is not admissible in any civil, administrative, or criminal proceeding.

§100.3.Informing Parent, Managing Conservator, or Guardian.

(a) A parent shall be informed that the department has established and maintains a single repository of immunization records to be used in aiding, coordinating, and promoting efficient and cost-effective childhood communicable disease prevention and control efforts.

(b) The department shall provide written materials and forms to providers for the purpose of informing a parent about the immunization registry and specific information collected in that registry.

(c) The department and providers may use the registry to provide notices by mail, telephone, personal contact, or other means to a parent regarding his or her child who may be due or overdue for a particular type of immunization according to the department's immunization schedule.

(d) The first time the department receives registry data, from a person other than the child's parent, for a child for whom the department has received consent to be included in the registry, the department shall send a written notice to the parent disclosing:

(1) that providers and payors may be sending the child's immunization information to the department;

(2) the information that is included in the registry;

(3) the persons to whom the information may be released;

(4) the purpose of the registry;

(5) the procedure to exclude a child from the registry; and

(6) the procedure to report a violation if a parent discovers a child is included in the registry after exclusion has been requested.

§100.4.Registry Consent and Withdrawal.

(a) A parent may consent to the inclusion of the child's immunization history in the immunization registry by doing one of the following:

(1) indicating consent at birth certificate registration, including by electronic signature;

(2) submitting written notification to the department in a format prescribed by the department or substantially similar and mailed to the Texas Department of Health, Immunization Division, 1100 West 49th Street, Austin, Texas 78756, or by calling the Immunization Division at (800) 252-9152 to request a consent form; or

(3) completing written consent to be submitted to the department by a provider or payor.

(b) Consent is required to be obtained only one time, and is valid until the child becomes 18 years of age, unless the consent is withdrawn in writing.

(c) A parent may withdraw consent for the child to be included in the registry at any time by submitting written notification to the department in a format prescribed by the department or substantially similar and mailed to the Texas Department of Health, Immunization Division, 1100 West 49th Street, Austin, Texas 78756, or by calling the Immunization Division at (800) 252-9152 to request a consent withdrawal form. The department shall remove information from the immunization registry for any person for whom consent has been withdrawn, and the department shall send the parent a written confirmation of the removal of the information. The department may not retain individually identifiable information about any person for whom consent has been withdrawn.

(d) A parent may request exclusion of the child's immunization history from the immunization registry by doing one of the following:

(1) indicating the request for exclusion at birth certificate registration, including by electronic signature; or

(2) submitting written notification to the department in a format prescribed by the department or substantially similar and mailed to the Texas Department of Health, Immunization Division, 1100 West 49th Street, Austin, Texas 78756, or by calling the Immunization Division at (800) 252-9152 to request an exclusion form. On receipt of a written request to exclude a child's immunization records from the registry, the department shall send the parent a written confirmation of receipt of the request, and shall exclude the child's records from the registry. The department may not retain individually identifiable information about any person for whom an exclusion has been requested.

§100.5.Receipt and Release of Registry Data.

(a) The department may obtain the data constituting an immunization record for a child from a public health district, a local health department, the child's parent, a physician to the child, a payor, or any health care provider licensed or otherwise authorized to administer vaccines.

(b) Effective January 1, 2005, the department shall verify consent before including information received from a person other than the child's parent in the immunization registry. Effective January 1, 2005, the department may not retain individually identifiable information about a person for whom consent cannot be verified.

(c) The department may release the data constituting an immunization record for a child to any entity that is described by subsection (a) of this section to a school or child care facility in which the child is enrolled, or to a state agency having legal custody of the child.

(d) A person, including a provider, a payor, or an employee of the department, that submits in good faith an immunization history or data to or obtains in good faith an immunization history or data from the department in compliance with this section is not liable for any civil damages.

(e) The department may release nonidentifying summary statistics related to the registry that do not individually identify a child.

§100.6.Reporting to the Registry.

(a) Data elements regarding an immunization record provided to the department, whether electronically or by other means, shall be submitted in a format prescribed by the department.

(b) Effective January 1, 2005, a health care provider who administers an immunization to a person younger than 18 years of age shall provide data elements regarding an immunization to the department within 30 days of administration of the vaccine. Effective January 1, 2005, the department shall verify consent before including the reported information in the immunization registry, and the department may not retain individually identifiable information about a person for whom consent cannot be verified. For immunizations administered prior to January 1, 2005, providers shall provide an immunization history for persons for whom consent to participate in the registry has been obtained unless the immunization history is submitted to a payor.

(c) Effective January 1, 2005, a payor that receives data elements from a provider who administers an immunization to a person younger than 18 years of age shall provide the data elements to the department within 30 days of receipt of the data elements from a provider. Effective January 1, 2005, the department shall verify consent before including the reported information in the immunization registry, and the department may not retain individually identifiable information about a person for whom consent cannot be verified. For immunizations administered prior to January 1, 2005, payors shall provide an immunization history for persons for whom consent to participate in the registry has been obtained.

(d) A parent may provide evidence of a child's immunization history, in a format provided by the department or one substantially similar, directly to the department for inclusion in the registry. The department shall ensure that the immunization history submitted by a parent is medically verified immunization information by requiring the parent to submit evidence that includes a copy of one or more of the following:

(1) the child's medical record indicating the immunization history and including a provider's signature and the name and address of the provider;

(2) A vaccine-specific invoice from a health care provider for the immunization;

(3) vaccine-specific documentation showing that a claim for the immunization was paid by a payor;

(4) an immunization record signed by a school official; or

(5) an immunization history provided by a local or state immunization registry.

(e) The department shall provide notice to a provider that submits an immunization history for a person for whom consent cannot be verified. The notice shall contain instructions for obtaining consent and resubmitting the immunization history to the department.

(f) A provider shall, upon request of the department, provide additional information to clarify an immunization history submitted to the department.

(g) The department shall provide instruction and education to providers about the immunization registry provider application and enrollment process and expedite processing of provider applications.

§100.7.Official Immunization Record.

An immunization record obtained from the immunization registry shall be accepted as an official immunization record of the child.

§100.8.Complaints.

(a) A person may file a complaint with the department related to the department's failure to comply with a request for exclusion of an individual from the registry by mailing written notification to: Director, Immunization Division, Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756; or by e-mail to the attention of Director, Immunization Division at feedback.ImmDirector@tdh.state.tx.us. The department shall respond to the written complaint within 30 days of receipt of the complaint.

(b) A person may report an incident of discrimination for requesting exclusion of an individual from the registry, or for using an exemption for a required immunization, by mailing written notification to: Director, Immunization Division, Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756; or by e-mail to the attention of Director, Immunization Division at feedback.ImmDirector@tdh.state.tx.us. The department shall respond to the written notification within 30 days of receipt of the notification.

(c) The department shall report to the Legislative Budget Board, the governor, the lieutenant governor, the speaker of the house of representatives, and appropriate committees of the legislature not later than September 30 of each even-numbered year. The report shall:

(1) include the number of complaints received by the department related to the department's failure to comply with requests for exclusion of individuals from the registry; and

(2) identify all reported incidents of discrimination for requesting exclusion of individuals from the registry or for using an exemption for a required immunization.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on January 15, 2004.

TRD-200400290

Susan K. Steeg

General Counsel

Texas Department of Health

Earliest possible date of adoption: February 29, 2004

For further information, please call: (512) 458-7236


Chapter 117. END STAGE RENAL DISEASE FACILITIES

The Texas Department of Health (department) proposes the repeal of §§117.3, 117.11 - 117.14, new §§117.11 - 117.14, and amendments to §§117.15, 117.16 and 117.84, concerning the regulation of end stage renal disease facilities. The amendments and new sections are required as a result of the provisions of Senate Bill (SB) 1152, which amended Government Code, Chapter 2054, regarding the Texas Online Authority; the revisions to the Health and Safety Code (HSC), Chapter 251, required by Senate Bill 162, adding probation as a new penalty alternative; and House Bill 2292, 78th Legislature, 2003, which revised HSC, §12.0111 and §12.0112, regarding fees for two-year license cycles.

Specifically, the sections proposed for repeal address licensing fees, general requirements for a license, application and issuance of a temporary initial license and first annual license, application and issuance of annual renewal license, and change of ownership or services. The proposed new sections cover general requirements for a license, application and issuance of initial license, application and issuance of renewal license, and fees. The proposed repeal of existing rules and proposed new sections allows for the reorganization and renumbering of the sections for clarification, and for the inclusion of language to implement the provisions of the new legislation. New §117.13 addresses the conversion to two-year license cycles beginning January 1, 2005. New §117.14 includes fees for both 12-month and two-year license renewal cycles, and for the recovery of costs associated with application and renewal application processing through TexasOnline. The amendment to §117.15 updates references to other sections. Amendment to §117.16 eliminates unnecessary language and clarifies that inspections are conducted to determine compliance with HSC, Chapter 251, and this chapter. The amendment to §117.84 addresses the addition of probation and emergency suspension to the list of enforcement actions that can be taken against a facility.

Lisa Subia, Associateship for Consumer Health Protection, has determined that for each year of the first five years the sections are in effect, there will be fiscal implications to state government as a result of the administering the sections as proposed. This impact is related to the conversion to the two-year license renewal cycle. For Fiscal Year (FY) 2005, which will be the first year in a two-year phase-in process for the two-year renewal cycle, there will be a temporary increase in revenue to approximately $1,082,242. This estimate is based on the fact that during FY 2005, one-half of the facilities will be renewing their licenses to be effective for two years, and will pay a corresponding fee to cover the two-year period (this amount will be double the amount collected during FY 2004 for this group of facilities). The remainder of the facilities will be renewing their licenses for a one-year period in FY 2005, which will result in the estimated additional revenue. This second group of facilities will renew their licenses for the two-year period in FY 2006, so the anticipated revenue will return to the FY 2004 level, and there will be no anticipated fiscal impact for Fiscal Years 2006 through 2009. There will be no fiscal impact for local government.

Ms. Subia has also determined that for each year of the first five years the sections are in effect, the public benefit anticipated as a result of enforcing or administering the sections will be to insure compliance by end stage renal disease (ESRD) facilities with new legislative mandates. There will be economic costs for micro-businesses, small businesses, and persons who are required to comply with the amended sections. These costs are related to the conversion to two-year license renewal cycles. The current license fees range from a minimum of $1,000 to a maximum of $2,500, based on the number of treatments for the preceding 12 months. Once conversion to the two-year license renewal cycle begins, an ESRD facility will be required to pay the license fee for the two-year period. The new two-year fee structure will require facilities to pay fees based on the number of treatments administered that will range from a minimum of $2,000 to a maximum of $5,000. Senate Bill 1152, 78th Legislature, Regular Session, 2003, directs all departments that administer licensing programs to participate in Texas Online, an electronic fee payment system developed and maintained by the Texas Online Authority. Wording is added that authorizes the department to collect subscription and convenience fees, in amounts to be determined by the Texas Online Authority, to recover costs associated with application and renewal application processing. There will be no anticipated impact on local employment.

Comments may be submitted to Cindy Bednar, Director of Licensing Programs, Health Facility Licensing and Compliance Division, Texas Department of Health, 1100 West 49th Street, Austin, Texas, 78756, (512) 834-6646. Comments will be accepted for 30 days following publication of this proposal in the Texas Register .

Subchapter A. GENERAL PROVISIONS

25 TAC §117.3

(Editor's note: The text of the following section proposed for repeal will not be published. The section may be examined in the offices of the Texas Department of Health or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)

The repeal is proposed under Health and Safety Code, §251.003, concerning rules and minimum standards to protect and promote the public health and welfare by providing for the issuance, renewal, denial, suspension, and revocation of each level of license; and Health and Safety Code, §12.001, which provides the Texas Board of Health (board) with the authority to adopt rules for the performance of every duty imposed by law on the board, the department, and commissioner of health.

The repeal affects the Health and Safety Code, Chapters 251 and 12.

§117.3.Licensing Fees.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on January 16, 2004.

TRD-200400320

Susan K. Steeg

General Counsel

Texas Department of Health

Earliest possible date of adoption: February 29, 2004

For further information, please call: (512) 458-7236


Subchapter B. APPLICATION AND ISSUANCE OF A LICENSE

25 TAC §§117.11 - 117.14

(Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Department of Health or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)

The repeals are proposed under Health and Safety Code, §251.003, concerning rules and minimum standards to protect and promote the public health and welfare by providing for the issuance, renewal, denial, suspension, and revocation of each level of license; and Health and Safety Code, §12.001, which provides the Texas Board of Health (board) with the authority to adopt rules for the performance of every duty imposed by law on the board, the department, and commissioner of health.

The repeals affect the Health and Safety Code, Chapters 251 and 12.

§117.11.General Requirements for a License.

§117.12.Application and Issuance of Temporary Initial License and First Annual License.

§117.13.Application and Issuance of Annual Renewal License

§117.14.Change of Ownership or Services.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on January 16, 2004.

TRD-200400321

Susan K. Steeg

General Counsel

Texas Department of Health

Earliest possible date of adoption: February 29, 2004

For further information, please call: (512) 458-7236


Subchapter B. FACILITY LICENSING

25 TAC §§117.11 - 117.16

The amendments and new sections are proposed under Health and Safety Code, §251.003, concerning rules and minimum standards to protect and promote the public health and welfare by providing for the issuance, renewal, denial, suspension, and revocation of each level of license; and Health and Safety Code, §12.001, which provides the Texas Board of Health (board) with the authority to adopt rules for the performance of every duty imposed by law on the board, the department, and commissioner of health.

The amendments and new sections affect the Health and Safety Code, Chapters 251 and 12.

§117.11.General Requirements for a License.

(a) License required. A facility shall obtain a license prior to admitting patients.

(b) Display. A facility shall prominently and conspicuously display the license in a public area of the licensed premises that is readily visible to patients, employees, and visitors.

(c) Alteration. A facility license shall not be altered.

(d) Transfer or assignment prohibited. A facility license shall not be transferred or assigned. The facility shall comply with the provisions of §117.12(h) of this title (relating to Application and Issuance of Initial License) in the event of a change in the ownership.

(e) Changes which affect the license.

(1) A facility shall notify the department in writing prior to the occurrence of any of the following:

(A) any construction, renovation, or modification of the facility buildings;

(B) cessation of operation of the facility; or,

(C) change in facility name, telephone number or administrator.

(2) A facility shall obtain written approval from the department prior to the utilization of added services or an increased number of stations. The written request shall be submitted 30 calendar days prior to the planned change.

(A) For an additional service or increase in stations, the department may request that the facility provide evidence of appropriate staffing and policies and procedures which demonstrate the intent to comply with the applicable requirements, and any other documentation it determines is necessary to evaluate the request.

(B) For an increase in stations, the facility shall also be required to submit written evidence that the water treatment system is of sufficient size to accommodate the increase and maintain a safe water supply.

(C) The department may conduct on on-site inspection prior to taking action on the requested change.

(D) No later than three weeks after initiating the use of the new stations, the facility is required to complete chemical and bacteriological cultures of the product water to ensure they are in compliance with §4.2.1 (relating to Water Bacteriology) and §4.2.2 (relating to Maximum Level of Chemical Contaminants) of the American National Standard, Water Treatment Equipment for Hemodialysis Applications, August 2001 Edition, published by the Association for the Advancement of Medical Instrumentation, 1110 North Glebe Road, Suite 200, Arlington, Virginia 22201, 703-525-4890. Deviations from acceptable levels must be immediately reported to the department. The reports must be kept on file at the facility and made available to department staff during the next on-site inspection.

(3) The department shall send the facility written notice of the approval or disapproval of the requested change.

(f) Facility relocation.

(1) A facility planning to relocate shall notify the department a minimum of 60 days prior to the planned relocation. Relocations must be within the same geographical area, and services shall continue to be provided to the facility's existing patient population.

(2) The facility shall submit the following to the department:

(A) a copy of a current fire safety survey indicating approval by the local fire authority in whose jurisdiction the new location is based;

(B) results of chemical and bacteriological cultures of the product water at the new location to ensure they are in compliance with §§4.2.1 (relating to Water Bacteriology) and 4.2.2 (relating to Maximum Level of Chemical Contaminants) of the American National Standard, Water Treatment Equipment for Hemodialysis Applications, August 2001 Edition, published by the Association for the Advancement of Medical Instrumentation, 1110 North Glebe Road, Suite 200, Arlington, Virginia 22201, (703) 525-4890;

(C) documentation verifying compliance with paragraph (1) of this subsection; and

(D) a written plan for the orderly transition of all patient services to the new location.

(3) The department shall conduct the design and space inspection described in §117.16(b)(1)(A) of this title (relating to Inspections) prior to issuance of the initial license, unless the department waives the requirement.

(4) The department may conduct additional on-site inspections, or request additional information, before approving the relocation.

(5) The department will notify the facility in writing of the approval or disapproval of relocation. If approved, the license will be reissued for the new location effective on the day that patient services are transferred to the new location.

§117.12.Application and Issuance of Initial License.

(a) Application submittal. The applicant shall submit the following documents to the department no earlier than 60 calendar days prior to the projected opening date of the facility:

(1) an accurate and complete application form;

(2) an approved fire safety report from the local fire authority; and

(3) the appropriate license fee as required in §117.14 of this title (relating to Fees).

(b) Design and space inspection. The department shall conduct the design and space inspection described in §117.16(b)(1)(A) of this title (relating to Inspections) prior to issuance of the initial license, unless the department waives the requirement.

(c) Presurvey conference. The applicant or the applicant's representative shall attend a presurvey conference at the office designated by the department. The purpose of the presurvey conference, which is conducted by department staff, is to review facility staff qualifications, facility policies and procedures, results of water cultures and analysis of product water, survey documents and licensure rules, and to provide consultation prior to the on-site licensure survey. The department staff conducting the presurvey conference is responsible for making a recommendation regarding the issuance of the initial license. The department may waive the presurvey conference requirement.

(d) Issuance of license. When it is determined that the facility has complied with subsections (a)-(c) of this section, the department shall issue the license to the applicant.

(1) Effective date. The license shall be effective on the date the facility is determined to be in compliance with subsections (a)-(c) of this section.

(2) Expiration date.

(A) For initial licenses issued prior to January 1, 2005.

(i) If the effective date of the license is the first day of a month, the license expires on the last day of the 11th month after issuance.

(ii) If the effective date of the license is the second or any subsequent day of a month, the license expires on the last day of the 12th month after issuance.

(B) For initial licenses issued January 1, 2005, or after.

(i) If the effective date of the license is the first day of a month, the license expires on the last day of the 23rd month after issuance.

(ii) If the effective date of the license is the second or any subsequent day of a month, the license expires on the last day of the 24th month after issuance.

(e) Withdrawal of application. If an applicant decides not to continue the application process for a license or renewal of a license, the application may be withdrawn. The department shall acknowledge receipt of the request to withdraw.

(f) Denial of a license. Denial of a license shall be governed by §117.84 of this title (relating to Enforcement).

(g) Inspections. During the initial licensing period, the department shall conduct an inspection of the facility to ascertain compliance with the provisions of the Health and Safety Code, Chapter 251, and this chapter.

(1) A facility shall request an on-site inspection to be conducted after one inpatient has been admitted and provided services.

(2) A facility shall be providing services to at least one inpatient in the facility at the time of the inspection.

(h) Change of ownership. A change of ownership occurs when there is a change in the person legally responsible for the operation of the facility, whether by lease or by ownership. If a corporate licensee amends its articles of incorporation to revise its name and the tax identification number does not change, this subsection does not apply, except that the corporation must notify the department within 10 calendar days after the effective date of the name change. The sale of stock of a corporate licensee does not cause this subsection to apply. A change of ownership requires submission of an initial license application.

(1) The new owner shall submit an application for an initial license to the department prior to the date of the change of ownership or not later than 10 calendar days following the date of a change of ownership. The application shall be in accordance with subsections (a) - (c) of this section. The applicant shall include the effective date of the change of ownership.

(2) Inspections. The design and space and health inspections required by subsections (b) and (g) of this section may be waived by the department.

(3) Issuance of license. When the new owner has complied with the provisions of subsections (a) - (c) of this section, the department shall issue a license which shall be effective the date of the change of ownership.

(4) Expiration of license. The expiration date of the license shall be in accordance with subsection (d) of this section.

(5) License void. The previous owner's license shall be void on the effective date of the new owner's license.

(i) Temporary initial license. The department may issue a temporary initial license in lieu of the initial license.

§117.13.Application and Issuance of Renewal License.

(a) Renewal notice. The department may send a renewal notice to a facility up to 60 calendar days before the expiration date of a license.

(1) If the facility has not received the renewal notice from the department within 30 calendar days prior to the expiration date, it is the duty of the facility to notify the department and request a renewal application for a license.

(2) If the facility fails to submit the application and fee within 15 calendar days prior to the expiration date of the license, the department shall send to the facility a letter advising that unless the license is renewed, the facility must cease operations upon the expiration of the license.

(b) Renewal license. The department shall issue a renewal license to a facility that meets the minimum requirements for a license.

(1) The facility shall submit the following to the department prior to the expiration date of the license:

(A) a complete and accurate application form;

(B) a copy of a fire safety survey indicating approval by the local fire authority in whose jurisdiction the facility is based that is dated no earlier than one year prior to the application date;

(C) the renewal license fee; and

(D) verification that the facility submitted the annual reports required by §117.42 of this title (relating to Indicators of Quality of Care).

(2) The department may conduct an inspection prior to issuing a renewal license in accordance with §117.16 of this title (relating to Inspections).

(3) Renewal licenses issued prior to January 1, 2005, will be valid for 12 months.

(4) Renewal licenses issued January 1, 2005, through December 31, 2005, will be valid for either 12 or 24 months, to be determined by the department prior to the time of license renewal.

(5) Renewal licenses issued January 1, 2006, or after will be valid for 24 months.

(c) Notice to cease operation and return license. If a facility fails to submit the application, documents, and fee by the expiration date of the license, the department shall notify the facility that it must cease operation and immediately return the license by certified mail to the department. If the facility wishes to provide services after the expiration date of the license, it shall apply for a license under §117.12 of this title (relating to Application and Issuance of Initial License).

§117.14.Fees.

(a) General.

(1) All fees paid to the department are nonrefundable.

(2) All fees shall be paid to the department.

(b) License fees.

(1) The fee for an initial license is $2,000 per 12-month period.

(2) Renewal license fees.

(A) For renewal licenses issue prior to January 1, 2005, the license fee is determined by multiplying the number of treatments in the previous 12-month period by $.25, except that the minimum fee is $1,000 and the maximum fee is $2,500.

(B) For renewal licenses issued January 1, 2005 or later, the license fee will be determined as follows.

(i) For licenses that the department determines will be valid for 12 months, the license fee is the total number of treatments in the past 12-month period multiplied by $.25, except that the minimum fee is $1,000 and the maximum fee is $2,500.

(ii) For licenses that the department determines will be valid for 24 months, the license fee is the total number if treatments in the past 12-month period multiplied by $.50, except that the minimum fee is $2,000 and the maximum fee is $5,000.

(c) Other fees. For all applications and renewal applications, the department is authorized to collect subscription and convenience fees, in amounts determined by the Texas Online Authority, to recover costs associated with application and renewal application processing through TexasOnline, in accordance with Texas Government Code, §2054.111.

§117.15.Time Periods for Processing and Issuing a License.

(a) General.

(1) (No change.)

(2) An application for an [ a temporary ] initial license [ and first annual license ] is complete when the department has received, reviewed, and found acceptable the information described in §117.12 of this title (relating to Application and Issuance of [ Temporary ] Initial License [ and First Annual License ]).

(3) An application for an annual renewal license is complete when the department has received, reviewed and found acceptable the information described in §117.13 of this title (relating to Application and Issuance of [ Annual ] Renewal License).

[ (4) An application for a change of ownership license is complete when the department has received, reviewed, and found acceptable the information described in §117.14 of this title (relating to Change of Ownership or Services).]

(b) Time Periods. An application from a facility for an [ a temporary ] initial license [ and a first annual license ] or a [ an annual ] renewal license shall be processed in accordance with the following time periods.

(1)-(2) (No change.)

(c)-(d) (No change.)

(e) Hearings. If a hearing is proposed during the processing of the application, the hearing shall be conducted pursuant to the Administrative Procedure Act, Texas Government Code, Chapter 2001, and the department's formal hearing procedures in Chapter 1 of the title (relating to the Texas Board of Health) [ time periods in §1.34 of this title (relating to Time Periods for Conducting Contested Case Hearings) are applicable ].

§117.16.Inspections.

(a) General. The Texas Department of Health (department) may conduct an inspection at any time to verify compliance with the statute or this chapter. By applying for or holding a license, the facility consents to entry and inspection of the facility by the department or representative of the department in accordance with the statute and this chapter.

(1)-(2) (No change.)

[ (3) An inspection conducted by the department shall be in accordance with the procedures set out in subsection (i) of this section.]

(b) Types of inspections.

(1) (No change.)

(2) Initial inspection for the issuance of the initial [ first annual ] license. A department surveyor may [ shall ] conduct an initial inspection after the date of issuance of the [ temporary ] initial license to determine if the facility meets the requirements of the statute and this chapter [ for licensing ]. The initial inspection is an evaluation of compliance with all requirements of the statute and this chapter.

(3)-(7) (No change.)

(c) Inspection procedures.

(1) (No change.)

(2) Evaluation of compliance. Except for the purposes of conducting an inspection under subsection (b)(1), (4), (6), or (7) of this section, an onsite inspection will include an evaluation to determine compliance with the statute and this chapter. [ , at a minimum, each of the requirements in: ]

[ (A) §117.32 of this title (relating to Equipment);]

[ (B) §117.33 of this title (relating to Water Treatment, Dialysate Concentrates and Reuse);]

[ (C) §117.34 of this title (relating to Sanitary Conditions and Hygienic Practices);]

[ (D) §117.41 of this title (relating to Quality Assurance for Patient Care);]

[ (E) §117.43 of this title (relating to Provision and Coordination of Treatment and Services);]

[ (F) §117.44 of this title (relating to Qualifications of Staff);]

[ (G) §117.45 of this title (relating to Clinical Records);]

[ (H) §117.46 of this title (relating to Reports to the Director);]

[ (I) §117.61 of this title (relating to General Requirements);]

[ (J) §117.62 of this title (relating to Training Curricula and Instructors);]

[ (K) §117.63 of this title (relating to Competency Evaluation);]

[ (L) §117.64 of this title (relating to Documentation of Competency); and]

[ (M) §117.65 of this title (relating to Prohibited Acts).]

(3) (No change.)

(4) Written notice of findings.

(A)-(B) (No change.)

(C) If the written notice of findings includes deficiencies, the department and the facility shall comply with the procedure set out in this subparagraph.

(i)-(v) (No change.)

(vi) The facility may challenge any deficiency cited after receipt of the statement of deficiencies. A challenge to a deficiency(ies) shall be in accordance with this subparagraph.

(I)-(V) (No change.)

(VI) If the facility does not come into compliance by the required date of correction reflected on the corrective action plan(s), the department may:

(-a-) - (b-) (No change.)

(-c-) propose to deny, suspend, or revoke the license in accordance with §117.84 of this title (relating to Enforcement [ Disciplinary Action ]).

(-d-) - (-e-) (No change.)

(VII)-(IX) (No change.)

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on January 16, 2004.

TRD-200400322

Susan K. Steeg

General Counsel

Texas Department of Health

Earliest possible date of adoption: February 29, 2004

For further information, please call: (512) 458-7236


Subchapter F. CORRECTIVE ACTION PLAN AND ENFORCEMENT

25 TAC §117.84

The amendment is proposed under Health and Safety Code, §251.003, concerning rules and minimum standards to protect and promote the public health and welfare by providing for the issuance, renewal, denial, suspension, and revocation of each level of license; and Health and Safety Code, §12.001, which provides the Texas Board of Health (board) with the authority to adopt rules for the performance of every duty imposed by law on the board, the department, and commissioner of health.

The amendment affects the Health and Safety Code, Chapters 251 and 12.

§117.84. Enforcement [ Disciplinary Action ].

(a) The department may deny, suspend, or revoke a license if the applicant or facility:

(1)-(3) (No change.)

(4) aids, abets, or permits the commission of an illegal act; [ or ]

(5) fails to comply with an order of the commissioner of health or another enforcement procedure under the statute ; or [ . ]

(6) fails to comply with applicable requirements within a designated probation period.

(b) (No change.)

(c) The department may suspend or revoke an existing valid license or disqualify a person from receiving a license because of a person's conviction of a felony or misdemeanor if the crime directly relates to the duties and responsibilities of a licensed facility.

(1) In determining whether a criminal conviction directly relates, the department shall consider the provisions of Texas Occupations Code, §§53.022 and 53.023 [ Civil Statutes, Article 6252-13c ].

(2) The following felonies and misdemeanors directly relate because these criminal offenses indicate an inability or a tendency for the person to be unable to own or operate a facility:

(A)-(F) (No change.)

(G) other misdemeanors and felonies which indicate an inability or tendency for the person to be unable to own or operate a facility if action by the department will promote the intent of the statute, this chapter, or Texas Occupations Code, §§53.022 and 53.023 [ Civil Statutes, Article 6252-13c ].

(3) (No change.)

(d)-(g) (No change.)

(h) The department may issue an emergency order to suspend a license issued under this chapter if the department has reasonable cause to believe that the conduct of a license holder creates an immediate danger to the public health and safety.

(1) An emergency suspension is effective immediately without a hearing or notice to the license holder.

(2) On written request of the license holder, the department shall conduct a hearing not earlier than the 10th day or later than the 30th day after date the hearing request is received to determine if the emergency suspension is to be continued, modified, or rescinded. The hearing and any appeal are governed by the department's rules for a contested case hearing and Government Code, Chapter 2001.

(i) The department may schedule the facility for a probation period of not less than 30 days if the facility is found in repeated non-compliance, and the facility's non-compliance does not endanger the health and safety of the public.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on January 16, 2004.

TRD-200400323

Susan K. Steeg

General Counsel

Texas Department of Health

Earliest possible date of adoption: February 29, 2004

For further information, please call: (512) 458-7236


Chapter 157. EMERGENCY MEDICAL CARE

The Texas Department of Health (department) proposes amendments to §§157.1, 157.11, 157.14, 157.32-157.34, 157.38, 157.40, 157.43, 157.44, 157.49, 157.122, and 157.125, concerning regulation of EMS certificants, licensees, providers, training institutions, educators and EMS/Trauma systems, the repeal of §157.4, concerning request for EMS training at the local level, the repeal of §157.31, concerning automated external defibrillator training course, §157.123, concerning regional emergency medical services/trauma systems, and §157.129, concerning state trauma registry, new §157.4 concerning regulatory audit activities by the Bureau of Emergency Management and new §157.123, concerning regional emergency medical services/trauma systems. Specifically, the sections cover purpose; audits; provider licenses; disciplinary actions; training and course approval; personnel certification, Regional/EMS trauma systems, trauma facility designation and the trauma care system fund.

Rule amendments regarding licensing fees are required as a result of revisions to Chapter 12 of the Texas Health and Safety Code, §12.0111 and §12.0112, pursuant to House Bill (HB) 2292 of the 78th Regular Session of the Texas Legislature. Rule amendments for the clarification of standards for regional advisory councils are required as a result of revisions to Chapter 773 of the Texas Health and Safety Code, §773.113, pursuant to Senate Bill 530 of the 78th Regular Session of the Texas Legislature. Rule amendments for clarification of standards for emergency care attendants are required as a result of revisions to Chapter 773 of the Texas Health and Safety Code, §773.046, pursuant to HB 861 of the 78th Regular Session of the Texas Legislature.

Government Code, §2001.039, requires that each state agency review and consider for readoption each rule adopted by that agency pursuant to the Government Code, Chapter 2001 (Administrative Procedures Act). The sections have been reviewed and the department has determined that reasons for adopting the sections continue to exist; however, revisions to the sections are necessary and described in this preamble. Authority for the board to propose and adopt rules in this section is found in the Health and Safety Code, Chapter 773.

The department published a Notice of Intention to review and consider for readoption, revision, or repeal Chapter 157, Emergency Medical Care, Subchapter A, Emergency Medical Services - Part A, §§157.1 - 157.4; Subchapter B, Emergency Medical Services Provider Licenses, §§157.11 - 157.14, 157.16, and 157.25; Subchapter C, Emergency Medical Services Training and Course Approval, §§157.31 - 157.34, 157.36 - 157.38, 157.40, and 157.41; Subchapter D, Emergency Medical Services Personnel Certification, §§157.43, 157.44, and 157.49; and Subchapter G, Emergency Medical Services Trauma Systems, §§157.122, 157.123, 157.125, and 157.128 - 157.130 in the September 12, 2003, issue of the Texas Register (28 TexReg 8013). There were no comments received due to the publication of the notice.

Kathryn C. Perkins, Bureau Chief of the Bureau of Emergency Management, has determined that for first five years the sections are in effect, there will be fiscal implications to state and local government as a result of administering the sections as proposed. The impact is related to proposed fee increases as authorized by HB 2292 in the 78th Regular Session of the Texas Legislature. Proposed fees represent a 20% increase which will result in an estimated increase of $280,000 per year in revenue.

Kathryn C. Perkins has also determined that for each year of the first five years the proposed sections are in effect the public health benefit anticipated as a result of these amendments and repeal will be increased standards for the certification or licensure of EMS personnel, providers, training institutions and educators. There is an anticipated cost to small businesses, micro-businesses and to persons who are required to comply with the sections as proposed, because the rules make additional requirements of providers, except those that are exempt under the given rules. There is an increase in the fee charged for a certification or license. One proposed section also authorizes an increase on administrative penalties that may be imposed on course coordinators for violations of the Health and Safety Code. There is no anticipated effect on local employment.

Comments on the proposal may be submitted to Kathryn C. Perkins, Chief, Bureau of Emergency Management, Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756, telephone (512) 834-6700, or kathy.perkins@tdh.state.tx.us. Comments will be accepted for 30 days after publication of the proposal in the Texas Register .

Subchapter A. EMERGENCY MEDICAL SERVICES - PART A

25 TAC §157.1, §157.4

The amendment and new section are proposed under the Texas Health and Safety Code, Chapter 773, which provides the department with the authority to adopt rules concerning certification and licensing of EMS certificants, providers, training institutions and educators; and §12.001, which provides the Texas Board of Health (board) with the authority to adopt rules for its procedure and for the performance of each duty imposed by law on the board, the department or the commissioner of health.

The amendment and new section affect the Health and Safety Code, Chapter 773. The review of the rules implements Government Code, §2001.039.

§157.1.Purpose.

(a) (No change.)

(b) This chapter will provide minimum requirements for an emergency medical services (EMS) provider license; authorization [ categorization ] of EMS vehicles; emergency suspension, reprimand, suspension, probation, revocation, or denial of an EMS provider license; first responder organizations; EMS personnel certification and licensure; interstate reciprocity for EMS certification; EMS personnel recertification or relicensure; continuing education requirements; course coordinator and program instructor certification; disciplinary action for EMS personnel, course coordinators and program instructors; EMS training courses and course approval; Emergency Medical Information Operator training, instructor training, course approval and certification; certification or licensure of persons with criminal backgrounds; Out-of-Hospital Do-Not-Resuscitate orders; automated external defibrillators; requests for emergency care attendant training; fees; the establishment of trauma service areas; the establishment of regional EMS/trauma systems; requirements for trauma facility designation; and disciplinary actions for designated trauma facilities.

§157.4.Audits.

(a) The department may randomly and for cause audit the records relating to licensing or certification of individuals and/or entities which are currently certified or licensed by the department or which have applied for certification or licensure by the department.

(b) The department may automatically audit certified or licensed EMS personnel or entities shown to be non-compliant in an immediately preceding audit.

(c) Failure to notify the department of a current mailing address shall not absolve the certificant, licensee or entity from audit requirements.

(d) Within 20 business days following notification of audit, certified or licensed EMS personnel or licensed entities shall submit documentation as specified by the department to verify compliance with any requirement set forth in Chapter 773 of the Texas Health and Safety Code or of the rules in this title.

(e) Falsification of documentation shall be cause for reprimand, probation, suspension, or revocation of a certificate, license, provider license or EMS program/course approval in accordance with §157.16 of this title (relating to Emergency Suspension, Suspension, Probation, Revocation or Denial of a Provider License); and/or §157.32 of this title (relating to Emergency Medical Services Education Program and Course Approval); and/or §157.34 of this title (relating to Recertification); and/or §157.36 of this title (relating to Criteria for Denial and Disciplinary Actions for EMS Personnel and Voluntary Surrender of a Certificate or License); and/or §157.38 of this title (relating to Continuing Education); and/or §157.43 of this title (relating to Course Coordinator Certification); and/or §157.44 of this title (relating to Emergency Medical Service Instructor Certification).

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on January 16, 2004.

TRD-200400327

Susan K. Steeg

General Counsel

Texas Department of Health

Earliest possible date of adoption: February 29, 2004

For further information, please call: (512) 458-7236


25 TAC §157.4

(Editor's note: The text of the following section proposed for repeal will not be published. The section may be examined in the offices of the Texas Department of Health or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)

The repeal is proposed under the Texas Health and Safety Code, Chapter 773, which provides the department with the authority to adopt rules concerning certification and licensing of EMS certificants, providers, training institutions and educators; and §12.001, which provides the Texas Board of Health (board) with the authority to adopt rules for its procedure and for the performance of each duty imposed by law on the board, the department or the commissioner of health.

The repeal affects the Health and Safety Code, Chapter 773. The review of the rules implements Government Code, §2001.039.

§157.4.Request for EMS Training at the Local Level.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on January 16, 2004.

TRD-200400328

Susan K. Steeg

General Counsel

Texas Department of Health

Earliest possible date of adoption: February 29, 2004

For further information, please call: (512) 458-7236


Subchapter B. EMERGENCY MEDICAL SERVICES PROVIDER LICENSES

25 TAC §157.11, §157.14

The amendments are proposed under the Texas Health and Safety Code, Chapter 773, which provides the department with the authority to adopt rules concerning certification and licensing of EMS certificants, providers, training institutions and educators; and §12.001, which provides the Texas Board of Health (board) with the authority to adopt rules for its procedure and for the performance of each duty imposed by law on the board, the department or the commissioner of health.

The amendments affect the Health and Safety Code, Chapter 773. The review of the rules implements Government Code, §2001.039.

§157.11.Requirements for an EMS Provider License.

(a) Application requirements for an Emergency Medical Services (EMS) Provider License.

(1) Candidates for an EMS provider license shall submit a completed application (application, all other required information described in a provider licensing instruction document provided by the Texas Department of Health (department) and a nonrefundable [ an ] fee) to the department.

(2) A nonrefundable application fee of $500 plus $180 for each EMS vehicle to be operated under the license shall accompany the application. The department will implement the fee requirement for initial applicants 20 days following adoption of the rule and at the time of the next re-license period of currently certified licensed providers following adoption. [ The nonrefundable fee shall be $150 for each EMS vehicle to be operated unless the license is issued for less than 12 months in which case the nonrefundable fee shall be $75 for each vehicle. ]

(3) (No change.)

(4) A fixed-wing or rotor-wing air ambulance provider, appropriately licensed by the state governments of New Mexico, Oklahoma, Arkansas or Louisiana may apply for a reciprocal issuance of a provider license. A nonrefundable administrative fee of $500 shall accompany the application in addition to a nonrefundable fee of $180 for each EMS aircraft to be operated in Texas under the reciprocal license. [ A rotor-wing air ambulance provider from New Mexico, Oklahoma, Arkansas, or Louisiana may apply for reciprocal issuance of a provider license. A nonrefundable administrative fee of $250 shall accompany the application in addition to the nonrefundable fee in subsection (a)(2) of this section. ]

(5) (No change.)

(b) - (l) (No change.)

(m) License renewal process.

(1) - (2) (No change.)

(3) If a provider has not met all requirements for a provider license, the provider may apply for a provisional license by submitting a request and, in addition to the regular nonrefundable licensure fee if applicable, a nonrefundable fee of $30 [ $25 ]. One provisional license, valid for not more than 60 days, may be granted only to prevent probable adverse impact to the health and safety of the service community. Without a provisional license, a provider may not operate if there is a lapse in time between license expiration and license renewal.

(n) - (o) (No change.)

(p) Unannounced inspections. Randomly and/or in response to complaints, the department may conduct unannounced inspections to insure compliance of the provider license holder. Inspections may be conducted at any time, including nights or weekends. The department may review all components of provider licensure during an unannounced inspection. Violations or deficiencies may result in disciplinary action as authorized by §157.16 of this title (relating to Emergency Suspension, Suspension, Probation, Revocation or Denial of a Provider License). The department may grant a reasonable period of time for the provider to correct deficiencies. If the department must reinspect the provider because of noncompliance noted during a previous inspection, the provider shall pay a nonrefundable fee of $30 [ $25 ], if applicable.

(q) (No change.)

(r) For all applications and renewal applications, the department (or the board) is authorized to collect subscription and convenience fees, in amounts determined by the Texas Online Authority, to recover costs associated with application and renewal application processing through Texas Online.

§157.14.Requirements for First Responder Organization Registration.

(a) (No change.)

(b) Application requirements. The applicant shall submit a completed application to the department. A complete application consists of the following:

(1) - (4) (No change.)

(5) a nonrefundable application fee, if applicable.

(A) Any FRO which is, or has a contract with, an entity such as a business, corporation or department and whose first responder employees or members are compensated by that entity for providing first responder service shall pay a nonrefundable $60 [ $50 ] application fee. If the registration is issued for less than 12 months in which case the nonrefundable fee shall be $30 [ $25 ]. The FRO's personnel are not exempt from the payment of certification application fees.

(B) (No change.)

(c) - (g) (No change.)

(h) For all applications and renewal applications, the department (or the board) is authorized to collect subscription and convenience fees, in amounts determined by the Texas Online Authority, to recover costs associated with application and renewal application processing through Texas Online.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on January 16, 2004.

TRD-200400329

Susan K. Steeg

General Counsel

Texas Department of Health

Earliest possible date of adoption: February 29, 2004

For further information, please call: (512) 458-7236


Subchapter C. EMERGENCY MEDICAL SERVICES TRAINING AND COURSE APPROVAL

25 TAC §157.31

(Editor's note: The text of the following section proposed for repeal will not be published. The section may be examined in the offices of the Texas Department of Health or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)

The repeal is proposed under the Texas Health and Safety Code, Chapter 773, which provides the department with the authority to adopt rules concerning certification and licensing of EMS certificants, providers, training institutions and educators; and §12.001, which provides the Texas Board of Health (board) with the authority to adopt rules for its procedure and for the performance of each duty imposed by law on the board, the department or the commissioner of health.

The repeal affects the Health and Safety Code, Chapter 773. The review of the rules implements Government Code, §2001.039.

§157.31.Automated External Defibrillator Training Course.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on January 16, 2004.

TRD-200400330

Susan K. Steeg

General Counsel

Texas Department of Health

Earliest possible date of adoption: February 29, 2004

For further information, please call: (512) 458-7236


25 TAC §§157.32 - 157.34, 157.38, 157.40

The amendments are proposed under the Texas Health and Safety Code, Chapter 773, which provides the department with the authority to adopt rules concerning certification and licensing of EMS certificants, providers, training institutions and educators; and §12.001, which provides the Texas Board of Health (board) with the authority to adopt rules for its procedure and for the performance of each duty imposed by law on the board, the department or the commissioner of health.

The amendments affect the Health and Safety Code, Chapter 773. The review of the rules implements Government Code, §2001.039.

§157.32.Emergency Medical Services Education Program and Course Approval.

(a) - (p) (No change.)

(q) Fees.

(1) The following nonrefundable fees shall apply:

(A) $30 [ $25 ] for review of a basic self-study, except that this nonrefundable fee may be waived if the program receives no remuneration for providing training;

(B) $90 [ $75 ] for conducting a basic site visit;

(C) $60 [ $50 ] for review of an advanced self-study, except that this nonrefundable fee may be waived if the program receives no remuneration for providing training;

(D) $250 [ $200 ] for conducting an advanced site visit;

(E) $30 [ $25 ] for processing a basic course notification or approval application, except that this nonrefundable fee may be waived if the program receives no remuneration for providing training; and

(F) $60 [ $50 ] for processing an advanced course notification or approval application, except that this nonrefundable fee may be waived if the program receives no remuneration for providing training.

(2) (No change.)

(r) Course Notification and Approval.

(1) - (2) (No change.)

(3) A nonrefundable course fee, unless program is not remunerated for the course in any way, shall be submitted as follows:

(A) $30 [ $25 ] for a Basic Course (ECA or EMT);

(B) $60 [ $50 ] for an Advanced Course (EMT-Intermediate or Paramedic);

(C) $30 [ $25 ] for an EMS Instructor Course; and

(D) $60 [ $50 ] for an Emergency Medical Information Operator Instructor Course.

(4) (No change.)

(s) - (t) (No change.)

(u) For all applications and renewal applications, the department (or the board) is authorized to collect subscription and convenience fees, in amounts determined by the Texas Online Authority, to recover costs associated with application and renewal application processing through Texas Online.

§157.33.Certification.

(a) Certification requirements. A candidate for emergency medical services (EMS) certification shall:

(1) (No change.)

(2) have a high school diploma or GED certificate : [ ; ]

(A) the high school diploma must be from a school accredited by the Texas Education Agency (TEA) or a corresponding agency from another state. Candidates who received a high school education in another country must have their transcript evaluated by a foreign credentials evaluation service that attests to its equivalency. A home school diploma is acceptable if it is accompanied by a letter of acceptance into a regionally accredited college;

(B) an emergency care attendant (ECA) who provides emergency medical care exclusively as a volunteer for a licensed provider or registered FRO is exempt from paragraph (2) of this subsection.

(3) (No change.)

(4) submit an application and the following nonrefundable fees as applicable:

(A) $60 [ $50 ] for emergency care attendant (ECA) or emergency medical technician (EMT);

(B) $90 [ $75 ] for EMT-intermediate (EMT-I) or EMT-paramedic (EMT-P); and

(C) EMS volunteer - no fee. However, if such an individual receives compensation during the certification period, the exemption ceases and the individual shall pay a prorated fee to the department based on the number of years remaining in the certification period when employment begins. The nonrefundable fee for ECA or EMT certification shall be $15 [ $12.50 ] per each year remaining in the certification. The nonrefundable fee for EMT-I or EMT-P shall be $22.50 [ $18.75 ] per each year remaining in the certification. Any portion of a year will count as a full year; and

(5) (No change.)

(b) - (d) (No change.)

(e) Retesting.

(1) A candidate who does not pass the department's written examination may retest after:

(A) (No change.)

(B) paying a nonrefundable fee of $30 [ $25 ], if applicable.

(2) A candidate who does not pass a retest may request a second retest after:

(A) - (B) (No change.)

(C) paying a nonrefundable fee of $30 [ $25 ], if applicable.

(3) (No change.)

(f) (No change.)

(g) Non-transferability of certificate. A certificate is not transferable. A duplicate certificate may be issued if requested with a nonrefundable fee of $10 [ $5 ].

(h) - (i) (No change.)

(j) Inactive status. A certified EMT, EMT-I, or EMT-P may make application to the department for inactive status at any time during or after the certification period so long as the certification can be verified by the department.

(1) The request for inactive status shall be accompanied by a nonrefundable fee of $30 [ $25 ] in addition to the regular nonrefundable application fee.

(2) - (5) (No change.)

(k) Reciprocity. A person currently certified by the National Registry or in another state may be certified by submitting an application and a nonrefundable fee of $120 [ $100 ].

(1) - (3) (No change.)

(l) (No change.)

(m) For all applications and renewal applications, the department (or the board) is authorized to collect subscription and convenience fees, in amounts determined by the Texas Online Authority, to recover costs associated with application and renewal application processing through Texas Online.

§157.34.Recertification.

(a) Recertification.

(1) - (3) (No change.)

(4) The certificant shall submit an application and the following non-refundable fees as applicable:

(A) $60 [ $50 ] for Emergency Care Attendant (ECA) or Emergency Medical Technician (EMT);

(B) $90 [ $75 ] for EMT-Intermediate (EMT-I) or EMT-Paramedic (EMT-P); and

(C) EMS volunteer - no fee. However, if such an individual receives compensation during the certification period, the exemption ceases and the individual shall pay a prorated fee to the department based on the number of years remaining in the certification period when employment begins. The non-refundable fee for ECA or EMT certification shall be $15 [ $12.50 ] per each year remaining in the certification. The non-refundable fee for EMT-I or EMT-P shall be $22.50 [ $18.75 ] per each year remaining in the certification. Any portion of a year will count as a full year.

(5) - (7) (No change.)

(b) Recertification Options. Upon submission of a completed application for recertification, the applicant shall commit to, and recertify through, only one of the options described in paragraphs (1)-(5) of this subsection.

(1) Option 1 - Written Examination Recertification Process .

(A) (No change.)

(B) If the applicant fails the examination for recertification, the applicant may attempt two retests of the examination after:

(i) (No change.)

(ii) submitting a non-refundable retest fee of $30 [ $25 ] for each attempt.

(C) - (F) (No change.)

(2) - (5) (No change.)

(c) - (f) (No change.)

(g) For all applications and renewal applications, the department (or the board) is authorized to collect subscription and convenience fees, in amounts determined by the Texas Online Authority, to recover costs associated with application and renewal application processing through Texas Online.

§157.38.Continuing Education.

(a) - (f) (No change.)

(g) Approval of Continuing Education Provider.

(1) (No change.)

(2) A person, agency, entity, or organization seeking approval as a continuing education provider shall file an application with the department along with a nonrefundable fee of $60 in accordance with the course approval process described in §157.32 of this title (relating to Emergency Medical Services Education Program and Course Approval) .

(3) - (4) (No change.)

(h) - (k) (No change.)

(l) For all applications and renewal applications, the department (or the board) is authorized to collect subscription and convenience fees, in amounts determined by the Texas Online Authority, to recover costs associated with application and renewal application processing through Texas Online.

§157.40.Paramedic Licensure.

(a) Requirements for paramedic licensure.

(1) (No change.)

(2) Initial paramedic license. A candidate for initial paramedic licensure under this section shall:

(A) (No change.)

(B) submit an application and a nonrefundable fee, if applicable, of $120 [ $100; ] . EMS volunteer--no fee; however, if the applicant later receives compensation during the renewed licensure period, the exemption ceases and the individual shall pay a prorated fee to the department based upon the number of years remaining in the licensure period when employment begins. The non-refundable fee shall be $30 per each year remaining in the license. Any portion of a year that the licensed paramedic receives compensation for his or her paramedic service will count as a full year.

(C) - (G) (No change.)

(3) - (4) (No change.)

(5) Duplicate copies of the [ license and ] wallet-sized license [ copy ] may be issued, by the department to replace lost credentials for a fee of $10 [ $5.00 ].

(6) (No change.)

(b) Renewal of license.

(1) - (4) (No change.)

(5) Licensure fee.

(A) The licensee shall submit a non-refundable fee of $120 [ $100 ] with the application;

(B) EMS volunteer--no fee ; [ . ] however [ However ], if the applicant later receives compensation during the renewed licensure period, the exemption ceases and the individual shall pay a prorated fee to the department based on the number of years remaining in the licensure period when employment begins. The non-refundable fee shall be $30 [ $25 ] per each year remaining in the licensure. Any portion of a year that the licensed paramedic receives compensation for his paramedic service will count as a full year.

(6) - (7) (No change.)

(c) - (e) (No change.)

(f) Inactive status. A licensed paramedic may make application to the department for inactive status at any time during the licensure period or months after the license expiration date, if the license can be verified by the department. The request for inactive status shall be accompanied by a nonrefundable fee of $30 in addition to the regular nonrefundable application fee in subsection (a)(2)(B) of this section.

(1) - (5) (No change.)

(g) (No change.)

[ (h) Applying for inactive status after expiration of active or inactive licensure status. A candidate seeking to achieve inactive licensure after expiration of active or inactive licensure status shall apply within the department's record retention requirements for the prior license, which is no later than three years past the license expiration.]

(h) [ (i) ] Reciprocity. A person currently certified by the National Registry and/or certified or licensed as a paramedic in another state and who meets all the requirements of this section may apply for licensure by submitting an application along with a nonrefundable fee of $120 [ $100 ] and meeting the requirements set forth in subsection (a)(1) and (a) (2)(B) of this section. After the department evaluates the application, verifies the licensure and assures that the requirements in subsection (a) of this section have been met, the candidate will be licensed in Texas for four years from the issuance date of the current Texas licensure.

(i) [ (j) ] Equivalency.

(1) A candidate for licensure who completed EMS training outside the United States or its possessions, or a candidate who is certified or licensed in another healthcare discipline may apply for licensure by meeting the requirements set forth in subsection (a)(1) of this section and the following additional requirements:

(A) be at least 18 years of age;

(B) submit a copy of the course completion certification from an accredited post secondary institution approved by the department to sponsor an EMS education program;

(C) submit an application and appropriate nonrefundable fee as follows:

(i) a candidate who completed EMS training outside the United States or its possessions-- $180 [ $150 ];

(ii) a candidate who is certified or licensed in another healthcare discipline-- $120 [ $100 ]; and

(D) achieve National Registry paramedic certification.

(2) Evaluations of curricula conducted by post secondary educational institutions under this subsection shall be consistent with the institution's established policies and procedures for awarding credit by transfer or advanced placement.

(j) [ (k) ] Military personnel. A licensee who fails to renew a license within three months of the expiration date because of active duty in the United States military outside the State of Texas shall have one year from the date of discharge or the date of reassignment to Texas (whichever is first) to complete all requirements for relicensure.

(k) [ (l) ] Conversion from inactive paramedic certification to inactive paramedic licensure. A certified paramedic currently on inactive status who meets all other criteria as defined in subsection (a)(1) of this section may apply for inactive licensure status.

(1) The inactive certificant shall:

(A) submit an application for inactive licensure to the department along with a nonrefundable fee of $120 [ $100 ]; and

(B) submit evidence of the issuance of a degree from an accredited college or university as defined in subsection (a)(1) of this section.

(2) After verification by the department of the information submitted, the license will be issued in an inactive status for four years beginning on the day of issuance.

(l) For all applications and renewal applications, the department (or the board) is authorized to collect subscription and convenience fees, in amounts determined by the Texas Online Authority, to recover costs associated with application and renewal application processing through Texas Online.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on January 16, 2004.

TRD-200400331

Susan K. Steeg

General Counsel

Texas Department of Health

Earliest possible date of adoption: February 29, 2004

For further information, please call: (512) 458-7236


Subchapter D. EMERGENCY MEDICAL SERVICES PERSONNEL CERTIFICATION

25 TAC §§157.43, 157.44, 157.49

The amendments are proposed under the Texas Health and Safety Code, Chapter 773, which provides the department with the authority to adopt rules concerning certification and licensing of EMS certificants, providers, training institutions and educators; and §12.001, which provides the Texas Board of Heath (board) with the authority to adopt rules for its procedure and for the performance of each duty imposed by law on the board, the department or the commissioner of health.

The amendments affect the Health and Safety Code, Chapter 773. The review of the rules implements Government Code, §2001.039.

§157.43.Course Coordinator Certification.

(a) - (c) (No change.)

(d) Basic coordinator requirements. To be certified as a basic course coordinator, the candidate shall:

(1) submit an application for basic course coordinator certification along with the nonrefundable fee of $60 [ $75 ] to the Texas Department of Health (department) except a fee shall not be required if compensation is not received for coordinating training courses or programs;

(2) - (7) (No change.)

(8) after completing all the above requirements, pass the EMS coordinator exam and retest, if necessary, no later than one year after course completion date. The nonrefundable retest fee is $30 [ $25 ], except a fee shall not be required if compensation is not received for coordinating training courses or programs. If requirements are not completed within one year after course completion date, the candidate must meet the requirements of subsection (d) of this section including the completion of another initial course to be certified.

(e) Advanced coordinator requirements. To be certified as an advanced course coordinator, the candidate shall:

(1) submit an application for advanced course coordinator certification along with the nonrefundable fee of $60 [ $75 ] to the department; except a fee shall not be required if compensation is not received for coordinating training courses or programs;

(2) - (8) (No change.)

(9) after completing all the above requirements, pass the EMS coordinator exam and retest, if necessary, no later than one year after course completion date. The nonrefundable retest fee is $30 [ $25 ], except a fee shall not be required if compensation is not received for coordinating training courses or programs. If requirements are not completed within one year after course completion date, the candidate must meet the requirements of subsection (e) of this section including the completion of another initial course to be certified; and

(10) (No change.)

(f) - (l) (No change.)

(m) Disciplinary actions.

(1) Administrative penalty. The department may impose an administrative penalty on a course coordinator not to exceed $7,500 [ $1,000 ] per day per violation of the Health and Safety Code or the rules adopted thereunder.

(2) - (6) (No change.)

(n) For all applications and renewal applications, the department (or the board) is authorized to collect subscription and convenience fees, in amounts determined by the Texas Online Authority, to recover costs associated with application and renewal application processing through Texas Online.

§157.44.Emergency Medical Service Instructor Certification.

(a) (No change.)

(b) Certification. To obtain certification, a candidate shall:

(1) - (3) (No change.)

(4) submit an application to the department with a nonrefundable fee of $30 [ $50 ] to the department, except a fee shall not be required if compensation is not received for instructing training courses or programs; and a course completion document from a department-approved instructor course; and

(5) pass the instructor examination conducted by the department.

(c) The instructor candidate who does not pass the exam may have one opportunity to retest by submitting the retest application and $30 retest fee, if applicable. The retest must be completed no later than one year after the course completion date. The candidate who fails the retest must complete another instructor course to become eligible for instructor certification.

(d) [ (c) ] Currently certified instructors shall be considered to have met the qualifications in this section.

(e) [ (d) ] Period of certification. After verification by the department of the information submitted by the candidate, the candidate who meets the requirements of subsection (b) of this section shall be certified as an instructor for two years commencing on the date of issuance of the certificate.

(f) [ (e) ] Responsibilities. An instructor shall have the following responsibilities:

(1) conducting classroom and laboratory sessions in accordance with lesson objectives as assigned by the course coordinator;

(2) conducting skills proficiency verifications and other student evaluations as assigned by the course coordinator;

(3) assisting the course coordinator in preparing and maintaining records and performing other duties necessary to insure the integrity, efficiency and effectiveness of the course.

(g) [ (f) ] Recertification.

(1) Prior to the expiration of a certificate, the department shall send a notice of expiration to the certificant at the address shown in the current records of the department. It is the responsibility of EMS personnel to notify the department of any change of address.

(2) If a certificant has not received notice of expiration from the department 30 days prior to the expiration, the certificant shall request an application for recertification from the department or download an application from the Internet. Failure to apply for recertification shall result in expiration of the certificate.

(3) To be eligible for recertification, the instructor shall meet recertification requirements during the latest instructor certification period:

(A) maintain active status EMS certification; and

(B) submit the application for recertification and a nonrefundable fee of $30 [ $50 ].

(4) After verification by the department of the information submitted, the candidate who meets the requirements of this section shall be recertified for two years commencing on the day following the expiration of the current certificate.

(h) [ (g) ] Late recertification.

(1) An application for renewal of a certificate shall be considered late if:

(A) the application and nonrefundable fee are received after the most recent certificate has expired or;

(B) all requirements for recertification are not met prior to the end of the most recent certification period.

(2) An instructor who has not recertified prior to the end of his most recent certification period is not certified.

(i) [ (h) ] Recertification. To be eligible for recertification, the candidate shall meet the following:

(1) A candidate whose certificate has been expired for 90 days or less may renew the certificate by submitting an application and paying a nonrefundable renewal fee that is equal to 1-1/2 times the normally required application renewal fee for that level as listed in subsection (b)(4) of this section;

(2) A candidate whose certificate has been expired for more than 90 days but less than one year may renew the certificate by submitting an application and paying a nonrefundable renewal fee that is equal to two times the normally required application renewal fee as listed in subsection (b)(4) of this section.

(3) A candidate must complete all the requirements for recertification no later than one year after the expiration of the most recent certificate.

(4) After verification by the department of the information submitted by the candidate, the candidate who meets the requirements of this subsection shall be recertified for two years commencing on the day of issuance of a certificate.

(5) A candidate whose certification is expired more than one year must meet the requirements of subsection (b) of this section including the completion of another initial course to be certified.

(j) [ (i) ] Disciplinary action.

(1) Emergency suspension. The bureau chief of the Bureau of Emergency Management may issue an emergency order to suspend an instructor if the bureau chief has reasonable cause to believe continued activity of the individual constitutes a threat to the public health or safety.

(A) An emergency suspension shall be effective immediately without a hearing or written notice to the certificate holder. Notice to the certificant shall be established on the date that a copy of the signed emergency suspension order is sent to the address shown in the current records of the department, or by return receipt. Notice shall also be sent to any sponsoring entity.

(B) If a written request for a hearing is received from the certificate holder within 15 days of the date of notice, the department shall conduct a hearing not later than the 30th day after the date on which a hearing request is received to determine if the emergency suspension is to be continued, modified, or rescinded. The hearing and appeal from a disciplinary action related to the hearing shall be in accordance with the Administrative Procedure Act, Government Code, Chapter 2001.

(2) Suspension or revocation. An instructor's certification may be suspended or revoked for, but not limited to, the following reasons:

(A) failing to maintain active status EMS personnel certification at the appropriate level;

(B) failing to comply with the responsibilities of an instructor as in subsection (f) [ (e) ] of this section;

(C) falsifying an application for EMS certification;

(D) falsifying a program approval application, a self-study, a course approval application, or any supporting documentation;

(E) falsifying a course completion certificate or any other document that records or verifies course activity and/or is a part of the course record;

(F) compromising department or program standards for verification of skills proficiency or falsifying proficiency verification records;

(G) assisting another to obtain or to attempt to obtain personnel certification or recertification by fraud, forgery, deception or misrepresentation;

(H) failing to complete and submit student documents within the established time frames;

(I) compromising or failing to maintain the order, discipline and fairness of a department-approved course or program;

(J) delivering or allowing inadequate class presentations;

(K) compromising an examination or examination process administered or approved by the department;

(L) cheating or assisting another in cheating on an EMS examination, other evaluation or any other activity offered or conducted by the department, a training program approved by the department, or a provider licensed by the department;

(M) accepting any benefit to which there is no entitlement or benefits in any manner through fraud, deception, falsification, misrepresentation, theft, misappropriation or coercion;

(N) failing to maintain appropriate policies, procedures and safeguards to ensure the safety of students, fellow instructors or other class participants;

(O) allowing recurrent use of inadequate, inoperable, or malfunctioning equipment;

(P) issuing a check to the department which is returned unpaid;

(Q) failing to maintain education course records for initial or continuing education (CE) courses;

(R) demonstrating an unwillingness or inability to comply with the Health and Safety Code and rules adopted thereunder;

(S) failing to give the department true and complete information when asked regarding any alleged or actual violation of the Health and Safety Code, or the rules adopted thereunder, or failing to report a violation;

(T) committing any violation during a probationary period; and

(U) functioning or attempting to function as an instructor during a period of suspension shall be cause for revocation of the instructor certification.

(3) Notification. If the department proposes to take disciplinary action against an EMS instructor, the certificant shall be notified at the address shown in the current records of the department. The notice must state the alleged facts or conduct warranting the action and state that the certificant has an opportunity to request a hearing.

(A) The certificant may request a hearing within 15 days after the date of the notice. This request shall be in writing and submitted to the bureau chief. The hearing shall be conducted pursuant to the Administrative Procedure Act, Government Code, Chapter 2001.

(B) If the certificant does not request a hearing, after being sent the notice of opportunity, the certificant waives the opportunity for a hearing and the department shall implement its proposal.

(4) Probation. The department may probate any penalty assessed under this section and may specify terms and conditions of any probation issued.

(5) Reapplication.

(A) Two years after the revocation of an instructor certification an individual may petition the department, in writing, for the opportunity to reapply for certification.

(B) The department shall evaluate the petition and may allow or deny the opportunity to submit an application for recertification.

(C) In evaluating a petition for permission to reapply for certification the department shall consider, but is not limited to, the following issues:

(i) the likelihood of a repeat of the actions or inactions that led to revocation;

(ii) the petitioners overall record as an instructor;

(iii) letters of support or recommendation;

(iv) letters in protest or nonsupport of the petition; and

(v) the need for the services of an instructor in a given area.

(D) The petitioner shall be notified of the department's decision to allow or deny the submission of reapplication within 60 days of the request.

(E) An instructor whose certificate expires during a suspension or revocation period may not petition to reapply for certification until the end of the suspension or revocation period.

(k) For all applications and renewal applications, the department (or the board) is authorized to collect subscription and convenience fees, in amounts determined by the Texas Online Authority, to recover costs associated with application and renewal application processing through Texas Online.

§157.49.Emergency Medical Services Operator and Operator Instructor Training and Certification.

(a) - (g) (No change.)

(h) Course approval.

(1) Prior to starting a course, an EMS information operator instructor shall:

(A) (No change.)

(B) submit a non-refundable course approval fee of $60 [ $50 ], except a fee shall not be required if the EMS information operator instructor is not to be compensated for providing EMS information operator training;

(C) - (D) (No change.)

(2) - (3) (No change.)

(i) (No change.)

(j) EMS information operator instructor certification.

(1) To become certified as an EMS information operator instructor, a person must:

(A) - (E) (No change.)

(F) submit an application to the department with a nonrefundable fee of $60 [ $50 ], except a fee shall not be required if the candidate is not to be compensated for providing EMS information operator training; and

(G) (No change.)

(2) (No change.)

(3) Persons holding EMS information operator instructor certification from any department-approved training program prior to the effective date of this rule are considered to have met the requirements as set forth in this section and may apply for certification by submitting to the department:

(A) a written application with a nonrefundable fee of $60 [ $50 ], except a fee shall not be required if the candidate is not to be compensated for providing EMS information operator training; and

(B) (No change.)

(4) Retesting.

(A) A certificant who does not pass the department's written examination may retest after:

(i) (No change.)

(ii) paying a nonrefundable fee of $30 [ $25 ], if applicable.

(B) (No change.)

(k) EMS information operator instructor recertification.

(1) - (2) (No change.)

(3) To be eligible for recertification, the EMS information operator instructor shall:

(A) - (C) (No change.)

(D) submit an application for recertification with a nonrefundable fee of $60 [ $50 ], except a fee shall not be required if the candidate is not to be compensated for providing EMS information operator instructor training; and

(E) (No change.)

(4) - (8) (No change.)

(l) - (n) (No change.)

(o) For all applications and renewal applications, the department (or the board) is authorized to collect subscription and convenience fees, in amounts determined by the Texas Online Authority, to recover costs associated with application and renewal application processing through Texas Online.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on January 16, 2004.

TRD-200400332

Susan K. Steeg

General Counsel

Texas Department of Health

Earliest possible date of adoption: February 29, 2004

For further information, please call: (512) 458-7236


Subchapter G. EMERGENCY MEDICAL SERVICES TRAUMA SYSTEMS

25 TAC §§157.122, 157.123, 157.125

The amendments and new section are proposed under the Texas Health and Safety Code, Chapter 773, which provides the department with the authority to adopt rules concerning certification and licensing of EMS certificants, providers, training institutions and educators; and §12.001, which provides the Texas Board of Health (board) with the authority to adopt rules for its procedure and for the performance of each duty imposed by law on the board, the department or the commissioner of health.

The amendments and new section affect the Health and Safety Code, Chapter 773. The review of the rules implements Government Code, §2001.039.

§157.122.Trauma Service Areas.

(a) (No change.)

(b) The state has been geographically divided by counties into 22 TSAs; however:

(1) (No change.)

(2) each TSA shall have at least a lead general trauma facility within its boundaries [ by December 31, 2000, ] or the bureau may re-align the counties in that TSA to other TSAs which have such a facility;

(3) - (4) (No change.)

(c) The counties included in the 22 TSAs are grouped as follows (updated lists will be maintained by the bureau):

(1) (No change.)

(2) Area B - Bailey, Borden, Castro, Cochran, Cottle, Crosby, Dawson, Dickens, Floyd, Gaines, Garza, Hale, Hockley, Kent, King, Lamb, Lubbock, Lynn, [ Mitchell, ] Motley, Scurry, Terry, Yoakum;

(3) (No change.)

(4) Area D - Brown, Callahan, Coleman, Comanche, Eastland, Fisher, Haskell, Jones, Knox, Mitchell, Nolan, Shackelford, Stephens, Stonewall, Taylor, Throckmorton;

(5) - (22) (No change.)

(d) (No change.)

§157.123.Regional Emergency Medical Services/Trauma Systems.

(a) The bureau of emergency management (bureau) shall recognize the establishment of a regional emergency medical services (EMS)/trauma system (system) within a trauma service area (TSA) as described in §157.122 of this title (relating to Trauma Service Areas).

(b) Establishment of a regional EMS/trauma system consists of three phases.

(1) The first phase begins with the establishment of a regional advisory council (RAC) and ends with recognition of the RAC by the bureau.

(A) All health care entities who care for trauma patients should be offered membership on the RAC. RACs shall:

(i) be operated in a manner that maximizes inclusion of their constituents and ensures membership approval of "participation requirements";

(ii) have documented evidence that participation guidelines have been discussed and affirmed by vote of the entire RAC voting membership;

(iii) have clear definitions of participation guidelines in the organization's by-laws and/or other official RAC files;

(iv) have documentation that participation guidelines have been communicated to EMS providers and hospitals, regardless of past participation history;

(v) have documented attendance records;

(vi) have consistency in the annual participation reporting period;

(vii) send participation "progress reports" to EMS providers and hospitals at some period during the reporting year;

(viii) send participation requirements "non-compliancy" letters to appropriate EMS providers and hospitals at end of reporting year;

(ix) be cognizant of the direct and indirect fiscal roles they play on behalf of their members; and

(x) be particularly cognizant of the logistical challenges faced by rural and volunteer agencies and open to considering viable alternatives to members' physical presence at all meetings.

(B) The bureau shall recognize only one official RAC for a TSA.

(C) At least quarterly, a RAC shall submit evidence of on-going activity, such as meeting notices and minutes, to the bureau.

(D) Annually, the RAC shall file a report with the bureau which describes progress toward system development, demonstrates on-going activity, and includes evidence that members of the RAC are currently involved in trauma care.

(E) The RAC functions without the expectation of comprehensive, permanent and/or unrestricted state funding.

(F) RACs may request technical assistance from the bureau at any time.

(2) The second phase begins with RAC recognition by the bureau and ends with approval of a complete EMS/trauma system plan (plan) by the bureau.

(A) The RAC shall develop a system plan based on standard guidelines for comprehensive system development. The system plan is subject to approval by the bureau.

(B) The bureau shall review the plan to assure that:

(i) all counties within the TSA have been included unless a specific county, or portion thereof, has been aligned within an adjacent system;

(ii) all health care entities and interested specialty centers have been given an opportunity to participate in the planning process; and

(iii) the following components have been addressed:

(I) injury prevention;

(II) access to the system;

(III) communications;

(IV) medical oversight;

(V) pre-hospital triage criteria;

(VI) diversion policies;

(VII) bypass protocols;

(VIII) regional medical control;

(IX) regional trauma treatment guidelines;

(-a-) Guidelines consistent with current Advanced Trauma Life Support (ATLS), Advanced Pediatric Life Support (APLS), Basic Trauma Life Support (BTLS), Pre-Hospital Trauma Life Support (PHTLS), Trauma Nurse Core Course (TNCC), Emergency Nurse Pediatric Course (ENPC), Pediatric Advanced Life Support (PALS) and Pediatric Education For Pre-Hospital Providers (PEPP) standards shall be developed, implemented, and evaluated.

(-b-) Individual agencies and medical directors may, and are encouraged, to exceed the minimum standards.

(-c-) Major/severe trauma patients will be cared for by health professionals with documented education and skill in the assessment and care of injuries throughout their pre-hospital and hospital course.

(-d-) Major/severe trauma patients will have their medical care, as documented by pre-hospital run forms and hospital charts, reviewed by the individual entity's medical director for appropriateness and quality of care.

(-e-) Major/severe trauma patients will have deviations from standard of care addressed through a documented trauma performance improvement process.

(X) facility triage criteria;

(XI) inter-hospital transfers;

(XII) planning for the designation of trauma facilities, including the identification of the lead facility(ies); and

(XIII) regional guidelines for disaster preparedness; and

(XIV) a performance improvement program that evaluates processes and outcomes from a system perspective.

(C) Bureau approval of the completed plan may qualify health care entities participating in the system to receive state funding for trauma care if funding is available.

(3) The third phase begins with approval of a complete plan by the bureau and ends with the regional EMS/trauma system being recognized by the bureau.

(A) Upon approval, a RAC implements the plan to include:

(i) education of all entities about the plan components;

(ii) on-going review of resource, process, and outcome data; and

(iii) if necessary, revision and re-approval of the plan or plan components by the bureau.

(B) Following implementation of the plan, the bureau shall recommend to the commissioner of health (commissioner) the designation of a regional EMS/trauma system if the applicant RAC meets or exceeds the current Texas EMS/trauma systems essential criteria; actively participates at the bureau's quarterly RAC Chairs meetings; and submits data as requested.

(C) The designation process shall consist of three phases:

(i) The first phase is the application phase which begins with completing and submitting to the bureau a complete application and non-refundable fee for designation as a regional EMS/trauma system and ends when the bureau approves a site survey (survey);

(ii) The second phase is the review phase which begins with the survey and ends with a bureau recommendation to the commissioner to designate a regional EMS/trauma system; and

(iii) The third phase is the final phase which begins with the commissioner reviewing the recommendations and ends with his/her final decision. This phase also includes an appeal procedure for the denial of a designation application in accordance with the Administrative Procedure Act, Government Code, Chapter 2001.

(D) The bureau's analysis of submitted application materials, which may result in recommendations for corrective action when deficiencies are noted, shall include a review of:

(i) evidence of participation at the bureau's quarterly RAC Chairs meetings;

(ii) the completeness and appropriateness of the application materials submitted, including the non-refundable application fee.

(iii) the non-refundable application fee shall be based on the trauma service area's geographic size, population and trauma death rate.

(iv) a RAC's non-refundable application fee shall be no more than $10,000 and not less than $2500.

(E) When the application phase results in a bureau approval for survey, the bureau shall notify the regional EMS/trauma system's RAC that will then contract for the survey by a team of approved non-Texas Department of Health (department) surveyors.

(i) The bureau, at its discretion, may appoint an observer to accompany the survey team. In this event, the cost for the observer(s) shall be borne by the bureau. A RAC shall have the right to refuse to allow non-department observers to participate in a survey.

(ii) The survey shall be completed within one year of the date of the approval of the application.

(iii) At any time, a RAC may file a complaint with the bureau regarding the conduct of a surveyor. The bureau will investigate and notify the RAC of the outcome.

(F) The survey team composition shall consist of at minimum a physician; an EMS provider representative; a trauma nurse from a designated trauma facility; all of which shall have demonstrated knowledge and experience with system development. A fourth surveyor with experience in system management may be requested by the RAC or the bureau.

(G) Non-department surveyors must meet the following criteria:

(i) have at least three years experience in the care of trauma patients and active participation in a regional EMS/trauma system;

(ii) be currently employed in the coordination of care for trauma patients;

(iii) have direct experience in the preparation for and successful completion of regional EMS/trauma system designation;

(iv) have successfully completed the department Regional EMS/Trauma System Site Surveyor Course; and

(v) on-going bureau evaluation of survey reports for compliance with bureau reporting requirements.

(H) All members of the survey team, except department staff, should come from a non-adjacent public health region and/or trauma service area (TSA). There shall be no business or patient care relationship between the surveyor and/or the surveyor's place of employment and regional EMS/trauma system being surveyed.

(I) The survey team shall evaluate the regional EMS/trauma system by:

(i) attendance records, performance improvement committee meeting minutes and other documents specifically relevant to regional EMS/trauma system development;

(ii) visiting EMS provider stations and hospitals within the TSA; and

(iii) conducting interviews with RAC members and non-members.

(J) Findings of the survey team shall be forwarded to the RAC Executive Board within thirty calendar days of the date of the survey. If a RAC wants to continue the designation process, the complete survey report must be submitted to the bureau within three months after receipt of the survey or the application will expire. A request for an extension could be requested for extenuating circumstances.

(K) The bureau shall review the findings for compliance with the criteria. If a regional EMS/trauma system does not meet the criteria for designation, the bureau shall notify the RAC executive board of the requirements it must meet to achieve designation.

(L) A recommendation for designation shall be made to the commissioner based on compliance with the criteria.

(M) In the event there is a problem area in which a regional EMS/trauma system does not comply with the criteria, the bureau shall notify the applicant of deficiencies and recommend corrective action.

(N) The regional EMS/trauma system shall submit a report to the bureau which outlines the corrective action taken. The bureau may require a second survey to insure compliance with the criteria. If the regional EMS/trauma system and/or bureau report substantiates action that brings the regional EMS/trauma system into compliance with the criteria, the bureau shall recommend designation to the commissioner.

(O) If a regional EMS/trauma system disagrees with a bureau decision regarding its designation application or status, it may request a secondary review by a designation review committee. Membership on the designation review committee will:

(i) be voluntary;

(ii) be appointed by the bureau chief;

(iii) be representative of trauma care providers within a designated regional EMS/trauma system; and

(iv) include representation from the department and the Trauma Systems Committee of the Governor's EMS and Trauma Advisory Council (GETAC).

(P) If the designation review committee disagrees with the bureau recommendation for corrective action, the records shall be referred to the associate commissioner for consumer health protection for recommendation to the commissioner.

(Q) The bureau shall provide a copy of the survey report, for surveys conducted by or contracted for by the department and results to the applicant regional EMS/trauma system.

(R) At the end of the secondary review and final phases of the designation process, if a regional EMS/trauma system disagrees with the bureau recommendations, opportunity for an appeal in accordance with the Administrative Procedure Act, Government Code, Chapter 2001 shall be offered.

(S) The bureau may grant an exception to this section if it finds that compliance with this section would not be in the best interests of the persons served in the affected local system.

(T) The applicant regional EMS/trauma system shall have the right to withdraw its application at any time prior to the department making a final decision on the application for designation.

(U) If the commissioner concurs with the recommendation to designate, the RAC shall receive a letter of designation for two years. Site surveys will be required every six years, or more frequently at the bureau's discretion. Additional actions, such as a site review or submission of information, to maintain designation may be required by the department.

(V) It shall be necessary to repeat the designation process as described in this section prior to expiration of a regional EMS/trauma system designation or the designation will be considered expired.

(W) A designated regional EMS/trauma system shall:

(i) notify the bureau within five days if temporarily unable to comply with the essential trauma system criteria;

(ii) notify the bureau and RAC membership within five days if it is unable to provide the resources as required by its designation.

(I) If the resources are not critical, the bureau will determine a 30-day to 90-day period from onset date of deficiency for the RAC to achieve compliance.

(II) If the resources are critical, the bureau will determine a no greater than 30-day period from onset date of the deficiency for the RAC to achieve compliance.

(iii) notify the bureau if the RAC will no longer provide services commensurate with designation. If the regional EMS/trauma system chooses to permanently relinquish its designation, it shall provide at least 30 days notice to the bureau.

(iv) comply with the provisions within these sections, all current state and system standards as described in this chapter, and all policies, guidelines, and procedures as set forth in the system plan;

(v) continue its commitment to provide the resources as required by its designation; and

(vi) utilize the state trauma registry.

(X) A regional EMS/trauma system may not use the terms "regional trauma system", "trauma system", or similar terminology in its signs or advertisements or in the printed materials and information it provides to the public unless the regional EMS/trauma system has been designated as a regional EMS/trauma system according to the process described in this section. This subsection also applies to regional EMS/trauma systems whose designation has lapsed.

(Y) The bureau shall have the right to review, inspect, evaluate, and audit all RAC performance improvement committee minutes and other documents relevant to trauma care in any designated regional EMS/trauma system at any time to verify compliance with the statute and these rules, including the designation criteria. The bureau shall maintain confidentiality of such records to the extent authorized by the Public Information Act, (Government Code, Chapter 552), the Texas Health and Safety Code, Chapter 773 and/or any other relevant confidentiality law or regulation. Such inspections shall be scheduled by the bureau when appropriate.

(c) Regional EMS/trauma system criteria.

Figure: 25 TAC §157.123(c)

§157.125.Requirements for Trauma Facility Designation.

(a) - (b) (No change.)

(c) The bureau's analysis of submitted application materials, which may result in recommendations for corrective action when deficiencies are noted, shall include a review of:

(1) (No change.)

(2) the completeness and appropriateness of the application materials submitted, including the non-refundable application fee as follows:

(A) for comprehensive and major trauma facility applicants, the fee will be no more than $10 [ $3.00 ] per licensed bed with an upper limit of $5,000 [ $3000 ] and a lower limit of $4,000 [ $100 ];

(B) for general trauma facility applicants, the fee will be no more than $10 [ $2.00 ] per licensed bed with an upper limit of $2,500 [ $2000 ] and a lower limit of $1,500 [ $100 ]; and

(C) for basic trauma facility applicants, the fee will be no more than $10 [ $1.00 ] per licensed bed with an upper limit of $1,000 [ $1000 ] and a lower limit of $500 [ $100 ].

(d) - (t) (No change.)

(u) For all applications and renewal applications, the department (or the board) is authorized to collect subscription and convenience fees, in amounts determined by the Texas Online Authority, to recover costs associated with application and renewal application processing through Texas Online.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on January 16, 2004.

TRD-200400333

Susan K. Steeg

General Counsel

Texas Department of Health

Earliest possible date of adoption: February 29, 2004

For further information, please call: (512) 458-7236


25 TAC §157.123, §157.129

(Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Department of Health or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)

The repeals are proposed under the Texas Health and Safety Code, Chapter 773, which provides the department with the authority to adopt rules concerning certification and licensing of EMS certificants, providers, training institutions and educators; and §12.001, which provides the Texas Board of Health (board) with the authority to adopt rules for its procedure and for the performance of each duty imposed by law on the board, the department or the commissioner of health.

The repeals affect the Health and Safety Code, Chapter 773. The review of the rules implements Government Code, §2001.039.

§157.123.Regional Emergency Medical Services/Trauma Systems.

§157.129.State Trauma Registry.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on January 16, 2004.

TRD-200400334

Susan K. Steeg

General Counsel

Texas Department of Health

Earliest possible date of adoption: February 29, 2004

For further information, please call: (512) 458-7236


Chapter 289. RADIATION CONTROL

Subchapter D. GENERAL

25 TAC §289.204

The Texas Department of Health (department) proposes an amendment to §289.204, concerning fees for certificates of registration, radioactive material licenses, emergency planning and implementation, and other regulatory services.

Government Code, §2001.039, requires that each state agency review and consider for readoption each rule adopted by that agency pursuant to the Government Code, Chapter 2001 (Administrative Procedure Act). Section 289.204 has been reviewed and the department has determined that the reasons for adopting the section continue to exist; however, revisions to the rule are necessary as outlined in this preamble.

The department published a Notice of Intention to Review for §289.204 regarding Government Code, §2001.039, in the Texas Register (28 TexReg 9549) on October 31, 2003. No comments were received by the department on this section following publication of the notice.

The proposed revision incorporates legislation passed by the 78th Legislature, Regular Session. House Bill 2292 requires two-year terms for radioactive material licenses and certificates of registration and requires recovery through fees of 100% of regulatory program costs for the two-year term of the licenses and registrations. Therefore, references to annual fees are deleted throughout the section. The department is also simplifying its fee structure for certificates of registration. Registrants now have one specified fee, rather than a base fee plus machine fee. References to base fee and machine fee are deleted throughout the section. A definition of "processor of radioactive material" is added to clarify the meaning of the category listed in the fee schedule for radioactive material licenses. The current exemption that states no fee is required for a general license that does not require a general license acknowledgement is deleted because the general license category has never been listed in the fee schedule for radioactive material licenses. Specific exemption wording is unnecessary. References to application fees for mammography accreditation and industrial radiographer certification have been added. These application fees are also specified in other sections of this title that are specific to mammography and industrial radiography. However, the department is repeating the application fees for these categories in this section in order to represent the full scope of radiation fees. The fees for mammography accreditation are increased to reflect an increase in the amount the American College of Radiology charges the department to perform image reviews.

Health and Safety Code, §401.301, authorizes the department to collect an additional 5% charge from radioactive material licensees. The funds from the additional 5% charge are to be used to prevent or mitigate adverse effects of abandonment of radioactive materials, default on lawful obligation, insolvency, or other inability of licensees to meet the requirements in this title. House Bill 1678, 78th Legislature, Regular Session, provides the mechanism for the funds from the additional 5% charge to be deposited to the credit of the Radiation and Perpetual Care Account. The provisions of these two House Bills are added to this section.

Fee amounts in the fee schedules for radioactive materials licenses and certificates of registration are doubled to reflect the two-year term for licenses and registrations. Licensees and registrants will receive a fee bill from the department every two years rather than every year. In addition, the categories in the fee schedule for certificates of registration are changed. The Bureau of Radiation Control is reallocating x-ray and nonionizing resources based on prioritization of risk to public health and safety. Risk to public health and safety is primarily based on machine type and type of use rather than the category of facility in which they are used. Therefore, the categories in the fee schedule are changed to reflect machine type and type of use. Several of the categories are also clarified by referencing definitions of the categories in other sections of this title. The requirement for an annual late payment fee is deleted. The provisions of House Bill 2292 mandate a two-year term for the license or certificate of registration and corresponding 100% cost recovery through fees. Failure to pay the fee means the license or certificate of registration is expired and the licensee or registrant is subject to compliance procedures provided in §289.205 of this title (relating to Hearing and Enforcement Procedures). Senate Bill 1152, 78th Legislature, Regular Session, directs the department to participate in Texas Online, an electronic fee payment system developed and maintained by the Texas Online Authority. Wording is added that authorizes the department to collect subscription and convenience fees, in amounts determined by the Texas Online Authority, to recover costs associated with application and renewal application processing through Texas Online. Other minor grammatical changes are made and reference citations are corrected for clarification.

This amendment is part of the department's continuing effort to update, clarify, and simplify its rules regarding the control of radiation based upon technological advances, public concerns, legislative directives, or other factors.

Ruth E. McBurney, C.H.P., Director, Division of Licensing, Registration and Standards, Bureau of Radiation Control, has determined that for each year of the first five years the section will be in effect, there will be fiscal implications for state or local government as a result of enforcing or administering the section as proposed. The department will receive an additional $65,000 in revenue for each year of the first five-year period from the additional 5% charge to licensees. Collection of this additional charge will continue until the fees collected reach $500,000 and the fees must be deposited to the credit of the Radiation and Perpetual Care Account. If the balance of fees collected from the 5% additional charge is reduced to $350,000 or less, the department must reinstitute assessment of the fee until the balance reaches $500,000. The fiscal impact to state or local government entities licensed to possess radioactive material will increase by an amount ranging from $5 to $764 per year. For those mammography registrants who choose accreditation by the department, the department will recover an additional $30 for the first mammography machine, for each additional mammography machine, and for reinstatement of a mammography machine. The department will recover an additional $20 for each re-evaluation of clinical images due to failure during the accreditation process and an additional $10 for re-evaluation of phantom images due to failure during the accreditation process. It is the mammography registrant's choice whether to seek accreditation from the department or from the American College of Radiology. When implemented, the subscription and convenience fees determined by Texas Online will be $10 for each registrant for payment by credit card. Licensees will only be allowed to use bank draft transactions on Texas Online and the fee of will be $10. The fees will be collected by the department and paid to the Texas Online Authority.

Mrs. McBurney has also determined that for each year of the first five years the proposed section is in effect, the public benefit anticipated as a result of enforcing the section will be to ensure continued protection of the public, workers, and the environment from unnecessary exposure to radiation by ensuring funds are available to fund the program and to prevent or mitigate adverse effects of abandonment of radioactive materials, default on a lawful obligation, insolvency, or other inability by a licensee to meet requirements. Licensees that are small businesses and micro-businesses and other persons required to comply with the section as proposed, excluding the diagnostic nuclear medicine licensees, will incur an additional cost equal to 5% of their respective fee, ranging from $14 to $18,090. Registrants that are small businesses and micro-businesses and other persons required to comply with the section as proposed will vary depending on the number of machines possessed and the type of machines or services authorized because the fees are changed from a base fee plus a machine fee to a single fee for each category of machine type or type of use. The range is from an average decrease of $858 to an average increase of $650. The cost recovery to the department from each category of registrant is approximately the same and the overall cost recovery to the department from registrants is approximately the same. For mammography registrants who apply for accreditation with the department, there will be an increase of $30 for the first mammography machine, for each additional mammography machine, and for reinstatement of a mammography machine. There will be an increase of $20 for each re-evaluation of clinical images due to failure during the accreditation process and a $10 increase for re-evaluation of phantom images due to failure during the accreditation process. When implemented, the subscription and convenience fees determined by Texas Online will be $10 for credit card use by registrants and $10 for bank draft transactions by licensees. There is no anticipated impact on local employment.

Comments on the proposal may be submitted to Ruth E. McBurney, C.H.P., Director, Division of Licensing, Registration and Standards, Bureau of Radiation Control, Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756-3189, telephone (512) 834-6688 or electronic mail at Ruth.McBurney@tdh.state.tx.us. Public comments will be accepted for 30 days following publication of this proposal in the Texas Register . In addition, a public meeting to accept oral comments will be held at 9:00 a.m., Wednesday, February 11, 2004, in Conference Room N-218, Texas Department of Health, Bureau of Radiation Control, located at the Exchange Building, 8407 Wall Street, Austin, Texas.

The amendment is proposed under the Health and Safety Code, §401.051, which provides the Texas Board of Health (board) with the authority to adopt rules and guidelines relating to the control of radiation; and §12.001, which provides the board with the authority to adopt rules for its procedure and for the performance of each duty imposed by law on the board, the department, or the commissioner of health.

The amendment affects Health and Safety Code, Chapters 12 and 401. The review of the rule implements Government Code, §2001.039.

§289.204.Fees for Certificates of Registration, Radioactive Material Licenses, Emergency Planning and Implementation, and Other Regulatory Services.

(a) (No change.)

(b) Scope. Except as otherwise specifically provided, the requirements in this section apply to any person who is the following:

(1) (No change.)

(2) the holder of a fixed nuclear facility construction permit or operating license issued by the United States Nuclear Regulatory Commission (NRC) in accordance with Title 10 , Code of Federal Regulations , Part 50; or

(3) (No change.)

(c) Definitions. The following words and terms when used in this section shall have the following meaning, unless the context clearly indicates otherwise.

(1)-(6) (No change.)

(7) Processor of Radioactive Material - A manufacturer/distributor who converts normal form radioactive material into special form or a manufacturer/distributor of radioactive sealed sources.

[ (d) Exemptions. No application or annual fee shall be required for a general license issued in accordance with §289.251 of this title that does not require a general license acknowledgment. ]

(d) [ (e) ] Payment of fees.

(1) Each application for a specific license, general license acknowledgement, or certificate of registration for which a fee is prescribed in subsections (e), (g), (j), or (m) [ (f), (h), or (i) ] of this section shall be accompanied by a nonrefundable fee equal to the appropriate [ annual ] fee. Each request for evaluation of a sealed source and/or device shall be accompanied by a nonrefundable fee [ equal to the appropriate fee as ] prescribed in subsection (f) [ (g) ] of this section. Each application for accreditation of a mammography facility shall be accompanied by a nonrefundable fee prescribed in subsection (h) of this section. Each application for an industrial radiographer certification and an industrial radiographer examination shall be accompanied by a nonrefundable fee prescribed in subsection (i) of this section.

(A) An application for a license covering more than one category of specific license [ or general license category ] shall be accompanied by the prescribed fee for the highest category and 25% of the applicable prescribed fee for each additional requested category.

(B) An application for a certificate of registration covering more than one category shall be accompanied by the prescribed [ base ] fee for the highest category [ of use plus the prescribed machine or service fee for each category of use ].

(C) No application will be accepted for filing or processed prior to payment of the full amount specified.

(2) A nonrefundable fee, in accordance with subsection (e) and (m) [ (f) ] of this section shall be paid [ annually ] for each radioactive material license and/or for each general license acknowledgement. The fee shall be for the two-year term of the license or general license acknowledgement. The fee shall be paid in full [ each year ] on or before the last day of the expiration month and year of the license or general license acknowledgement. [ For example, if the license or general license acknowledgement expires May 31, 2010, annual fees are due on or before May 31 of each calendar year. ] In the case of a single license that authorizes more than one category of use, the [ annual ] fee shall be the prescribed fee for the highest license category plus 25% of the applicable prescribed fee for each additional license category authorized.

(3) A nonrefundable fee, in accordance with subsection (j) [ subsections (f) or (i) ] of this section, shall be paid [ annually ] for each certificate of registration for radiation machines and/or services, or sources of laser radiation. The fee shall be for the two-year term of the certificate of registration. [ The fee consists of a base fee for all registrants plus a fee where specified for each machine possessed or registrable service offered. ]

(4) In the case of a single certificate of registration that authorizes more than one category of machine/type of use, the category listed in subsection (j) [ (i) ] of this section and assigned the higher [ of the ] fee [ or base fee plus corresponding machine/service fee, as applicable, ] will be used.

(5) An additional nonrefundable fee equal to five percent of the total fee for each specific license shall be paid with the specified fee by each holder of a specific license, excluding diagnostic nuclear medicine licensees.

(A) The fees collected by the agency in accordance with this paragraph shall be deposited to the credit of the Radiation and Perpetual Care Account, until the fees collectively total $500,000.

(B) If the balance of fees collected in accordance with this paragraph is subsequently reduced to $350,000 or less, the agency shall reinstitute assessment of the fee until the balance reaches $500,000.

(6) [ (5) ] Each application for reciprocal recognition of an out-of-state license in accordance with §289.252(s) of this title, an out-of-state registration in accordance with §289.226 of this title, or an out-of-state laser registration in accordance with §289.301 of this title , shall be accompanied by the applicable [ annual ] fee, provided that no such fee has been submitted within 24 [ 12 ] months of the date of commencement of the proposed activity.

(7) [ (6) ] Each holder of a fixed nuclear facility construction permit or operating license or an operator of any other fixed nuclear facility shall submit an annual fee for services received. This fee shall recover for the State of Texas the actual expenses arising from environmental surveillance and emergency planning and implementation activities. Payment shall be made within 90 days following the date of invoice.

(8) [ (7) ] Fee payments shall be in cash or by check or money order made payable to the Texas Department of Health. The payments may be made by personal delivery to the central office, Bureau of Radiation Control, Texas Department of Health, 1100 West 49th Street, Austin, Texas, or mailed to the Bureau of Radiation Control, Texas Department of Health, 1100 West 49th Street, Austin, Texas, 78756-3189.

(9) [ (8) ] Any applicant requesting authorization for any of the categories in subsection (e) [ (f) ] of this section for veterinary use will be assessed the [ annual ] fee for the corresponding category.

(e) [ (f) ] Schedule of [ annual ] fees for radioactive material licenses. The following schedule contains the [ annual ] fees for radioactive material licenses:

Figure: 25 TAC §289.204(e)

[Figure: 25 TAC §289.204(f)]

(f) [ (g) ] Fee for evaluation [ Evaluation ] of a sealed source [ Sealed Source ] and/or device [ Device ].

(1) Each time a manufacturer submits a request for evaluation of a unique sealed source, one of the following fees shall be paid:

(A) for an initial evaluation, a fee of $3,614; or

(B) for an amendment requiring re-evaluation, a fee of $1,804.

(2) Each time a manufacturer submits a request for evaluation of a unique device, one of the following fees shall be paid:

(A) for an initial evaluation, a fee of $7,233; or

(B) for an amendment requiring re-evaluation, a fee of $3,619.

(3) No request for evaluation will be processed prior to payment of the full amount specified.

(g) [ (h) ] Fees for certification of mammography systems.

(1) An application for certification of mammography systems shall be accompanied by a fee of $422 for each unit.

(2) The annual fee for mammography systems is $422 for each unit.

(h) Fees for accreditation of mammography facilities.

(1) Each application for accreditation or re-accreditation of a mammography facility shall be accompanied by a nonrefundable fee. No application will be accepted for filing or processed prior to payment of the full amount specified in paragraph (2) of this subsection.

(2) Fees for accreditation of mammography facilities are as follows.

(A) The accreditation fee for the first mammography machine is $880.

(B) The accreditation fee for each additional mammography machine is $490.

(C) The fee for re-evaluation of clinical images due to failure during the accreditation process is $270 per mammography machine.

(D) The fee for re-evaluation of phantom images due to failure during the accreditation process is $210 per machine.

(E) The fee for an additional mammography review will be based on the number of clinical image sets reviewed and the type of review.

(F) The fee for reinstatement of a mammography machine is $610.

(G) The fee for replacement of thermoluminescent dosimeters (TLD) is $70.

(H) Each facility for which a targeted clinical image review is required will be charged for actual expenses to the agency arising from the visit.

(I) Each facility for which an on-site visit due to three denials of accreditation is required will be charged for actual expenses to the agency arising from such visit.

(J) Payment of the fees in subparagraphs (H) and (I) of this paragraph shall be made within 60 days following the date of invoice.

(i) Fees for industrial radiographer certification and for radiographer certification examinations.

(1) The nonrefundable application fee for examination shall be $25 and shall be submitted to the agency with the application for examination.

(2) The nonrefundable application fee for radiographer certification shall be $100 and shall be submitted to the agency with the application for radiographer certification.

(j) [ (i) ] Schedule of [ annual ] fees for certificates of registration for radiation machines, lasers, and services. The fee for certificates of registration for dental radiation machines is specified in §289.232 of this title. The fee for certificates of registration for radiation machines used in veterinary medicine is specified in §289.233 of this title. The following schedule contains the [ annual ] fees for certificates of registration for radiation machines, lasers, and services:

Figure: 25 TAC §289.204(j)

[Figure: 25 TAC §289.204(i)]

(k) [ (j) ] Annual fees for environmental surveillance and emergency planning and implementation. Fees shall be set annually by the agency for each facility. Fees for fixed nuclear facilities shall be the actual expenses for environmental surveillance and emergency planning and implementation activities. Costs of activities benefiting more than one facility shall be prorated.

(l) [ (k) ] Failure to pay prescribed fees.

(1) In any case where the agency finds that an applicant for a license or certificate of registration has failed to pay the fee prescribed in this section, the agency will not process that application until such fee is paid.

[ (2) In any case where the agency finds that a licensee or registrant has failed to pay a fee prescribed by this section by the due date, the licensee or registrant shall pay an annual late payment fee of 20% of the annual fee prescribed in subsections (f), (h), (i) and (l) of this section, in addition to the annual license and registration fee. The annual late payment fee shall not exceed $10,000 for each licensee or registrant who fails to pay the fees prescribed by this section. ]

(2) [ (3) ] In any case where the agency finds that a licensee or registrant has failed to pay a fee prescribed by this section by the due date, the license or certificate of registration expires and the agency may implement compliance procedures as provided in §289.205 of this title (relating to Hearing and Enforcement Procedures).

(3) [ (4) ] In any case where the agency finds that a fixed nuclear facility has failed to pay fees for environmental surveillance or emergency planning and implementation within 90 days following date of invoice, the agency may issue an order to show cause why those services should not be terminated.

(m) [ (l) ] Schedule of fees for uranium recovery and byproduct material disposal facility licenses. The following schedule contains the fees for uranium recovery and byproduct material disposal facility licenses:

Figure: 25 TAC §289.204(m)

[Figure: 25 TAC §289.204(l)]

(n) [ (m) ] Adjustments to [ annual ] fees for uranium recovery and byproduct material disposal facility licenses.

(1) If additional noncontiguous uranium recovery facility sites are authorized under the same license, the appropriate [ annual ] fee shall be increased by 25% for each additional site for an operational year and 50% for closure only.

(2) If an authorization for disposal of byproduct material is added to a license, the appropriate [ annual ] fee shall be increased by 25%.

(o) [ (n) ] One-time fee adjustments for uranium recovery and byproduct material disposal facility licenses. For the addition of the following items after an environmental assessment has been completed on a facility, a one-time fee corresponding to the item shall be paid:

(1) $22,389 for in situ wellfield on noncontiguous property;

(2) $55,977 for in situ satellite;

(3) $8,777 for wellfield on contiguous property;

(4) $39,653 for non-vacuum dryer; or

(5) $55,977 for disposal (including processing, if applicable) of byproduct material.

(p) Fees for Texas Online participation. For all applications and renewal applications, the department is authorized to collect subscription and convenience fees, in amounts determined by the Texas Online Authority, to recover costs associated with application and renewal application processing through Texas Online.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on January 15, 2004.

TRD-200400297

Susan K. Steeg

General Counsel

Texas Department of Health

Earliest possible date of adoption: February 29, 2004

For further information, please call: (512) 458-7236


Subchapter E. REGISTRATION REGULATIONS

The Texas Department of Health (department) proposes the repeal of §289.226 and new §289.226, concerning registration of radiation machine use and services.

Government Code, §2001.039, requires that each state agency review and consider for readoption each rule adopted by that agency pursuant to the Government Code, Chapter 2001 (Administrative Procedure Act). Section 289.226 has been reviewed and the department has determined that the reasons for adopting the section continue to exist in that a rule on this subject is needed; however, the rule needs revisions as described in this preamble.

The department published a Notice of Intention to Review for §289.226 regarding Government Code, §2001.039, in the Texas Register (28 TexReg 6029) on August 1, 2003. No comments were received by the department on this section following publication of this notice.

The new section incorporates legislation passed by the 78th Legislature, Regular Session. House Bill 2292 requires two-year terms for certificates of registration. The department has historically required renewal of some certificates of registration that includes submission to the department of updated technical information regarding the radiation machines possessed by the registrant, operating and safety procedures, and personnel responsible for the security and safe use of the machines. In order to incorporate the provisions of HB 2292 concerning two-year terms and to continue requiring a renewal that includes pertinent technical information, the department is implementing an administrative renewal and a technical renewal. The registrant will be required to renew the certificate of registration every two years by paying the required fee and having a satisfactory compliance history. This administrative renewal will not involve review of technical information regarding the certificate of registration. At a longer interval, the registrant will be required to submit certain technical information for review. This technical renewal date will be specified in the certificate of registration and will be for an interval of an even number of years in order to eventually coincide with the administrative renewal. Maintaining the more resource-intensive technical renewal allows the department to ensure continued security and safe use of radiation machines.

House Bill 253, 78th Legislature, Regular Session, requires the department to deny a certificate of registration application, amendment or renewal if the applicant's compliance history reveals a recurring pattern of conduct that demonstrates a consistent disregard for the regulatory process through significant violations of the Radiation Control Act or the department's radiation control rules. The department has defined "a recurring pattern of conduct that demonstrates a consistent disregard for the regulatory process through significant violations..." by adding a requirement that states the department will deny an application if at least three department or judicial orders are issued that assess administrative or civil penalties against the registrant or if an order is issued to revoke or suspend the certificate of registration.

Requirements for registering veterinary facilities are deleted and incorporated in a separate new section, §289.233 (concerning Radiation Control Regulations for Radiation Machines used in Veterinary Medicine). Registration requirements for personnel monitoring device processors are likewise deleted from the rules. Requirements for use of radiation machines in morgues are clarified as are types of services registered in accordance with this section. A requirement is added to allow the agency to request and the registrant to provide additional information after the certificate of registration has been issued in order to be consistent with other permitting sections of this title. The language that allowed the agency to accept an assembler's notification of installation in lieu of notification by the registrant of machine installation is deleted. Requirements for assembler's obligations in one subsection are deleted because they are repetitive of language in another subsection. A requirement for registrants to annually inventory their radiation machines is added. An inventory requirement is added to ensure registrants, especially those with multiple radiation machines, are aware of the location of machines and how many machines the registrant possesses. Receipt, transfer, and disposal requirements for radiation machines is moved to this section from another section of this title in order to more logically place it with inventory requirements. Notification requirements are clarified to state that the registrant must notify the department if the authorized type of machine or use changes or if the number of machines in any category of machine type or use changes. The requirements for radiation machines used for clinical trial evaluations and loaner or demonstration radiation machines are revised to reflect changes in the administrative and technical renewals and the notification requirements. In addition, revisions are made to the requirements for expiration of certificates of registration to correspond with the requirements for administrative and technical renewals. Language is also added to the expiration and termination subsections to clarify requirements for the disposition or transfer of radiation machines if a registrant terminates a certificate of registration or it expires.

The section was reformatted for better flow of language and easier readability. Other minor grammatical changes are made and reference citations are corrected for clarification.

This new section and repeal are part of the department's continuing effort to update, clarify, and simplify its rules regarding the control of radiation based upon technological advances, public concerns, legislative directives, or other factors.

Ruth E. McBurney, C.H.P., Director, Division of Licensing, Registration and Standards, Bureau of Radiation Control, has determined that for each year of the first five years the section will be in effect, there will be no fiscal implications for state or local government as a result of enforcing or administering the section as proposed.

Mrs. McBurney has also determined that for each year of the first five years the proposed section will be in effect, the public benefit anticipated as a result of enforcing the section will be to ensure continued protection of the public, workers, and the environment from unnecessary exposure to radiation by ensuring that rules are clear and specific, that those persons regulated are informed of the appropriate registration procedures and that registrants are aware of the number and location of radiation machines for purposes of safety and security. There will be a slight increase in a registrant's time required to perform an annual inventory. Depending on the number and location of machines and locations of sub-sites, a facility could spend from 10 minutes to over eight hours in this endeavor. There will be no significant fiscal impact on applicants/registrants that are small businesses, micro-businesses, or other persons required to comply with the rule. No additional costs will be incurred because no additional requirements are added. There is no anticipated impact on local employment.

Comments on the proposal may be submitted to Ruth E. McBurney, C.H.P., Director, Division of Licensing, Registration and Standards, Bureau of Radiation Control, Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756-3189, Telephone (512) 834-6688 or electronic mail at Ruth.McBurney@tdh.state.tx.us. Public comments will be accepted for 30 days following publication of this proposal in the Texas Register . In addition, a public meeting to accept oral comments will be held at 9:00 a.m., Tuesday, February 10, 2004, in Conference Room N-218, Texas Department of Health, Bureau of Radiation Control, located at the Exchange Building, 8407 Wall Street, Austin, Texas.

25 TAC §289.226

(Editor's note: The text of the following section proposed for repeal will not be published. The section may be examined in the offices of the Texas Department of Health or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)

The repeal is proposed under the Health and Safety Code, Chapter 401, which provides the Texas Board of Health (board) with the authority to adopt rules and guidelines relating to the control of radiation; and §12.001, which provides the board with the authority to adopt rules for the performance of each duty imposed by law on the board, the department, or the commissioner of health.

The repeal affects Health and Safety Code, Chapters 12 and 401. The review of the rule implements Government Code, §2001.039.

§289.226.Registration of Radiation Machine Use and Services.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on January 15, 2004.

TRD-200400291

Susan K. Steeg

General Counsel

Texas Department of Health

Earliest possible date of adoption: February 29, 2004

For further information, please call: (512) 458-7236


25 TAC §289.226

The new section is proposed under the Health and Safety Code, Chapter 401, which provides the Texas Board of Health (board) with the authority to adopt rules and guidelines relating to the control of radiation; and §12.001, which provides the board with the authority to adopt rules for the performance of each duty imposed by law on the board, the department, or the commissioner of health.

The new section affects Health and Safety Code, Chapters 12 and 401. The review of the rule implements Government Code, §2001.039.

§289.226.Registration of Radiation Machine Use and Services.

(a) Purpose. This section provides for the registration of persons using radiation machines and persons who are in the business of providing radiation machine installation or radiation services. No person shall use radiation machines or perform radiation services except as authorized in a certificate of registration issued by the agency in accordance with the requirements of this section. A person who receives, possesses, uses, owns, or acquires radiation machines prior to receiving a certificate of registration is subject to the requirements of this chapter.

(b) Scope.

(1) In addition to the requirements of this section, all registrants are subject to the requirements of §289.203 of this title (relating to Notices, Instructions, and Reports to Workers; Inspections), §289.204 of this title (relating to Fees for Certificates of Registration, Radioactive Material Licenses, Emergency Planning and Implementation, and Other Regulatory Services), §289.205 of this title (relating to Hearing and Enforcement Procedures), and §289.231 of this title (relating to General Provisions and Standards for Protection Against Machine-Produced Radiation).

(2) Registrants using radiation machines in the healing arts are also subject to the requirements of §289.227 of this title (relating to Use of Radiation Machines in the Healing Arts). Morgues and educational facilities utilizing radiation machines for non-human use are subject to the specific requirements of §289.227 of this title.

(3) Registrants using analytical and other industrial radiation machines, such as x-ray equipment used for cathodoluminescence, ion implantation, gauging, or electron beam welding, are subject to the requirements of §289.228 of this title (relating to Radiation Safety Requirements for Analytical and Other Industrial Radiation Machines).

(4) Registrants using accelerators, therapeutic radiation machines, and simulators are also subject to the requirements of §289.229 of this title (relating to Radiation Safety Requirements for Accelerators, Therapeutic Radiation Machines, and Simulators).

(5) Registrants using mammography radiation machines are also subject to the requirements of §289.230 of this title (relating to Certification of Mammography Systems and Accreditation of Mammography Facilities).

(6) Registrants using radiation machines in industrial radiographic operations are also subject to the requirements of §289.255 of this title (relating to Radiation Safety Requirements and Licensing and Registration Procedures for Industrial Radiography).

(7) Registrants using dental radiation machines are subject to the requirements of §289.232 of this title (relating to Radiation Control Regulations for Dental Radiation Machines).

(8) Registrants using veterinary radiation machines are subject to the requirements of §289.233 of this title (relating to Radiation Control Regulations for Veterinary Radiation Machines).

(9) For radiation machines for human use, performance of exposure rate or dose measurements to determine compliance with exposure rate or dose measurement requirements of diagnostic radiation machines in this chapter must be performed by a licensed medical physicist with a specialty in diagnostic radiological physics.

(10) For the purposes of this section, radiation services shall include, but may not be limited to the following:

(A) for radiation machines that are not for human use, performance of exposure rate or dose measurements;

(B) for radiation machines for human use, gathering of radiation machine output measurements under the direction of a licensed medical physicist;

(C) for radiation machines for human use, performance of services specified in paragraph (9) of this subsection or services required by a licensed medical physicist as specified in §289.229 of this title;

(D) presentation of agency-accepted training courses that are specifically required by this chapter;

(E) calibration of survey and radiation measurement instruments:

(F) demonstration and sales of radiation machines that require the individual to operate or cause a radiation machine to be operated in order to demonstrate or sell;

(G) assembly, installation or repair to ensure a radiation machine is operating according to manufacturer's specifications;

(H) completion of equipment performance evaluations on dental radiation machines;

(I) provision of radiation machines on a routine basis to a facility for limited time periods. For purposes of this section, a person providing the services described in this subparagraph is a provider of equipment. For healing arts facilities, the use of radiation machines shall be directed by a practitioner employed by the contracting facility.

(11) For purposes of this section, a practitioner of the healing arts is a person licensed to practice healing arts by either the Texas State Board of Medical Examiners as a physician, the Texas Board of Chiropractic Examiners, or the Texas State Board of Podiatry Examiners.

(c) Prohibition. Exposure of an individual for training, demonstration, or other non-healing arts purposes is prohibited.

(d) Exemptions.

(1) Electronic equipment that produces radiation incidental to its operation for other purposes is exempt from the registration and notification requirements of this section, provided that the dose equivalent rate averaged over an area of 10 square centimeters (cm 2 ) does not exceed 0.5 millirem per hour (mrem/hr) at 5 centimeters (cm) from any accessible surface of such equipment. The production, testing, or factory servicing of such equipment shall not be exempt.

(2) Radiation machines in transit or in storage incident to transit are exempt from the requirements of this section. This exemption does not apply to the providers of radiation machines for mobile services. Facilities that have placed all radiation machines in storage, including on-site storage, and have notified the agency in writing, are exempt from the requirements of this section. This exemption is void if any radiation machine is energized resulting in the production of radiation.

(3) Domestic television receivers, video display terminals, and electron microscopes, including the servicing of such devices, are exempt from the requirements of this section.

(4) Inoperable radiation machines are exempt from the requirements of this section. For the purposes of this section, an inoperable radiation machine means a radiation machine that cannot be energized when connected to a power supply without repair or modification.

(5) Financial institutions that take possession of radiation machines as the result of foreclosure, bankruptcy, or other default of payment are exempt from the requirements in this section to the extent that they demonstrate that the unit is operable for the sole purpose of selling, leasing, or transferring.

(6) Facilities, including academic institutions and research or development facilities, registered for the use of radiation machines are exempt from the registration requirements of subsection (j) of this section to the extent that their personnel perform radiation services only for the registrant by whom they are employed.

(e) General requirements for application for registration.

(1) Application for registration shall be completed on forms prescribed by the agency and shall contain all the information required by the form and accompanying instructions.

(2) A radiation safety officer (RSO) shall be designated on each application form. The qualifications of that individual shall be submitted to the agency with the application. The RSO shall meet the applicable requirements of subsection (t)(1) of this section and carry out the responsibilities of subsection (t)(2) of this section.

(3) The agency may at any time after the filing of the original application, require further statements in order to enable the agency to determine whether the certificate of registration should be issued or denied.

(4) An application for a certificate of registration may include a request for a certificate of registration authorizing one or more activities. Applications for certification of mammography systems shall be made separately.

(5) Applications and documents submitted to the agency may be made available for public inspection except that the agency may withhold any document or part thereof from public inspection in accordance with §289.231(aa) of this title.

(6) Each application for a certificate of registration shall be accompanied by the fee prescribed in §289.204 of this title.

(7) Each application shall be accompanied by a completed BRC Form 226-1 (Business Information Form).

(f) Application for registration for human use of radiation machines. In addition to the requirements of subsection (e) of this section, each applicant shall comply with the following.

(1) Each person having a radiation machine used in the healing arts shall apply for registration with the agency within 30 days after beginning use of the radiation machine, except for mobile services that shall be registered in accordance with subsection (g) of this section, and healing arts screening and medical research programs that shall be approved in accordance with subsection (h) of this section.

(2) Each person having an accelerator or therapeutic radiation machine at or above 1 million electron volts (MeV) for human use shall apply for and receive a certificate of registration from the agency before energizing the accelerator, including performing acceptance testing.

(3) Each person having a simulator and/or therapeutic radiation machine below 1 MeV for human use shall apply for registration with the agency within 30 days of energizing the equipment.

(4) The applicant shall be qualified by reason of training and experience to use the radiation machine for the purpose requested in accordance with this section in such a manner as to minimize danger to occupational and public health and safety.

(5) The applicant's proposed equipment, facilities, and operating and safety procedures shall be adequate to minimize danger to occupational and public health and safety.

(6) An application for healing arts shall be signed by a licensed practitioner The signature of the administrator, president, or chief executive officer will be accepted in lieu of a licensed practitioner's signature if the facility has more than one licensed practitioner who may direct the operation of radiation machines. The application shall also be signed by the RSO if the RSO is someone other than the licensed practitioner.

(7) An application for accelerators or therapeutic radiation machines for human use shall be signed by a practitioner licensed by the Texas State Board of Medical Examiners. The signature of the administrator, president, or chief executive officer will be accepted in lieu of a licensed practitioner's signature if the facility has more than one licensed practitioner who may direct the operation of radiation machines. The application shall also be signed by the RSO if the RSO is someone other than the licensed practitioner. Each applicant shall submit operating and safety procedures as described in §289.229(h)(1)(D) of this title and a description of the proposed facilities in accordance with the following:

(A) §289.229(h)(2)(B) and (C) of this title for equipment with energies below 1 MeV; and

(B) §289.229(h)(3)(B) of this title for equipment with energies above 1 MeV.

(g) Application for registration of mobile service operation. In addition to the requirements of subsections (e) and (f) of this section or §289.230(t) of this title, as applicable, each applicant shall apply for and receive authorization for mobile service operation before beginning mobile service operation. The following shall be submitted:

(1) an established main location where the machine(s), records, etc. will be maintained for inspection. This shall be a street address, not a post office box number;

(2) a sketch or description of the normal configuration of each radiation machine's use, including the operator's position and any ancillary personnel's location during exposures. If a mobile van is used with a fixed unit inside, furnish the floor plan indicating protective shielding and the operator's location; and

(3) a current copy of the applicant's operating and safety procedures regarding radiological practices for protection of patients, operators, employees, and the general public.

(h) Application for registration of healing arts screening and medical research.

(1) In addition to the requirements of subsections (e) and (f) of this section, each applicant shall apply for and receive authorization for healing arts screening before initiating a screening program. The information and evaluation in subsection (t)(4) of this section shall be submitted with the application.

(2) In addition to the requirements of subsections (e) and (f) of this section, any research using radiation machines on humans shall be approved by an Institutional Review Board (IRB) as required by Title 45, CFR, Part 46 and Title 21, CFR, Part 56. The IRB shall include at least one practitioner of the healing arts to direct any use of radiation in accordance with §289.231(b)(1) of this title.

(i) Application for registration of radiation machines for non-human use, including use in morgues. In addition to the requirements of subsection (e) of this section, each applicant shall comply with the following.

(1) Each person having an accelerator for non-human use shall apply for and receive a certificate of registration from the agency before beginning use of the accelerator.

(2) Each person having an accelerator for non-human use shall submit the following:

(A) operating and safety procedures as described in §289.229(f)(3)(B) of this title; and

(B) a description of the applicant's proposed facilities in accordance with §289.229(f)(2) and (f)(3)(A), (D) and (E) of this title.

(3) Each person having a radiation machine for non-human use, other than those specified in paragraph (1) of this subsection and those used for industrial radiographic operations, shall apply for registration with the agency within 30 days after beginning use of the machine.

(4) Each applicant for use of radiation machines in industrial radiographic operations shall submit the information required in §289.255(u)(7) of this title before beginning use of the machine(s).

(5) An application for the uses specified in this subsection shall be signed by the applicant or registrant or a person duly authorized to act for and on the applicant's or registrant's behalf. The application shall also be signed by the RSO if the RSO is someone other than the applicant or registrant.

(j) Application for registration of radiation machine services. In addition to the requirements of subsection (e) of this section, each applicant shall comply with the following.

(1) Each person who intends to provide radiation services described in subsections (b)(10) of this section shall apply for and receive a certificate of registration from the agency before providing such service.

(2) An application for radiation services shall be signed by the applicant or registrant or a person duly authorized to act for and on the applicant's or registrant's behalf. The application shall also be signed by the RSO if the RSO is someone other than the applicant or registrant.

(3) The applicant shall submit written documentation to the agency of the specific training and experience that qualifies each individual to discharge the duties of this service. As a minimum, each applicant shall submit the following:

(A) for individuals performing assembly, installation, or repair of radiation machines in (b)(10)(G), the qualifications listed in subsection (t)(3) of this section;

(B) for individuals performing the services specified in subsection (b)(9) and (10)(C) of this section, a copy of the individual's license from the Texas Board of Licensure for Professional Medical Physicists;

(C) for all other services, the qualifications listed in subsection (t)(1)(A)(i)-(iii) of this section.

(4) No person shall perform services specified in subsection (b)(9) and (10) of this section that are not specifically authorized by the agency.

(5) No person shall perform radiation machine services, other than initial installation of the first machine(s) on the premises, for an individual who cannot produce evidence of registration with the agency authorizing the possession and use of the machines in question.

(6) Each applicant for providers of equipment shall also submit the following:

(A) an established main location where the machines, records, etc. will be maintained for inspection. This shall be a street address, not a post office box number;

(B) evidence that the healing arts facility responsible for administering or supervising the administering of radiation is registered in accordance with the requirements in this section; and

(C) a current copy of the applicant's operating and safety procedures. A current copy of the applicant's operating and safety procedures is required when personnel are provided in addition to equipment.

(7) Each applicant for calibration of survey and radiation measurement instruments shall also submit the following:

(A) procedures for calibration;

(B) qualifications of personnel performing the calibration;

(C) a copy of the calibration certificate to be used; and

(D) a copy of the expiration sticker to be used.

(8) Each applicant for agency-accepted training courses specifically required by §289.253 (relating to Radiation Safety Requirements for Well Logging Service Operation and Tracer Studies), and §289.255 of this title shall also submit the following:

(A) a course syllabus;

(B) the number of instructional hours for each subject;

(C) a list of training resources, for example, reference books, texts, workbooks, physical facilities, etc.;

(D) all test questions and corresponding answers; and

(E) the radiation safety training, education, and experience of each instructor.

(k) Issuance of certificate of registration.

(1) A certificate of registration application will be approved if the agency determines that an application meets the requirements of the Texas Radiation Control Act (Act) and the requirements of this chapter. The certificate of registration authorizes the proposed activity in such form and contains such conditions and limitations as the agency deems appropriate or necessary.

(2) The agency may incorporate in the certificate of registration at the time of issuance, or thereafter by amendment, such additional requirements and conditions with respect to the registrant's possession, use, and transfer of radiation machines subject to this chapter as it deems appropriate or necessary in order to:

(A) minimize danger to occupational and public health and safety;

(B) require additional reports and the keeping of additional records as may be appropriate or necessary; and

(C) prevent loss or theft of radiation machines subject to this section.

(3) The agency may request, and the registrant shall provide, additional information after the certificate of registration has been issued to enable the agency to determine whether the certificate of registration should be modified in accordance with subsection (r) of this section.

(l) Specific terms and conditions of certificates of registration.

(1) Each certificate of registration issued in accordance with this section shall be subject to the applicable provisions of the Act, now or hereafter in effect, and to the applicable rules and orders of the agency.

(2) No certificate of registration issued or granted under this section shall be transferred, assigned, or in any manner disposed of, either voluntarily or involuntarily, to any person unless the agency authorizes the transfer in writing.

(3) Each person registered by the agency for radiation machine use in accordance with this section shall confine use and possession of the radiation machine registered to the locations and purposes authorized in the certificate of registration.

(4) In making a determination whether to grant, deny, amend, renew, revoke, suspend, or restrict a certificate of registration, the agency may consider the technical competence and compliance history of an applicant or holder of a certificate of registration. After an opportunity for a hearing, the agency shall deny an application for a certificate of registration, an amendment to a certificate of registration, or renewal of a certificate of registration if the applicant's compliance history reveals that at least three agency or judicial orders have been issued against the applicant that assess administrative or civil penalties against the applicant, or that revoke or suspend the certificate of registration.

(m) Responsibilities of registrant.

(1) The registrant shall notify the agency in writing of any changes that would render the information contained in the application for registration and/or the certificate of registration inaccurate.

(A) Notification is required within 30 days of the following changes:

(i) name and mailing address;

(ii) street address where machine will be used;

(iii) RSO; or

(iv) type of servicing and/or services provided;

(B) Each registrant shall inventory all radiation machines in its possession at an interval not to exceed one year. The inventory record shall be maintained for three years for inspection by the agency and shall include:

(i) manufacturer's name;

(ii) model and serial number of the control panel; and

(iii) location of radiation machine(s) (for example, room number).

(C) Notification to the agency concerning radiation machine inventory is required within 30 days of either of the following:

(i) any change in the category(ies) of machine type or type of use as specified in §289.231(ll) and as authorized in the certificate of registration, or;

(ii) any increase in the number of machines authorized by the certificate of registration in any machine type or type of use category.

(D) Each registrant shall maintain records of receipt, transfer, and disposal of radiation machines for inspection by the agency. The records shall include the following information and shall be kept until termination of the certificate of registration.

(i) manufacturer's name;

(ii) model and serial number from the control panel;

(iii) date of the receipt, transfer, and disposal;

(iv) name and address of person machine(s) received from, transferred to, or disposed of; and

(v) name of the individual recording the information.

(2) The following criteria applies to radiation machines used for clinical trial evaluations and loaner or demonstration radiation machines. For persons having a valid certificate of registration, radiation machines used for clinical trial evaluations and loaner or demonstration radiation machines may be used for up to 60 days. After 60 days, the registrant shall notify the agency of the following:

(A) a change in the category(ies) of machine type or type of use as specified in §289.231(ll) and as authorized in the certificate of registration, or:

(B) any increase in the number of machines authorized by the certificate of registration in any machine type or type of use category.

(3) No registrant shall engage any person for services described in subsection (j) of this section until such person provides to the registrant evidence of registration with the agency.

(4) Records of training and experience required by this section shall be maintained for inspection by the agency until disposal is authorized by the agency.

(5) The following applies to voluntary or involuntary petitions for bankruptcy.

(A) Each registrant shall notify the agency, in writing, immediately following the filing of a voluntary or involuntary petition for bankruptcy by the registrant or its parent company. This notification shall include:

(i) the bankruptcy court in which the petition for bankruptcy was filed; and

(ii) the date of the filing of the petition.

(B) A copy of the "petition for bankruptcy" shall be submitted to the agency along with the written notification.

(6) The registrant is responsible for complying with this chapter and the conditions of the certificate of registration.

(7) No person shall use radiation machines or perform services that are not authorized in the certificate of registration issued by the agency.

(8) Providers of equipment shall keep a log of radiation machines provided in Texas. The record shall be maintained for five years for inspection by the agency and shall list the following current information:

(A) date machine is provided; and

(B) name of customer and customer's certificate of registration number.

(n) Sale, lease, loan, installation, assembly, disposal, and transfer of radiation machines.

(1) No person shall transfer a radiation machine to or install for, other than initial installation of the first machine on the premises, any person who does not possess a current certificate of registration issued by the agency in accordance with this section.

(2) Any person who sells, leases, lends, disposes, assembles, installs, or otherwise transfers radiation machines in the state shall notify the agency of the following information within 30 days of such action:

(A) the name, address, and certificate of registration number, except in the case of initial machine installation, of persons who have received such machines;

(B) the type of radiation machine, the manufacturer's name, model number, and control panel serial number of each radiation machine; and

(C) the date of transfer or disposal of each radiation machine.

(3) No person shall make, sell, lease, transfer, lend, assemble, or install radiation machines or the components of such machines unless such machines and equipment, when properly placed in operation and used, meet the applicable requirements of this chapter.

(o) Expiration of certificates of registration and administrative renewal.

(1) Effective September 1, 2004, the term of the certificate of registration is two years. Except as provided by subsection (q) of this section, each certificate of registration expires at the end of the day, in the month and year stated in the certificate of registration. Upon payment of the fee required by §289.204 of this title and if the agency does not deny the renewal in accordance with subsection (l)(4) of this section, the certificate of registration will be administratively renewed.

(2) If the fee is not paid and the certificate of registration is not renewed in accordance with paragraph (1) of this subsection, the certificate of registration expires, and the registrant is in violation of the requirements in this chapter and is subject to administrative penalties in accordance with §289.205 of this title.

(A) If the registrant pays the fee required by §289.204 of this title within 30 days after expiration of the certificate of registration, the certificate of registration will be reinstated and the registrant will not be required to file an application in accordance with subsection (e) of this section.

(B) If the registrant fails to pay the fee within 30 days after expiration of the certificate of registration, the registrant shall file an application in accordance with subsection (e) of this section.

(3) If a registrant fails to pay the fee required by §289.204 of this title and the certificate of registration is not renewed, the registrant shall:

(A) terminate use of all radiation machines and/or terminate radiation machine servicing or radiation services; and

(B) submit to the agency a record of the disposition of the radiation machines, if applicable, and if transferred, to whom it was transferred within 30 days following the expiration date.

(4) Expiration of the certificate of registration does not relieve the registrant of the requirements of this chapter.

(p) Termination of certificates of registration. When a registrant decides to terminate all activities involving radiation machines or services authorized under the certificate of registration, the registrant shall immediately do the following:

(1) request termination of the certificate of registration in writing;

(2) submit to the agency a record of the disposition of the radiation machines, if applicable; and if transferred, to whom it was transferred; and

(3) pay any outstanding fees in accordance with §289.204 of this title.

(q) Technical renewal of certificate of registration.

(1) If required by the certificate of registration, an application for technical renewal of a certificate of registration shall be filed in accordance with subsection (e)(1)-(5) of this section and applicable paragraphs of subsections (f) - (j) of this section. An application for a technical renewal of a certificate of registration shall be submitted to the agency by the date specified in the existing certificate of registration. If the registrant fails to apply, or the agency does not approve the application in accordance with subsection (k)(1) of this section, the certificate of registration expires and the registrant is in violation of the requirements in this chapter and is subject to administrative penalties in accordance with §289.205 of this title. The registrant shall comply with the requirements of subsection (o)(3)(A)-(C) of this section.

(2) Expiration of the certificate of registration does not relieve the registrant of the requirements of this chapter.

(3) If a registrant files an application for a technical renewal in proper form before the existing certificate of registration expires, such existing certificate of registration shall not expire until the application status has been determined by the agency.

(r) Modification, suspension, and revocation of certificates of registration.

(1) The terms and conditions of all certificates of registration shall be subject to revision or modification. A certificate of registration may be suspended or revoked by reason of amendments to the Act, by reason of rules in this chapter or orders issued by the agency.

(2) Any certificate of registration may be revoked, suspended, or modified, in whole or in part, for any of the following:

(A) any material false statement in the application or any statement of fact required under provisions of the Act;

(B) conditions revealed by such application or statement of fact or any report, record, or inspection, or other means that would warrant the agency to refuse to grant a certificate of registration on an original application;

(C) violation of, or failure to observe any of the terms and conditions of the Act, this chapter, the certificate of registration, or order of the agency; or

(D) existing conditions that constitute a substantial threat to the public health or safety or the environment.

(3) Each certificate of registration revoked by the agency ends at the end of the day on the date of the agency's final determination to revoke the certificate of registration, or on the revocation date stated in the determination, or as otherwise provided by the agency order.

(4) Except in cases in which the occupational and public health, interest or safety requires otherwise, no certificate of registration shall be suspended, or revoked unless, prior to the institution of proceedings therefore, facts or conduct that may warrant such action shall have been called to the attention of the registrant in writing and the registrant shall have been afforded an opportunity to demonstrate compliance with all lawful requirements.

(s) Reciprocal recognition of out-of-state certificates of registration.

(1) Whenever any radiation machine is to be brought into the state for any temporary use, the person proposing to bring the machine into the state shall apply for and receive a notice from the agency granting reciprocal recognition prior to beginning operations. The request for reciprocity shall include the following:

(A) completed BRC Form 226-1 (Business Information Form);

(B) completed BRC Form 252-3 (Notice of Intent to Work in Texas Under Reciprocity);

(C) completed qualification forms (BRC Forms 255-E, 255-T and/or 255-OS) for each radiographer who will be working in Texas if the reciprocity request is for industrial radiography;

(D) name and Texas licensing board number of the practitioner if the machines are used to irradiate humans;

(E) copy of the applicant's current certificate of registration or equivalent document;

(F) copy of the applicant's current operating and safety procedures pertinent to the proposed use;

(G) fee as specified in §289.204(e) of this title; and

(H) qualifications of personnel who will be operating the machines.

(2) Upon a determination that the request for reciprocity meets the requirements of the agency, the agency may issue a notice granting reciprocal recognition authorizing the proposed use.

(3) Once reciprocity is granted, the out-of-state registrant shall file a BRC Form 252-3 with the agency prior to each entry into the state. This form shall be filed at least three working days before the radiation machine is to be used in the state. If, for a specific case, the three-day period would impose an undue hardship, the out-of-state registrant may, at the determination of the agency, obtain permission to proceed sooner.

(4) When radiation machines are used as authorized under reciprocity, the out-of-state registrant shall have the following in its possession at all times for inspection by the agency:

(A) completed BRC Form 252-3;

(B) copy of the notice from the agency granting reciprocity;

(C) copy of the out-of-state registrant's operating and safety procedures; and

(D) copy of the applicable rules as specified in the notice granting reciprocity.

(5) If the state from which the radiation machine is proposed to be brought does not issue certificates of registration or equivalent documents, a certificate of registration shall be obtained from the agency in accordance with the requirements of this section.

(6) The agency may withdraw, limit, or qualify its acceptance of any certificate of registration or equivalent document issued by another agency upon determining that such action is necessary in order to prevent undue hazard to occupational and public health and safety or property.

(7) Reciprocal recognition will expire one year from the date it is granted. A new request for reciprocity shall be submitted to the agency each year. Reciprocity requests made after the initial request shall include only the following:

(A) completed BRC Form 226-1 (Business Information Form);

(B) completed BRC Form 252-3 (Notice of Intent to Work in Texas Under Reciprocity);

(C) completed qualification forms (BRC Forms 255-E, 255-T and/or 255-OS) for each radiographer who will be working in Texas if the reciprocity request is for industrial radiography;

(D) name and Texas licensing board number of the practitioner if the machines are used to irradiate humans;

(E) copy of the applicant's current certificate of registration or equivalent document;

(F) copy of the applicant's current operating and safety procedures pertinent to the proposed use;

(G) fee as specified in §289.204(e) of this title; and

(H) qualifications of personnel who will be operating the machines.

(8) Radiation services provided by a person from out-of-state will not be granted reciprocity. Whenever radiation services are to be provided by a person from out-of-state, that person shall apply for and receive a certificate of registration from the agency before providing radiation services. The application shall be filed in accordance with subsections (e), (j), and (i) of this section, as applicable.

(t) Appendices.

(1) Requirements for RSOs for registrants.

(A) All RSOs shall meet the following general requirements in addition to requirements in specific categories, except for industrial radiography RSOs:

(i) knowledge of potential radiation hazards and emergency precautions; and

(ii) completed educational courses related to ionizing radiation safety or a radiation safety officer course; or

(iii) experience in the use and familiarity of the type of equipment used.

(B) Specific requirements for RSOs by facility are as follows.

(i) Healing arts facilities shall have:

(I) licensed practitioner RSOs with documentation of licensing board number; or

(II) non-practitioner RSOs with the following:

(-a-) evidence of a valid general certificate issued under the Medical Radiologic Technologist Certification Act, Texas Occupations Code, Chapter 601, and at least two years of supervised use of radiation machines;

(-b-) evidence of a valid limited general certificate issued under the Medical Radiologic Technologist Certification Act, Texas Occupations Code, Chapter 601, and at least four years of supervised use of radiation machines;

(-c-) evidence of registry by the American Registry of Radiologic Technologists (ARRT) or the American Registry of Clinical Radiologic Technologists (ARCRT) and at least two years of supervised use of radiation machines;

(-d-) evidence of associate degree in radiologic technology, health physics, or nuclear technology, and at least two years of supervised use of radiation machines;

(-e-) evidence of registration with the Board of Nurse Examiners as a Registered Nurse or a Registered Nurse with an extended scope of practice (Nurse Practitioner) performing radiologic procedures, and at least two years of supervised use of radiation machines in the respective practitioners' specialty;

(-f-) evidence of registration with the Texas State Board of Physician Assistant Examiners, and at least two years of supervised use of radiation machines in the respective practitioners' specialty;

(-g-) evidence of:

(-1-) registration with the Texas State Board of Medical Examiners performing radiologic procedures under a physician's instruction and direction;

(-2-) registration with the Texas State Board of Chiropractic Examiners performing radiologic procedures under a chiropractor's instruction and direction; or

(-3-) registration with the Texas State Board of Podiatry Examiners performing radiologic procedures under a podiatrist's instruction and direction; and

(-4-) at least four years of supervised use of radiation machines in the respective practitioners' specialty;

(-h-) for radiotherapy facilities, evidence of registry by the ARRT or ARCRT and at least four years of supervised experience in radiotherapy;

(-i-) evidence of bachelor's (or higher) degree in a natural or physical science, health physics, radiological science, nuclear medicine, or nuclear engineering; or

(-j-) evidence of a current Texas license under the Medical Physics Practice Act, Texas Occupations Code, Chapter 602, in one or more of the following appropriate specialties:

(-1-) medical health physics, diagnostic radiological physics, or medical nuclear physics for diagnostic x-ray facilities; or

(-2-) medical health physics or therapeutic radiological physics for radiotherapy facilities.

(ii) Academic institutions and/or research and development facilities shall have RSOs who are faculty or staff members in radiation protection, radiation engineering, or related disciplines. (This individual may also serve as the RSO over the healing arts section of the facility.)

(iii) Industrial radiography operations shall have RSOs who meet the requirements of §289.255(m)(4)(B) of this title.

(C) Exemptions. The RSO identified on a certificate of registration issued before September 1, 1993, need not comply with the training requirements in this subsection.

(2) Responsibilities of RSOs. Specific duties of the RSO include, but are not limited to, the following:

(A) establishing and overseeing operating and safety procedures that maintain radiation exposures as low as reasonably achievable (ALARA), and to review them regularly to ensure that the procedures are current and conform with this chapter;

(B) ensuring that individual monitoring devices are properly used by occupationally-exposed personnel, that records are kept of the monitoring results, and that timely notifications are made as required by §289.203 of this title;

(C) investigating and reporting to the agency each known or suspected case of radiation exposure to an individual or radiation level detected in excess of limits established by this chapter and each theft or loss of source(s) of radiation, determining the cause, and taking steps to prevent its recurrence;

(D) having a thorough knowledge of management policies and administrative procedures of the registrant and keeping management informed on a periodic basis of the performance of the registrant's radiation protection program, if applicable;

(E) assuming control and having the authority to institute corrective actions including shut-down of operations when necessary in emergency situations or unsafe conditions;

(F) maintaining records as required by this chapter;

(G) ensuring that personnel are adequately trained and complying with this chapter, the conditions of the certificate of registration, and the operating and safety procedures of the registrant.

(3) Minimum education and training for persons performing radiation machine assembly, installation or repair. All persons performing radiation machine assembly, installation or repair shall meet the general requirements in subparagraph (A) of this paragraph and one or more of the specialized requirements in subparagraph (B) of this paragraph.

(A) General requirements include:

(i) experience or education providing familiarity with the type(s) of equipment to be serviced, to include radiation safety;

(ii) knowledge of protective measures to reduce potentially hazardous conditions; and

(iii) six months of supervised assembly and repair of the type(s) of equipment to be serviced.

(B) Specialized requirements include:

(i) one year of formal training (may be satisfied by factory school, military technical training school, or other courses in radiation machine assembly, installation or repair techniques) or an associate's degree in biomedical equipment repair;

(ii) a bachelor's degree in electrical engineering with specialized training in radiation producing devices; or

(iii) a combination of training and experience equal to clause (i) of this subparagraph.

(C) Exemptions. A registrant holding a valid certificate of registration who has hired individuals to perform services before September 1, 1993, need not comply with the education and training requirements in this paragraph. Individuals hired after September 1, 1993, shall comply with the education and training requirements in this paragraph.

(4) Information to be submitted by persons proposing to conduct healing arts screening. Persons requesting that the agency approve a healing arts screening program shall submit the following information and evaluation.

(A) Administrative controls to include the following:

(i) the name and address of the applicant and, where applicable, the names and addresses of agents within Texas;

(ii) the diseases or conditions for which the x-ray examinations are to be used in diagnoses;

(iii) a detailed description of the x-ray examinations proposed in the screening program;

(iv) a description of the population to be examined in the screening program, for example, age, sex, physical condition, and other appropriate information;

(v) an evaluation of any known alternate methods not involving ionizing radiation that could achieve the goals of the screening program and why these methods are not used instead of the x-ray examination; and

(vi) for mobile screening operations, location(s) where radiation machines are used and maintained.

(B) Operating procedures for all x-ray systems (except bone densitometers) to include the following:

(i) an evaluation of the x-ray systems to be used in the screening program. The evaluation shall be performed by a licensed medical physicist with a specialty in diagnostic radiological physics. The evaluation shall show that such systems do satisfy all requirements of this section;

(ii) a description of the diagnostic imaging quality control program; and

(iii) a copy of the technique chart for the x-ray examination procedures to be used.

(C) Operating procedures for bone densitometers to include the manufacturer's evaluation of the system to be used in the screening program. The evaluation shall show that such systems satisfy all requirements of this section.

(D) Training data to include the following:

(i) the qualifications of each individual who will be operating the x-ray systems;

(ii) the qualifications of the individual who will be supervising the operators of the x-ray systems. The extent of supervision and the method of work performance evaluation shall be specified; and

(iii) the name and address of the practitioner licensed in Texas who will interpret the radiographs.

(E) Records to include the following:

(i) a description of the procedures to be used in advising the individuals screened, and their private practitioners of the healing arts, of the results of the screening procedure and any further medical needs indicated; and

(ii) a description of the procedures for the retention or disposition of the radiographs and other records pertaining to the x-ray examinations.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on January 15, 2004.

TRD-200400292

Susan K. Steeg

General Counsel

Texas Department of Health

Earliest possible date of adoption: February 29, 2004

For further information, please call: (512) 458-7236


25 TAC §289.227

The Texas Department of Health (department) proposes an amendment to §289.227, concerning use of radiation machines in the healing arts.

Government Code, §2001.039, requires that each state agency review and consider for readoption each rule adopted by that agency pursuant to the Government Code, Chapter 2001 (Administrative Procedure Act). Section 289.227 has been reviewed and the department has determined that the reasons for adopting the section continue to exist; however, revisions to the rule are necessary as outlined in this preamble.

The department published a Notice of Intention to Review for §289.227 as required by Government Code, §2001.039, in the Texas Register (28 TexReg 6029) on August 1, 2003. No comments were received by the department on this section.

The Bureau of Radiation Control is reallocating resources for regulation of x-ray and nonionizing radiation based on prioritization of risk to public health and safety. Rules governing the use of radiation machines in the healing arts are revised to reflect this prioritization. Risk to public health and safety is primarily based on machine type and type of use rather than the category of facility in which they are used. Therefore, some requirements in this section have been rearranged and are found under categories of machine type and type of use, rather than type of facility in which they are used. Radiation machines used in veterinary medicine are for non-human use and pose a lower risk. Also, veterinary registrants are a significant portion of all registrants. Therefore, requirements for veterinary facilities are deleted and incorporated in a separate section, §289.233 (concerning Radiation Control Regulations for Radiation Machines Used in Veterinary Medicine). Multiple definitions are deleted as they are not used in the body of the rule. The definitions for mobile services and x-ray equipment were revised to more clearly state the intent of the rule. In addition, requirements for use of radiation machines in morgues are delineated because not all requirements for human use of radiation machines are applicable. The requirements for operating and safety procedures are expanded to include documentation that each individual operating a radiation machine has read the procedures, in order to ensure such individuals are aware of operating and safety issues. The requirement for a skin-to-image distance indicator to be present is clarified to state the indicator must be numerical in order to determine the required accuracy. The source-to-skin distance requirements for fluoroscopy are revised to be compatible with the United States Food and Drug Administration fluoroscopy requirements. Requirements for warning labels, visual indication of x-ray production, and technique factor accuracy found for other machine types are repeated for computerized tomography (CT) x-ray systems because they are applicable to CT machines also. Measurements of radiation output of the CT x-ray system are now required to be performed using the computed tomography dose index as recommended by national and international professional technical organizations. The requirements for acquisition of images using a phantom and made by a licensed medical physicist are clarified and requirements for acquisition of quality control images using a phantom and made by the registrant are added to differentiate between the two situations. Entrance exposure limits measurements for patients are added to the list of tests for equipment performance evaluations as well as language that delineates who may perform equipment performance evaluations. In addition, the frequency of performing equipment performance evaluations is changed for some types of equipment. The department considers measurements to determine compliance with entrance exposure limits to be as critical to properly operating machines and minimization of radiation exposure as the other required tests. Requirements are added for digital imaging acquisition systems to ensure the registrant is performing appropriate quality assurance and quality control for digital imaging acquisition systems. The rule is reformatted and renumbered and other minor grammatical changes are made and reference citations are corrected for clarification.

This amendment is part of the department's continuing effort to update, clarify, and simplify its rules regarding the control of radiation based upon technological advances, public concerns, legislative directives, or other factors.

Ruth E. McBurney, C.H.P., Director, Division of Licensing, Registration and Standards, Bureau of Radiation Control, has determined that for each year of the first five years the section is in effect, there will be no fiscal implications for state or local government as a result of enforcing or administering the section as proposed.

Mrs. McBurney has also determined that for each year of the first five years the proposed section is in effect, the public benefit anticipated as a result of enforcing the section will be to ensure continued protection of the public, workers, and the environment from unnecessary exposure to radiation by ensuring that rules are clear and specific and that those persons required to operate radiation machines do so in ways that ensure such protection. There will be fiscal impact on applicants/registrants that are small businesses, micro-businesses or other persons required to comply with the rule. There will be an increase in the costs for all registrants except educational facilities, morgues, and facilities with bone density machines, to have entrance exposure limits performed by a licensed medical physicist as a part of the equipment performance evaluation. The cost would range from $25 to $150 per radiographic machine for those registrants who have a licensed medical physicist perform the other tests required for the equipment performance evaluation. If computed tomography quality control images are not already being performed, there will be an increase in time from approximately 15 to 30 minutes per occasion per machine for registrants to perform quality control phantom images on computed tomography units. There is no anticipated impact on local employment.

Comments on the proposal may be submitted to Ruth E. McBurney, C.H.P., Director, Division of Licensing, Registration and Standards, Bureau of Radiation Control, Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756-3189, Telephone (512) 834-6688 or electronic mail at Ruth.McBurney@tdh.state.tx.us. Public comments will be accepted for 30 days following publication of this proposal in the Texas Register . In addition, a public meeting to accept oral comments will be held at 9:00 a.m., Tuesday, February 10, 2004, in Conference Room N-218, Texas Department of Health, Bureau of Radiation Control, located at the Exchange Building, 8407 Wall Street, Austin, Texas.

The amendment is proposed under the Health and Safety Code, §401.051, which provides the Texas Board of Health (board) with authority to adopt rules and guidelines relating to the control of radiation; and §12.001, which provides the board with the authority to adopt rules for its procedure and for the performance of each duty imposed by law on the board, the department, or the commissioner of health.

The amendment affects Health and Safety Code, Chapters 12 and 401. The review of the rule implements Government Code, §2001.039.

§289.227.Use of Radiation Machines in the Healing Arts [ and Veterinary Medicine ].

(a) Purpose. This section establishes requirements for the use of radiation machines in the healing arts [ and in veterinary medicine ].

(b) Scope.

(1) The registrant shall be responsible for directing the operation of the radiation machines under the administrative control of the registrant. The registrant shall assure that the requirements of this section are met in the operation of such radiation machines. All usage of such machines under this section shall be made by or under the supervision of a practitioner of the healing arts [ for human use or licensed veterinarian for veterinary use ].

(2) (No change.)

(3) The use of mammography radiation machines is subject to the requirements in §289.230 of this title (relating to Certification of Mammography Systems and Accreditation of Mammography Facilities), with the exceptions listed in §289.230(e)(1) and (2) of this title. The use of dental radiation machines is subject to the requirements in §289.232 of this title (relating to Radiation Control Regulations for Dental Radiation Machines). However, dental radiation machines located in a facility that also has other healing arts radiation machines will be inspected at the intervals specified in §289.231(ll)(1) of this title, and equipment performance evaluations performed at the interval specified for a medical facility in subsection (o)(1) [ (q)(1) ] of this section. The use of radiation machines for veterinary medicine is subject to the requirements in §289.233 of this title (relating to Radiation Control Regulations for Radiation Machines for Veterinary Medicine).

(c) Prohibitions.

(1) (No change.)

(2) Individuals shall not be exposed to the useful beam except for healing arts purposes and unless such exposure has been authorized by a licensed practitioner of the healing arts. This provision specifically prohibits deliberate exposure for the following purposes:

(A) (No change.)

(B) exposure of an individual for the purpose of healing arts screening, except as authorized by §289.226(h)(1) [ §289.226(j)(1) ] of this title; and

(C) exposure of an individual for the purpose of research, except as authorized by §289.226(h)(2) [ §289.226(j)(2) ] of this title.

(3) (No change.)

(d) Exemptions.

(1) (No change.)

[ (2) Veterinary facilities are exempt from the following requirements: ]

[ (A) entrance exposure limits for fluoroscopy in subsection (o)(3) and (4) of this section; ]

[ (B) aural communication requirements for computed tomography (CT) in subsection (p)(2)(A) of this section; and ]

[ (C) CT dose measurements in subsection (p)(3) and (4) of this section. ]

(2) [ (3) ] Individuals who are sole practitioners and sole operators and the only occupationally exposed individual are exempt from the following requirements:

(A) §289.203(b) of this title, "Posting of notices to workers;"

(B) §289.203(c) of this title, "Instructions to workers;" and

(C) operating and safety procedures in accordance with subsection (i)(2) of this section.

(3) [ (4) ] Registrants are exempt from the posting of the radiation area requirements in §289.231(x)(1) of this title provided that the operator has continuous surveillance and access control of the radiation area.

[ (5) Facilities with CT x-ray systems producing digital images only are exempt from subsections (r), (s), and (t)(1)(O) and (P) of this section. ]

(e) Definitions. The following words and terms when used in this section shall have the following meaning unless the context clearly indicates otherwise.

(1) - (12) (No change.)

[ (13) Calibration of machines--The measurement and specification of absorbed dose to a medium, or exposure in air, at a defined point in a radiation beam. ]

(13) [ (14) ] Central axis of the beam--A line passing through the virtual source and the center of the plane figure formed by the edge of the first beam-limiting device.

(14) [ (15) ] Certified equipment--Equipment that has been certified in accordance with Title 21, Code of Federal Regulations (CFR).

(15) [ (16) ] Coefficient of variation or C--The ratio of the standard deviation to the mean value of a population of observations. It is estimated using the following equation:

Figure: 25 TAC §289.227(e)(15)

[Figure: 25 TAC §289.227(e)(16)]

(16) [ (17) ] Collimator--A device or mechanism by which the x-ray beam is restricted in size.

(17) [ (18) ] Computed tomography (CT)--The production of a tomogram by the acquisition and computer processing of x-ray transmission data.

[ (19) Continuous pressure type switch--A switch so constructed that a circuit closing contact can be maintained only by continuous pressure on the switch by the operator. ]

[ (20) Contrast scale (CS)--The change in the linear attentuation coefficient per CT number (CTN) relative to water; that is: ]

[Figure: 25 TAC §289.227(e)(20)]

(18) [ (21) ] Control panel--The part of the radiation machine control upon which are mounted the switches, knobs, push buttons, and other hardware necessary for manually setting the technique factors.

(19) [ (22) ] CT conditions of operation--All selectable parameters governing the operation of a CT x-ray system including, but not limited to, nominal tomographic section thickness, filtration, and the technique factors as defined in this subsection.

(20) [ (23) ] CT gantry--The tube housing assemblies, beam-limiting devices, detectors, and the supporting structures and frames that hold these components.

[ (24) CT number (CTN)--The number used to represent the x-ray attenuation associated with each elemental area of the CT image, that is: ]

[ Figure: 25 TAC §289.227(e)(24) ]

(21) [ (25) ] Diagnostic source assembly--The tube housing assembly with a beam-limiting device attached.

(22) [ (26) ] Diagnostic x-ray system--An x-ray system designed for irradiation of any part of the human body [ or any animal ] for the purpose of diagnosis or visualization.

[ (27) Diaphragm--A device or mechanism by which the x-ray beam is restricted in size. ]

(23) [ (28) ] Entrance exposure--The exposure expressed in roentgens (R), measured in air with the specified technique, calculated or adjusted to represent the exposure at the point where the center of the useful beam enters the patient.

(24) [ (29) ] Entrance exposure rate--The exposure per unit time at the point where the center of the useful beam enters the patient.

(25) [ (30) ] Field emission equipment--Equipment that uses an x-ray tube in which electron emission from the cathode is due solely to the action of an electric field.

(26) [ (31) ] Field size--The dimensions along the major axes of an area in a plane perpendicular to the central axis of the beam at the normal treatment or examination source to image distance and defined by the intersection of the major axes and the 50% isodose line.

(27) [ (32) ] Filter--Material placed in the useful beam to preferentially absorb selected radiations.

(28) [ (33) ] Fluoroscopic imaging assembly--A subsystem in which x-ray photons produce a fluoroscopic image. It includes the image receptors such as the image intensifier and spot-film device, electrical interlocks, if any, and structural material providing linkage between the image receptor and diagnostic source assembly.

(29) [ (34) ] Focal spot--The area projected on the anode of the x-ray tube bombarded by the electrons accelerated from the cathode and from which the useful beam originates.

[ (35) Gantry--That part of the system supporting and allowing possible movement of the radiation source. ]

(30) [ (36) ] General purpose x-ray system--Any radiographic x-ray system that is not limited by design to radiographic examinations of specific anatomical regions.

(31) [ 37 ] Gonadal shield--A protective barrier for the testes or ovaries.

(32) [ (38) ] Half-value layer (HVL)--The thickness of a specified material that attenuates the beam of radiation to an extent such that the exposure rate is reduced to one-half of its original value.

(33) [ (39) ] Healing arts--Any system, treatment, operation, diagnosis, prescription, or practice for the ascertainment, cure, relief, palliation, adjustment, or correction of any human disease, ailment, deformity, injury, or unhealthy or abnormal physical or mental condition.

(34) [ (40) ] Healing arts screening--The testing of asymptomatic human beings using radiation machines for the detection or evaluation of health indications when such tests are not specifically and individually ordered by a licensed practitioner of the healing arts legally authorized to prescribe such x-ray tests for the purpose of diagnosis or treatment.

(35) [ (41) ] High level control for fluoroscopy--Any selected mode having an entrance exposure rate above 10 roentgens per minute (R/min). This mode shall meet the high level requirements in subsection (m)(3)(A)(i)(II), (ii)(II), or (iii)(II) [ (o)(3)(A)(i)(II), (ii)(II), or (iii)(II) ] of this section.

(36) [ (42) ] Image intensifier--A device, installed in its housing, that instantaneously converts an x-ray pattern into a corresponding light image of higher energy density.

(37) [ (43) ] Image receptor--Any device, such as a fluorescent screen or radiographic film, that transforms incident x-ray photons either into a visible image or into another form that can be made into a visible image by further transformations.

(38) [ (44) ] Irradiation--The exposure of matter to ionizing radiation.

(39) [ (45) ] kV--Kilovolt.

(40) [ (46) ] kVp--Kilovolt peak (See definition for peak tube potential).

(41) [ (47) ] kWs--Kilowatt-second. It is equivalent to 10 E 3 watt-second, where 1 watt-second = 1 kV x 1 milliampere (mA) x 1 second.

(42) [ (48) ] Lead equivalent--The thickness of lead affording the same attenuation, under specified conditions, as the material in question.

(43) [ (49) ] Leakage radiation--Radiation emanating from the diagnostic [ or therapeutic ] source assembly except for the useful beam and radiation produced when the exposure switch or timer is not activated.

(44) [ (50) ] Leakage technique factors--The technique factors associated with the diagnostic source assembly that are used in measuring leakage radiation. They are defined as follows:

(A) for diagnostic source assemblies intended for capacitor energy storage equipment, the maximum-rated peak tube potential and the maximum-rated number of exposures in an hour for operation at the maximum-rated peak tube potential with the quantity of charge per exposure being 10 millicoulombs (10 milliampere-second (mAs)) or the minimum obtainable from the unit, whichever is larger;

(B) for diagnostic source assemblies intended for field emission equipment rated for pulsed operation, the maximum-rated peak tube potential and the maximum-rated number of x-ray pulses in an hour for operation at the maximum-rated peak tube potential; or

(C) for all other diagnostic source assemblies, the maximum-rated peak tube potential and the continuous tube current for the maximum-rated peak tube potential.

(45) [ (51) ] Licensed medical physicist--An individual holding a current Texas license under the Medical Physics Practice Act, Texas Occupations Code, Chapter 602 , with a specialty in diagnostic radiological physics .

[ (52) Linear attenuation coefficient (u)--The quotient of dN/N by dl when dN/N is the fraction of uncharged ionizing radiation that experiences interactions in traversing a distance dl in a specified material. ]

(46) [ (53) ] mA--Milliampere.

(47) [ (54) ] mAs--Milliampere-second.

(48) [ (55) ] Medical research--The investigation of various health risks and diseases [ using radiation machines as part of the evaluation process ].

(49) [ (56) ] Mobile service operation [ services ]-- The provision of radiation machines and personnel at temporary sites for limited time periods. The radiation machines may be fixed inside a motorized vehicle or may be a portable radiation machine that may be removed from the vehicle and taken into a facility for use. [ The utilization of radiation machines in temporary locations for limited time periods. The radiation machines may be fixed inside a mobile van or transported to temporary locations. ]

[ (57) Mobile x-ray equipment--(See definition for x-ray equipment). ]

(50) [ (58) ] Multiple slice tomogram system--A computed tomography x-ray system that obtains x-ray transmission data simultaneously during a single scan to produce more than one tomogram.

(51) [ (59) ] Nominal tomographic section thickness--The full-width at half-maximum of the sensitivity profile taken at the center of the cross sectional volume over which x-ray transmission data are collected.

(52) [ (60) ] Non-certified radiographic equipment--Equipment manufactured and assembled prior to certification requirements of Title 21, CFR, effective as specified in Title 21, CFR, Part 1020.30(a).

(53) [ (61) ] Patient--An individual subjected to healing arts examination, diagnosis, or treatment.

(54) [ (62) ] Peak tube potential--The maximum value of the potential difference in kilovolts across the x-ray tube during an exposure.

(55) [ (63) ] Phantom--A volume of material behaving in a manner that can be related to tissue with respect to the attenuation and scattering of radiation.

(56) [ (64) ] Phototimer--A method for controlling exposures to image receptors by the amount of radiation that reaches a radiation monitoring device. The radiation monitoring device is part of an electronic circuit that controls the duration of time the tube is activated (See definition for automatic exposure control).

(57) [ (65) ] Portable x-ray equipment (See definition for x-ray equipment).

(58) [ (66) ] Practitioner of the healing arts (practitioner)--A person licensed to practice healing arts by either the Texas State Board of Medical Examiners as a physician, the Texas Board of Chiropractic Examiners, or the Texas State Board of Podiatry Examiners.

(59) [ (67) ] Primary protective barrier--(See definition for protective barrier).

(60) [ (68) ] Protective apron--An apron made of radiation attenuating [ absorbing ] materials used to reduce radiation exposure.

(61) [ (69) ] Protective barrier--A barrier of radiation absorbing materials used to reduce radiation exposure. The types of protective barriers are as follows:

(A) primary protective barrier--A barrier sufficient to attenuate the useful beam to the required degree.

(B) secondary protective barrier--A barrier sufficient to attenuate the stray radiation to the required degree.

(62) [ (70) ] Protective glove--A glove made of radiation attenuating [ absorbing ] materials used to reduce radiation exposure.

(63) [ (71) ] Radiograph--An image receptor on which the image is created directly or indirectly by an x-ray exposure and results in a permanent record.

(64) [ (72) ] Reference plane--A plane that is displaced from and parallel to the tomographic plane.

(65) [ (73) ] Scan--The complete process of collecting x-ray transmission data for the production of a tomogram. Data can be collected simultaneously during a single scan for the production of one or more tomograms.

(66) [ (74) ] Scan increment--The amount of relative displacement of the patient with respect to the CT x-ray system between successive scans measured along the direction of such displacement.

(67) [ (75) ] Scan sequence--A preselected set of two or more scans performed consecutively under preselected CT conditions of operation.

(68) [ (76) ] Scan time--The period of time between the beginning and end of x-ray transmission data accumulation for a single scan.

(69) [ (77) ] Scattered radiation-- Radiation [ radiation ] that has been deviated in direction during passage through matter.

(70) [ (78) ] Secondary protective barrier (See definition for protective barrier).

(71) [ (79) ] Shutter--A device attached to the tube housing assembly that can totally intercept the useful beam and that has a lead equivalency not less than that of the tube housing assembly.

(72) [ (80) ] Single tomogram system--CT x-ray system that obtains x-ray transmission data during a scan to produce a single tomogram.

(73) [ (81) ] Source--The focal spot of the x-ray tube.

(74) [ (82) ] Source-to-image receptor distance (SID)--The distance from the source to the center of the input surface of the image receptor.

(75) [ (83) ] Source-to-skin distance (SSD)--The distance from the source to the skin of the patient.

[ (84) Spacer--A device designed to limit the target to skin distance. ]

(76) [ (85) ] Special purpose x-ray system--Any radiographic x-ray system that is limited by design to radiographic examinations of specific anatomical regions. Special purpose x-ray systems include, but are not limited to, dedicated chest units, cystography units, and head and skull units.

(77) [ (86) ] Special procedures--The application of special x-ray equipment and specialized techniques to obtain required diagnostic information. [ This usually provides enhanced detail of a given anatomical structure but with reduced visualization of others. ] Special procedures include, but are not limited to, angiography, cardiac catheterization, myelogram, and surgery.

(78) [ (87) ] Spot film--A radiograph that is made during a fluoroscopic examination to permanently record conditions that exist during that fluoroscopic procedure.

(79) [ (88) ] Spot film device--A device intended to transport and/or position a radiographic image receptor between the x-ray source and fluoroscopic image receptor. It includes a device intended to hold a cassette over the input end of an image intensifier for the purpose of making a radiograph.

(80) [ (89) ] Stationary x-ray equipment--(See definition for x-ray equipment).

(81) [ (90) ] Stray radiation--The sum of leakage and scattered radiation.

(82) [ (91) ] Supervision--The delegating , by the practitioner, of the task of applying radiation [ in accordance with this section ] to persons [ not licensed in the healing arts or veterinary medicine, ] who perform tasks [ provide services ] under the practitioner's control and who are certified under the Medical Radiologic Technologist Act, Texas Occupations Code, Chapter 601 . The [ licensed ] practitioner [ or veterinarian ] assumes full responsibility for these tasks and shall assure that the tasks will be administered correctly.

(83) [ (92) ] Target--The part of a radiation machine head that by design intercepts a beam of accelerated particles with subsequent emission of other radiation.

(84) [ (93) ] Technique chart--A chart that provides all necessary generator control settings and geometry needed to make clinical radiographs when the radiography system is in manual mode.

(85) [ (94) ] Technique factors--The conditions of operation that are specified as follows:

(A) for capacitor energy storage equipment, peak tube potential in kV and quantity of charge in mAs;

(B) for field emission equipment rated for pulsed operation, peak tube potential in kV and number of x-ray pulses;

(C) for CT equipment designed for pulsed operations, peak tube potential in kV, scan time in seconds, and either tube current in mA, x-ray pulse width in seconds, and the number of x-ray pulses per scan or the product of tube current, x-ray pulse width, and the number of x-ray pulses in mAs;

(D) for CT equipment not designed for pulsed operation, peak tube potential in kV, and either tube current in mA and scan time in seconds or the product of tube current and exposure time in mAs when the scan time and exposure time are equivalent; and

(E) for all other equipment, peak tube potential in kV and either tube current in mA and exposure time in seconds or the product of tube current and exposure time in mAs.

(86) [ (95) ] Tomogram--The depiction of the x-ray attenuation properties of a section through the body.

(87) [ (96) ] Tomographic plane--The geometric plane that is identified as corresponding to the output.

(88) [ (97) ] Tomographic section--The volume of an object whose x-ray attenuation properties are imaged in a tomogram.

(89) [ (98) ] Traceable to a national standard--This indicates that a quantity or a measurement has been compared to a national standard, for example, the National Institute of Standards and Technology, directly or indirectly through one or more intermediate steps and that all comparisons have been documented.

(90) [ (99) ] Tube--An x-ray tube, unless otherwise specified.

(91) [ (100) ] Tube housing assembly--The tube housing with tube installed. It includes high-voltage and/or filament transformers and other appropriate elements when such are contained within the tube housing.

(92) [ (101) ] Useful beam--Radiation that passes through the window, aperture, cone, or other collimating device of the source housing. Also referred to as the primary beam.

[ (102) Veterinarian--An individual licensed by the Texas Board of Veterinary Medical Examiners. ]

(93) [ (103) ] X-ray control--A device that controls input power to the x-ray high-voltage generator and/or the x-ray tube. It includes equipment such as timers, phototimers, automatic brightness stabilizers, and similar devices that control the technique factors of an x-ray exposure.

(94) [ (104) ] X-ray equipment--An x-ray system, subsystem, or component thereof. For the purposes of this rule, types [ Types ] of x-ray equipment are as follows:

(A) portable x-ray equipment [ mobile x-ray equipment ]--x-ray equipment mounted on a permanent base with wheels and/or casters for moving while completely assembled . Portable x-ray equipment may also include equipment designed to be hand-carried; or [ ; ]

[ (B) portable x-ray equipment--x-ray equipment designed to be hand-carried; or ]

(B) [ (C) ] stationary x-ray equipment--x-ray equipment that is installed in a fixed location.

(95) [ (105) ] X-ray field--That area of the intersection of the useful beam and any one of the set of planes parallel to and including the plane of the image receptor, whose perimeter is the locus of points at which the exposure rate is one-fourth of the maximum in the intersection.

(96) [ (106) ] X-ray high-voltage generator--A device that transforms electrical energy from the potential supplied by the x-ray control to the tube operating potential. The device may also include means for transforming alternating current to direct current, filament transformers for the x-ray tubes, high-voltage switches, electrical protective devices, and other appropriate elements.

(97) [ (107) ] X-ray system--An assemblage of components for the controlled production of x rays. It includes minimally an x-ray high-voltage generator, an x-ray control, a tube housing assembly, a beam-limiting device, and the necessary supporting structures. Additional components that function with the system are considered integral parts of the system.

(98) [ (108) ] X-ray subsystem--Any combination of two or more components of an x-ray system.

(99) [ (109) ] X-ray tube--Any electron tube that is designed to be used primarily for the production of x-rays [ x rays ].

(f) Morgues and educational facilities.

(1) Morgues shall comply with the following requirements:

(A) subsection (b)(1) and (2) of this section concerning scope;

(B) subsection (c) of this section concerning prohibitions;

(C) subsection (e) of this section concerning definitions, as applicable;

(D) subsection (i)(2) of this section concerning operating and safety procedures;

(E) subsection (i)(4) of this section concerning protective devices;

(F) subsection (i)(11) of this section concerning holding of tube;

(G) subsection (k)(1) of this section concerning warning labels;

(H) subsection (m)(1)(A) of this section concerning fluoroscopy; and

(I) subsection (s)(1)(A)-(I), and (R) of this section concerning records.

(2) Facilities conducting training using non-humans shall comply with all the requirements of this section except for the following:

(A) subsection (i)(5) of this section concerning operator credentialing;

(B) subsection (j) of this section concerning radiographic entrance exposure limits;

(C) subsections (p), (q) and (r) of this section concerning film processing; and

(D) subsection (o) of this section concerning equipment performance evaluation.

[ (f) Educational facilities. Facilities conducting training using non-humans shall comply with all the requirements of this section except for subsection (i)(5) of this section concerning operator credentialing, subsection (k) of this section concerning radiographic entrance exposure limits, subsections (r) and (s) of this section concerning film processing, and subsection (q) of this section concerning equipment performance evaluation. ]

(g) Requirements for bone densitometers. Bone densitometers shall be exempt from this chapter except for the following:

(1) (No change.)

(2) healing arts screening and medical research in accordance with §289.226(h) [ §289.226(j) ] of this title;

(3) - (4) (No change.)

[ (5) exemptions in accordance with subsection (d)(1),(3), and (4) of this section; ]

(5) [ (6) ] definitions in accordance with subsection (e) of this section, as applicable;

(6) [ (7) ] operating and safety procedures in accordance with subsection (i)(2) of this section;

(7) [ (8) ] operator credentialing in accordance with subsection (i)(5) of this section;

(8) [ (9) ] gonadal shielding in accordance with subsection (i)(13) [ (j)(3) ] of this section;

(9) [ (10) ] warning labels in accordance with subsection (k)(1) [ (l)(1) ] of this section;

(10) [ (11) ] record requirements for authorized use locations and authorized records locations for mobile services in accordance with subsection (s)(1)(A)-(D), (G)-(J), (R), and (s)(2) [ (t)(1)(A)-(D), (G)-(I), (J), (Q), and (t)(2) ] of this section; and

(11) [ (12) ] record requirements for mobile services in accordance with subsection (s)(1)(A)-(D), (H), and (J) [ (t)(1)(A)-(D), (H), and (J) ] of this section. These records shall be maintained with the bone densitometer authorized to be used for mobile services.

(h) Certified equipment [ for chiropractic, medical, and podiatric facilities ]. [ This subsection does not apply to veterinary facilities. ] In addition to the requirements of this chapter, the registrant shall not make, nor cause to be made, any modification of components or installations of components certified in accordance with the United States Food and Drug Administration (FDA) Title 21, CFR, Part 1020, "Performance Standards for Ionizing Radiation Emitting Products," as amended, in any manner that could cause the installations or the components to fail to meet the requirements of the applicable parts of the standards specified in Title 21, CFR, Part 1020, except where a variance has been granted by the Director, Center for Devices and Radiological Health, FDA. A copy of the variance shall be maintained by the registrant in accordance with subsection (s)(1) [ (t)(1) ] of this section for inspection by the agency.

(i) General operating requirements . [ for chiropractic, medical, podiatric, and veterinary facilities. ]

(1) (No change.)

(2) Operating and safety procedures. Each registrant shall have and implement written operating and safety procedures. These procedures shall include, but are not limited to, the items in subsection (t) of this section. The procedures shall be made available to each individual operating a radiation machine, including any restrictions of the operating technique required for the safe operation of the particular x-ray system. The registrant shall document that each individual operating a radiation machine has read the operating and safety procedures and shall maintain this documentation for inspection by the agency. The documentation shall include the following:

(A) name and signature of individual;

(B) date individual read the operating and safety procedures; and

(C) initials of the RSO.

[ (2) Operating and safety procedures. Each registrant shall have and implement written operating and safety procedures. These procedures shall be made available to each individual operating a radiation machine, including any restrictions of the operating technique required for the safe operation of the particular x-ray system. These procedures shall include, but are not limited to, the items in subsection (u) of this section. ]

(3) (No change.)

(4) Protective devices. Protective devices shall be utilized when required, as in subsection (i)(8)(B) and (D), (i)(10), (i)(13) and (m)(8) [ (o)(8) ] of this section.

(A) Protective devices shall be of no less than 0.25 millimeter (mm) lead equivalent material except as specified in subsections (i)(13) and (m)(8)(B)(i) of this section .

(B) Protective devices, including aprons, gloves, and shields shall be checked annually for defects such as holes, cracks, and tears. These checks may be performed by the registrant by visual or tactile means, or x-ray imaging. If a defect is found, protective devices shall be replaced or removed from service until repaired. A record of this test shall be made and maintained by the registrant in accordance with subsection (s)(1) [ (t)(1) ] of this section for inspection by the agency.

(5) - (8) (No change.)

(9) Viewing system and contact with patient . [ Windows, mirrors, closed circuit television, or a method shall be provided to permit the operator to continuously observe the patient during irradiation. ]

(A) Windows, mirrors, closed circuit television, or another method shall be provided to permit the operator to continuously observe the patient during irradiation.

(B) The operator shall be able to maintain verbal, visual, and aural contact with the patient.

(10) - (11) (No change.)

[ (j) Requirements specifically for chiropractic, medical, and podiatric facilities. ]

(12) [ (1) ] Patient protection. Notwithstanding the provisions of subsection (i)(7) of this section, other patients who are in line with the primary beam and who cannot be removed from the room shall be protected by whole body protective barriers of a minimum of 0.25 mm lead equivalent material or so positioned that the nearest portion of their body is at least six feet from both the tube head and the nearest edge of the image receptor.

[ (2) Contact with the patient. The operator shall be able to maintain verbal, visual, and aural contact with the patient. ]

(13) [ (3) ] Gonadal shielding. Gonadal shielding shall be used on patients when the gonads are in or within 5 cm of the useful beam. This requirement does not apply if the shielding will interfere with the diagnostic procedure. Gonadal shielding shall be of at least 0.5 mm lead equivalent material.

(j) [ (k) ] Radiographic entrance exposure limits . [ for chiropractic, medical, and podiatric facilities. This subsection does not apply to veterinary facilities. ] The in-air exposure determined for the technique used by the registrant for the specified average human adult patient thickness for routine medical radiography shall not exceed the entrance exposure limits in the following Table II [ Table I ].

Figure: 25 TAC §289.227(j)

[ Figure: 25 TAC §289.227(k) ]

(k) [ (l) ] Machine [ General ] requirements for [ all diagnostic ] general radiographic and fluoroscopic x-ray systems . [ for chiropractic, medical, podiatric, and veterinary facilities. ]

(1) Warning label. The warning label will meet the requirements of §289.231(z) of this title.

(2) Mechanical support of tube head. The tube housing assembly shall be adjusted to remain stable during an exposure unless tube housing movement is a designed function of the x-ray system.

(3) Battery charge indicator. On battery-powered x-ray generators, visual means shall be provided on the control panel to indicate whether the battery is in a state of charge adequate for proper operation.

[ (4) Radiation from components other than the diagnostic source assembly. The radiation emitted by a component other than the diagnostic source assembly shall not exceed 2 milliroentgens (mR) in one hour at 5 cm from any accessible surface of the component when it is operated in an assembled x-ray system under any conditions for which it was designed. Measurement is averaged over an area of 100 square centimeters (cm 2 ) with no linear dimension greater than 20 cm. ]

(4) [ (5) ] Beam quality. The following requirements apply to beam quality.

(A) Half-value layer.

(i) The half-value layer of the useful beam for a given x-ray tube potential shall not be less than the values shown in the following Table II. If it is necessary to determine such half-value layer at an x-ray tube potential that is not listed in Table II, linear interpolation may be made.

Figure: 25 TAC §289.227(k)(4)(A)(i)

[ Figure: 25 TAC §289.227(k)(5)(A)(i) ]

(ii) For capacitor energy storage equipment, compliance with the requirements of paragraph (4) [ (5) ] of this subsection shall be determined with the maximum quantity of charge per exposure.

(B) Filtration controls.

(i) For x-ray systems that have variable kVp and variable filtration for the useful beam, a device shall link the kVp selector with the filters and shall prevent an exposure unless the minimum amount of filtration required by subparagraph (A) of this paragraph is in the useful beam for the given kVp that has been selected.

(ii) Any other system having removable filters shall be required to have the minimum amount of filtration as required by subparagraph (A)(i) of this paragraph permanently located in the useful beam during each exposure.

(5) [ (6) ] Multiple tubes. Where two or more radiographic tubes are controlled by one exposure switch, the tube or tubes that have been selected shall be clearly indicated prior to initiation of the exposure. This indication shall be both on the x-ray control panel and at or near the tube housing assembly that has been selected.

(6) [ (7) ] Technique and exposure indicators.

(A) The technique factors to be used during an exposure shall be indicated before the exposure begins except when automatic exposure controls are used, in which case the technique factors that are set prior to the exposure shall be indicated.

(B) On equipment having fixed technique factors, the requirement of subparagraph (A) of this paragraph may be met by permanent markings.

(C) The x-ray control shall provide visual indication of the production of x rays.

(D) The indicated technique factors shall be accurate to meet manufacturer's specifications. If these specifications are not available from the manufacturer, the factors shall be accurate to within plus or minus 10% of the indicated setting.

(7) X-ray control. An x-ray control shall be incorporated into each x-ray system such that an exposure can be terminated by the operator at any time except for an exposure of 0.5 seconds or less or during serial radiography when means shall be provided to permit completion of any single exposure of the series in process.

(l) [ (m) ] Additional machine requirements for radiographic x-ray systems, [ specifically for chiropractic, medical, and podiatric x-ray systems. ] This subsection does not apply to fluoroscopic[ , veterinary, ] or CT x-ray systems.

(1) Beam limitation. Beam limitation shall be as follows.

(A) Stationary general purpose x-ray systems.

(i) Beam-limiting devices shall restrict the useful beam to the area of clinical interest as follows:

(I) the misalignment of the x-ray field for a manual rectangular collimator shall be within 2.0% of the SID for the length or width of the image receptor;

(II) the x-ray field for a circular or polygon collimator shall not exceed the diagonal of the image receptor by more than 2.0% of the SID; or

(III) the misalignment of the x-ray field for an automatic or semi-automatic collimator shall be within 3.0% of the SID for the length and width of the image receptor and shall be within 4.0% of the SID, without regard to the sign, of the sum of the difference of the length and width of the image receptor.

(ii) A method shall be provided for visually defining the perimeter of the x-ray field. The total misalignment of the edges of the visually defined field with the respective edges, either the length or width, of the x-ray field shall not exceed 2.0% of the SID.

(iii) A numerical SID indicator shall be present and shall be accurate to within 2.0% of the SID.

(iv) The system shall indicate when the axis of the x-ray field is perpendicular to the plane of the image receptor.

(v) The center of the x-ray field, when perpendicular to the image receptor, shall be accurate to within 2.0% of the SID with respect to the center of the image receptor.

(vi) The beam-limiting device shall numerically indicate the field size in the plane of the image receptor.

(vii) Indication of field size dimensions and SIDs shall be specified in inches and/or centimeters.

(viii) The field size indicated on the beam-limiting device shall be within 2.0% of the SID along the width and length, separately, of the actual x-ray field size.

(B) Portable x-ray equipment. Portable x-ray equipment [ Mobile x-ray systems. Mobile x-ray systems ] shall comply with the requirements in subparagraph (A) [ (A)(i)-(iii) ] of this paragraph , as applicable, based on manufacturer's design .

(C) Radiographic systems designed for one image receptor size. Radiographic equipment designed for only one image receptor size at a fixed SID shall provide a means to do the following:

(i) limit the x-ray field to no greater than the dimensions of the image receptor at the SID, and to align the center of the x-ray field with the center of the image receptor to within 2.0% of the SID center; or

(ii) align the x-ray field such that the x-ray field does not extend beyond any edge of the image receptor at the SID.

(D) Special purpose x-ray systems.

(i) When the x-ray beam is perpendicular to the plane of the image receptor, a means shall be provided to do the following:

(I) limit the x-ray field such that the x-ray field does not exceed each dimension of the image receptor by more than 2.0% of the SID; and

(II) align the center of the x-ray field with the center of the image receptor to within 2.0% of the SID.

(ii) The requirements of clause (i) of this subparagraph may be met with a system that meets the requirements for a general purpose x-ray system as specified in subparagraphs (A)(i)-(iv) of this paragraph or, when alignment means are also provided, may be met with either of the following:

(I) an assortment of removable, fixed-aperture, beam-limiting devices sufficient to meet the requirement for each combination of image receptor size and SID for which the unit is designed with each such device having clear and permanent markings to indicate the image receptor size and SID for which it is designed; or

(II) a beam-limiting device having multiple fixed apertures sufficient to meet the requirement for each combination of image receptor size and SID for which the radiation machine is designed. Permanent, clearly legible markings shall indicate the image receptor size and SID for which each aperture is designed and shall indicate which aperture is in position for use.

(2) Radiation exposure control devices. Radiation exposure control devices shall include the following:

[ (A) X-ray control. An x-ray control shall be incorporated into each x-ray system such that an exposure can be terminated by the operator at any time except for an exposure of 0.5 seconds or less or during serial radiography when means shall be provided to permit completion of any single exposure of the series in process. The exposure switch shall be of the continuous pressure type. ]

(A) [ (B) ] Timers. Means shall be provided to terminate the exposure at a preset time interval, a preset product of current and time, a preset number of pulses, or a preset radiation exposure to the image receptor. In addition, it shall not be possible to make an exposure when the timer is set to a "zero" or "off" position if either position is provided.

(B) [ (C) ] AEC. When [ an ] AEC is provided, the following shall occur.

(i) Indication shall be made on the control panel when this mode of operation is selected.

(ii) If the x-ray tube potential is equal to or greater than 50 kVp, the minimum exposure time for field emission equipment rated for pulsed operation shall be equal to or less than a time interval equivalent to two pulses.

(iii) The minimum exposure time for all equipment other than that specified in clause (ii) of this subparagraph shall be equal to or less than 0.0167 second or a time interval required to deliver 5 mAs, whichever is greater.

(iv) Either the product of peak x-ray tube potential, current, and exposure time shall be limited to not more than 60 kWs per exposure, or the product of x-ray tube current and exposure time shall be limited to not more than 600 mAs per exposure except that, when the x-ray tube potential is less than 50 kVp, the product of x-ray tube current and exposure time shall be limited to not more than 2,000 mAs per exposure.

(v) A visible and/or audible signal shall indicate when an exposure has been terminated at the limits required by clause (iv) of this subparagraph, and manual resetting shall be required before further automatically timed exposures can be made.

(C) [ (D) ] Exposure interval reproducibility. When all technique factors are held constant, including control panel selections associated with AEC systems, the coefficient of variation of exposure interval for both manual and AEC systems shall not exceed 0.05. This requirement applies to clinically used techniques.

(3) SSD. All mobile or portable radiographic systems shall be provided with means to limit the SSD to equal to or greater than 30 cm.

(4) Exposure reproducibility. When all technique factors are held constant, including control panel selections associated with AEC systems, the coefficient of variation of exposure for both manual and AEC systems shall not exceed 0.05. This requirement applies to clinically used techniques.

(5) Linearity. The average ratios of exposure mR to the indicated mAs product obtained at any two consecutive mA or mAs settings shall not differ by more than 0.10 times their sum, where X 1 and X 2 are the average mR/mAs values obtained at each of two consecutive tube current settings:

Figure: 25 TAC §289.227(l)(5)

[ Figure: 25 TAC §289.227(m)(5) ]

(6) Radiation from capacitor energy storage equipment in standby status. Radiation emitted from the x-ray tube when the exposure switch or timer is not activated shall not exceed a rate of 2 milliroentgens per hour (mR/hr) at 5 cm from any accessible surface of the diagnostic source assembly, with the beam-limiting device fully open.

[ (n) Additional requirements specifically for veterinary x-ray systems. ]

[ (1) The x-ray control shall provide visual or audible indication of the production of x-rays observable at or from the operator's protected position whenever x-rays are produced. ]

[ (2) Beam limiting devices shall do the following: ]

[ (A) provide the same degree of protection as is required of the housing; ]

[ (B) restrict the useful beam to the area of clinical interest; and ]

[ (C) limit the x-ray field such that the x-ray field shall not exceed: ]

[ (i) 2.0% of the SID for the length or width of the rectangular image receptor; or ]

[ (ii) 2.0% of the SID for the diagonal of the image receptor for circular image receptors. ]

[ (3) A means shall be provided to center the primary beam to the image receptor within 2.0% of the SID. ]

[ (4) A means shall be provided to terminate the exposure at the following: ]

[ (A) a preset time interval; ]

[ (B) a preset product of current and time; ]

[ (C) a preset number of pulses; or ]

[ (D) a preset radiation exposure to the image receptor. ]

[ (5) The radiation machine shall not be able to make an exposure when the timer is set to a "zero" or "off" position if either position is provided. ]

[ (6) All stationary, mobile, or portable x-ray systems used for veterinary x rays shall be provided with the following: ]

[ (A) a continuous pressure type exposure switch; and ]

[ (B) either a six and one-half foot high protective barrier for operator protection during exposures; or ]

[ (C) a means for the operator to be at least six feet from the tube housing assembly. ]

[ (7) Operators using portable radiation machines designed to be hand-held are exempt from the requirements of paragraph (6) of this subsection. The hand-held portable radiation machine shall be held by the tube housing support or handle. The operator shall wear protective devices in accordance with subsection (i)(4) of this section. ]

[ (8) When all technique factors are held constant, including control panel selections associated with AEC systems, the coefficient of variation of exposure for both manual and AEC systems shall not exceed 0.05. This requirement applies to clinically used techniques. ]

[ (9) The technique factors to be used during an exposure shall be indicated before the exposure begins. If AECs are used, the technique factors that are set prior to the exposure shall be indicated. ]

[ (10) For machines having fixed technique factors, the requirements of paragraph (9) of this subsection may be met by permanent markings on the equipment. Indication of technique factors shall be visible from the operator's position except in the case of spot films made by the fluoroscopist. ]

[ (11) Fluoroscopic and CT units used in veterinary facilities shall meet the requirements of subsections (o) and (p) of this section. Therapy systems used in veterinary facilities shall meet the requirements of §289.229 of this title. ]

[ (12) Portable machines shall be used in a manner that complies with this section. ]

[ (13) All exams and retakes shall be ordered by the veterinarian. ]

(m) [ (o) ] Fluoroscopic x-ray systems and spot-film devices for all facilities.

(1) Limitation of the useful beam. Limitation of the useful beam shall be as follows.

(A) Primary barrier.

(i) The fluoroscopic imaging assembly shall be provided with a primary protective barrier that intercepts the entire cross section of the useful beam at any SID.

(ii) The x-ray tube used for fluoroscopy shall not produce x rays unless the barrier is in position to intercept the useful beam and the imaging device is in place and operable.

(iii) The exposure rate due to transmission through the barrier with the attenuation block in the useful beam, combined with radiation through the image intensifier if provided, shall not exceed 3.34 x 10 -3 % of the entrance exposure rate at a distance of 10 cm from any accessible surface of the fluoroscopic imaging assembly beyond the plane of the image receptor.

(B) Measuring compliance of barrier transmission.

(i) The exposure rate due to transmission through the primary protective barrier combined with radiation through the image intensifier shall be determined by measurements averaged over an area of 100 cm 2 with no linear dimension greater than 20 cm.

(ii) If the source is below the tabletop, the measurement shall be made with the input surface of the fluoroscopic imaging assembly positioned 30 cm above the tabletop.

(iii) If the source is above the tabletop and the SID is variable, the measurement shall be made with the end of the beam-limiting device or spacer as close to the tabletop as it can be placed, provided that it shall not be closer than 30 cm.

(iv) Movable grids and compression devices shall be removed from the useful beam during the measurement.

(v) The attenuation block shall be positioned in the useful beam 10 cm from the point of measurement of entrance exposure rate and between this point and the input surface of the fluoroscopic imaging assembly.

(vi) The collimator shall be fully open when the measurement is made.

(C) X-ray field.

(i) Compliance with clauses (ii)-(vii) of this subparagraph shall be determined with the beam axis perpendicular to the plane of the image receptor.

(ii) Equipment with a fixed SID and the capability of a visible area of no greater than 300 cm 2 shall be provided with either stepless adjustment of the x-ray field or a means to further limit the x-ray field at the image receptor to 125 cm 2 or less. If the equipment is provided with stepless adjustment, the minimum x-ray field size at the maximum SID shall be less than or equal to 5 cm by 5 cm at the image receptor.

(iii) Equipment with a variable SID or a fixed SID with the capability of a visible area of greater than 300 cm 2 shall be provided with stepless adjustment of the field size. The minimum x-ray field size at the maximum SID shall be less than or equal to 5 cm by 5 cm at the image receptor.

(iv) Neither the length nor the width of the x-ray field in the plane of the image receptor shall exceed that of the visible area of the image receptor by more than 3.0% of the SID. The sum of the excess length and the excess width shall be no greater than 4.0% of the SID.

(v) For rectangular x-ray fields used with circular image receptors, the error in alignment shall be determined along the length and width dimensions of the x-ray field that pass through the center of the visible area of the image receptor.

(vi) For fluoroscopic equipment with only a manual mode of collimation, the x-ray field produced shall be limited to the area of the spot-film cassette at 16 inches above tabletop. Additionally, during fluoroscopy, the beam shall be restricted to the area of the input phosphor.

(vii) Spot-film devices shall meet the following additional requirements.

(I) Means shall be provided between the source and the patient for adjustment of the x-ray field size in the plane of the film to the size of that portion of the film that has been selected on the spot-film selector.

(-a-) Such adjustment shall be automatically accomplished except when the x-ray field size in the plane of the film is smaller than that of the selected portion of the film.

(-b-) The total misalignment of the edges of the x-ray field with the respective edges of the selected portion of the image receptor along the length or width dimensions of the x-ray field in the plane of the image receptor shall not exceed 3.0% of the SID when adjusted for full coverage of the selected portion of the image receptor.

(-c-) The sum, without regard to sign of the misalignment along any two orthogonal dimensions, shall not exceed 4.0% of the SID.

(II) The center of the x-ray field in the plane of the film shall be aligned with the center of the selected portion of the film to within 2.0% of the SID.

(2) Activation of the fluoroscopic tube. X-ray production in the fluoroscopic mode shall be controlled by a device that requires continuous pressure by the fluoroscopist for the entire time of the exposure (continuous pressure type switch). When recording serial fluoroscopic images, the fluoroscopist shall be able to terminate the x-ray exposures at any time, but means may be provided to permit completion of any single exposure of the series in process.

(3) Entrance exposure rate allowable limits.

(A) The following requirements apply to fluoroscopic equipment manufactured prior to May 19, 1995.

(i) Equipment with AERC. Fluoroscopic equipment that is provided with AERC shall not be operable at any combination of tube potential and current that will result in an exposure rate in excess of 2.58 x 10 -3 coulomb per kilogram per minute (C/kg/min) (10 roentgens per minute (10 R/min)) at the point where the center of the useful beam enters the patient, except:

(I) during recording of fluoroscopic images, excluding last image hold; or

(II) when an optional high-level control is provided. When so provided, the equipment shall not be operable at any combination of tube potential and current that will result in an exposure rate in excess of 1.29 x 10 -3 C/kg/min (5 R/min) at the point where the center of the useful beam enters the patient, unless the high-level control is activated. Special means of activation of high-level controls shall be required. The high-level control shall be operable only when continuous manual activation is provided by the operator. A continuous signal audible to the fluoroscopist shall indicate that the high-level control is being employed.

(ii) Equipment without AERC (manual mode). Fluoroscopic equipment that is not provided with AERC shall not be operable at any combination of tube potential and current that will result in an exposure rate in excess of 1.29 x 10 -3 C/kg/min (5 R/min) at the point where the center of the useful beam enters the patient, except:

(I) during recording of fluoroscopic images, excluding last image hold; or

(II) when an optional high-level control is activated. Special means of activation of high-level controls shall be required. The high-level control shall be operable only when continuous manual activation is provided by the operator. A continuous signal audible to the fluoroscopist shall indicate that the high-level control is being employed.

(iii) Equipment with both an AERC mode and a manual mode. Fluoroscopic equipment that is provided with both an AERC mode and a manual mode shall not be operable at any combination of tube potential and current that will result in an exposure rate in excess of 2.58 x 10 -3 C/kg/min (10 R/min) in either mode at the point where the center of the useful beam enters the patient except:

(I) during recording of fluoroscopic images, excluding last image hold; or

(II) when the mode or modes have an optional high-level control, in which case that mode or modes shall not be operable at any combination of tube potential and current that will result in an exposure rate in excess of 1.29 x 10 -3 C/kg/min (5 R/min) at the point where the center of the useful beam enters the patient, unless the high level control is activated. Special means of activation of high-level control shall be required. The high level control shall be operable only when continuous manual activation is provided by the operator. A continuous signal audible to the fluoroscopist shall indicate that the high-level is being employed.

(iv) Measuring compliance. Compliance with subparagraph (A) of this paragraph shall be determined as follows.

(I) If the source is below the x-ray table, the exposure rate shall be measured at 1 cm above the tabletop or cradle.

(II) If the source is above the x-ray table, the exposure rate shall be measured at 30 cm above the tabletop with the end of the beam-limiting device or spacer positioned as closely as possible to the point of measurement.

(III) In a C-arm type of fluoroscope, the exposure rate shall be measured at 30 cm from the input surface of the fluoroscopic imaging assembly provided that the end of the beam-limiting device or spacer is no closer than 30 cm from the input surface of the fluoroscopic imaging assembly. The applicable limit shall not be exceeded at any available SID.

(IV) In a lateral (horizontal) type of fluoroscope, the exposure rate shall be measured at a point 15 cm from the centerline of the x-ray table and in the direction of the x-ray source with the end of the beam-limiting device or spacer positioned as closely as possible to the point of measurement. If the table top is movable, it shall be positioned as closely as possible to the lateral x-ray source, with the end of the beam-limiting device or spacer no closer than 15 cm to the centerline of the x-ray table.

(B) The following requirements apply to fluoroscopic equipment manufactured on and after May 19, 1995.

(i) Fluoroscopic equipment operable at any combination of tube potential and current that will result in an exposure rate greater than 1.29 x 10 -3 C/kg/min (5 R/min) at the point where the center of the useful beam enters the patient shall be equipped with AERC. Provision for manual selection of technique factors may be provided.

(ii) Fluoroscopic equipment shall not be operable at any combination of tube potential and current that will result in an exposure rate in excess of 2.58 x 10 -3 C/kg/min (10 R/min) at the point where the center of the useful beam enters the patient except:

(I) During the recording of images from an x-ray image-intensifier tube using photographic film or a video camera when the x-ray source is operated in a pulsed mode.

(II) When the high-level control is activated, the equipment shall not be operable at any combination of tube potential and current that will result in an exposure rate in excess of 5.16 x 10 -3 C/kg/min (20 R/min) at the point where the center of the useful beam enters the patient. Special means of activation of high-level controls shall be required. The high-level control shall only be operable when continuous manual activation is provided by the operator. A continuous signal audible to the fluoroscopist shall indicate that the high-level control is being employed.

(iii) Measuring compliance. Compliance with subparagraph (B) of this paragraph shall be determined as follows.

(I) If the source is below the x-ray table, the exposure rate shall be measured at 1 cm above the tabletop or cradle.

(II) If the source is above the x-ray table, the exposure rate shall be measured at 30 cm above the tabletop with the end of the beam-limiting device or spacer positioned as closely as possible to the point of measurement.

(III) In a C-arm type of fluoroscope, the exposure rate shall be measured at 30 cm from the input surface of the fluoroscopic imaging assembly provided that the end of the beam-limiting device or spacer is no closer than 30 cm from the input surface of the fluoroscopic imaging assembly. The applicable limit shall not be exceeded at any available SID.

(IV) In a lateral (horizontal) type of fluoroscope, the exposure rate shall be measured at a point 15 cm from the centerline of the x-ray table and in the direction of the x-ray source with the end of the beam-limiting device or spacer positioned as closely as possible to the point of measurement. If the table top is movable, it shall be positioned as closely as possible to the lateral x-ray source, with the end of the beam-limiting device or spacer no closer than 15 cm to the centerline of the x-ray table.

(C) For hand-held fluoroscopes, the exposure rate shall be measured at the point closest to the source.

(D) Periodic measurement of entrance exposure rate shall be performed as follows by a licensed medical physicist [ with a specialty in diagnostic radiological physics ].

(i) Such measurements shall be made within 30 days of installation, annually, and within 30 days after any maintenance of the system that might affect the exposure rate.

(ii) Results of these measurements shall be posted where any fluoroscopist may have ready access to such results while using the fluoroscope and maintained in accordance with subsection (s)(1) [ (t)(1) ] of this section for inspection by the agency. The measurement results shall be stated in R/min and include the technique factors used in determining such results. The name of the person performing the measurements and the date the measurements were performed shall be included in the results.

(iii) Conditions of periodic measurement of entrance exposure rate are as follows.

(I) The measurement shall be made in accordance with subparagraph (A)(iv) or (B)(iii) of this paragraph, as applicable.

(II) X-ray systems that do not incorporate an AERC shall utilize a milliamperage and kVp typical of the clinical use of the x-ray system. Materials should be placed in the useful beam between the detection and imaging systems when conducting these periodic measurements to protect the imaging system.

(III) X-ray systems that do incorporate an AERC shall have sufficient material placed in the useful beam to produce a milliamperage and kVp typical of the clinical use of the x-ray system.

(4) Measurements of the output rate. Measurements of the output rate of the fluoroscopic unit shall be performed with a calibrated dosimetry system. The dosimetry system shall have been calibrated within the preceding 24 months and the calibration shall be traceable to a national standard. During the calendar year in which the dosimetry system is not calibrated, an intercomparison to a system calibrated within the previous 12 months shall be performed.

(5) Indication of potential and current. During fluoroscopy and cinefluorography, the kV and the mA shall be continuously indicated at the control panel and/or the fluoroscopist's position.

(6) Source-to-skin distance (SSD).

(A) Means shall be provided to limit the SSD to the following:

(i) not less than 38 centimeters on stationary fluoroscopes; and

(ii) not less than 30 centimeters on mobile and portable fluoroscopes.

(B) For image-intensified fluoroscopes intended for specific surgical application that would be prohibited at the SSDs specified in subparagraph (A) of this paragraph, provisions may be made for operation at shorter SSDs, but in no case less than 20 cm. The registrant's written operating and safety procedures shall provide precautionary measures to be adhered to during the use of the shorter source to skin distance in accordance with manufacturer's precautions, if provided.

[ (6) SSD. The SSD shall not be less than the following: ]

[ (A) 38 cm on stationary fluoroscopes installed after March 1, 1989; ]

[ (B) 35.5 cm on stationary fluoroscopes that were in operation prior to March 1, 1989; ]

[ (C) 30 cm on all mobile and portable fluoroscopes; ]

[ (D) 20 cm for C-arm fluoroscopes used for specific applications that would require a shorter source to skin distance than that specified in subparagraph (C) of this paragraph. The written operating and safety procedures shall provide precautionary measures to be adhered to during the use of the shorter source to skin distance. The procedures shall provide instructions to restore the unit to a minimum SSD of 30 cm prior to performing any procedure other than those specified in the operating and safety procedures; and ]

(C) [ (E) ] The SSD shall not be less than the FDA approved variance for a specific manufacturer of a hand-held fluoroscope.

(7) Fluoroscopic timer.

(A) Means shall be provided to preset the cumulative on-time of the fluoroscopic x-ray tube. The maximum cumulative time of the timing device shall not exceed five minutes without resetting.

(B) A signal audible to the fluoroscopist shall indicate the completion of any preset cumulative on-time. Such signal shall continue to sound while x rays are produced until the timing device is reset. In lieu of such signal, the timer shall terminate the beam after the preset cumulative on-time is completed.

(8) Control of scattered radiation.

(A) Fluoroscopic configuration, including fluoroscopic table designs, shall not permit any portion of any individual's body, except the head, neck, and extremities, to be exposed to scattered radiation emanating from above or below the tabletop unless the radiation has passed through not less than a total of 0.25 mm lead equivalent material. The material may be, but is not limited to, drapes, self-supporting curtains, or viewing shields, in addition to any lead equivalency provided by a protective apron.

(B) Where sterile fields or special procedures prohibit the use of normal protective barriers or drapes, all of the following conditions shall be met.

(i) All persons, except the patient, in the room where fluoroscopy is performed shall wear protective aprons that provide a shielding equivalent of 0.5 mm of lead.

(ii) The fluoroscopic field size shall be reduced to the absolute minimum required for the procedure being performed (area of clinical interest).

(iii) Operating and safety procedures shall reflect the above conditions, and fluoroscopy personnel shall exhibit awareness of situations requiring the use and/or nonuse of the protective drapes.

(C) For image-intensified fluoroscopic equipment with only a manual mode of collimation, the x-ray field produced shall be limited to the area of the spot-film cassette at 16 inches above tabletop. Additionally, during fluoroscopy, the beam shall be restricted to the area of the input phosphor.

(n) [ (p) ] CT x-ray systems.

(1) Equipment requirements shall include the following.

(A) Warning label. The warning label will meet the requirements of §289.231(z) of this title.

(B) The x-ray control shall provide visual indication of the production of x rays.

(C) The indicated technique factors shall be accurate to meet manufacturer's specifications. If these specifications are not available from the manufacturer, the factors shall be accurate to within plus or minus 10% of the indicated setting.

(D) [ (A) ] Tomographic plane indication and alignment.

(i) For any single tomogram system, means shall be provided to permit visual determination of the tomographic plane or a reference plane offset from the tomographic plane.

(ii) For any multiple slice tomogram system, means shall be provided to permit visual determination of the location of a reference plane. The reference plane can be offset from the location of the tomographic planes.

(iii) If a device using a light source is used to satisfy the requirements of clause (i) or (ii) of this subparagraph, the light source shall provide illumination levels sufficient to permit visual determination of the location of the tomographic plane or reference plane under ambient light conditions of up to 500 lux.

(E) [ (B) ] Indication of CT conditions of operation. The CT x-ray system shall be designed such that the CT conditions of operation to be used during a scan or a scan sequence are indicated prior to the initiation of a scan or a scan sequence. On equipment having all or some of these conditions of operation at fixed values, this requirement may be met by permanent markings. Indication of CT conditions of operation shall be visible from any position from which scan initiation is possible.

(F) [ (C) ] Initiation of operation.

(i) The x-ray control and gantry shall provide visual indication whenever x rays are produced and, if applicable, whether the shutter is open or closed.

(ii) Means shall be provided to require operator initiation of each individual scan or series of scans.

(iii) All emergency buttons/switches shall be clearly labeled as to their functions.

(G) [ (D) ] Termination of exposure.

(i) Means shall be provided to terminate the x-ray exposure automatically by either de-energizing the x-ray source or shuttering the x-ray beam in the event of equipment failure affecting data collection. Such termination shall occur within an interval that limits the total scan time to no more than 110% of its preset value through the use of either a backup timer or devices that monitor equipment function.

(ii) A signal visible to the operator shall indicate when the x-ray exposure has been terminated through the means required by clause (i) of this subparagraph.

(iii) The operator shall be able to terminate the x-ray exposure at any time during a scan or series of scans under CT x-ray system control, of greater than 0.5 seconds duration. Termination of the x-ray exposure shall necessitate resetting of the CT conditions of operation prior to initiation of another scan.

(H) [ (E) ] Additional requirements applicable to CT x-ray systems. Additional requirements applicable to CT x-ray systems containing a gantry manufactured after September 3, 1985, are as follows.

(i) The total error in the indicated location of the tomographic plane or reference plane shall not exceed 5 mm.

(ii) If the x-ray production period is less than 0.5 seconds, the indication of x-ray production shall be actuated for at least 0.5 seconds. Indicators at or near the gantry shall be discernible from any point external to the patient opening where insertion of any part of the human body into the primary beam is possible.

(iii) The deviation of indicated scan increment versus actual increment shall not exceed plus or minus 1 mm with any mass from 0 to 100 kilograms (kg) resting on the support device. The patient support device shall be incremented from a typical starting position to the maximum incremented distance or 30 cm, whichever is less, and then returned to the starting position. Measurement of actual versus indicated scan increment can be taken anywhere along this travel.

(2) Facility design requirements shall include the following.

(A) Provision shall be made for two-way aural communication between the patient and the operator at the control panel.

(B) Windows, mirrors, closed-circuit television, or an equivalent shall be provided to permit continuous observation of the patient during irradiation and shall be so located that the operator can observe the patient from the control panel.

(i) Should the viewing system described in subparagraph (B) of this paragraph fail or be inoperative, treatment shall not be performed with the unit until the system is restored.

(ii) In a facility that has a primary viewing system by electronic means and an alternate viewing system, should the viewing system described in subparagraph (B) of this paragraph fail or be inoperative, treatment shall not be performed with the unit until one of the systems is restored.

(3) Measurements [ Dose measurements ] of the radiation output of the CT x-ray system , using the computed tomography dose index (CTDI) as recommended by the American Association of Physicists in Medicine (AAPM) and the International Council on Radiation Protection (ICRP), shall be performed [ as follows ] by a licensed medical physicist [ with a specialty in diagnostic radiological physics ].

(A) Performance of the measurements shall be:

(i) at intervals not to exceed 12 months;

(ii) when major maintenance, except x-ray tube replacement, that could affect radiation output is performed; and

(iii) when a major change in equipment operation is accomplished, for example, introduction of a new software package.

(B) Measurements of the radiation output of a CT x-ray system shall be performed with a calibrated dosimetry system. The dosimetry system shall have been calibrated within the preceding 24 months and the calibration shall be traceable to a national standard. During the calendar year in which the dosimetry system is not calibrated, an intercomparison to a system calibrated within the previous 12 months shall be performed.

(C) Records of dose measurements in this paragraph shall be maintained by the registrant in accordance with subsection (s)(1) [ (t)(1) ] of this section for inspection by the agency.

(4) A maintenance schedule shall be developed and followed . This schedule shall be included in the registrant's operating and safety procedures and shall include but may not be limited to the following:

(A) dose measurements required by paragraph (3)(A) of this subsection; [ and ]

(B) acquisition of images by a licensed medical physicist obtained with phantoms and using the same processing mode and CT conditions of operation as are used to perform dose measurements required by paragraph (3)(A) of this subsection ; and [ . The registrant shall maintain either of the following in accordance with subsection (t)(1) of this section for inspection by the agency: ]

[ (i) photographic copies of the images obtained from the image display device; or ]

[ (ii) images stored in digital form. ]

(C) acquisition of images by the registrant for quality control purposes obtained with phantoms and using protocol and intervals recommended by the manufacturer or the licensed medical physicist.

(5) The registrant shall maintain the images specified in paragraph (4)(B) and (C) of this subsection in accordance with subsection (s)(1) of this section for inspection by the agency. The images may be maintained by either of the following methods:

(A) photographic copies of the images obtained from the image display device; or

(B) images stored in digital form.

(o) [ (q) ] Equipment performance evaluation . [ for chiropractic, medical, and podiatric facilities. This subsection does not apply to veterinary facilities. ]

(1) For radiographic, fluoroscopic, and CT x-ray systems, the tests listed in paragraphs (5)-(7) of this subsection shall be performed by or under the supervision of a licensed medical physicist, at the frequency listed in the following table. [ For all x-ray systems listed in paragraphs (5)-(7) of this subsection, the registrant shall perform, or cause to be performed, tests necessary to assure proper function of equipment with the indicated standard for each item specified. Such tests shall be performed at the frequency listed in the following table. ]

Figure: 25 TAC §289.227(o)(1)

[ Figure: 25 TAC §289.227(q)(1) ]

(2) Records of the test results, including any numerical readings shall be maintained by the registrant in accordance with subsection (s)(1) [ (t)(1) ] of this section for inspection by the agency.

(3) Any items not meeting the specifications of the tests shall be corrected or repaired. The correction or repair shall begin within 30 days following the check and shall be performed according to a plan designated by the registrant. Correction or repair shall be completed no longer than 90 days from discovery unless authorized by the agency. Records of corrections or repairs shall be maintained by the registrant in accordance with subsection (s)(1) [ (t)(1) ] of this section for inspection by the agency.

(4) The registrant shall ensure that measurements [ Measurements ] of the radiation output of an x-ray system are [ shall be ] performed with a calibrated dosimetry system. The dosimetry system shall have been calibrated within the preceding 24 months and the calibration shall be traceable to a national standard. During the calendar year in which the dosimetry system is not calibrated, an intercomparison to a system calibrated within the previous 12 months shall be performed. The registrant shall make and maintain a record of the dosimetry system calibration. If the registrant has caused the tests to be performed by a licensed medical physicist, registered in accordance with §289.226(b)(10) of this title, that licensed medical physicist shall make the record.

(5) Radiographic x-ray equipment performance evaluation.

(A) Timer. The accuracy of the timer shall meet the manufacturer's specifications. If the manufacturer's specifications are not obtainable, the timer accuracy shall be plus or minus 10% of the indicated time with testing performed at 0.5 second.

(B) Exposure reproducibility. Exposure reproducibility shall meet the requirements of subsection (l)(4) [ (m)(4) ] of this section.

(C) Linearity. mR/mAs stations shall meet the requirements of subsection (l)(5) [ (m)(5) ] of this section.

(D) kVp. If the registrant possesses documentation of the appropriate manufacturer's kVp specifications, the radiation machine shall meet those specifications. If the registrant does not possess documentation of the appropriate manufacturer's kVp specifications, the indicated kVp shall be accurate to within plus or minus 10% of the indicated setting at no less than three points over the usual operating range of the machine.

(E) Tube stability. The x-ray tube shall remain physically stable during exposures. In cases where tubes are designed to move during exposure, the registrant shall assure proper and free movement of the unit.

(F) Collimation. The following items shall meet the requirements of subsection (l)(1) [ (m)(1) ] of this section:

(i) numerical indicators of x-ray field size;

(ii) light field versus x-ray field congruence;

(iii) automatic and semi-automatic collimators unless disabled; and

(iv) center of x-ray field alignment with center of image receptor.

(G) Entrance exposure limits. Entrance exposure limits shall meet the requirements specified in subsection (j) of this section.

(6) Fluoroscopic x-ray systems and spot film devices equipment performance evaluation. Fluoroscopic equipment shall meet the requirements of subsection (m)(1)(C) and (m)(3) and (4) [ (o) ] of this section.

(7) CT x-ray systems equipment performance evaluation. CT x-ray systems shall meet the requirements of subsection (n)(1)(H) and (n)(3) [ (p) ] of this section.

(p) [ (r) ] Automatic and manual film processing for [ chiropractic, medical, podiatric, and veterinary ] facilities and mobile services.

(1) Films shall be developed in accordance with the time-temperature relationships recommended by the film manufacturer. The specified developer temperature for automatic processing and the time-temperature chart for manual processing shall be posted in the darkroom. If the registrant determines an alternate time-temperature relationship is more appropriate for a specific facility, that time-temperature relationship shall be documented and posted.

(2) Chemicals shall be replaced according to the chemical manufacturer's or supplier's recommendations or at an interval not to exceed three months.

(3) Darkroom light leak tests shall be performed and any light leaks corrected at intervals not to exceed six months.

(4) Lighting in the film processing/loading area shall be maintained with the filter, bulb wattage, and distances recommended by the film manufacturer for that film emulsion or with products that provide an equivalent level of protection against fogging.

(5) Corrections or repairs of the light leaks or other deficiencies in paragraphs (2)-(4) of this subsection shall be initiated within 72 hours of discovery and completed no longer than 15 days from detection of the deficiency unless a longer time is authorized by the agency. Records of the correction or repairs shall include the date and initials of the individual performing these functions and shall be maintained in accordance with subsection (s)(1) [ (t)(1) ] of this section for inspection by the agency.

(6) Documentation of the items in paragraphs (2), (3), and (5) of this subsection shall be maintained at the site where performed and shall include the date and initials of the individual completing these items. These records shall be maintained in accordance with subsection (s)(1) [ (t)(1) ] of this section for inspection by the agency.

(q) [ (s) ] Alternative processing systems. Users of daylight processing systems, laser processors, self-processing film units, or other alternative processing systems shall follow manufacturer's recommendations for image processing. Documentation that the registrant is following manufacturer's recommendations shall include the date and initials of the individual completing the document and shall be maintained at the site where performed in accordance with subsection (s)(1) [ (t)(1) ] of this section for inspection by the agency.

(r) Digital imaging acquisition systems. Users of digital imaging acquisition systems shall follow quality assurance/quality control protocol for image processing established by the manufacturer, or if no manufacturer's protocol is available, by the registrant. The registrant shall include the protocols, whether established by the registrant or the manufacturer, in its operating and safety procedures. The registrant shall document the frequency at which the quality assurance/quality control protocol is performed. Documentation shall include the date and initials of the individual completing the document and shall be maintained at the site where performed in accordance with subsection (s)(1) of this section for inspection by the agency.

(s) [ (t) ] Record/document requirements for mobile services and authorized use locations [ for chiropractic, medical, podiatric, and veterinary facilities ].

(1) Each registrant shall maintain the following records/documents at each site, including authorized records sites for mobile services at the time intervals specified, for inspection by the agency. The records may be maintained in electronic format.

Figure: 25 TAC §289.227(s)(1)

[ Figure: 25 TAC §289.227(t)(1) ]

(2) Records required in items F and S of the graphic figure in paragraph 1 [ paragraph (1)(F), (Q), and (R) ] of this subsection shall include the following:

(A) manufacturer's name, model and serial number [ from the control panel of the radiation machine or from the survey instrument ];

(B) unique identification of the calibrated dosimetry system and results of the intercomparison; and

[ (B) dates of receipt, transfer, and disposal for records required by paragraph (1)(Q) of this subsection; and ]

(C) name of the individual recording the information.

(3) Copies of the records/documents in items (A)-(D), (H), (J), and (N)-(Q) of the graphic figure in paragraph 1 [ paragraph (1)(A)-(D), (H), (J), and (N)-(P) ] of this subsection shall be kept with radiation machines authorized to be used for mobile services. Mobile services with on-board film processors shall maintain the records in items (1)(O)-(Q) of the figure in paragraph 1 [ paragraph (1)(O) and/or (P) ] of this subsection, as applicable, with the processor or system for a period of no less than one year.

(t) [ (u) ] Appendices. The registrant's operating and safety procedures shall include, but are not limited to, the following procedures as applicable:

(1) posting notices to workers in accordance with §289.203(b) of this title;

(2) instructions to workers in accordance with §289.203(c) of this title;

(3) notifications and reports to individuals in accordance with §289.203(d) of this title;

(4) ordering x-ray exams in accordance with §289.231(b)(1) of this title;

(5) occupational dose requirements in accordance with §289.231(m) of this title;

(6) personnel monitoring requirements in accordance with §289.231(n), (q), and (s) of this title;

(7) posting of a radiation area in accordance with §289.231(x) of this title;

(8) use of a technique chart in accordance with subsection (i)(1) of this section;

(9) use of protective devices in accordance with subsection (i)(4) of this section;

(10) credentialing requirements for individuals operating radiation machines in accordance with subsection (i)(5) of this section;

(11) exposure of individuals other than the patient in accordance with subsection (i)(7) of this section;

(12) holding of patients or image receptors in accordance with subsection (i)(8) of this section;

(13) gonadal shielding in accordance with subsection (i)(13) [ (j)(3) ] of this section;

[ (14) use of 20 cm SSD (spacers) in accordance with subsection (o)(6)(D) of this section; ]

(14) [ (15) ] control of scattered radiation in accordance with subsection (m)(8) [ (o)(8) ] of this section; and

(15) [ (16) ] film processing program or digital image processing protocols in accordance with subsections (p), (q), and (r) [ (r) and (s) ] of this section.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on January 15, 2004.

TRD-200400296

Susan K. Steeg

General Counsel

Texas Department of Health

Earliest possible date of adoption: February 29, 2004

For further information, please call: (512) 458-7236


25 TAC §289.231

The Texas Department of Health (department) proposes an amendment to §289.231, concerning general provisions and standards for protection against machine-produced radiation.

Government Code, §2001.039, requires that each state agency review and consider for readoption each rule adopted by that agency pursuant to the Government Code, Chapter 2001 (Administrative Procedure Act). Section 289.231 has been reviewed, and the department has determined that the reasons for adopting the section continue to exist; however, revisions to the rule are necessary as outlined in this preamble.

The department published a Notice of Intention to Review for §289.231 regarding Government Code, §2001.039, in the Texas Register (28 TexReg 6029) on August 1, 2003. No comments were received by the department on this section following publication of this notice.

The Bureau of Radiation Control (BRC) is reallocating resources for regulation of x-ray and nonionizing radiation based on prioritization of risk to public health and safety. Rules governing the use of radiation machines in the healing arts are revised to reflect this prioritization. Risk to public health and safety is primarily based on machine type and type of use rather than the category of facility in which the machines are used. A definition of "Act," which is the statutory authority for the BRC rules, is added as it was inadvertently omitted from a previous version. The words "with license in good standing" are deleted from the definitions of chiropractor, dentist, physician, podiatrist, and veterinarian because they are unnecessary. The word "registrant" is changed to "person" in the definition of dosimetry processor because dosimetry processors are no longer registered by the department. They are required to be certified by the National Voluntary Laboratory Accreditation Program, so it is unnecessary to also require them to register. The definition of laser radiation is changed as a result of Health and Safety Code, §401.003(17). The wording in the requirements for occupational dose, including the definition of shallow dose equivalent, is being revised for clarification to be compatible with the United States Nuclear Regulatory Commission. Requirements providing for on-site routine inspections and remote inspections to be alternated are added for facilities using minimal threat radiation machines and radiation machines used for podiatry. A definition of remote inspection is added. The requirement in the certificate of registration referencing the time period an individual monitoring device shall be worn is deleted because the department no longer regulates dosimetry processors. Other references to certificates of registration for dosimetry processors in the requirements for general surveys and monitoring are deleted for the same reason. The requirement to make and maintain receipt, transfer, and disposal records for radiation machines is deleted and moved to §289.226 of this title (relating to Registration of Radiation Machine Use and Services). The word "medical" has been added to language relating to training for inspectors to clarify that the training applies specifically to radiation machines used for medical purposes. The inspection intervals are changed to reflect a more frequent interval for those machines that present a higher risk versus those with lower or minimal risk. Definitions of machine types and types of use are added to reflect the new categories based on prioritization of risk. Electron microscopes have been removed from the list of minimal threat devices and will no longer be required to be registered. The term, "airport baggage x-ray" has been deleted since these machines are now under the jurisdiction of the Transportation Security Administration. Other minor grammatical changes are made and reference citations are corrected for clarification.

This amendment is part of the department's continuing effort to update, clarify, and simplify its rules regarding the control of radiation based upon technological advances, public concerns, legislative directives, or other factors.

Ruth E. McBurney, C.H.P., Director, Division of Licensing, Registration and Standards, Bureau of Radiation Control, has determined that for each year of the first five years the section will be in effect, there will be no fiscal implications for state or local government as a result of enforcing or administering the section as proposed.

Mrs. McBurney has also determined that for each year of the first five years the proposed section is in effect, the public benefit anticipated as a result of enforcing the section will be to ensure continued protection of the public, workers, and the environment from unnecessary exposure to radiation by ensuring that rules are clear and specific and that use of those machines that pose a higher risk have the appropriate resource allocation. There will be no fiscal impact on applicants/licensees that are small businesses, micro-businesses or other persons required to comply with the rule. No additional costs will be incurred because no new requirements are added. The revisions correct reference citations and clarify the intent. There is no anticipated impact on local employment.

Comments on the proposal may be submitted to Ruth E. McBurney, C.H.P., Director, Division of Licensing, Registration and Standards, Bureau of Radiation Control, Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756-3189, Telephone (512) 834-6688 or electronic mail at Ruth.McBurney@tdh.state.tx.us. Public comments will be accepted for 30 days following publication of this proposal in the Texas Register . In addition, a public meeting to accept oral comments will be held at 9:00 a.m., Tuesday, February 10, 2004, in Conference Room N-218, Texas Department of Health, Bureau of Radiation Control, located at the Exchange Building, 8407 Wall Street, Austin, Texas.

The amendment is proposed under the Health and Safety Code, §401.051, which provides the Texas Board of Health (board) with the authority to adopt rules and guidelines relating to the control of radiation; and §12.001, which provides the board with the authority to adopt rules for its procedure and for the performance of each duty imposed by law on the board, the department, or the commissioner of health.

The amendment affects Health and Safety Code, Chapters 12 and 401. The review of the rule implements Government Code, §2001.039.

§289.231.General Provisions and Standards for Protection Against Machine-Produced Radiation.

(a) - (b) (No change.)

(c) Definitions. The following words and terms when used in this section shall have the following meaning, unless the context clearly indicates otherwise.

(1) (No change.)

(2) Act - Texas Radiation Control Act, Health and Safety Code, Chapter 401.

(3) [ (2) ] Adult - An individual 18 or more years of age.

(4) [ (3) ] Agency - The Texas Department of Health.

(5) [ (4) ] Agreement State - Any state with which the United States Nuclear Regulatory Commission (NRC) has entered into an effective agreement under Section 274b. of the Atomic Energy Act of 1954, as amended (73 Stat. 689).

(6) [ (5) ] As low as is reasonably achievable (ALARA) - Making every reasonable effort to maintain exposures to radiation as far below the dose limits in this chapter as is practical, consistent with the purpose for which the registered activity is undertaken, taking into account the state of technology, the economics of improvements in relation to the state of technology, the economics of improvements in relation to benefits to the public health and safety, and other societal and socioeconomic considerations, and in relation to utilization of ionizing radiation and radiation machines in the public interest.

(7) [ (6) ] Background radiation - Radiation from cosmic sources; non-technologically enhanced naturally occurring radioactive material, including radon, except as a decay product of source or special nuclear material, and including global fallout as it exists in the environment from the testing of nuclear explosive devices or from past nuclear accidents, such as Chernobyl, that contribute to background radiation and are not under the control of the registrant. "Background radiation" does not include radiation from sources of radiation regulated by the agency.

(8) [ (7) ] Certificate of registration - A form of permission given by the agency to an applicant who has met the requirements for registration or mammography system certification set out in the Texas Radiation Control Act (Act) [ Act ] and this chapter.

(9) [ (8) ] Certification of mammography systems (state certification) - A form of permission given by the agency to an applicant who has met the requirements for mammography system certification set out in the Act and this chapter.

(10) [ (9) ] Chiropractor - An individual licensed by the Texas State Board of Chiropractic Examiners [ , with license in good standing ].

(11) [ (10) ] Collective dose - The sum of the individual doses received in a given period of time by a specified population from exposure to a specified source of radiation.

(12) [ (11) ] Declared pregnant woman - A woman who has voluntarily informed the registrant, in writing, of her pregnancy and the estimated date of conception. The declaration remains in effect until the declared pregnant woman voluntarily withdraws the declaration in writing or is no longer pregnant.

(13) [ (12) ] Deep dose equivalent (DDE), that applies to external whole body exposure - The dose equivalent (DE) [ DE ] at a tissue depth of 1 centimeter (cm) (1,000 milligrams per square centimeter (mg/cm 2 )) [ (mg/cm2)) ].

(14) [ (13) ] Dentist - An individual licensed by the Texas State Board of Dental Examiners[ , with license in good standing ].

(15) [ (14) ] Dose - For external exposure to x-ray radiation from radiation machines, a generic term that means absorbed dose, DE, or total effective dose equivalent. For purposes of this chapter, "radiation dose" is an equivalent term.

(16) [ (15) ] Dose equivalent (DE) - The product of the absorbed 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 rem.

(17) [ (16) ] Dose limits - The permissible upper bounds of radiation doses established in accordance with this chapter. For purposes of this chapter, "limits" is an equivalent term.

(18) [ (17) ] Dosimetry processor - A person [ registrant ] that processes and evaluates personnel monitoring devices in order to determine the radiation dose delivered to the monitoring devices.

(19) [ (18) ] Embryo/fetus - The developing human organism from conception until the time of birth.

(20) [ (19) ] Entrance or access point - Any opening through which an individual or extremity of an individual could gain access to radiation areas or to radiation machines. This includes portals of sufficient size to permit human access, irrespective of their intended use.

(21) [ (20) ] Exposure - The quotient of dQ by dm where "dQ" is the absolute value of the total charge of the ions of one sign produced in air when all the electrons (negatrons and positrons) liberated by photons in a volume element of air having mass "dm" are completely stopped in air. The International System of Units (SI) [ SI ] unit of exposure is the coulomb per kilogram (C/kg). The roentgen is the special unit of exposure. For purposes of this chapter, this term is used as a noun.

(22) [ (21) ] Exposure rate - The exposure per unit of time.

(23) [ (22) ] External dose - That portion of the DE received from any source of radiation outside the body.

(24) [ (23) ] Extremity - Hand, elbow, arm below the elbow, foot, knee, and leg below the knee. The arm above the elbow and the leg above the knee are considered part of the whole body.

(25) [ (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 rad.

(26) [ (25) ] High radiation area - An area, accessible to individuals, in which radiation levels from sources of radiation external to the body could result in an individual receiving a DE in excess of 0.1 rem (1 millisievert (mSv)) in one hour at 30 cm from any source of radiation or from any surface that the radiation penetrates.

(27) [ (26) ] Human use - For exposure to x-ray radiation from radiation machines, the external administration of radiation to human beings for healing arts purposes or research and/or development specifically authorized by the agency.

(28) [ (27) ] Individual - Any human being.

(29) [ (28) ] Individual monitoring - The assessment of DE to an individual by the use of:

(A) individual monitoring devices; or

(B) survey data.

(30) [ (29) ] Individual monitoring devices - Devices designed to be worn by a single individual for the assessment of DE. For purposes of this chapter, "personnel dosimeter" and "dosimeter" are equivalent terms. Examples of individual monitoring devices include, but are not limited to, film badges, thermoluminescence dosimeters (TLDs), optically stimulated luminescence dosimeters (OSLs), pocket ionization chambers (pocket dosimeters), and electronic personal dosimeters.

(31) [ (30) ] Inspection - An official examination and/or observation including, but not limited to, records, tests, surveys, and monitoring to determine compliance with the Act and rules, orders, requirements, and conditions of the agency.

(32) [ (31) ] Ionizing radiation - Any electromagnetic or particulate radiation capable of producing ions, directly or indirectly, in its passage through matter. Ionizing radiation includes gamma rays and x rays, alpha and beta particles, high speed electrons, neutrons, and other nuclear particles.

(33) [ (32) ] Lens dose equivalent (LDE) - The external DE to the lens of the eye at a tissue depth of 0.3 cm (300 mg/cm 2 [ 2 ]).

(34) [ (33) ] License - A form of permission given by the agency to an applicant who has met the requirements for licensing set out in the Act and this chapter.

(35) [ (34) ] Licensed material - Radioactive material received, possessed, used, or transferred under a general or specific license issued by the agency.

(36) [ (35) ] Licensee - Any person who is licensed by the agency in accordance with the Act and this chapter.

(37) [ (36) ] Licensing state - Any state with rules equivalent to the Suggested State Regulations for Control of Radiation relating to, and having an effective program for, the regulatory control of naturally occurring or accelerator-produced radioactive material (NARM) and has been designated as such by the Conference of Radiation Control Program Directors, Inc.

(38) [ (37) ] Lost or missing radiation machine(s) - A radiation machine(s) whose location is unknown.

(39) [ (38) ] Machine-produced radiation - A stimulated emission of radiation from a manufactured product or device or component part of a manufactured product or device that has an electronic circuit that during operation can generate or emit a physical field of radiation.

(40) [ (39) ] Manufacture - To fabricate or mechanically produce.

(41) [ (40) ] Member of the public - Any individual, except when that individual is receiving an occupational dose.

(42) [ (41) ] Minimal threat radiation machines - Those radiation machines capable of generating or emitting fields of radiation that, during the operation of which:

(A) no deliberate exposure of an individual occurs;

(B) the radiation is not emitted in an open beam configuration; and

(C) no known physical injury to an individual has occurred.

(43) [ (42) ] Minor - An individual less than 18 years of age.

(44) [ (43) ] Monitoring - The measurement of radiation and the use of the results of these measurements to evaluate potential exposures and doses. For purposes of this chapter, "radiation monitoring" and "radiation protection monitoring" are equivalent terms.

(45) [ (44) ] Occupational dose - The dose received by an individual in the course of employment in which the individual's assigned duties involve exposure to sources of radiation from licensed/registered and unlicensed/unregistered sources of radiation, whether in the possession of the licensee/registrant or other person. Occupational dose does not include dose received from background radiation, from any medical administration the individual has received, from exposure to individuals administered radioactive material and released in accordance with this chapter, from voluntary participation in medical research programs, or as a member of the public.

(46) [ (45) ] Particle accelerator - Any machine capable of accelerating electrons, protons, deuterons, or other charged particles in a vacuum and designed to discharge the resultant particulate or other associated radiation at energies usually in excess of 1 MeV.

(47) [ (46) ] Person - Any individual, corporation, partnership, firm, association, trust, estate, public or private institution, group, agency, local government, any other state or political subdivision or agency thereof, or any other legal entity, and any legal successor, representative, agent, or agency of the foregoing, other than the NRC, and other than federal government agencies licensed or exempted by the NRC.

(48) [ (47) ] Personnel monitoring equipment (See definition for individual monitoring devices.)

(49) [ (48) ] Physician - An individual licensed by the Texas State Board of Medical Examiners [ , with license in good standing ].

(50) [ (49) ] Podiatrist - An individual licensed by the Texas State Board of Podiatric Examiners [ , with license in good standing ].

(51) [ (50) ] Public dose - The dose received by a member of the public from exposure to sources of radiation released by a licensee, or to any other source of radiation under the control of a licensee/registrant. It does not include occupational dose or doses received from background radiation, from any medical administration the individual has received, from exposure to individuals administered radioactive material and released in accordance with this chapter, or from voluntary participation in medical research programs.

(52) [ (51) ] Quarter - A period of time equal to one-fourth of the year observed by the registrant, approximately 13 consecutive weeks, providing that the beginning of the first quarter in a year coincides with the starting date of the year and that no day is omitted or duplicated in consecutive quarters.

(53) [ (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 (0.01 gray).

(54) [ (53) ] Radiation - One or more of the following:

(A) gamma and x rays; alpha and beta particles and other atomic or nuclear particles or rays;

(B) radiation emitted to energy density levels that could reasonably cause bodily harm from an electronic device [ stimulated emission of radiation from any electronic device to such energy density levels as to reasonably cause bodily harm ]; or

(C) sonic, ultrasonic, or infrasonic waves from any electronic device or resulting from the operation of an electronic circuit in an electronic device in the energy range to reasonably cause detectable bodily harm.

(55) [ (54) ] Radiation area - Any area, accessible to individuals, 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 radiation machine or from any surface that the radiation penetrates.

(56) [ (55) ] Radiation machine - Any device capable of producing ionizing radiation except those devices with radioactive material as the only source of radiation.

(57) [ (56) ] Radiation safety officer (RSO) - An individual who has a knowledge of and the authority and responsibility to apply appropriate radiation protection rules, standards, and practices, who must be specifically authorized on a certificate of registration, and who is the primary contact with the agency.

(58) [ (57) ] Registrant - Any person issued a certificate of registration by the agency in accordance with the Act and this chapter.

(59) [ (58) ] Regulation (See definition for rule.)

(60) [ (59) ] Rem - The special unit of any of the quantities expressed as DE. The DE in rem is equal to the absorbed dose in rad multiplied by the quality factor (1 rem = 0.01 sievert (Sv)).

(61) Remote inspection - An examination by the agency of information submitted by the registrant on a form provided by the agency.

(62) [ (60) ] Research and development - Research and development is defined as:

(A) theoretical analysis, exploration, or experimentation; or

(B) the extension of investigative findings and theories of a scientific or technical nature into practical application for experimental and demonstration purposes, including the experimental production and testing of models, devices, equipment, materials, and processes.

(63) [ (61) ] Restricted area - An area, access to which is limited by the registrant for the purpose of protecting individuals against undue risks from exposure to radiation. Restricted area does not include areas used as residential quarters, but separate rooms in a residential building may be set apart as a restricted area.

(64) [ (62) ] Roentgen (R) - The special unit of exposure. One roentgen (R) equals 2.58 x 10 -4 [ -4 ]C/kg of air. (See definition for exposure.)

(65) [ (63) ] Rule (as defined in the Government Code, Chapters 2001 and 2002, as amended) - Any agency statement of general applicability that implements, interprets, or prescribes law or policy, or describes the procedure or practice requirements of an agency. The term includes the amendment or repeal of a prior section but does not include statements concerning only the internal management or organization of any agency and not affecting private rights or procedures. The word "rule" was formerly referred to as "regulation."

(66) [ (64) ] Shallow dose equivalent (SDE) - The DE at a tissue depth of 0.007 cm (7 mg/cm 2 [ 2 ]) that applies to the external exposure of the skin of the whole body or the skin of an extremity. [ averaged over an area of 1 square centimeter (cm2) (applies to the external exposure of the skin or an extremity). ]

(67) [ (65) ] SI - The abbreviation for the International System of Units.

(68) [ (66) ] Sievert (Sv) - The SI unit of any of the quantities expressed as DE. The DE in sievert is equal to the absorbed dose in gray multiplied by the quality factor (1 Sv = 100 rem).

(69) [ (67) ] Site boundary - That line beyond which the land or property is not owned, leased, or otherwise controlled by the registrant.

(70) [ (68) ] Source of radiation - Any radioactive material, or any device or equipment emitting or capable of producing radiation.

(71) [ (69) ] Special units - The conventional units historically used by registrants, for example [ i.e. ], rad (absorbed dose), and rem (DE).

(72) [ (70) ] Survey - An evaluation of the radiological conditions and potential hazards incident to the production, use, transfer, disposal, and/or presence of sources of radiation. When appropriate, such survey includes, but is not limited to, tests, physical examination of location of equipment, measurements of levels of radiation present, and evaluation of administrative and/or engineered controls.

(73) [ (71) ] Termination - A release by the agency of the obligations and authorizations of the registrant under the terms of the certificate of registration. It does not relieve a person of duties and responsibilities imposed by law.

(74) [ (72) ] Texas Regulations for Control of Radiation (TRCR) - All sections of Title 25 Texas Administrative Code (TAC), Chapter 289.

(75) [ (73) ] Total effective dose equivalent (TEDE) - For external exposures only to x-ray radiation from radiation machines, the TEDE is equal to the DDE. If an individual receives an occupational dose from both radiation machines and radioactive materials, the TEDE is the sum of the DDE for external exposures and the committed effective dose equivalent for internal exposures as defined in §289.201(b) of this title.

(76) [ (74) ] Unrestricted area (uncontrolled area) - An area, access to which is neither limited nor controlled by the registrant. For purposes of this chapter, "uncontrolled area" is an equivalent term.

(77) [ (75) ] Very high radiation area - An area, accessible to individuals, in which radiation levels from sources of radiation external to the body could result in an individual receiving an absorbed dose in excess of 500 rads (5 grays) in one hour at 1 meter (m) from a radiation machine or from any surface that the radiation penetrates. At very high doses received at high dose rates, units of absorbed dose, gray and rad, are appropriate, rather than units of DE, Sv and rem.

(78) [ (76) ]Veterinarian - An individual licensed by the Texas Board of Veterinary Medical Examiners [ , with license in good standing ].

(79) [ (77) ] Week - Seven consecutive days starting on Sunday.

(80) [ (78) ] Whole body - For purposes of external exposure, head, trunk including male gonads, arms above the elbow, or legs above the knee.

(81) [ (79) ] Worker - An individual engaged in work under a certificate of registration issued by the agency and controlled by a registrant, but does not include the registrant.

(82) [ (80) ] Year - The period of time beginning in January used to determine compliance with the provisions of this chapter. The registrant may change the starting date of the year used to determine compliance by the registrant provided that the change is made at the beginning of the year and that no day is omitted or duplicated in consecutive years.

(d) - (f) (No change.)

(g) Violations. A court [ An ] injunction or agency [ other court ] order may be issued [ obtained ] prohibiting any violation of any provision of the Act or any rule or order issued thereunder. Any person who willfully violates any provision of the Act or any rule or order issued thereunder may be subject to civil and/or administrative penalties. Such person may also be guilty of a misdemeanor and upon conviction, may be punished by fine or imprisonment or both, as provided by law.

(h) - (i) (No change.)

(j) Interpretations. Except as specifically authorized by the agency in writing, no interpretation of the meaning of this chapter by any officer or employee of the agency other than a written legal interpretation by the agency, [ Office of General Counsel, Texas Department of Health, ] will be considered binding upon the agency.

(k) Mean quality factors and absorbed dose equivalencies.

(1) (No change.)

(2) If it is more convenient to measure the neutron fluence rate than to determine the neutron dose equivalent rate in sievert per hour or rem per hour, as provided in paragraph (1) of this subsection, 1 rem (0.01 Sv) of neutron radiation of unknown energies may, for purposes of this section, be assumed to result from a total fluence of 25 million neutrons per square centimeter incident upon the body. If sufficient information exists to estimate the approximate energy distribution of the neutrons, the licensee or registrant may use the fluence rate per unit DE or the appropriate Q value from the following table to convert a measured tissue dose in rad (gray) to DE in rem (Sv).

Figure: 25 TAC §289.231(k)(2)

(l) (No change.)

(m) Occupational dose limits.

(1) The registrant shall control the occupational dose to individuals to the following dose limits.

(A) (No change.)

(B) The annual limits to the lens of the eye, to the skin of the whole body, and to the skin of the extremities shall be:

(i) an LDE of 15 rems (0.15 Sv); and

(ii) an SDE of 50 rems (0.5 Sv) to the skin of the whole body , or to the skin of any extremity.

(C) - (D) (No change.)

(2) The assigned DDE [ and SDE ] shall be for the portion of the body receiving the highest exposure. The assigned SDE shall be the dose averaged over the contiguous 10 square centimeters of skin receiving the highest exposure.

(3) (No change.)

(4) The DDE, LDE, and SDE may be assessed from surveys[ , calculations, ] or radiation measurements for the purpose of demonstrating compliance with the occupational dose limits, if the individual monitoring device was not in the region of highest potential exposure, or the results of individual monitoring are unavailable.

(5) (No change.)

(n) Conditions requiring individual monitoring of occupational dose.

(1) (No change.)

(2) Notwithstanding the requirements of paragraph (1)(A) of this subsection, no personnel monitoring shall be required for personnel operating only minimal threat radiation machines as specified in subsection (ll)(3) [ (ll)(2) ] of this section.

(o) - (p) (No change.)

(q) Location and use of individual monitoring devices.

(1) Each registrant shall ensure that individuals who are required to monitor occupational doses in accordance with subsection (n)(l) of this section wear and use individual monitoring devices as follows.

(A) - (E) (No change.)

[ (F) An individual monitoring device shall be worn for the period of time authorized by the dosimetry processor's certificate of registration or for no longer than three months, whichever is more restrictive. ]

(2) - (3) (No change.)

(r) Determination of occupational dose for the current year.

(1) - (4) (No change.)

(5) If an individual has incomplete ( for example, [ e.g., ] a lost or damaged personnel monitoring device) current occupational dose data for the current year and that individual is employed solely by the registrant during the current year, the registrant shall:

(A) - (C) (No change.)

(6) Administrative controls established in accordance with paragraph (4) of this subsection shall be documented and maintained for inspection by the agency. Occupational dose assessments made in accordance with paragraph (5) of this subsection and records of data used to make the assessment shall be maintained for inspection by the agency. The registrant shall retain the records in accordance with subsection (ll)(6) [ (ll)(5) ] of this section.

(s) General surveys and monitoring.

(1) (No change.)

(2) The registrant shall ensure that instruments and equipment used for qualitative and quantitative radiation measurements, for example, dose rate, are operable and calibrated:

(A) - (E) (No change.)

(3) All individual monitoring devices, except for direct and indirect reading pocket dosimeters, electronic personal dosimeters, and those individual monitoring devices used to measure the dose to any extremity, that require processing to determine the radiation dose and that are used by registrants to comply with subsection (m) of this section, with other applicable provisions of this chapter, [ or with conditions specified in a certificate of registration, ] shall be processed and evaluated by a dosimetry processor:

(A) holding current personnel dosimetry accreditation from the National Voluntary Laboratory Accreditation Program (NVLAP) of the National Institute of Standards and Technology; and

(B) approved in this accreditation process for the type of radiation or radiations included in the NVLAP program that most closely approximates the type of radiation or radiations for which the individual wearing the dosimeter is monitored . [ ; and ]

[ (C) holding a current certificate of registration from the agency authorizing dosimetry processing. ]

(t) Control of access to high radiation areas.

(1) - (4) (No change.)

(5) The registrant is not required to control entrance or access to rooms or other areas containing radiation machines capable of producing a high radiation area as described in this subsection if the registrant has met all the specific requirements for access and control specified in other applicable sections of this chapter, such as [ , §289.119 of this title (relating to Radiation Safety Requirements for Particle Accelerators), ] §289.227 of this title (relating to Use of Radiation Machines in the Healing Arts [ and Veterinary Medicine ]), §289.229 of this title (relating to Radiation Safety for Accelerators, Therapeutic Radiation Machines, and Simulators), and §289.255 of this title (relating to Radiation Safety Requirements and Licensing and Registration Procedures for Industrial Radiography).

(u) Control of access to very high radiation areas.

(1) (No change.)

(2) The registrant is not required to control entrance or access to rooms or other areas containing radiation machines capable of producing a very high radiation area as described in paragraph (1) of this subsection if the registrant has met all the specific requirements for access and control specified in other applicable sections of this chapter, such as [ , §289.119 of this title, ] §289.227 of this title, §289.229 of this title, and §289.255 of this title.

(3) (No change.)

(v) (No change.)

(w) Caution signs. Unless otherwise authorized by the agency, the standard radiation symbol prescribed shall use the colors magenta, or purple, or black on yellow background. The standard radiation symbol prescribed is the three-bladed design as follows:

Figure: 25 TAC §289.231(w) (No change.)

(1) the cross-hatched area of the symbol is to be magenta, [ or ] purple, or black; and

(2) (No change.)

(x) - (z) (No change.)

(aa) Open records.

(1) - (2) (No change.)

(3) The agency will determine whether information falls within one of the exceptions to the Texas Public Information Act. The agency [ Office of General Counsel ] will determine [ be queried as to ] whether or not there has been a previous determination that the information falls within one of the exceptions to the Texas Public Information Act. If there has been no previous determination and the agency believes that the information falls within one of the exceptions, an opinion of the Attorney General will be requested. If the agency agrees in writing to the request, the information shall not be open for public inspection unless the Attorney General's office subsequently determines that it does not fall within an exception.

(4) (No change.)

(bb) General provisions for records.

(1) All records required by this chapter shall be accurate and factual. These records shall be maintained by the registrant in accordance with subsection (ll)(6) of this section. Additional record requirements are specified elsewhere in this chapter.

[ (1) Each registrant shall make and maintain records showing the receipt, transfer, and disposal of all radiation machines. These records shall be maintained by the registrant in accordance with subsection (ll)(5) of this section. Additional record requirements are specified elsewhere in this chapter. All records required by this chapter shall be accurate and factual. ]

(2) - (4) (No change.)

(5) Records required in accordance with [ paragraph (1) of this subsection, and ] subsections (cc)-(ee) of this section shall include the date and the identification of individual(s) making the record, and, as applicable, a unique identification of survey instrument(s) used, and an exact description of the location of the survey. [ Records of receipt, transfer, and disposal shall uniquely identify the radiation machine(s). ]

(6) Copies of records required in accordance with [ paragraph (1) of this subsection, and ] subsections (cc)-(ee) of this section, and by certificate of registration conditions that are relevant to operations at an additional authorized use/storage site shall be maintained at that site in addition to the main site specified on a certificate of registration in accordance with subsection (ll)(6) [ (ll)(5) ] of this section.

(cc) Records of surveys.

(1) Each registrant shall make and maintain records showing the results of surveys and calibrations required by subsection (s) of this section. The registrant shall retain these records in accordance with subsection (ll)(6) [ (ll)(5) ] of this section.

(2) The registrant shall retain the results of surveys to determine the dose from external sources of radiation used, in the absence of or in combination with individual monitoring data, in the assessment of individual DEs in accordance with subsection (ll)(6) [ (ll)(5) ] of this section.

(dd) Records of individual monitoring results.

(1) Each registrant shall make and maintain records in accordance with subsection (r) of this section of the doses received by all individuals for whom monitoring was required in accordance with subsection (n) of this section, and records of doses received 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:

(A) the DDE to the whole body, LDE, SDE to the skin of the whole body , and SDE to the skin of any extremities; and

(B) (No change.)

(2) The registrant shall make entries of the records specified in paragraph (1) of this subsection at intervals not to exceed one year and within 90 [ 60 ] days of the end of the year.

(3) - (4) (No change.)

(5) The registrant shall retain each required form or record required by this subsection and records used in preparing BRC Form 231-3 or equivalent in accordance with subsection (ll)(6) [ (ll)(5) ] of this section. [ The registrant shall retain records used in preparing BRC Form 231-3 or equivalent in accordance with subsection (ll)(5) of this section. ]

(ee) Records of dose to individual members of the public.

(1) (No change.)

(2) The registrant shall retain the records required by paragraph (1) of this subsection in accordance with subsection (ll)(6) [ (ll)(5) ] of this section.

(ff) - (gg) (No change.)

(hh) Notification of incidents.

(1) Notwithstanding other requirements for notification, each registrant shall immediately report each event involving a radiation machine possessed by the registrant that may have caused or threatens to cause an individual to receive:

(A) - (B) (No change.)

(C) an SDE to the skin of the whole body or to the skin of the extremities of 250 rads (2.5 grays) or more.

(2) Each registrant shall, within 24 hours of discovery of the event, report to the agency each event involving loss of control of a radiation machine possessed by the registrant that may have caused, or threatens to cause an individual to receive, in a period of 24 hours:

(A) - (B) (No change.)

(C) an SDE to the skin of the whole body or to the skin of the extremities exceeding 50 rems (0.5 Sv).

(3) - (4) (No change.)

(ii) - (jj) (No change.)

(kk) Inspections.

(1) - (3) (No change.)

(4) Inspection [ Routine inspection ] of radiation machines and services.

(A) Routine inspections by agency personnel will be made no more frequently than the intervals specified in subsection (ll)(2) [ (ll)(1) ] of this section. Registrants having certificates of registration authorizing multiple uses will be inspected at the most frequent interval specified for the uses authorized.

[ (B) Notwithstanding the provisions of subparagraph (A) of this paragraph, for those radiation machines determined by the agency to constitute a minimal threat to human health and safety, the routine inspection interval will be five years. The applicable categories are listed in subsection (ll)(2) of this section. ]

(B) [ (C) ] Notwithstanding the inspection intervals specified in this section, the agency may inspect registrants more frequently due to:

(i) the persistence or severity of violations found during an inspection;

(ii) investigation of an incident or complaint concerning the facility;

(iii) a request for an inspection by a worker(s) in accordance with §289.203 of this title;

(iv) any change in a facility or equipment that might cause a significant increase in radiation output or hazard; or

(v) a mutual agreement between the agency and registrant.

(C) On-site routine inspections and remote inspections may be alternated.

(D) On-site routine inspections and remote inspections will be alternated for the following:

(i) facilities possessing and using only radiation machines defined as minimal threat machines in accordance with subsection (ll)(3) of this section; and

(ii) facilities possessing and using only radiographic machines for podiatry.

(E) For remote inspection of radiation machines, each registrant shall respond to a request from the agency for a remote inspection by perfuming the following:

(i) completing the remote inspection forms in accordance with the instructions included with the forms; and

(iii) returning to the agency the completed remote inspection forms with documentation of the most recent equipment performance evaluation performed in accordance with section §289.227(q) of this title, by the deadline indicated on the form.

(F) [ (D) ] The agency will conduct inspections of [ medical, podiatric medical, veterinary, and chiropractic ] radiation machines or lasers in a manner designed to cause as little disruption of a healing arts [ medical, podiatric medical, veterinary, or chiropractic ] practice as is practicable.

(5) A person who inspects medical [ , podiatric medical, veterinary, or chiropractic ] radiation machines or lasers will have training in the design and uses of the machines [ products ] and will receive training specified in subsection (ll)(4) and/or (5) [ (ll)(3) and/or (4) ] of this section.

(6) Each registrant shall perform, upon instructions from the agency, or shall permit the agency to perform such reasonable surveys as the agency deems appropriate or necessary including, but not limited to, surveys of:

(A) (No change.)

(B) facilities where [ wherein ] radiation machines are used or stored;

(C) - (D) (No change.)

(ll) Appendices.

(1) Definitions of Machine Types and Types of Use. For the purposes of this section, the listed machine types and types of use have the following meanings: [ Routine inspection intervals for registrants. ]

[ Figure: 25 TAC §289.231(ll)(1) ]

(A) CT - computerized tomography machines used for medical purposes;

(B) fluoroscopy - fluoroscopic machines used for medical purposes;

(C) accelerators, simulators and other therapeutic machines used for medical purposes;

(D) radiographic only - facilities possessing and using only radiographic machines for medical purposes, including but not limited to, tomography, chiropractic machines, and bone densitometers;

(E) podiatric radiographic only - facilities possessing and using only radiographic machines for podiatry. This category may also include bone densitometers;

(F) minimal threat only - facilities possessing and using only machines defined as minimal threat machines;

(G) industrial radiography only - facilities possessing and using radiographic machines for industrial radiography, including accelerators. This category includes machines used at permanent and temporary job sites;

(H) other industrial - facilities possessing and using radiation machines for other industrial purposes (non-human use), including diffraction, hand-held light intensifying imaging devices, flash radiography, accelerators, CT, and fluoroscopy;

(I) services - persons providing the services listed in §289.226(b)(10) of this title;

(J) laser (human use/research/academic) - lasers used for medical and/or research or academic purposes, including veterinary use; and

(K) laser other (industrial/entertainment/services) - lasers used for industrial purposes, for demonstration/sales, and for stationary/mobile entertainment light shows. This category also includes facilities that provide calibration/repair services for lasers and that provide lasers to facilities for short periods of time.

(2) Inspection intervals for registrants.

Figure: 25 TAC §289.231(ll)(2)

(3) [ (2) ] Minimal threat radiation machines. Minimal threat radiation machines include, but are not limited to, the following:

[ (A) electron microscope; ]

(A) [ (B) ] x-ray fluorescence (machine);

(B) [ (C) ] x-ray gauges;

(C) [ (D) ] particle size analyzer (x-ray);

[ (E) airport baggage x-ray; ]

(D) [ (F) ] electron beam welding;

(E) [ (G) ] ion implantation devices;

(F) [ (H) ] cathodoluminescence devices;

(G) [ (I) ] package x-ray; and

(H) [ (J) ] certified cabinet x-ray.

(4) [ (3) ] Training for agency inspectors of radiation machines for human use .

(A) Objectives. Training of agency individuals performing inspections of [ inspectors of ] radiation machines for human use will be conducted by the agency. Upon completion of training, the inspector will be able to:

(i) select and operate the necessary testing equipment used to perform an inspection of radiation machines;

(ii) utilize radiation protection principles;

(iii) operate radiation detection instruments;

(iv) define basic regulatory terminology;

(v) apply this section regarding radiation machines;

(vi) perform routine agency inspections of radiation machines;

(vii) complete agency inspection documentation;

(viii) demonstrate knowledge of agency ethics, professional, and technical policies; and

(ix) successfully achieve the objectives in this subparagraph.

(B) Initial training program.

(i) Initial training will be conducted during a six-month period.

(ii) All training evaluation instruments will be developed by the agency.

(iii) Instruments to be used in determining a proficiency level are as follows:

(I) evaluation of each inspector's training needs prior to initial training;

(II) evaluation of knowledge obtained and verification of tasks performed by each inspector subsequent to training received by the agency; and

(III) evaluation of each inspector's task performance by the agency.

(C) Continuing education.

(i) The agency inspector of radiation machines for human use will accumulate 24 hours of continuing education regarding radiation machines for human use , at intervals not to exceed 24 months. These hours of continuing education may be acquired as follows:

(I) documented continuing education earned in an agency-accepted training format; and

(II) agency staff meetings.

(ii) Failure to obtain 24 hours of continuing education within each 24-month interval may result in a reassessment by the agency of an agency inspector's proficiency level.

(iii) After the initial training period, each inspector of radiation machines for human use will be evaluated by the agency, at intervals not to exceed 12 months.

(D) Agency proficiency standards. The agency proficiency standards for agency inspectors of radiation machines for human use are as follows.

(i) Level I. The agency inspector has not successfully achieved the objectives in subparagraph (A) of this paragraph after the initial training period. Additional training is required. Unsupervised inspections will not be performed.

(ii) Level II. The agency inspector has partially achieved the objectives in subparagraph (A) of this paragraph, but has not achieved the objective in subparagraph (A)(ix) of this paragraph after the initial training period. Additional training is required. Unsupervised inspections are not permitted for the type of radiation machines for human use for which the objectives of subparagraph (A)(ix) of this paragraph have not been achieved. Unsupervised inspections may be performed for the type of radiation machines for human use for which the objectives in subparagraph (A)(ix) of this paragraph have been successfully achieved.

(iii) Level III. The agency inspector has successfully achieved the objectives in subparagraph (A) of this paragraph. Supervision is not required for routine inspections.

(5) [ (4) ] Training for agency inspectors of lasers. Initial training will include an introduction to the requirements in this chapter and inspection forms. Inspections of two medical and two entertainment lasers, conducted by an inspector having completed the requirements of this paragraph, shall be observed before unsupervised inspection of lasers is permitted.

(6) [ (5) ] Time requirements for record keeping. The following are time requirements for record keeping.

Figure: 25 TAC §289.231(ll)(6)

[ Figure: 25 TAC §289.231(ll)(5) ]

(7) [ (6) ] Occupational exposure form. The following, BRC Form 231-3, is to be used to document occupational exposure record for a monitoring period . [ : (Please find BRC Form 231-3 at the end of this section). ]

Figure: 25 TAC §289.231(ll)(7) (.pdf)

[ Figure: 25 TAC §289.231(ll)(6) ]

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on January 15, 2004.

TRD-200400293

Susan K. Steeg

General Counsel

Texas Department of Health

Earliest possible date of adoption: February 29, 2004

For further information, please call: (512) 458-7236


25 TAC §289.233

The Texas Department of Health (department) proposes new §289.233, concerning radiation control regulations for radiation machines used in veterinary medicine.

The new section consolidates requirements that are applicable only to persons using radiation machines in veterinary medicine from the current requirements in §289.203 (relating to Notices, Instructions, and Reports to Workers; Inspections), §289.204 (relating to Fees for Certificates of Registration, Radioactive Material Licenses, Emergency Planning and Implementation, and Other Regulatory Services), §289.205 (relating to Hearing and Enforcement Procedures), §289.226 (relating to Registration of Radiation Machine Use and Services), §289.227 (relating to Use of Radiation Machines in the Healing Arts and Veterinary Medicine), and §289.231 (relating to General Provisions and Standards for Protection Against Machine-Produced Radiation). The requirements for other types of radiation machines found in those sections are much lengthier and more complex. Therefore, separating and consolidating the requirements applicable only to radiation machines used in veterinary medicine will provide for a more efficient rule and less burden on the persons required to comply with these requirements.

In addition to the consolidation of requirements, the proposed new rule incorporates legislation passed by the 78th Legislature, Regular Session. House Bill (HB) 2292 requires two-year terms for certificates of registration and requires recovery through fees of 100% of regulatory program costs for the two-year term of the certificate of registration. Therefore, references to annual fees are omitted throughout the section. The department is also simplifying its fee structure for certificates of registration. Registrants that use radiation machines in veterinary medicine now have one specified fee of $240 every two years, rather than a base fee plus machine fee. References to base fee and machine fee are omitted throughout the section. The registrant will be required to renew the certificate of registration every two years by paying the required fee and having a satisfactory compliance history. Registrants will receive a fee bill from the department every two years rather than every year. The requirement for an annual late payment fee is omitted. Senate Bill 1152, 78th Legislature, Regular Session, directs the department to participate in Texas Online, an electronic fee payment system developed and maintained by the Texas Online Authority. Wording is added that authorizes the department to collect subscription and convenience fees, in amounts determined by the Texas Online Authority, to recover costs associated with application and renewal application processing through Texas Online. The implementation of these requirements is reflected in subsections (g) and (h)(6).

The revision changed references to the Formal Hearing Procedures throughout the rule to properly cite the references. A definition of "Act," which is the statutory authority for the radiation control rules, is added as it was inadvertently omitted from a previous version. The definitions of "notice of violation," "radiation," "shallow dose equivalent," and "supervision" are revised to be consistent with language used in other sections in this title. The definitions of "mobile service operation" and "x-ray equipment" are revised to more clearly state the intent of the rule. The wording in the requirements concerning occupational dose, including the definition of shallow dose equivalent, is clarified to be compatible with the United States Nuclear Regulatory Commission (NRC), and as an agreement state, Texas must adopt these requirements. The word "registrant" was replaced with "person" in several subsections because the applicable requirements are not limited to registrants. The requirements apply to any person not complying with the provisions of this chapter.

House Bill 253, 78th Legislature, Regular Session, requires the department to deny a certificate of registration application, amendment or renewal if the applicant's compliance history reveals a recurring pattern of conduct that demonstrates a consistent disregard for the regulatory process through significant violations of the Radiation Control Act or the department's radiation control rules. The department has defined "a recurring pattern of conduct that demonstrates a consistent disregard for the regulatory process through significant violations..." by adding a requirement that states the department will deny an application if at least three department or judicial orders are issued that assess administrative or civil penalties against the registrant or to revoke or suspend the certificate of registration. The requirement is reflected in subsection (h)(4)(D).

Subsection (h)(5)(A) and (B) includes inventory requirements to ensure registrants, especially those with multiple radiation machines, are aware of the location of machines and how many machines the registrant possesses. The requirements for radiation machines used for loaner or demonstration radiation machines include specific notification requirements. Language is included for the expiration and termination subsections to clarify requirements for the disposition or transfer of radiation machines if a registrant terminates a certificate of registration or it expires. In subsection (h)(8)(B), clause (iv) states that a certificate of registration may also be modified, suspended, or revoked in whole or in part as a result of existing conditions that constitute a substantial threat to the public health or safety or the environment to be consistent with language used in other sections of this title. Subsections (h)(9)(A)(vii) and (h)(9)(G) expand the requirements for requesting reciprocal recognition to be consistent with language used throughout this chapter. Subsection (i)(2)(A) specifies that a registrant shall document that each individual operating a radiation machine has read the operating and safety procedures. Subsection (i)(5)(S) requires registrants using radiation machines in veterinary medicine to perform, or cause to be performed, tests necessary to assure proper function of equipment with the indicated standard for the machine timer, kilovolt peak, tube stability, and collimation. Paragraphs (6) and (7) of subsection (i) include only a limited number of requirements for fluoroscopic and CT x-ray systems used on animals compared to the requirements for fluoroscopic and CT x-ray systems used on humans. Subsection (i)(11) specifies that users of digital imaging acquisition systems shall follow quality assurance/quality control protocols, that such protocols shall be included in the registrant's operating and safety procedures, and that the frequency at which the protocols are performed shall be documented. The method by which inspections are performed is modified based upon a review of how radiation machines used in veterinary medicine are regulated, compliance history, and the health and safety risk associated with the use of such machines is reflected in subsection (k)(1)(R) and (S).

This new rule is part of the department's continuing effort to update, clarify, and simplify its rules regarding the control of radiation based upon technological advances, public concerns, legislative directives, other factors, or to incorporate requirements that are items of compatibility with NRC regulations because as an agreement state, Texas must adopt compatible requirements.

Ruth E. McBurney, C.H.P., Director, Division of Licensing, Registration and Standards, Bureau of Radiation Control, has determined that for each year of the first five years the section will be in effect, there will be no fiscal implications for state or local government as a result of enforcing or administering the section as proposed. The subscription and convenience fees for electronic payment of fees as determined by Texas Online will be collected by the department and paid directly to the Texas Online Authority to offset the costs to state government for operating Texas Online.

Mrs. McBurney has also determined that for each year of the first five years the proposed section will be in effect, the public benefit anticipated as a result of enforcing the section will be to ensure continued protection of the public, workers, and the environment from unnecessary exposure to radiation by ensuring that rules are clear and specific and that those persons required to operate radiation machines do so in ways that ensure such protection. There will be fiscal impact on applicants/licensees that are small businesses, micro-businesses or other persons required to comply with the rule. The fee amounts will increase for some registrants and will decrease for others because the department is implementing one specified fee, rather than a base fee plus a machine fee. Approximately 19% of veterinary registrants will have an average decrease in fee of $25. Approximately 81% will have an average increase in fee of $5. There will also be an additional cost to registrants ranging from $25 to $150 per radiographic machine to have the equipment performance evaluations performed for the radiographic machines that are required every five years. When implemented, the subscription and convenience fees determined by Texas Online will be $10 for credit card use by registrants. There is no anticipated impact on local employment.

Comments on the proposal may be submitted to Ruth E. McBurney, C.H.P., Director, Division of Licensing, Registration and Standards, Bureau of Radiation Control, Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756-3189, Telephone (512) 834-6688 or electronic mail at Ruth.McBurney@tdh.state.tx.us. Public comments will be accepted for 30 days following publication of this proposal in the Texas Register . In addition, a public meeting to accept oral comments will be held at 1:00 p.m., Tuesday, February 10, 2004, in Conference Room N-218, Texas Department of Health, Bureau of Radiation Control, located at the Exchange Building, 8407 Wall Street, Austin, Texas.

The new rule is proposed under the Health and Safety Code, §401.051, which provides the Texas Board of Health (board) with the authority to adopt rules and guidelines relating to the control of radiation; and §12.001, which provides the board with the authority to adopt rules for its procedure and for the performance of each duty imposed by law on the board, the department, or the commissioner of health.

The new rule affects Health and Safety Code, Chapters 12 and 401.

§289.233.Radiation Control Regulations for Radiation Machines Used in Veterinary Medicine.

(a) Purpose. This section establishes the following.

(1) Fees for certificates of registration for veterinary facilities and provisions for their payment.

(2) Requirements for the registration of persons using radiation machines. No person shall use radiation machines except as authorized in a certificate of registration issued by the agency in accordance with the requirements of this section. A person who receives, possesses, uses, owns, or acquires radiation machines prior to receiving a certificate of registration is subject to the requirements of this chapter.

(3) Requirements intended to control the receipt, possession, use, and transfer of radiation machines by any person so the total dose to an individual, including doses resulting from all radiation machines other than background radiation, does not exceed the standards for protection against radiation prescribed in this section. However, nothing in this section shall be construed as limiting actions that may be necessary to protect health and safety in an emergency.

(4) Requirements for the use of radiation machines used in veterinary medicine. The registrant shall assure that the requirements of this section are met in the operation of such radiation machines.

(5) Specific record keeping requirements and general provisions for records and reports.

(6) Requirements for providing notices to employees and instructions and options available to such individuals in connection with agency inspections of registrants to ascertain compliance with the provisions of the Texas Radiation Control Act (Act), Health and Safety Code, Chapter 401, and requirements of this chapter, orders, and certificates of registration issued thereunder regarding radiological working conditions.

(7) Governing of the following in accordance with the Act, Health and Safety Code, Chapter 401; the Texas Administrative Procedure Act, Texas Government Code, Chapter 2001; Title 1, Texas Administrative Code (TAC), Chapter 155; and the Formal Hearing Procedures, §§1.21, 1.23, 1.25, and 1.27 of this title (relating to the Texas Board of Health).

(A) proceedings for the granting, denying, renewing, transferring, amending, suspending, revoking, or annulling of a certificate of registration;

(B) determining compliance with or granting of exemptions from requirements of this chapter, an order, or a condition of certificate of registration;

(C) assessing administrative penalties; and

(D) determining propriety of other agency orders.

(b) Scope.

(1) Except as specifically provided in other sections of this chapter, this section applies to persons who receive, possess, use, or transfer radiation machines used in veterinary medicine. The dose limits in this section do not apply to doses due to background radiation or voluntary participation in medical research programs. No radiation may be deliberately applied to animals except by or under the supervision of a veterinarian authorized by the Texas Board of Veterinary Medical Examiners to engage in veterinary medicine.

(2) Registrants who are also registered by the agency to receive, possess, acquire, transfer, or use class IIIb and class IV lasers in veterinary medicine shall also comply with the requirements of §289.301 of this title (relating to Registration of Radiation Safety Requirements for Lasers).

(3) Registrants who are also registered by the agency to receive, possess, transfer, or use accelerators, therapeutic radiation machines, and radiation therapy simulation systems for use in veterinary medicine shall also comply with the requirements of §289.229 of this title (relating to Radiation Safety Requirements for Accelerators, Therapeutic Radiation Machines, and Simulators).

(4) Registrants who are also licensed by the agency to receive, possess, use, and transfer radioactive materials must also comply with the applicable requirements of §289.201 of this title (relating to General Provisions for Radioactive Material), §289.202 of this title (relating to Standards for Protection Against Radiation from Radioactive Materials), §289.252 of this title (relating to Licensing of Radioactive Material), §289.256 of this title (relating to Medical and Veterinary Use of Radioactive Material), and §289.257 of this title (relating to Packaging and Transportation of Radioactive Material).

(5) The agency may, by requirements in this chapter, an order, or a condition of certificate of registration, impose upon any registrant such requirements in addition to those established in this chapter as it deems appropriate or necessary to minimize danger to public health and safety or property or the environment.

(c) Definitions.

(1) Absorbed dose--The energy imparted by ionizing radiation per unit mass of irradiated material. The units of absorbed dose are the gray (Gy) and the rad.

(2) Accessible surface--The external surface of the enclosure or housing provided by the manufacturer.

(3) Act--Texas Radiation Control Act, Health and Safety Code, Chapter 401.

(4) Administrative Law Judge (ALJ)--Administrative law judge from the State Office of Administrative Hearings.

(5) Administrative penalty--A monetary penalty assessed by the agency in accordance with the Act, Health and Safety Code, §401.384, to emphasize the need for lasting remedial action and to deter future violations.

(6) Adult--An individual 18 or more years of age.

(7) Agency--The Texas Department of Health.

(8) Agreement State--Any state with which the United States Nuclear Regulatory Commission (NRC) has entered into an effective agreement under Section 274b. of the Atomic Energy Act of 1954, as amended (73 Stat. 689).

(9) As low as is reasonably achievable (ALARA)--Making every reasonable effort to maintain exposures to radiation as far below the dose limits in this chapter as is practical, consistent with the purpose for which the registered activity is undertaken, taking into account the state of technology, the economics of improvements in relation to the state of technology, the economics of improvements in relation to benefits to the public health and safety, and other societal and socioeconomic considerations, and in relation to utilization of ionizing radiation and radiation machines in the public interest.

(10) Attenuate--To reduce the exposure rate upon passage of radiation through matter.

(11) Attenuation block--A block or stack, having dimensions 20 centimeters (cm) by 20 cm by 3.8 cm, of type 1100 aluminum alloy or other materials having equivalent attenuation. The nominal chemical composition of type 1100 aluminum alloy is 99% minimum aluminum, 0.12% copper.

(12) Background radiation--Radiation from cosmic sources; non-technologically enhanced naturally occurring radioactive material, including radon, except as a decay product of source or special nuclear material, and including global fallout as it exists in the environment from the testing of nuclear explosive devices or from past nuclear accidents, such as Chernobyl, that contribute to background radiation and are not under the control of the registrant. "Background radiation" does not include radiation from radiation machines regulated by the agency.

(13) Barrier--(See definition for protective barrier.)

(14) Beam axis--A line from the source through the centers of the x-ray fields.

(15) Beam-limiting device--A device that provides a means to restrict the dimensions of the x-ray field.

(16) Beam quality (diagnostic x-ray)--A term that describes the penetrating power of the x-ray beam. This is identified numerically by half-value layer and is influenced by kilovolt peak (kVp) and filtration.

(17) Board--The Texas Board of Health.

(18) Certificate of registration--A form of permission given by the agency to an applicant who has met the requirements for registration set out in the Act and this chapter.

(19) Coefficient of variation or C--The ratio of the standard deviation to the mean value of a population of observations. It is estimated using the following equation:

Figure: 25 TAC §289.233(c)(19)

(20) Collective dose--The sum of the individual doses received in a given period of time by a specified population from exposure to a specified source of radiation.

(21) Computed tomography (CT)--The production of a tomogram by the acquisition and computer processing of x-ray transmission data.

(22) Control panel--The part of the radiation machine control upon which are mounted the switches, knobs, push buttons, and other hardware necessary for manually setting the technique factors.

(23) CT conditions of operation--All selectable parameters governing the operation of a CT x-ray system including, but not limited to, nominal tomographic section thickness, filtration, and the technique factors as defined in this subsection.

(24) CT gantry--The tube housing assemblies, beam-limiting devices, detectors, and the supporting structures and frames that hold these components.

(25) Declared pregnant woman--A woman who has voluntarily informed the registrant, in writing, of her pregnancy and the estimated date of conception. The declaration remains in effect until the declared pregnant woman voluntarily withdraws the declaration in writing or is no longer pregnant.

(26) Deep dose equivalent (DDE), that applies to external whole body exposure--The DE at a tissue depth of 1 centimeter (cm) (1,000 milligrams per square centimeter (mg/cm 2 )).

(27) Diagnostic source assembly--The tube housing assembly with a beam-limiting device attached.

(28) Diagnostic x-ray system--An x-ray system designed for irradiation of any part of any animal for the purpose of diagnosis or visualization.

(29) Director--The director of the radiation control program under the agency's jurisdiction.

(30) Dose--For external exposure to x-ray radiation from radiation machines, a generic term that means absorbed dose, DE, or total effective dose equivalent. For purposes of this chapter, "radiation dose" is an equivalent term.

(31) Dose equivalent (DE)--The product of the absorbed 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 rem.

(32) Dose limits--The permissible upper bounds of radiation doses established in accordance with this chapter. For purposes of this chapter, "limits" is an equivalent term.

(33) Embryo/fetus--The developing human organism from conception until the time of birth.

(34) Enforcement conference--A meeting held by the agency with a person to discuss the following:

(A) safety, safeguards, or environmental problems;

(B) compliance with regulatory or registration condition requirements;

(C) proposed corrective measures including, but not limited to, schedules for implementation; and

(D) enforcement options available to the agency.

(35) Exposure--The quotient of dQ by dm where "dQ" is the absolute value of the total charge of the ions of one sign produced in air when all the electrons (negatrons and positrons) liberated by photons in a volume element of air having mass "dm" are completely stopped in air. The SI unit of exposure is the coulomb per kilogram (C/kg). The roentgen is the special unit of exposure. For purposes of this chapter, this term is used as a noun.

(36) Exposure rate--The exposure per unit of time.

(37) External dose--That portion of the DE received from any source of radiation outside the body.

(38) Extremity--Hand, elbow, arm below the elbow, foot, knee, and leg below the knee. The arm above the elbow and the leg above the knee are considered part of the whole body.

(39) Field emission equipment--Equipment that uses an x-ray tube in which electron emission from the cathode is due solely to the action of an electric field.

(40) Field size--The dimensions along the major axes of an area in a plane perpendicular to the central axis of the beam at the normal treatment or examination source to image distance and defined by the intersection of the major axes and the 50% isodose line.

(41) Filter--Material placed in the useful beam to preferentially absorb selected radiation.

(42) Fluoroscopic imaging assembly--A subsystem in which x-ray photons produce a fluoroscopic image. It includes the image receptors such as the image intensifier and spot-film device, electrical interlocks, if any, and structural material providing linkage between the image receptor and diagnostic source assembly.

(43) 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 rad.

(44) Half-value layer (HVL)--The thickness of a specified material that attenuates the beam of radiation to an extent such that the exposure rate is reduced to one-half of its original value.

(45) Healing arts--Any system, treatment, operation, diagnosis, prescription, or practice for the ascertainment, cure, relief, palliation, adjustment, or correction of any human disease, ailment, deformity, injury, or unhealthy or abnormal physical or mental condition.

(46) Hearing--A proceeding to examine an application or other matter before the agency in order to adjudicate rights, duties, or privileges.

(47) High radiation area--An area, accessible to individuals, in which radiation levels from radiation machines external to the body could result in an individual receiving a DE in excess of 0.1 rem (1 millisievert (mSv)) in one hour at 30 cm from any source of radiation or from any surface that the radiation penetrates.

(48) Image intensifier--A device, installed in its housing, that instantaneously converts an x-ray pattern into a corresponding light image of higher energy density.

(49) Image receptor--Any device, such as a fluorescent screen or radiographic film, that transforms incident x-ray photons either into a visible image or into another form that can be made into a visible image by further transformations.

(50) Individual--Any human being.

(51) Individual monitoring--The assessment of DE to an individual by the use of:

(A) individual monitoring devices; or

(B) survey data.

(52) Individual monitoring devices--Devices designed to be worn by a single individual for the assessment of DE. For purposes of this chapter, "personnel dosimeter" and "dosimeter" are equivalent terms. Examples of individual monitoring devices include, but are not limited to, film badges, thermoluminescence dosimeters (TLDs), optically stimulated luminescence dosimeters (OSLs), pocket ionization chambers (pocket dosimeters), and electronic personal dosimeters.

(53) Inspection--An official examination and/or observation including, but not limited to, records, tests, surveys, and monitoring to determine compliance with the Act and rules, orders, requirements, and conditions of the agency.

(54) Ionizing radiation--Any electromagnetic or particulate radiation capable of producing ions, directly or indirectly, in its passage through matter. Ionizing radiation includes gamma rays and x rays, alpha and beta particles, high speed electrons, neutrons, and other nuclear particles.

(55) Irradiation--The exposure of matter to ionizing radiation.

(56) kV--Kilovolt.

(57) kVp--Kilovolt peak (See definition for peak tube potential).

(58) Lead equivalent--The thickness of lead affording the same attenuation, under specified conditions, as the material in question.

(59) Lens dose equivalent (LDE)--The external DE to the lens of the eye at a tissue depth of 0.3 cm (300 mg/cm 2 ).

(60) Lost or missing radiation machine(s)--A radiation machine(s) whose location is unknown.

(61) mA--Milliampere.

(62) Machine-produced radiation--A stimulated emission of radiation from a manufactured product or device or component part of a manufactured product or device that has an electronic circuit that during operation can generate or emit a physical field of radiation.

(63) mAs--Milliampere-second.

(64) Member of the public--Any individual, except when that individual is receiving an occupational dose.

(65) Minor--An individual less than 18 years of age.

(66) Mobile service operation--The provision of radiation machines and personnel at temporary sites for limited time periods. The radiation machines may be fixed inside a motorized vehicle or may be a portable radiation machine that may be removed from the vehicle and taken into a facility for use.

(67) Monitoring--The measurement of radiation and the use of the results of these measurements to evaluate potential exposures and doses. For purposes of this chapter, "radiation monitoring" and "radiation protection monitoring" are equivalent terms.

(68) Notice of violation--A written statement of one or more alleged infringements of a legally binding requirement. The notice requires the person receiving the notice to provide a written statement describing the following:

(A) corrective steps taken by the registrant and the results achieved;

(B) corrective steps to be taken to prevent recurrence; and

(C) the projected date for achieving full compliance. The agency may require responses to notices of violation to be under oath.

(69) Occupational dose--The dose received by an individual in the course of employment in which the individual's assigned duties involve exposure to sources of radiation from licensed/registered and unlicensed/unregistered sources of radiation, whether in the possession of the licensee/registrant or other person. Occupational dose does not include dose received from background radiation, from any medical administration the individual has received, from exposure to individuals administered radioactive material and released in accordance with this chapter, from voluntary participation in medical research programs, or as a member of the public.

(70) Order--A specific directive contained in a legal document issued by the agency.

(71) Party--A person designated as such by the hearing examiner. A party may consist of the following:

(A) the agency; and

(B) an applicant, licensee, registrant, accredited mammography facility, or certified industrial radiographer.

(72) Peak tube potential--The maximum value of the potential difference in kilovolts across the x-ray tube during an exposure.

(73) Person--Any individual, corporation, partnership, firm, association, trust, estate, public or private institution, group, agency, local government, any other state or political subdivision or agency thereof, or any other legal entity, and any legal successor, representative, agent, or agency of the foregoing, other than the United States Nuclear Regulatory Commission (NRC) and other federal government agencies licensed or exempted by the NRC.

(74) Personnel monitoring equipment--(See definition for individual monitoring devices.)

(75) Phototimer--A method for controlling exposures to image receptors by the amount of radiation that reaches a radiation monitoring device. The radiation monitoring device is part of an electronic circuit that controls the duration of time the tube is activated (See definition for automatic exposure control.)

(76) Portable x-ray equipment--(See definition for x-ray equipment.)

(77) Primary protective barrier--(See definition for protective barrier.)

(78) Protective apron--An apron made of radiation absorbing materials used to reduce radiation exposure.

(79) Protective barrier--A barrier of radiation absorbing materials used to reduce radiation exposure. The types of protective barriers are as follows:

(A) Primary protective barrier--A barrier sufficient to attenuate the useful beam to the required degree; or

(B) Secondary protective barrier--A barrier sufficient to attenuate the stray radiation to the required degree.

(80) Protective glove--A glove made of radiation absorbing materials used to reduce radiation exposure.

(81) Public dose--The dose received by a member of the public from exposure to sources of radiation released by a licensee or registrant, or to any other source of radiation under the control of a licensee/registrant. It does not include occupational dose or doses received from background radiation, from any medical administration the individual has received, from exposure to individuals administered radioactive material and released in accordance with this chapter, or from voluntary participation in medical research programs.

(82) 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 (0.01 gray).

(83) Radiation--One or more of the following:

(A) gamma and x rays; alpha and beta particles and other atomic or nuclear particles or rays;

(B) radiation emitted to energy density levels that could reasonably cause bodily harm from an electronic device; or

(C) sonic, ultrasonic, or infrasonic waves from any electronic device or resulting from the operation of an electronic circuit in an electronic device in the energy range to reasonably cause detectable bodily harm.

(84) Radiation area--Any area, accessible to individuals, 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 radiation machine or from any surface that the radiation penetrates.

(85) Radiation machine--Any device capable of producing ionizing radiation except those devices with radioactive material as the only source of radiation.

(86) Radiation safety officer (RSO)--An individual who has a knowledge of and the authority and responsibility to apply appropriate radiation protection rules, standards, and practices, who must be specifically authorized on a certificate of registration, and who is the primary contact with the agency.

(87) Radiograph--An image receptor on which the image is created directly or indirectly by an x-ray exposure and results in a permanent record.

(88) Registrant--Any person issued a certificate of registration by the agency in accordance with the Act and this chapter.

(89) Regulation--(See definition for rule.)

(90) Rem--The special unit of any of the quantities expressed as DE. The DE in rem is equal to the absorbed dose in rad multiplied by the quality factor (1 rem = 0.01 sievert (Sv)).

(91) Remote inspection--An examination by the agency of information submitted by the registrant on a form provided by the agency.

(92) Research and development--Research and development is defined as:

(A) theoretical analysis, exploration, or experimentation; or

(B) the extension of investigative findings and theories of a scientific or technical nature into practical application for experimental and demonstration purposes, including the experimental production and testing of models, devices, equipment, materials, and processes.

(93) Restricted area--An area, access to which is limited by the registrant for the purpose of protecting individuals against undue risks from exposure to radiation. Restricted area does not include areas used as residential quarters, but separate rooms in a residential building may be set apart as a restricted area.

(94) Roentgen (R)--The special unit of exposure. One roentgen (R) equals 2.58 x 10 -4 C/kg of air. (See definition for exposure.)

(95) Rule--Any agency statement of general applicability that implements, interprets, or prescribes law or policy, or describes the procedure or practice requirements of an agency. The term includes the amendment or repeal of a prior section but does not include statements concerning only the internal management or organization of any agency and not affecting private rights or procedures. The word "rule" was formerly referred to as "regulation."

(96) Scan--The complete process of collecting x-ray transmission data for the production of a tomogram. Data can be collected simultaneously during a single scan for the production of one or more tomograms.

(97) Scan time--The period of time between the beginning and end of x-ray transmission data accumulation for a single scan.

(98) Scattered radiation--Radiation that has been deviated in direction during passage through matter.

(99) Secondary protective barrier--(See definition for protective barrier.)

(100) Severity level--A classification of violations based on relative seriousness of each violation and the significance of the effect of the violation on the occupational or public health or safety or the environment.

(101) Shallow dose equivalent (SDE)--The DE at a tissue depth of 0.007 cm (7 mg/cm 2 ) that applies to the external exposure of the skin of the whole body or the skin of an extremity.

(102) Shutter--A device attached to the tube housing assembly that can totally intercept the useful beam and that has a lead equivalency not less than that of the tube housing assembly.

(103) SI--The abbreviation for the International System of Units.

(104) Sievert (Sv)--The SI unit of any of the quantities expressed as DE. The DE in sievert is equal to the absorbed dose in gray multiplied by the quality factor (1 Sv = 100 rem.)

(105) Source--The focal spot of the x-ray tube.

(106) Source of radiation--Any radioactive material, or any device or equipment emitting or capable of producing radiation.

(107) Source-to-image receptor distance (SID)--The distance from the source to the center of the input surface of the image receptor.

(108) Source-to-skin distance (SSD)--The distance from the source to the skin of the patient.

(109) Special units--The conventional units historically used by registrants, for example, rad (absorbed dose), and rem (DE).

(110) Spot film--A radiograph that is made during a fluoroscopic examination to permanently record conditions that exist during that fluoroscopic procedure.

(111) Stationary x-ray equipment--(See definition for x-ray equipment.)

(112) Stray radiation--The sum of leakage and scattered radiation.

(113) Supervision--The delegating of the task of applying radiation in accordance with this section to persons who perform tasks under the veterinarian's control. The veterinarian assumes full responsibility for these tasks and shall assure that the tasks will be administered correctly.

(114) Survey--An evaluation of the radiological conditions and potential hazards incident to the production, use, transfer, disposal, and/or presence of radiation machines. When appropriate, such survey includes, but is not limited to, tests, physical examination of location of equipment, measurements of levels of radiation present, and evaluation of administrative and/or engineered controls.

(115) Technique chart--A chart that provides all necessary generator control settings and geometry needed to make clinical radiographs when the radiography system is in manual mode.

(116) Technique factors--The conditions of operation that are specified as follows:

(A) for capacitor energy storage equipment, peak tube potential in kV and quantity of charge in mAs;

(B) for field emission equipment rated for pulsed operation, peak tube potential in kV and number of x-ray pulses;

(C) for CT equipment designed for pulsed operations, peak tube potential in kV, scan time in seconds, and either tube current in mA, x-ray pulse width in seconds, and the number of x-ray pulses per scan or the product of tube current, x-ray pulse width, and the number of x-ray pulses in mAs;

(D) for CT equipment not designed for pulsed operation, peak tube potential in kV, and either tube current in mA and scan time in seconds or the product of tube current and exposure time in mAs when the scan time and exposure time are equivalent; and

(E) for all other equipment, peak tube potential in kV and either tube current in mA and exposure time in seconds or the product of tube current and exposure time in mAs.

(117) Termination--A release by the agency of the obligations and authorizations of the registrant under the terms of the certificate of registration. It does not relieve a person of duties and responsibilities imposed by law.

(118) Texas Regulations for Control of Radiation (TRCR)--All sections of Title 25 Texas Administrative Code (TAC), Chapter 289.

(119) Total effective dose equivalent (TEDE)--For external exposures only to x-ray radiation from radiation machines, the TEDE is equal to the DDE. If an individual receives an occupational dose from both radiation machines and radioactive materials, the TEDE is the sum of the DDE for external exposures and the committed effective dose equivalent for internal exposures as defined in §289.201(b) of this title.

(120) Tube--An x-ray tube, unless otherwise specified.

(121) Tube housing assembly--The tube housing with tube installed. It includes high-voltage and/or filament transformers and other appropriate elements when such are contained within the tube housing.

(122) Unrestricted area (uncontrolled area)--An area, access to which is neither limited nor controlled by the registrant. For purposes of this chapter, "uncontrolled area" is an equivalent term.

(123) Useful beam--Radiation that passes through the window, aperture, cone, or other collimating device of the source housing. Also referred to as the primary beam.

(124) Veterinarian--An individual licensed by the Texas Board of Veterinary Medical Examiners.

(125) Very high radiation area--An area, accessible to individuals, in which radiation levels from radiation machines external to the body could result in an individual receiving an absorbed dose in excess of 500 rads (5 grays) in one hour at 1 meter (m) from a radiation machine or from any surface that the radiation penetrates. At very high doses received at high dose rates, units of absorbed dose, gray and rad, are appropriate, rather than units of DE, Sv and rem.

(126) Violation--An infringement of any rule, license or registration condition, order of the agency, or any provision of the Act.

(127) Whole body--For purposes of external exposure, head, trunk including male gonads, arms above the elbow, or legs above the knee.

(128) Worker--An individual engaged in work under a certificate of registration issued by the agency and controlled by a registrant, but does not include the registrant.

(129) X-ray control--A device that controls input power to the x-ray high-voltage generator and/or the x-ray tube. It includes equipment such as timers, phototimers, automatic brightness stabilizers, and similar devices that control the technique factors of an x-ray exposure.

(130) X-ray equipment--An x-ray system, subsystem, or component thereof. For the purposes of this rule, types of x-ray equipment are as follows:

(A) portable x-ray equipment--x-ray equipment mounted on a permanent base with wheels and/or casters for moving while completely assembled. Portable x-ray equipment may also include equipment designed to be hand-carried; or

(B) stationary x-ray equipment--x-ray equipment that is installed in a fixed location.

(131) X-ray field--That area of the intersection of the useful beam and any one of the set of planes parallel to and including the plane of the image receptor, whose perimeter is the locus of points at which the exposure rate is one-fourth of the maximum in the intersection.

(132) X-ray high-voltage generator--A device that transforms electrical energy from the potential supplied by the x-ray control to the tube operating potential. The device may also include means for transforming alternating current to direct current, filament transformers for the x-ray tubes, high-voltage switches, electrical protective devices, and other appropriate elements.

(133) X-ray system--An assemblage of components for the controlled production of x rays. It includes minimally an x-ray high-voltage generator, an x-ray control, a tube housing assembly, a beam-limiting device, and the necessary supporting structures. Additional components that function with the system are considered integral parts of the system.

(134) X-ray subsystem--Any combination of two or more components of an x-ray system.

(135) X-ray tube--Any electron tube that is designed to be used primarily for the production of x rays.

(136) Year--The period of time beginning in January used to determine compliance with the provisions of this chapter. The registrant may change the starting date of the year used to determine compliance by the registrant provided that the change is made at the beginning of the year and that no day is omitted or duplicated in consecutive years.

(d) Exemptions.

(1) Electronic equipment that produces radiation incidental to its operation for other purposes is exempt from the registration and notification requirements of this section, provided that the dose equivalent rate averaged over an area of 10 square centimeters (cm 2 ) does not exceed 0.5 millirem per hour (mrem/hr) at 5 centimeters (cm) from any accessible surface of such equipment. The production, testing, or factory servicing of such equipment shall not be exempt.

(2) Radiation machines in transit or in storage incident to transit are exempt from the requirements of this section. This exemption does not apply to the providers of radiation machines for mobile services. Facilities that have placed all radiation machines in storage, including on-site storage, and have notified the agency in writing, are exempt from the requirements of this section. This exemption is void if any radiation machine is energized resulting in the production of radiation.

(3) Domestic television receivers and video display terminals, including the servicing of such devices, are exempt from the requirements of this section.

(4) Inoperable radiation machines are exempt from the requirements of this section. For the purposes of this section, an inoperable radiation machine means a radiation machine that cannot be energized when connected to a power supply without repair or modification.

(5) Financial institutions that take possession of radiation machines as the result of foreclosure, bankruptcy, or other default of payment are exempt from the requirements in this section to the extent that they demonstrate that the unit is operable for the sole purpose of selling, leasing, or transferring.

(6) Individuals who are sole veterinarians, sole operators, and the only occupationally exposed individual are exempt from the following requirements:

(A) subsection (i)(4)(B) of this "Posting of notices to workers;"

(B) subsection (i)(3)(G) of this section "Instructions to workers;" and

(C) operating and safety procedures in accordance with subsection (i)(2) of this section.

(e) Communications.

(1) Except where otherwise specified, all communications and reports concerning this chapter and applications filed under them should be addressed to the Bureau of Radiation Control, Texas Department of Health, 1100 West 49th Street, Austin, Texas, 78756-3189. Communications, reports, and applications may be delivered in person to the agency's office located at 8407 Wall Street, Austin, Texas.

(2) Documents transmitted to the agency will be deemed submitted on the date of the postmark, telegram, telefacsimile, or electronic media transmission.

(f) Interpretations. Except as specifically authorized by the agency in writing, no interpretation of the meaning of this chapter by any officer or employee of the agency other than a written legal interpretation by the agency, will be considered binding upon the agency.

(g) Fees for certificates of registration for veterinary facilities.

(1) Payment of fees.

(A) Each application for a certificate of registration shall be accompanied by a nonrefundable fee of $240.

(B) A nonrefundable fee shall be paid for each certificate of registration for radiation machines used in veterinary medicine. The fee shall be for the two-year term of the certificate of registration. The fee shall be paid in full on or before the last day of the expiration month and year of the certificate of registration. In the case of a single certificate of registration that authorizes more than one category of use, the category listed in §289.204(h) of this title (relating to Fees for Certificates of Registration, Radioactive Material Licenses, Emergency Planning and Implementation, and Other Regulatory Services) and assigned the higher fee will be used. For each additional use location on a single certificate of registration, the registrant shall pay an additional $72.

(C) Each application for reciprocal recognition of an out-of-state registration in accordance with subsection (h)(9) of this section shall be accompanied by the $240 fee, provided that no such fee has been submitted within 24 months of the date of commencement of the proposed activity.

(D) Fee payments shall be in cash or by check or money order made payable to the Texas Department of Health. The payments may be made by personal delivery to the central office, Bureau of Radiation Control, Texas Department of Health, 1100 West 49th Street, Austin, Texas, or mailed to the Bureau of Radiation Control, Texas Department of Health, 1100 West 49th Street, Austin, Texas, 78756-3189.

(2) Failure to pay prescribed fees.

(A) In any case where the agency finds that an applicant for a certificate of registration has failed to pay the fee prescribed in this section, the agency will not process that application until such fee is paid.

(B) In any case where the agency finds that a registrant has failed to pay a fee prescribed by this section by the due date, the certificate of registration has expired and the agency may implement compliance procedures as provided in subsection (k)(2) of this section.

(3) Fees for Texas Online participation. For all applications and renewal applications, the department is authorized to collect subscription and convenience fees, in amounts determined by the Texas Online Authority, to recover costs associated with application and renewal application processing through Texas Online.

(h) Registration of radiation machine use.

(1) Requirements for application for registration for use of radiation machines for veterinary medicine.

(A) Each person having a radiation machine used in veterinary medicine shall apply for registration with the agency within 30 days after beginning use of the radiation machine, except for mobile services that shall be registered in accordance with subsection (h)(2) of this section.

(B) Application for registration shall be completed on forms prescribed by the agency and shall contain all the information required by the form and accompanying instructions.

(C) The applicant shall be qualified by reason of training and experience to use the radiation machine for the purpose requested in accordance with this section in such a manner as to minimize danger to occupational and public health and safety.

(D) The applicant's proposed equipment, facilities, and operating and safety procedures shall be adequate to minimize danger to occupational and public health and safety.

(E) A radiation safety officer (RSO) shall be designated on each application form. The qualifications of that individual shall be submitted to the agency with the application.

(i) The RSO shall have the following qualifications:

(I) knowledge of potential hazards and emergency precautions; and

(II) completed educational courses related to ionizing radiation safety or a radiation safety officer course; or

(III) experience in the use and familiarity of the type of equipment used; and

(ii) In addition to the qualifications in clause (i) of this subparagraph, documentation of the following shall be submitted to the agency:

(I) for veterinarian RSOs, veterinary license board number; or

(II) for non-veterinarian RSOs, two years minimum experience in the use of radiation machines in veterinary medicine under the supervision of a licensed veterinarian.

(iii) The RSO identified on a certificate of registration issued before September 1, 1993, need not comply with the training requirements in this subsection.

(iv) Specific duties of the RSO include, but are not limited to, the following:

(I) establishing and overseeing operating and safety procedures that maintain radiation exposures as low as reasonably achievable (ALARA), and to review them regularly to ensure that the procedures are current and conform with this chapter;

(II) ensuring that individual monitoring devices are properly used by occupationally-exposed personnel, that records are kept of the monitoring results, and that timely notifications are made as required by subsections (i)(4)(B) and (C) and (j)(3)(B)-(D) of this section;

(III) investigating and reporting to the agency each known or suspected case of radiation exposure to an individual or radiation level detected in excess of limits established by this chapter and each theft or loss of source(s) of radiation, determining the cause, and taking steps to prevent its recurrence;

(IV) having a thorough knowledge of management policies and administrative procedures of the registrant and keeping management informed on a periodic basis of the performance of the registrant's radiation protection program, if applicable;

(V) assuming control and having the authority to institute corrective actions including shut-down of operations when necessary in emergency situations or unsafe conditions;

(VI) making and maintaining records as required by this chapter; and

(VII) ensuring that personnel are adequately trained and complying with this chapter, the conditions of the certificate of registration, and the operating and safety procedures of the registrant.

(F) An application for use of radiation machines for veterinary medicine shall be signed by a licensed veterinarian. The signature of the administrator, president, or chief executive officer will be accepted in lieu of a veterinarian's signature if the facility has more than one veterinarian who may direct the operation of radiation machines. The application shall also be signed by the RSO if the RSO is someone other than the licensed veterinarian.

(G) Each application for a certificate of registration shall be accompanied by the fee prescribed in subsection (g) of this section. No application will be accepted for filing or processed prior to payment of the full amount specified.

(H) Each application shall be accompanied by a completed BRC Form 226-1 (Business Information Form).

(I) The agency may at any time after the filing of the original application, require further statements in order to enable the agency to determine whether the certificate of registration should be issued or denied.

(J) An application for a certificate of registration may include a request for a certificate of registration authorizing one or more activities.

(K) Applications and documents submitted to the agency may be made available for public inspection except that the agency may withhold any document or part thereof from public inspection in accordance with subsection (j)(1)(K)-(N) of this section.

(2) Application for registration of mobile service operation used in veterinary medicine. In addition to the requirements of paragraph (1) of this subsection, as applicable, each applicant shall apply for and receive authorization for mobile service operation before beginning mobile service operation. The following shall be submitted:

(A) an established main location where the machine(s), records, etc. will be maintained for inspection. This shall be a street address, not a post office box number;

(B) a sketch or description of the normal configuration of each radiation machine's use, including the operator's position and any ancillary personnel's location during exposures. If a mobile van is used with a fixed unit inside, furnish the floor plan indicating protective shielding and the operator's location; and

(C) a current copy of the applicant's operating and safety procedures regarding radiological practices for protection of operators, employees, and the general public.

(3) Issuance of certificate of registration.

(A) Upon a determination that an application meets the requirements of the Act and the requirements of the agency, the agency may issue a certificate of registration authorizing the proposed activity in such form and containing such conditions and limitations as the agency deems appropriate or necessary.

(B) The agency may incorporate in the certificate of registration at the time of issuance, or thereafter by amendment, such additional requirements and conditions with respect to the registrant's possession, use, and transfer of radiation machines subject to this chapter as it deems appropriate or necessary in order to:

(i) minimize danger to occupational and public health and safety;

(ii) require additional reports and the keeping of additional records as may be appropriate or necessary; and

(iii) prevent loss or theft of radiation machines subject to this section.

(4) Specific terms and conditions of certificates of registration.

(A) Each certificate of registration issued in accordance with this section shall be subject to the applicable provisions of the Act, now or hereafter in effect, and to the applicable requirements of this chapter and orders of the agency.

(B) No certificate of registration issued or granted under this section shall be transferred, assigned, or in any manner disposed of, either voluntarily or involuntarily, to any person unless the agency authorizes the transfer in writing.

(C) Each person registered by the agency for radiation machine use in accordance with this section shall confine use and possession of the radiation machine registered to the locations and purposes authorized in the certificate of registration.

(D) In making a determination whether to grant, deny, amend, renew, revoke, suspend, or restrict a certificate of registration, the agency may consider the technical competence and compliance history of an applicant or holder of a certificate of registration. After an opportunity for a hearing, the agency shall deny an application for a certificate of registration, an amendment to a certificate of registration, or renewal of a certificate of registration if the applicant's compliance history reveals that at least three agency or judicial orders have been issued against the applicant that assess administrative or civil penalties against the applicant, or that revoke or suspend the certificate of registration.

(5) Responsibilities of the registrant.

(A) Each registrant shall inventory all radiation machines at an interval not to exceed one year. The inventory shall be made and maintained for inspection by the agency in accordance with subsection (j)(2) of this section and shall include:

(i) manufacturer's name;

(ii) model and serial number of the control panel; and

(iii) location of radiation machine(s), for example, room number.

(B) Notification to the agency concerning radiation machine inventory is required within 30 days of either of the following:

(i) any change in the category(ies) of machine type or type of use as authorized in the certificate of registration (for example, addition of a computerized tomography machine to the authorized veterinary radiographic machine); or

(ii) any increase in the number of machines authorized by the certificate of registration in any machine type or type of use category.

(C) The registrant shall notify the agency in writing of any changes that would render the information contained in the application for registration and/or the certificate of registration inaccurate. Notification is required within 30 days of the following changes:

(i) name and mailing address;

(ii) street address where machine will be used;

(iii) RSO; or

(iv) name of entity contracted for "provider of equipment," registered in accordance with §289.226 of this title (relating to Registration of Radiation Machines Use and Services.)

(D) The following criteria applies to radiation machines used for loaner or demonstration radiation machines. For persons having a valid certificate of registration, radiation machines used for loaner or demonstration radiation machines may be used for up to 60 days. After 60 days, the registrant shall notify the agency of the following:

(i) any change in the category(ies) of machine type or type of use as authorized in the certificate of registration (for example, addition of a computerized tomography machine to the authorized veterinary radiographic machine); or

(ii) any increase in the number of machines authorized by the certificate of registration in any machine type or type of use category.

(E) No registrant shall engage any person for services described in §289.226(b)(9) and (10) of this title until such person provides to the registrant evidence of registration with the agency.

(F) Records of training and experience required by this section shall be made and maintained by the registrant for inspection by the agency until disposal is authorized by the agency.

(G) The following applies to voluntary or involuntary petitions for bankruptcy.

(i) Each registrant shall notify the agency, in writing, immediately following the filing of a voluntary or involuntary petition for bankruptcy by the registrant or its parent company. This notification shall include:

(I) the bankruptcy court in which the petition for bankruptcy was filed; and

(II) the date of the filing of the petition.

(ii) A copy of the "petition for bankruptcy" shall be submitted to the agency along with the written notification.

(H) The registrant is responsible for complying with this chapter and the conditions of the certificate of registration.

(I) No person shall use radiation machines that are not authorized in the certificate of registration issued by the agency.

(J) Records of training and experience required by this section shall be maintained for inspection by the agency until disposal is authorized by the agency.

(6) Expiration of certificates of registration.

(A) Effective September 1, 2004, the term of the certificate of registration is two years. Each certificate of registration expires at the end of the day, in the month and year stated in the certificate of registration. Upon payment of the fee required by subsection (g) of this section and if the agency does not deny the renewal in accordance with paragraph (4)(D) of this subsection, the certificate of registration will be renewed.

(B) If the fee is not paid and the certificate of registration is not renewed in accordance with subparagraph (A) of this paragraph, the certificate of registration expires, and the registrant is in violation of the requirements in this chapter and is subject to administrative penalties in accordance with §289.205 of this title.

(i) If the registrant pays the fee required by §289.204 of this title within 30 days after expiration of the certificate of registration, the certificate of registration will be reinstated and the registrant will not be required to file an application in accordance with subsection (h) of this section.

(ii) If the registrant fails to pay the fee within 30 days after expiration of the certificate of registration, the registrant shall file an application in accordance with subsection (h) of this section.

(C) If a registrant fails to pay the fee required by subsection (g) of this section and the certificate of registration is not renewed, the registrant shall:

(i) terminate use of all radiation machines and/or terminate radiation machine servicing or radiation services within 30 days following the expiration date; and

(ii) submit to the agency a record of the disposition of the radiation machines and if transferred, to whom transferred within 30 days following the expiration date.

(D) Expiration of the certificate of registration does not relieve the registrant of the requirements of this chapter.

(7) Termination of certificates of registration. When a registrant decides to terminate all activities involving radiation machines authorized under the certificate of registration, the registrant shall notify the agency immediately and do the following:

(A) request termination of the certificate of registration in writing;

(B) submit to the agency a record of the disposition of the radiation machines and if transferred, to whom transferred; and

(C) pay any outstanding fees in accordance with subsection (g) of this section.

(8) Modification, suspension, and revocation of certificates of registration.

(A) The terms and conditions of all certificates of registration shall be subject to revision or modification. A certificate of registration may be suspended or revoked by reason of amendments to the Act, by reason of requirements of this chapter or orders issued by the agency.

(B) Any certificate of registration may be revoked, suspended, or modified, in whole or in part, for any of the following:

(i) any material false statement in the application or any statement of fact required under provisions of the Act;

(ii) conditions revealed by such application or statement of fact or any report, record, or inspection, or other means that would warrant the agency to refuse to grant a certificate of registration on an original application;

(iii) violation of, or failure to observe any of the terms and conditions of the Act, this chapter, the certificate of registration, or order of the agency; or

(iv) existing conditions that constitute a substantial threat to the public health or safety or the environment.

(C) Each certificate of registration revoked by the agency ends at the end of the day on the date of the agency's final determination to revoke the certificate of registration, or on the revocation date stated in the determination, or as otherwise provided by the agency order.

(D) Except in cases in which the occupational and public health or safety requires otherwise, no certificate of registration shall be suspended or revoked unless, prior to the institution of proceedings therefore, facts or conduct that may warrant such action shall have been called to the attention of the registrant in writing and the registrant shall have been afforded an opportunity to demonstrate compliance with all lawful requirements.

(9) Reciprocal recognition for out-of-state certificates of registration.

(A) Whenever any radiation machine is to be brought into the state for any temporary use, the person proposing to bring the machine into the state shall apply for and receive a notice from the agency granting reciprocal recognition prior to beginning operations. The request for reciprocity shall include the following:

(i) completed BRC Form 226-1 (Business Information Form);

(ii) completed BRC Form 252-3 (Notice of Intent to Work in Texas Under Reciprocity);

(iii) name and Texas licensing board number of the veterinarian if the machines are used to irradiate animals;

(iv) copy of the applicant's current state certificate of registration or equivalent document;

(v) copy of the applicant's current operating and safety procedures pertinent to the proposed use;

(vi) fee as specified in subsection (g) of this section; and

(vii) qualifications of personnel who will be operating the machines.

(B) Upon a determination that the request for reciprocity meets the requirements of the agency, the agency may issue a notice granting reciprocal recognition authorizing the proposed use.

(C) Once reciprocity is granted, the out-of-state registrant shall file a BRC Form 252-3 with the agency prior to each entry into the state. This form shall be filed at least three working days before the radiation machine is to be used in the state. If, for a specific case, the three-day period would impose an undue hardship, the out-of-state registrant may, at the determination of the agency, obtain permission to proceed sooner.

(D) When radiation machines are used as authorized under reciprocity, the out-of-state registrant shall have the following in its possession at all times for inspection by the agency:

(i) completed BRC Form 252-3;

(ii) copy of the notice from the agency granting reciprocity;

(iii) copy of the out-of-state registrant's operating and safety procedures; and

(iv) copy of the applicable rules as specified in the notice granting reciprocity.

(E) If the state from which the radiation machine is proposed to be brought does not issue certificates of registration or equivalent documents, a certificate of registration shall be obtained from the agency in accordance with the requirements of this section.

(F) The agency may withdraw, limit, or qualify its acceptance of any certificate of registration or equivalent document issued by another agency upon determining that such action is necessary in order to prevent undue hazard to occupational and public health and safety or property.

(G) Reciprocal recognition will expire one year from the date it is granted. A new request for reciprocity shall be submitted to the agency each year. Reciprocity requests made after the initial request shall include only the following:

(i) a completed BRC Form 226-1;

(ii) a completed BRC Form 252-3;

(iii) the fee as specified in subsection (g) of this section; and

(iv) copy of the applicant's current state certificate of registration or equivalent document;

(v) copy of the applicant's current operating and safety procedures pertinent to the proposed use; and

(vi) qualifications of personnel who will be operating the machines.

(i) Use of radiation machines for veterinary medicine.

(1) As low as reasonably achievable. The registrant shall use, to the extent practical, procedures and engineering controls based upon sound radiation protection principles to achieve occupational doses and public doses that are as low as reasonably achievable.

(2) Operating and safety procedures. Each registrant shall have and implement written operating and safety procedures. These procedures shall be made available to each individual operating a radiation machine, including any restrictions of the operating technique required for the safe operation of the particular x-ray system.

(A) The registrant shall document that each individual operating a radiation machine has read the operating and safety procedures and shall maintain this documentation for inspection by the agency in accordance with subsection (j)(2) of this section. The documentation shall include the following:

(i) name and signature of individual;

(ii) date individual read the operating and safety procedures; and

(iii) initials of the RSO.

(B) The operating and safety procedures shall include, but are not limited to, the following procedures as applicable:

(i) posting notices to workers in accordance with paragraph (4)(B) of this subsection;

(ii) instructions to workers in accordance with paragraph (3)(G) of this subsection;

(iii) notifications and reports to individuals in accordance with paragraph (4)(B) and (C) of this subsection and subsection (j)(3)(B)-(D) of this section;

(iv) ordering x-ray exams in accordance with subsection (b)(1) of this section;

(v) occupational dose requirements in accordance with paragraph (3)(A) of this subsection;

(vi) personnel monitoring requirements in accordance with paragraphs (3)(B), (D) and (E) and (4)(F)(iii) of this subsection;

(vii) posting of a radiation area in accordance with paragraph (4)(D) of this subsection;

(viii) use of a technique chart in accordance with paragraph (5)(A) of this subsection;

(ix) use of protective devices in accordance with paragraph (3)(H) of this subsection;

(x) exposure of individuals other than the animal in accordance with paragraph (3)(I) of this subsection;

(xi) holding of animals or image receptors in accordance with paragraph (3)(J) of this subsection;

(xii) control of scattered radiation in accordance with paragraph (6)(C) of this subsection; and

(xiii) film processing program or digital image processing in accordance with paragraphs (9)-(11) of this subsection.

(3) Personnel requirements.

(A) Occupational dose limits. Except as otherwise exempted, all individuals who are associated with the operation of a radiation machine are subject to the occupational dose limits of this subparagraph regarding dose limits to individuals, and the personnel monitoring requirements of subparagraph (B) of this paragraph.

(i) The registrant shall control the occupational dose to individuals to the following dose limits.

(I) An annual limit shall be the TEDE being equal to 5 rems (0.05 Sv).

(II) The annual limits to the lens of the eye, to the skin of the whole body, and to the skin of the extremities shall be:

(-a-) an LDE of 15 rems (0.15 Sv); and

(-b-) an SDE of 50 rems (0.5 Sv) to the skin of the whole body or to the skin of any extremity.

(III) The annual limits for a minor shall be 10% of the annual occupational dose limits specified in subclauses (I) and (II) of this clause.

(IV) If a woman declares her pregnancy, the registrant shall ensure that the DE to an embryo/fetus during the entire pregnancy, due to occupational exposure of a declared pregnant woman, does not exceed 0.5 rem (5 mSv). If a woman chooses not to declare pregnancy, the occupational dose limits specified in subclauses (I) and (II) of this clause are applicable to the woman.

(-a-) The registrant shall make efforts to avoid substantial variation above a uniform monthly exposure rate to a declared pregnant woman so as to satisfy the limit in clause (i) of this subparagraph. The National Council on Radiation Protection and Measurements recommended in NCRP Report No. 91 "Recommendations on 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 one month.

(-b-) If by the time the woman declares pregnancy to the registrant, the DE to the embryo/fetus has exceeded 0.45 rem (4.5 mSv), the registrant shall be deemed to be in compliance with clause (i) of this subparagraph, if the additional DE to the embryo/fetus does not exceed 0.05 rem (0.5 mSv) during the remainder of the pregnancy.

(-c-) The DE to an embryo/fetus shall be taken as the DE that is most representative of the DE to the embryo/fetus from external radiation, that is, in the mother's lower torso region.

(-d-) If multiple measurements have been made, assignment of the DDE for the declared pregnant woman from the individual monitoring device that is most representative of the DE to the embryo/fetus shall be the DE to the embryo/fetus. Assignment of the highest DDE for the declared pregnant woman to the embryo/fetus is not required unless that dose is also the most representative DDE for the region of the embryo/fetus.

(-e-) If multiple measurements have not been made, assignment of the highest DDE for the declared pregnant woman shall be the DE to the embryo/fetus.

(ii) The assigned DDE shall be for the portion of the body receiving the highest exposure. The assigned SDE shall be the dose averaged over the contiguous 10 cm 2 of skin receiving the highest exposure.

(iii) When a protective apron is worn while working with fluoroscopic equipment used for clinical diagnostic or research purposes, the effective dose equivalent (EDE) for external radiation shall be determined as follows:

(I) when only one individual monitoring device is used and it is located at the neck (collar) outside the protective apron, the reported DDE shall be the EDE for external radiation; or

(II) when only one individual monitoring device is used and it is located at the neck (collar) outside the protective apron, and the reported dose exceeds 25% of the limit specified in clause (i) of this subparagraph, the reported DDE value multiplied by 0.3 shall be the EDE for external radiation; or

(III) when individual monitoring devices are worn, both under the protective apron at the waist and outside the protective apron at the neck (collar), the EDE for external radiation shall be assigned the value of the sum of the DDE reported for the individual monitoring device located at the waist under the protective apron multiplied by 1.5 and the DDE reported for the individual monitoring device located at the neck (collar) outside the protective apron multiplied by 0.04.

(iv) The DDE, LDE, and SDE may be assessed from surveys or radiation measurements for the purpose of demonstrating compliance with the occupational dose limits, if the individual monitoring device was not in the region of highest potential exposure, or the results of individual monitoring are unavailable.

(v) The registrant shall reduce the dose that an individual may be allowed to receive in the current year by the amount of occupational dose received from radiation machines or radioactive materials while employed by any other person. See subparagraph (F)(iv) of this paragraph.

(B) Conditions requiring individual monitoring of occupational dose. Each registrant shall monitor exposures from radiation machines at levels sufficient to demonstrate compliance with the occupational dose limits of this section. As a minimum, each registrant shall monitor occupational exposure to radiation from radiation machines and shall supply and require the use of individual monitoring devices by:

(i) adults likely to receive, in one year from sources external to the body, a dose in excess of 10% of the limits in subparagraph (A)(i) of this paragraph;

(ii) minors likely to receive, in one year from radiation machines external to the body, a DDE in excess of 0.1 rem (1 mSv), an LDE in excess of 0.15 rem (1.5 mSv), or an SDE to the skin of the whole body or to the skin of any extremities in excess of 0.5 rem (5 mSv);

(iii) declared pregnant women likely to receive during the entire pregnancy, from radiation machines external to the body, a DDE in excess of 0.1 rem (1 mSv); and

(iv) individuals entering a high or very high radiation area.

(C) Dose limits for individual members of the public.

(i) Each registrant shall conduct operations so that:

(I) the TEDE to individual members of the public from exposure to radiation from radiation machines does not exceed 0.5 rem (5 mSv) in a year, exclusive of the dose contribution from background radiation, exposure of patients to radiation for the purpose of medical diagnosis or therapy, or to voluntary participation in medical research programs; and

(II) the dose in any unrestricted area from registered external sources does not exceed 0.002 rem (0.02 mSv) in any one hour.

(ii) If the registrant permits members of the public to have access to restricted areas, the limits for members of the public continue to apply to those individuals.

(iii) The agency may impose additional restrictions on radiation levels in unrestricted areas in order to restrict the collective dose.

(D) Compliance with dose limits for individual members of the public.

(i) The registrant shall make or cause to be made surveys of radiation levels in unrestricted areas to demonstrate compliance with the dose limits for individual members of the public as required in subparagraph (C) of this paragraph.

(ii) A registrant shall show compliance with the annual dose limit in subparagraph (C) of this paragraph by demonstrating by measurement or calculation that the TEDE to the individual likely to receive the highest dose from the registered operation does not exceed the annual dose limit.

(iii) Registrants exempt from individual monitoring requirements in accordance with subparagraph (B)(ii) of this paragraph are exempt from the requirements of clauses (i) and (ii) of this subparagraph.

(E) Location and use of individual monitoring devices.

(i) Each registrant shall ensure that individuals who are required to monitor occupational doses in accordance with subparagraph (B) of this paragraph wear and use individual monitoring devices as follows.

(I) An individual monitoring device shall be assigned to and worn by only one individual.

(II) An individual monitoring device used for monitoring the dose to the whole body shall be worn at the unshielded location of the whole body likely to receive the highest exposure. When a protective apron is worn, the location of the individual monitoring device is typically at the neck (collar).

(III) If an additional individual monitoring device is used for monitoring the dose to an embryo/fetus of a declared pregnant woman, in accordance with subparagraph (B)(iii) of this paragraph, it shall be located at the waist under any protective apron being worn by the woman.

(IV) An individual monitoring device used for monitoring the LDE, to demonstrate compliance with subparagraph (A)(i)(II)(-a-) of this paragraph, shall be located at the neck (collar) or at a location closer to the eye, outside any protective apron being worn by the monitored individual.

(V) An individual monitoring device used for monitoring the dose to the extremities, to demonstrate compliance with subparagraph (A)(i)(II)(-b-) of this paragraph, shall be worn on the extremity likely to receive the highest exposure. Each individual monitoring device, to the extent practicable, shall be oriented to measure the highest dose to the extremity being monitored.

(ii) Each registrant shall ensure that individual monitoring devices are returned to the dosimetry processor for proper processing.

(iii) Each registrant shall ensure that adequate precautions are taken to prevent a deceptive exposure of an individual monitoring device.

(F) Determination of occupational dose for the current year.

(i) For each individual who is likely to receive, in a year, an occupational dose requiring monitoring in accordance with subparagraph (B) of this paragraph, the registrant shall determine the occupational radiation dose received during the current year. Occupational dose includes doses received from exposure to registered/licensed or unregistered/unlicensed sources of radiation as defined in subsection (c) of this section.

(ii) In complying with the requirements of clause (i) of this subparagraph, a registrant may:

(I) accept, as a record of the occupational dose that the individual received during the current year, BRC Form 233-1 (Occupational Exposure Record for a Monitoring Period) from prior or other current employers, or other clear and legible record, of all information required on that form and indicating any periods of time for which data are not available; or

(II) accept, as a record of the occupational dose that the individual received during the current year, a written signed statement from the individual, or from the individual's prior or other current employer(s) for work involving radiation exposure, that discloses the nature and the amount of any occupational dose that the individual received during the current year; or

(III) obtain reports of the individual's DE from prior or other current employer(s) for work involving radiation exposure, or the individual's current employer, if the individual is not employed by the registrant, by telephone, telegram, facsimile, or letter. The registrant shall request a written verification of the dose data if the authenticity of the transmitted report cannot be established.

(iii) The registrant shall record the exposure data for the current year, as required by clause (i) of this subparagraph, on BRC Form 233-1, or other clear and legible record, of all the information required on BRC Form 233-1.

(iv) If the registrant is unable to obtain a complete record of an individual's current occupational dose while employed by any other registrant or licensee, the registrant shall assume in establishing administrative controls in accordance with subsection (m)(5) of this section for the current year, that the allowable dose limit for the individual is reduced by 1.25 rems (12.5 millisieverts (mSv)) for each quarter; or 416 millirems (mrem) (4.16 mSv) for each month for which records were unavailable and the individual was engaged in activities that could have resulted in occupational radiation exposure.

(v) If an individual has incomplete (for example, a lost or damaged personnel monitoring device) current occupational dose data for the current year and that individual is employed solely by the registrant during the current year, the registrant shall:

(I) assume that the allowable dose limit for the individual is reduced by 1.25 rems (12.5 mSv) for each quarter;

(II) assume that the allowable dose limit for the individual is reduced by 416 mrem (4.16 mSv) for each month; or

(III) assess an occupational dose for the individual during the period of missing data using surveys, radiation measurements, or other comparable data for the purpose of demonstrating compliance with the occupational dose limits.

(vi) Administrative controls established in accordance with clause (iv) of this subparagraph shall be documented and maintained for inspection by the agency. Occupational dose assessments made in accordance with clause (v) of this subparagraph and records of data used to make the assessment shall be made and maintained for inspection by the agency. The registrant shall retain the records in accordance with subsection (j)(2) of this section.

(vii) Occupational exposure form. The following BRC Form 233-1 (Occupational Exposure Record for a Monitoring Period), is to be used to document occupational exposures for a monitoring period.

Figure: 25 TAC §289.233(i)(3)(F)(vii) (.pdf)

(G) Instructions to workers.

(i) All individuals likely to receive in a year an occupational dose in excess of 100 millirem (1 millisievert) shall be:

(I) kept informed of the storage, transfer, or use of sources of radiation in the licensee's or registrant's workplace;

(II) instructed in the health protection problems associated with exposure to sources of radiation, in precautions or procedures to minimize exposure, and in the purposes and functions of protective devices employed;

(III) instructed in, and instructed to observe, to the extent within the worker's control, the applicable provisions of agency requirements and certificates of registration, for the protection of personnel from exposures to sources of radiation occurring in such areas;

(IV) instructed of their responsibility to report promptly to the registrant any condition that may constitute, lead to, or cause a violation of agency requirements or certificate of registration conditions, or unnecessary exposure to sources of radiation;

(V) instructed in the appropriate response to warnings made in the event of any unusual occurrence or malfunction that may involve exposure to sources of radiation; and

(VI) advised as to the radiation exposure reports that workers may request in accordance with subsection (j)(3)(D)(i) and (ii) of this section.

(ii) The extent of these instructions shall be commensurate with potential radiological health protection problems associated with the source(s) of radiation in the workplace.

(H) Protective devices. Protective devices shall be utilized when required, as in subparagraphs (J)(i) and (ii) and (K) of this paragraph and paragraph (6)(C) of this subsection.

(i) Protective devices shall be of no less than 0.25 millimeter (mm) lead equivalent material except as specified in paragraph (6)(C)(ii)(I) of this subsection.

(ii) Protective devices, including aprons, gloves, and shields shall be checked annually for defects such as holes, cracks, and tears. These checks may be performed by the registrant by visual or tactile means, or x-ray imaging. If a defect is found, protective devices shall be replaced or removed from service until repaired. A record of this test shall be made and maintained by the registrant in accordance with subsection (j)(2) of this section for inspection by the agency.

(I) Exposure of individuals other than the animal. No individual other than the animal, operator, and ancillary personnel shall be in the x-ray room or area while exposures are being made unless such individual's assistance is required.

(J) Holding of animal or image receptor.

(i) When an animal or image receptor must be held in position during radiography, mechanical supporting or restraining devices shall be used when the exam permits.

(ii) If an animal or image receptor must be held by an individual during an exposure, that individual shall be protected with appropriate shielding devices described in subparagraph (H) of this paragraph.

(iii) The registrant's written operating and safety procedures required by paragraph (2) of this subsection shall include the following:

(I) a list of circumstances in which mechanical holding devices cannot be routinely utilized; and

(II) a procedure used for selecting an individual to hold or support the animal or image receptor.

(K) Operator position. The operator position during the exposure shall be such that the operator's exposure is as low as reasonably achievable (ALARA) and the operator is a minimum of six feet from the radiation machine or protected by an apron, gloves, or other shielding having a minimum of 0.25 lead equivalent material.

(L) Holding of tube. In no case shall an individual hold the tube or tube housing assembly supports during any radiographic exposure.

(4) Facility requirements.

(A) Caution signs. Unless otherwise authorized by the agency, the standard radiation symbol prescribed shall use the colors magenta, or purple, or black on yellow background. The standard radiation symbol prescribed is the three-bladed design as follows:

Figure: 25 TAC §289.233(i)(4)(A)

(i) the cross-hatched area of the symbol is to be magenta, or purple, or black; and

(ii) the background of the symbol is to be yellow.

(B) Posting of notices to workers.

(i) Each registrant shall post current copies of the following documents:

(I) §289.233 of this title;

(II) the certificate of registration and conditions or documents incorporated into the certificate of registration by reference, and amendments thereto;

(III) the operating procedures applicable to work under the certificate of registration; and

(IV) any notice of violation, if applicable, involving radiological working conditions, or order issued in accordance with subsection (k)(2) of this section.

(ii) If posting of a document specified in clause (i) of this subparagraph is not practicable, the registrant shall post a notice that describes the document and states where it may be examined.

(iii) Bureau of Radiation Control (BRC) Form 233-2, "Notice to Employees," which is found at the end of the section, or an equivalent document containing at least the same wording as BRC Form 233-2.

Figure: 25 TAC §289.233(i)(4)(B)(iii) (.pdf)

(iv) Documents, notices, or forms posted in accordance with this subsection shall:

(I) appear in a sufficient number of places to permit individuals engaged in work under the certificate of registration to observe them on the way to or from any particular work location to which the document applies;

(II) be conspicuous; and

(III) be replaced if defaced or altered.

(C) Posting requirements.

(i) The registrant shall post each radiation area with a conspicuous sign or signs bearing the radiation symbol and the words "CAUTION, RADIATION AREA."

(ii) The registrant shall post each high radiation area with a conspicuous sign or signs bearing the radiation symbol and the words "CAUTION, HIGH RADIATION AREA" or "DANGER, HIGH RADIATION AREA."

(iii) The registrant shall post each very high radiation area with a conspicuous sign or signs bearing the radiation symbol and words "GRAVE DANGER, VERY HIGH RADIATION AREA."

(D) Exceptions to posting requirements. A registrant is not required to post caution signs in areas or rooms containing radiation machines for periods of less than 8 hours, if each of the following conditions is met:

(i) the radiation machines are constantly attended during these periods by an individual who takes the precautions necessary to prevent the exposure of individuals to radiation in excess of the limits established in this section; and

(ii) the area or room is subject to the registrant's control.

(E) General surveys and monitoring.

(i) Each registrant shall make, or cause to be made, surveys that:

(I) are necessary for the registrant to comply with this section; and

(II) are necessary under the circumstances to evaluate:

(-a-) the magnitude and extent of radiation levels; and

(-b-) the potential radiological hazards.

(ii) The registrant shall ensure that instruments and equipment used for qualitative and quantitative radiation measurements, for example, dose rate, are operable and calibrated:

(I) by a person licensed or registered by the agency, another agreement state, a licensing state, or the United States Nuclear Regulatory Commission to perform such service;

(II) at intervals not to exceed 12 months unless a different time interval is specified in another section of this chapter;

(III) after each instrument or equipment repair;

(IV) for the types of radiation used and at energies appropriate for use; and

(V) at an accuracy within 20% of the true radiation level.

(iii) All individual monitoring devices, except for direct and indirect reading pocket dosimeters, electronic personal dosimeters, and those individual monitoring devices used to measure the dose to any extremity, that require processing to determine the radiation dose and that are used by registrants to comply with subparagraph (A) of this paragraph, with other applicable provisions of this chapter, shall be processed and evaluated by a dosimetry processor:

(I) holding current personnel dosimetry accreditation from the National Voluntary Laboratory Accreditation Program (NVLAP) of the National Institute of Standards and Technology; and

(II) approved in this accreditation process for the type of radiation or radiations included in the NVLAP program that most closely approximates the type of radiation or radiations for which the individual wearing the dosimeter is monitored.

(F) Control of access to high radiation areas.

(i) The registrant shall ensure that each entrance or access point to a high radiation area has one or more of the following features:

(I) a control device that, upon entry into the area, causes the level of radiation to be reduced below that level at which an individual might receive a DDE of 0.1 rem (1 mSv) in one hour at 30 cm from the source of radiation from any surface that the radiation penetrates;

(II) a control device that energizes a conspicuous visible or audible alarm signal so that the individual entering the high radiation area and the supervisor of the activity are made aware of the entry; or

(III) entryways that are locked, except during periods when access to the areas is required, with positive control over each individual entry.

(ii) In place of the controls required by clause (i) of this subparagraph for a high radiation area, the registrant may substitute continuous direct or electronic surveillance that is capable of preventing unauthorized entry.

(iii) The registrant may apply to the agency for approval of alternative methods for controlling access to high radiation areas.

(iv) The registrant shall establish the controls required by clauses (i) and (iii) of this subparagraph in a way that does not prevent individuals from leaving a high radiation area.

(G) Control of access to very high radiation areas.

(i) In addition to the requirements in subparagraph (F) of this paragraph, the registrant shall institute measures to ensure that an individual is not able to gain unauthorized or inadvertent access to areas in which radiation levels could be encountered at 500 rads (5 grays) or more in one hour at 1 m from a radiation machine or any surface through which the radiation penetrates at this level.

(ii) The entry control devices required by clause (i) of this subparagraph shall be established in such a way that no individual will be prevented from leaving the area.

(H) Security and control of radiation machines.

(i) The registrant shall secure radiation machines from unauthorized removal.

(ii) The registrant shall use devices and/or administrative procedures to prevent unauthorized use of radiation machines.

(5) Radiation Machine Requirements.

(A) Technique chart. A technique chart relevant to the particular radiation machine shall be provided or electronically displayed in the vicinity of the control panel and used by all operators.

(B) Labeling radiation machines. Each registrant shall ensure that each radiation machine is labeled in a conspicuous manner that cautions individuals that radiation is produced when it is energized. This label shall be affixed in a clearly visible location on the face of the control unit.

(C) Mechanical support of tube head. The tube housing assembly shall be adjusted to remain stable during an exposure unless tube housing movement is a designed function of the x-ray system.

(D) Battery charge indicator. On battery-powered x-ray generators, visual means shall be provided on the control panel to indicate whether the battery is in a state of charge adequate for proper operation.

(E) Beam quality. The following requirements apply to beam quality.

(i) Half-value layer.

(I) The half-value layer of the useful beam for a given x-ray tube potential shall not be less than the values shown in the following Table I. If it is necessary to determine such half-value layer at an x-ray tube potential that is not listed in Table I, linear interpolation may be made.

Figure: 25 TAC §289.233(i)(5)(E)(i)(I)

(II) For capacitor energy storage equipment, compliance with the requirements of subparagraph (K) of this paragraph shall be determined with the maximum quantity of charge per exposure.

(ii) Filtration controls.

(I) For x-ray systems that have variable kVp and variable filtration for the useful beam, a device shall link the kVp selector with the filters and shall prevent an exposure unless the minimum amount of filtration required by subparagraph (A) of this paragraph is in the useful beam for the given kVp that has been selected.

(II) Any other system having removable filters shall be required to have the minimum amount of filtration as required by subparagraph (E)(i)(I) of this paragraph permanently located in the useful beam during each exposure.

(F) Multiple tubes. Where two or more radiographic tubes are controlled by one exposure switch, the tube or tubes that have been selected shall be clearly indicated prior to initiation of the exposure. This indication shall be both on the x-ray control panel and at or near the tube housing assembly that has been selected.

(G) Technique and exposure indicators.

(i) The technique factors to be used during an exposure shall be indicated before the exposure begins except when automatic exposure controls are used, in which case the technique factors that are set prior to the exposure shall be indicated.

(ii) On equipment having fixed technique factors, the requirement of subparagraph (A) of this paragraph may be met by permanent markings.

(iii) The x-ray control shall provide visual indication of the production of x rays.

(iv) The indicated technique factors shall be accurate to meet manufacturer's specifications. If these specifications are not available from the manufacturer, the factors shall be accurate to within plus or minus 10% of the indicated setting.

(H) The x-ray control shall provide visual or audible indication of the production of x-rays observable at or from the operator's protected position whenever x-rays are produced.

(I) Beam limiting devices shall do the following:

(i) provide the same degree of protection as is required of the housing;

(ii) restrict the useful beam to the area of clinical interest;

(iii) the numerical SID indicator shall be present and shall be accurate to within 2.0% of the SID; and

(iv) limit the x-ray field such that the x-ray field shall not exceed:

(I) 2.0% of the SID for the length or width of the rectangular image receptor; or

(II) 2.0% of the SID for the diagonal of the image receptor for circular image receptors.

(J) A means shall be provided to center the primary beam to the image receptor within 2.0% of the SID.

(K) A means shall be provided to terminate the exposure at the following:

(i) a preset time interval;

(ii) a preset product of current and time;

(iii) a preset number of pulses; or

(iv) a preset radiation exposure to the image receptor.

(L) The radiation machine shall not be able to make an exposure when the timer is set to a "zero" or "off" position if either position is provided.

(M) All stationary, mobile, or portable x-ray systems used for veterinary x rays shall be provided with the following:

(i) a continuous pressure type exposure switch; and

(ii) either a six and one-half foot high protective barrier for operator protection during exposures; or

(iii) a means for the operator to be at least six feet from the tube housing assembly.

(N) Operators using portable radiation machines designed to be hand-held are exempt from the requirements of subparagraph (M) of this paragraph. The hand-held portable radiation machine shall be held by the tube housing support or handle. The operator shall wear protective devices in accordance with paragraph (3)(H) of this subsection.

(O) The technique factors to be used during an exposure shall be indicated before the exposure begins. If AECs are used, the technique factors that are set prior to the exposure shall be indicated.

(P) For machines having fixed technique factors, the requirements of subparagraph (O) of this paragraph may be met by permanent markings on the equipment. Indication of technique factors shall be visible from the operator's position except in the case of spot films made by the fluoroscopist.

(Q) Portable machines shall be used in a manner that complies with this section.

(R) All exams and retakes shall be ordered by the veterinarian.

(S) Equipment performance evaluations.

(i) For all radiation machines used in veterinary medicine, the registrant shall perform, or cause to be performed, tests necessary to assure proper function of equipment with the indicated standard for each of the following items. After installation, the tests listed shall be performed every five years.

(I) Timer.

(-a-) The accuracy of the timer shall meet the manufacturer's specifications. If the manufacturer's specifications are not obtainable, the timer accuracy shall be plus or minus 10% of the indicated time with testing performed at 0.5 second.

(-b-) Means shall be provided to terminate the exposure at a preset time interval, a preset product of current and time, a preset number of pulses, or a preset radiation exposure to the image receptor. In addition, it shall not be possible to make an exposure when the timer is set to a "zero" or "off" position if either position is provided.

(II) Kilovolt peak. If the registrant possesses documentation of the appropriate manufacturer's kilovolt peak specifications, the radiation machine shall meet those specifications. If the registrant does not possess documentation of the appropriate manufacturer's kilovolt peak specifications, the indicated kilovolt peak shall be accurate to within plus or minus 10% of the indicated setting(s). For radiation machines with fewer than three fixed kilovolt peak settings, the radiation machine shall be checked at those settings.

(III) Tube stability. The x-ray tube shall remain physically stable during exposures. In cases where tubes are designed to move during exposure, the registrant shall assure proper and free movement of the radiation machine.

(IV) Collimation. Field limitation shall meet the requirements of subparagraph (I) of this paragraph.

(ii) Records of the test results, including any numerical readings shall be maintained by the registrant in accordance with subsection (j)(2) of this section.

(iii) Any items not meeting the specifications of the tests shall be corrected or repaired. Correction or repair shall begin within 30 days following the check and shall be performed according to a plan designated by the registrant. Correction or repair shall be completed no longer than 90 days from discovery unless authorized by the agency. Records of corrections or repairs shall be maintained by the registrant in accordance with subsection (j)(2) of this section for inspection by the agency.

(iv) Measurements of the radiation output of an x-ray system shall be performed with a calibrated dosimetry system. The dosimetry system shall have been calibrated within the preceding 24 months and the calibration shall be traceable to a national standard. During the calendar year in which the dosimetry system is not calibrated, an intercomparison to a system calibrated within the previous 12 months shall be performed.

(6) Additional requirements for fluoroscopic x-ray systems.

(A) Limitation of the useful beam. Limitation of the useful beam shall be as follows.

(i) Primary barrier.

(I) The fluoroscopic imaging assembly shall be provided with a primary protective barrier that intercepts the entire cross section of the useful beam at any SID.

(II) The x-ray tube used for fluoroscopy shall not produce x rays unless the barrier is in position to intercept the useful beam and the imaging device is in place and operable.

(III) The exposure rate due to transmission through the barrier with the attenuation block in the useful beam, combined with radiation through the image intensifier if provided, shall not exceed 3.34 x 10 -3 % of the entrance exposure rate at a distance of 10 cm from any accessible surface of the fluoroscopic imaging assembly beyond the plane of the image receptor.

(ii) Measuring compliance of barrier transmission.

(I) The exposure rate due to transmission through the primary protective barrier combined with radiation through the image intensifier shall be determined by measurements averaged over an area of 100 cm 2 with no linear dimension greater than 20 cm.

(II) If the source is below the tabletop, the measurement shall be made with the input surface of the fluoroscopic imaging assembly positioned 30 cm above the tabletop.

(III) If the source is above the tabletop and the SID is variable, the measurement shall be made with the end of the beam-limiting device or spacer as close to the tabletop as it can be placed, provided that it shall not be closer than 30 cm.

(IV) Movable grids and compression devices shall be removed from the useful beam during the measurement.

(V) The attenuation block shall be positioned in the useful beam 10 cm from the point of measurement of entrance exposure rate and between this point and the input surface of the fluoroscopic imaging assembly.

(VI) The collimator shall be fully open when the measurement is made.

(iii) X-ray field.

(I) Compliance with subclauses (II)-(VII) of this clause shall be determined with the beam axis perpendicular to the plane of the image receptor.

(II) Equipment with a fixed SID and the capability of a visible area of no greater than 300 cm 2 shall be provided with either stepless adjustment of the x-ray field or a means to further limit the x-ray field at the image receptor to 125 cm 2 or less. If the equipment is provided with stepless adjustment, the minimum x-ray field size at the maximum SID shall be less than or equal to 5 cm by 5 cm at the image receptor.

(III) Equipment with a variable SID or a fixed SID with the capability of a visible area of greater than 300 cm 2 shall be provided with stepless adjustment of the field size. The minimum x-ray field size at the maximum SID shall be less than or equal to 5 cm by 5 cm at the image receptor.

(IV) Neither the length nor the width of the x-ray field in the plane of the image receptor shall exceed that of the visible area of the image receptor by more than 3.0% of the SID. The sum of the excess length and the excess width shall be no greater than 4.0% of the SID.

(V) For rectangular x-ray fields used with circular image receptors, the error in alignment shall be determined along the length and width dimensions of the x-ray field that pass through the center of the visible area of the image receptor.

(VI) For fluoroscopic equipment with only a manual mode of collimation, the x-ray field produced shall be limited to the area of the spot-film cassette at 16 inches above tabletop. Additionally, during fluoroscopy, the beam shall be restricted to the area of the input phosphor.

(VII) Spot-film devices shall meet the following additional requirements.

(-a-) Means shall be provided between the source and the animal for adjustment of the x-ray field size in the plane of the film to the size of that portion of the film that has been selected on the spot-film selector.

(-1-) Such adjustment shall be automatically accomplished except when the x-ray field size in the plane of the film is smaller than that of the selected portion of the film.

(-2-) The total misalignment of the edges of the x-ray field with the respective edges of the selected portion of the image receptor along the length or width dimensions of the x-ray field in the plane of the image receptor shall not exceed 3.0% of the SID when adjusted for full coverage of the selected portion of the image receptor.

(-3-) The sum, without regard to sign of the misalignment along any two orthogonal dimensions, shall not exceed 4.0% of the SID.

(-b-) The center of the x-ray field in the plane of the film shall be aligned with the center of the selected portion of the film to within 2.0% of the SID.

(B) Activation of the fluoroscopic tube. X-ray production in the fluoroscopic mode shall be controlled by a device that requires continuous pressure by the fluoroscopist for the entire time of the exposure (continuous pressure type switch). When recording serial fluoroscopic images, the fluoroscopist shall be able to terminate the x-ray exposures at any time, but means may be provided to permit completion of any single exposure of the series in process.

(C) Control of scattered radiation.

(i) Fluoroscopic configuration, including fluoroscopic table designs, shall not permit any portion of any individual's body, except the head, neck, and extremities, to be exposed to scattered radiation emanating from above or below the tabletop unless the radiation has passed through not less than a total of 0.25 mm lead equivalent material. The material may be, but is not limited to, drapes, self-supporting curtains, or viewing shields, in addition to any lead equivalency provided by a protective apron.

(ii) Where sterile fields or special procedures prohibit the use of normal protective barriers or drapes, all of the following conditions shall be met.

(I) All persons in the room where fluoroscopy is performed shall wear protective aprons that provide a shielding equivalent of 0.5 mm of lead.

(II) The fluoroscopic field size shall be reduced to the absolute minimum required for the procedure being performed (area of clinical interest).

(III) Operating and safety procedures shall reflect the above conditions, and fluoroscopy personnel shall exhibit awareness of situations requiring the use and/or nonuse of the protective drapes.

(iii) For image-intensified fluoroscopic equipment with only a manual mode of collimation, the x-ray field produced shall be limited to the area of the spot-film cassette at 16 inches above tabletop. Additionally, during fluoroscopy, the beam shall be restricted to the area of the input phosphor.

(7) Additional requirements for CT x-ray systems.

(A) Initiation of operation.

(i) The x-ray control and gantry shall provide visual indication whenever x rays are produced and, if applicable, whether the shutter is open or closed.

(ii) Means shall be provided to require operator initiation of each individual scan or series of scans.

(iii) All emergency buttons/switches shall be clearly labeled as to their functions.

(B) Termination of exposure.

(i) Means shall be provided to terminate the x-ray exposure automatically by either de-energizing the x-ray source or shuttering the x-ray beam in the event of equipment failure affecting data collection. Such termination shall occur within an interval that limits the total scan time to no more than 110% of its preset value through the use of either a backup timer or devices that monitor equipment function.

(ii) A signal visible to the operator shall indicate when the x-ray exposure has been terminated through the means required by clause (i) of this subparagraph.

(iii) The operator shall be able to terminate the x-ray exposure at any time during a scan or series of scans under CT x-ray system control of greater than 0.5 seconds duration. Termination of the x-ray exposure shall necessitate resetting of the CT conditions of operation prior to initiation of another scan.

(8) Educational facilities. Facilities conducting training using animals are held to the requirements of this section except for paragraphs (9)-(11) of this subsection concerning film processing.

(9) Automatic and manual film processing for veterinary facilities and mobile veterinary services.

(A) Films shall be developed in accordance with the time-temperature relationships recommended by the film manufacturer. The specified developer temperature for automatic processing and the time-temperature chart for manual processing shall be posted in the darkroom. If the registrant determines an alternate time-temperature relationship is more appropriate for a specific facility, that time-temperature relationship shall be documented and posted.

(B) Chemicals shall be replaced according to the chemical manufacturer's or supplier's recommendations or at an interval not to exceed three months.

(C) Darkroom light leak tests shall be performed and any light leaks corrected at intervals not to exceed six months.

(D) Lighting in the film processing/loading area shall be maintained with the filter, bulb wattage, and distances recommended by the film manufacturer for that film emulsion or with products that provide an equivalent level of protection against fogging.

(E) Corrections or repairs of the light leaks or other deficiencies in paragraphs (2)-(4) of this subsection shall be initiated within 72 hours of discovery and completed no longer than 15 days from detection of the deficiency unless a longer time is authorized by the agency. Records of the correction or repairs shall include the date and initials of the individual performing these functions and shall be maintained in accordance with subsection (t)(1) of this section for inspection by the agency.

(F) Documentation of the items in subparagraphs (B, (C), and (E) of this paragraph shall be maintained at the site where performed and shall include the date and initials of the individual completing these items. These records shall be made and maintained in accordance with subsection (j)(2) of this section for inspection by the agency.

(10) Alternative processing systems. Users of daylight processing systems, laser processors, self-processing film units, or other alternative processing systems shall follow manufacturer's recommendations for image processing. Documentation that the registrant is following manufacturer's recommendations shall include the date and initials of the individual completing the document and shall be maintained at the site where performed in accordance with subsection (j)(2) of this section for inspection by the agency.

(11) Digital imaging acquisition systems. Users of digital imaging acquisition systems shall follow quality assurance/quality control protocol for image processing established by the manufacturer, or if no manufacturer's protocol is available, by the registrant. The registrant shall include the protocols, whether established by the registrant or the manufacturer, in its operating and safety procedures. The registrant shall document the frequency at which the quality assurance/quality control protocol is performed. Documentation shall include the date and initials of the individual completing the document and shall be maintained at the site where performed in accordance with subsection (j)(2) of this section for inspection by the agency. Documentation that the registrant is following manufacturer's recommendations shall include the date and initials of the individual completing the document and shall be maintained at the site where performed in accordance with subsection (j)(2) of this section for inspection by the agency.

(j) Records and reports.

(1) General provisions for records and reports.

(A) Each registrant shall maintain records at each site including sites authorized by certificate of registration condition and records sites for mobile services. The records shall include those specified in paragraph (2) of this subsection and shall be maintained at the time interval indicated for inspection by the agency. Additional record requirements are specified elsewhere in this chapter. All records required by this chapter shall be accurate and factual.

(B) Records are only valid if stamped, initialed, or signed and dated by authorized personnel or otherwise authenticated. Records such as letters, drawings, and specifications, shall include all pertinent information, such as stamps, initials, and signatures.

(C) Each registrant shall use the SI units gray, sievert, and coulomb per kilogram, or the special units rad, rem, and roentgen, including multiples and subdivisions, and shall clearly indicate the units of all quantities on records required by this chapter.

(D) The registrant shall make a clear distinction among the quantities entered on the records required by this section, such as TEDE, SDE, LDE, or DDE.

(E) Each record required by this section shall be legible throughout the specified retention period.

(F) The record shall be the original or a reproduced copy or a mircroform, provided that the copy or microform is authenticated by authorized personnel and that the microform is capable of producing a clear copy throughout the required retention period.

(G) The record may also be stored in electronic format with the capability for producing legible, accurate, and complete records during the required retention period.

(H) Each registrant shall maintain records of receipt, transfer, and disposal of radiation machines for inspection by the agency. The records shall include the following information and shall be kept until disposal is authorized by the agency:

(i) manufacturer's name;

(ii) model and serial number from the control panel;

(iii) date of the receipt, transfer, and disposal; and

(iv) name of the individual recording the information.

(I) The registrant shall maintain adequate safeguards against tampering with and loss of records.

(J) Subject to the limitations provided in the Texas Public Information Act, Government Code, Chapter 552, all information and data collected, assembled, or maintained by the agency are public records open to inspection and copying during regular office hours.

(K) Any person who submits written information or data to the agency and requests that the information be considered confidential, privileged, or otherwise not available to the public under the Texas Public Information Act, shall justify such request in writing, including statutes and cases where applicable, addressed to the agency.

(i) Documents containing information that is claimed to fall within an exception to the Texas Public Information Act shall be marked to indicate that fact. Markings shall be placed on the document on origination or submission.

(I) The words "NOT AN OPEN RECORD" shall be placed conspicuously at the top and bottom of each page containing information claimed to fall within one of the exceptions.

(II) The following wording shall be placed at the bottom of the front cover and title page, or first page of text if there is no front cover or title page:

Figure: 25 TAC §289.233(j)(1)(K)(i)(II)

(ii) The agency requests, whenever possible, that all information submitted under the claim of an exception to the Texas Public Information Act be extracted from the main body of the application and submitted as a separate annex or appendix to the application.

(iii) Failure to comply with any of the procedures described in clauses (i) and (ii) of this subparagraph may result in all information in the agency file being disclosed upon an open records request.

(L) The agency will determine whether information falls within one of the exceptions to the Texas Public Information Act. The agency will determine whether or not there has been a previous determination that the information falls within one of the exceptions to the Texas Public Information Act. If there has been no previous determination and the agency believes that the information falls within one of the exceptions, an opinion of the Attorney General will be requested. If the agency agrees in writing to the request, the information shall not be open for public inspection unless the Attorney General's office subsequently determines that it does not fall within an exception.

(M) Requests for information.

(i) All requests for open records information must be in writing and refer to documents currently in possession of the agency.

(ii) The agency will ascertain whether the information may be released or whether it falls within an exception to the Texas Public Information Act.

(I) The agency may take a reasonable period of time to determine whether information falls within one of the exceptions to the Texas Public Information Act.

(II) If the information is determined to be public, it will be presented for inspection and/or copies of documents will be furnished within a reasonable period of time. A fee will be charged to recover agency costs for copies.

(iii) Original copies of public records may not be removed from the agency. Under no circumstances shall material be removed from existing records.

(N) Records of surveys.

(i) Each registrant shall make and maintain records showing the results of surveys required by subsection (i)(4)(D) of this section for inspection by the agency. The registrant shall retain these records in accordance with subsection (j)(2) of this section.

(ii) The registrant shall retain the results of surveys to determine the dose from external sources of radiation used, in the absence of or in combination with individual monitoring data, in the assessment of individual DEs in accordance with subsection (j)(2) of this section.

(O) Records of individual monitoring results.

(i) Each registrant shall make or cause to be made and maintain records in accordance with subsection (i)(3)(F) of this section of the doses received by all individuals for whom monitoring was required in accordance with subsection (i)(3)(B) of this section, and records of doses received 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:

(I) the DDE to the whole body, LDE, SDE to the skin of the whole body, and SDE to the skin of any extremities; and

(II) the data used to make occupational dose assessments in accordance with subsection (i)(3)(F)(v) of this section.

(ii) The registrant shall make entries of the records specified in clause (i) of this subparagraph at intervals not to exceed one year and within 90 days of the end of the year.

(iii) The registrant shall make or cause to be made and maintain the records specified in clause (i) of this subparagraph on BRC Form 233-1, in accordance with the instructions for BRC Form 233-1, or in clear and legible records containing all the information required by BRC Form 233-1.

(iv) The registrant shall make or cause to be made and maintain the records of dose to an embryo/fetus with the records of dose to the declared pregnant woman. The declaration of pregnancy, including the estimated date of conception, shall also be kept on file, but may be maintained separately from the dose records.

(v) The registrant shall retain each required form or record required by this subsection in accordance with subsection (j)(2) of this section for inspection by the agency. The registrant shall retain records used in preparing BRC Form 233-1 or equivalent in accordance with subsection (j)(2) of this section.

(P) Records of dose to individual members of the public.

(i) Each registrant shall make and maintain records sufficient to demonstrate compliance with the dose limit for individual members of the public for inspection by the agency. See subsection (i)(3)(C) and (D) of this section.

(ii) The registrant shall retain the records required by clause (i) of this subparagraph in accordance with subsection (j)(2) of this section.

(2) Record/document requirements. Each registrant shall maintain the following records/documents at each site, including authorized records sites for mobile services at the time intervals specified and make available to the agency for inspection.

Figure: 25 TAC §289.233(j)(2)

(3) Reports.

(A) Reports of stolen, lost, or missing radiation machines.

(i) Each registrant shall report to the agency by telephone a stolen, lost, or missing radiation machine immediately after its occurrence becomes known to the registrant.

(ii) Each registrant required to make a report in accordance with clause (i) of this subparagraph shall, within 30 days after making the telephone report, make a written report to the agency that includes the following information:

(I) a description of the radiation machine involved, including, the manufacturer and model and serial number;

(II) a description of the circumstances under which the loss or theft occurred;

(III) a statement of disposition, or probable disposition, of the radiation machine involved;

(IV) exposures of individuals to radiation, circumstances under which the exposures occurred, and the possible TEDE to persons in unrestricted areas;

(V) actions that have been taken, or will be taken, to recover the radiation machine; and

(VI) procedures or measures that have been, or will be, adopted to ensure against a recurrence of the loss or theft of radiation machines.

(iii) Subsequent to filing the written report, the registrant shall also report additional substantive information on the loss or theft within 30 days after the registrant learns of such information.

(iv) The registrant shall prepare any report filed with the agency in accordance with this subsection so that names of individuals who may have received exposure to radiation are stated in a separate and detachable portion of the report.

(B) Reports of incidents.

(i) Notwithstanding other requirements for notification, each registrant shall immediately report each event involving a radiation machine possessed by the registrant that may have caused or threatens to cause an individual to receive:

(I) a TEDE of 25 rems (0.25 Sv) or more;

(II) an LDE of 75 rems (0.75 Sv) or more; or

(III) an SDE to the skin of the whole body or to the skin of any extremities of 250 rads (2.5 grays) or more.

(ii) Each registrant shall, within 24 hours of discovery of the event, report to the agency each event involving loss of control of a radiation machine possessed by the registrant that may have caused, or threatens to cause an individual to receive, in a period of 24 hours:

(I) a TEDE exceeding 5 rems (0.05 Sv);

(II) an LDE exceeding 15 rems (0.15 Sv); or

(III) an SDE to the skin of the whole body or to the skin of any extremities exceeding 50 rems (0.5 Sv).

(iii) Registrants shall make the initial notification reports required by clauses (i) and (ii) of this subparagraph by telephone to the agency and shall confirm the initial notification report within 24 hours by telegram, mailgram, or facsimile to the agency.

(iv) The registrant shall prepare each report filed with the agency in accordance with this section so that names of individuals who have received exposure to radiation are stated in a separate and detachable portion of the report.

(C) Reports of exposures and radiation levels exceeding the limits.

(i) In addition to the notification required by subparagraph (B) of this paragraph, each registrant shall submit a written report within 30 days after learning of any of the following occurrences:

(I) incidents for which notification is required by subparagraph (B) of this paragraph;

(II) doses in excess of any of the following:

(-a-) the occupational dose limits for adults in subsection (i)(3)(A)(i)(I) of this section;

(-b-) the occupational dose limits for a minor in subsection (i)(3)(A)(i)(III) of this section;

(-c-) the limits for an embryo/fetus of a declared pregnant woman in subsection (i)(3)(A)(i)(IV) of this section;

(-d-) the limits for an individual member of the public in subsection (i)(3)(C) of this section; or

(-e-) any applicable limit in the registration;

(III) levels of radiation in:

(-a-) a restricted area in excess of applicable limits in the certificate of registration; or

(-b-) an unrestricted area in excess of 10 times the applicable limit set forth in this section or in the registration, whether or not involving exposure of any individual in excess of the limits in subsection (i)(3)(C) of this section.

(ii) Each report required by clause (i) of this subparagraph shall describe the extent of exposure of individuals to radiation, including, as appropriate:

(I) estimates of each individual's dose;

(II) the levels of radiation involved;

(III) the cause of the elevated exposures, dose rates; and

(IV) corrective steps taken or planned to ensure against a recurrence, including the schedule for achieving conformance with applicable limits, and associated registration conditions.

(iii) Each report filed in accordance with clause (i) of this subparagraph shall include for each individual exposed: the name, social security number, and date of birth. With respect to the limit for the embryo/fetus in subsection (i)(3)(A)(i)(IV) of this section, the identifiers should be those of the declared pregnant woman. The report shall be prepared so that this information is stated in a separate and detachable portion of the report.

(iv) All registrants who make reports in accordance with clause (i) of this subparagraph shall submit the report in writing to the agency.

(D) Reports to individuals of exposures.

(i) Radiation exposure data for an individual shall be reported annually to the individual as specified in this section. The information reported shall include data and results obtained in accordance with agency requirements, orders, certificate of registration conditions, as shown in records maintained by the registrant in accordance with paragraph (3)(D) of this subsection. Each notification and report shall:

(I) be in writing;

(II) include appropriate identifying data such as the name of the registrant, the name of the individual, and the individual's identification number;

(III) include the individual's exposure information; and

(IV) contain the following statement: "This report is furnished to you under the provisions of the Texas Regulations for Control of Radiation, 25 Texas Administrative Code §289.233. You should preserve this report for further reference."

(ii) Each registrant shall advise each worker annually of the worker's dose as shown in records maintained by the registrant in accordance with paragraph (1)(P) of this subsection.

(iii) At the written request of a worker formerly engaged in activities controlled by the registrant, each registrant shall furnish a written report of the worker's exposure to radiation machines. The report shall include the dose record for each year the worker was required to be monitored in accordance with subsection (i)(3)(B) of this section. Such report shall be furnished within 30 days from the date of the request, or within 30 days after the dose of the individual has been determined by the registrant, whichever is later. The report shall cover the period of time that the worker's activities involved exposure to radiation machines and the dates and locations of work under the certificate of registration in which the worker participated during this period.

(iv) When a registrant is required, in accordance with subparagraphs (B) and (C) of this paragraph, to report to the agency any exposure of an individual to radiation machines, the registrant shall also provide the individual a written report of that individual's exposure data included therein. Such reports shall be transmitted at a time not later than the transmittal to the agency.

(v) At the written request of a worker who is terminating employment with the registrant in work involving exposure to radiation machines during the current year, each registrant shall provide at termination to each such worker, or to the worker's designee, a written report regarding the radiation dose received by that worker from operations of the registrant during the current year or fraction thereof. If the most recent individual monitoring results are not available at that time, a written estimate of the dose shall be provided together with a clear indication that this is an estimate. When the final individual monitoring results are available, those written results shall be provided to the worker or the worker's designee.

(vi) When a registrant is required in accordance with paragraph (3)(C) of this subsection to report to the agency any exposure of an identified occupationally exposed individual, or an identified member of the public, to radiation, the registrant shall also notify the individual and provide a copy of the report submitted to the agency, to the individual. Such notice shall be transmitted at a time not later than the transmittal to the agency, and shall comply with the provisions of paragraph (3)(D) of this subsection.

(k) Compliance and hearing procedures.

(1) Inspections.

(A) The agency may enter public or private property at reasonable times to determine whether, in a matter under the agency's jurisdiction, there is compliance with the Act, the agency's rules, certificate of registration conditions, and orders issued by the agency.

(B) Each registrant shall afford the agency, at all reasonable times, opportunity to inspect machines, activities, facilities, premises, and records in accordance with this section.

(C) Each registrant shall make available to the agency for inspection, upon reasonable notice, records made and maintained in accordance with this chapter.

(D) During an inspection, agency inspectors may consult privately with workers as specified in subparagraphs (J)-(L) of this paragraph. The registrant may accompany agency inspectors during other phases of an inspection.

(E) If, at the time of inspection, an individual has been authorized by the workers to represent them during agency inspections, the registrant shall notify the inspectors of such authorization and shall give the workers' representative an opportunity to accompany the inspectors during the inspection of physical working conditions.

(F) Each worker's representative shall be routinely engaged in work under control of the registrant and shall have received instructions as specified in subsection (i)(3)(K) of this section.

(G) Different representatives of registrants and workers may accompany the inspectors during different phases of an inspection if there is no resulting interference with the conduct of the inspection. However, only one worker's representative at a time may accompany the inspectors.

(H) With the approval of the registrant and the worker's representative, an individual who is not routinely engaged in work under control of the registrant, for example, a consultant to the registrant or to the worker's representative, shall be afforded the opportunity to accompany agency inspectors during the inspection of physical working conditions.

(I) Notwithstanding the other provisions of this section, agency inspectors are authorized to refuse to permit accompaniment by any individual who deliberately interferes with a fair and orderly inspection. With regard to any area containing proprietary information, the worker's representative for that area shall be an individual previously authorized by the registrant to enter that area.

(J) Agency inspectors may consult privately with workers concerning matters of occupational radiation protection and other matters related to applicable provisions of agency regulations and certificates of registration to the extent the inspectors deem necessary for the conduct of an effective and thorough inspection.

(K) During the course of an inspection any worker may bring privately to the attention of the inspectors, either orally or in writing, any past or present condition which that individual has reason to believe may have contributed to or caused any violation of the Act, the requirements in this chapter, certificate of registration conditions, or any unnecessary exposure of an individual to radiation from any source of radiation under the registrant's control. Any such notice in writing shall comply with the requirements of subparagraph (m) of this paragraph.

(L) The provisions of subparagraph (K) of this paragraph shall not be interpreted as authorization to disregard instructions in accordance with subsection (i)(3)(K) of this section.

(M) Any worker or representative of workers who believes that a violation of the Act, the requirements of this chapter, or certificate of registration conditions exists or has occurred in work under a certificate of registration with regard to radiological working conditions in which the worker is engaged, may request an inspection by giving notice of the alleged violation to the agency. Any such notice shall be in writing, shall set forth the specific grounds for the notice, and shall be signed by the worker or representative of the workers. A copy shall be provided to the registrant by the agency no later than at the time of inspection except that, upon the request of the worker giving such notice, the worker's name and the name(s) of individual(s) referred to therein shall not appear in such copy or on any record published, released, or made available by the agency, except for good cause shown.

(N) If, upon receipt of such notice, the agency determines that the request meets the requirements set forth in subparagraph (M) of this paragraph, and that there are reasonable grounds to believe that the alleged violation exists or has occurred, an inspection shall be made as soon as practicable to determine if such alleged violation exists or has occurred. Inspections in accordance with this section need not be limited to matters referred to in the request.

(O) No registrant, contractor or subcontractor of a registrant shall discharge or in any manner discriminate against any worker because of the following:

(i) such worker has filed any request or instituted or caused to be instituted any proceeding under this chapter;

(ii) such worker has testified or is about to testify in any such proceeding; or

(iii) because of the exercise by such worker on behalf of that individual or others of any option afforded by this section.

(P) If the agency determines, with respect to a request under subparagraphs (M)-(O) of this paragraph, that an inspection is not warranted because there are no reasonable grounds to believe that a violation exists or has occurred, the agency shall notify the requestor in writing of such determination. The requestor may obtain review of such determination in accordance with the provisions of the Act and the Government Code, Chapters 2001 and 2002.

(Q) If the agency determines that an inspection is not warranted because the requirements of subparagraph (M) of this paragraph have not been met, the agency shall notify the requestor in writing of such determination. Such determination shall be without prejudice to the filing of a new request meeting the requirements of subparagraph (M) of this paragraph.

(R) The routine inspection interval for veterinary facilities is five years. On-site inspections and remote inspections may be alternated. The inspection interval specified is based upon the average number of health-related violations per inspection, as determined from compliance history data. This interval will be reviewed at least every two years, and appropriate adjustments will be made.

(S) For remote inspection of radiation machines for veterinary medicine, each registrant shall:

(i) respond to a request from the agency for a remote inspection;

(ii) complete the remote inspection forms in accordance with the instructions included with the forms; and

(iii) return to the agency the completed remote inspection forms including documentation of the most recent equipment performance evaluation performed in accordance with subsection (i)(5)(S) of this section and an inventory in accordance with subsection (h)(5)(A) and (B) of this section by the deadline indicated on the forms.

(T) Notwithstanding the inspection intervals specified in this section, the agency may inspect registrants more frequently due to:

(i) the persistence or severity of violations found during an inspection;

(ii) investigation of an incident or complaint concerning the facility;

(iii) a request for an inspection by a worker(s) in accordance with subparagraphs (M)-(O) of this paragraph;

(iv) any change in a facility or equipment that might cause a significant increase in radiation output or hazard; or

(v) a mutual agreement between the agency and registrant.

(U) The agency will conduct inspections of veterinary radiation machines in a manner designed to cause as little disruption of a veterinary practice as is practicable.

(V) Each registrant shall perform, upon instructions from the agency, or shall permit the agency to perform such reasonable surveys as the agency deems appropriate or necessary including, but not limited to, surveys of:

(i) radiation machines;

(ii) facilities where radiation machines are used or stored;

(iii) radiation detection and monitoring instruments; and

(iv) other equipment and devices used in connection with utilization or storage of radiation machines.

(W) A person who performs on-site inspections of veterinary radiation machines will have training in the design and use of the machines and will receive the following training.

(i) Objectives. Training of agency inspectors of radiation machines will be conducted by the agency. Upon completion of training, the inspector will be able to:

(I) select and operate the necessary testing equipment used to perform an inspection of radiation machines;

(II) utilize radiation protection principles;

(III) operate radiation detection instruments;

(IV) define basic regulatory terminology;

(V) apply this section regarding radiation machines;

(VI) perform routine agency inspections of radiation machines;

(VII) complete agency inspection documentation;

(VIII) demonstrate knowledge of agency ethics, professional, and technical policies; and

(IX) successfully achieve the objectives in this subparagraph.

(ii) Initial training program.

(I) Initial training will be conducted during a six-month period.

(II) All training evaluation instruments will be developed by the agency.

(III) Instruments to be used in determining a proficiency level are as follows:

(-a-) evaluation of each inspector's training needs prior to initial training;

(-b-) evaluation of knowledge obtained and verification of tasks performed by each inspector subsequent to training received by the agency; and

(-c-) evaluation of each inspector's task performance by the agency.

(iii) Continuing education.

(I) The agency inspector of radiation machines will accumulate 24 hours of continuing education regarding radiation machines, at intervals not to exceed 24 months. These hours of continuing education may be acquired as follows:

(-a-) documented continuing education earned in an agency-accepted training format; and

(-b-) agency staff meetings.

(II) Failure to obtain 24 hours of continuing education within each 24 month interval may result in a reassessment by the agency of an agency inspector's proficiency level.

(III) After the initial training period, each inspector of radiation machines will be evaluated by the agency, at intervals not to exceed 12 months.

(iv) Agency proficiency standards. The agency proficiency standards for agency inspectors of veterinary radiation machines are as follows.

(I) Level I. The agency inspector has not successfully achieved the objectives in clause (i) of this subparagraph after the initial training period. Additional training is required. Unsupervised inspections will not be performed.

(II) Level II. The agency inspector has partially achieved the objectives in clause (i) of this subparagraph, but has not achieved the objective in clause (i)(IX) of this subparagraph after the initial training period. Additional training is required. Unsupervised inspections are not permitted for the type of veterinary radiation machines for which the objectives of clause (i)(IX) of this subparagraph have not been achieved. Unsupervised inspections may be performed for the type of veterinary radiation machines for which the objectives in clause (i)(IX) of this subparagraph have been successfully achieved.

(III) Level III. The agency inspector has successfully achieved the objectives in clause (i) of this subparagraph. Supervision is not required for routine inspections.

(2) Hearing and enforcement procedures.

(A) Violations. A court injunction or agency order may be issued prohibiting any violation of any provision of the Act or any rule or order issued thereunder. Any person who willfully violates any provision of the Act or any rule or order issued thereunder may be subject to civil and/or administrative penalties. Such person may also be guilty of a misdemeanor and upon conviction, may be punished by fine or imprisonment or both, as provided by law.

(B) Denial of an application for a certificate of registration.

(i) When the agency contemplates denial of an application for a certificate of registration, the registrant shall be afforded the opportunity for a hearing. Notice of the denial shall be delivered by personal service or certified mail, addressed to the last known address, to the registrant.

(ii) Any applicant or registrant against whom the agency contemplates an action described in clause (i) of this subparagraph may request a hearing by submitting a written request to the director within 30 days of service of the notice.

(I) The written request for a hearing must contain the following:

(-a-) statement requesting a hearing; and

(-b-) name and address of the applicant or registrant;

(II) Failure to submit a written request for a hearing within 30 days will render the agency action final.

(C) Compliance procedures for registrants and other persons.

(i) A registrant or other person who commits a violation(s) will be issued a notice of violation.

(ii) The terms and conditions of all certificates of registration shall be subject to amendment or modification. A certificate of registration may be modified, suspended, or revoked by reason of amendments to the Act, or for violation of the Act, the requirements of this chapter, a condition of the certificate of registration, or an order of the agency.

(iii) Any certificate of registration may be modified, suspended, or revoked in whole or in part, for any of the following:

(I) any material false statement in the application or any statement of fact required in accordance with provisions of the Act;

(II) conditions revealed by such application or statement of fact or any report, record, or inspection, or other means that would warrant the agency to refuse to grant a certificate of registration on an original application;

(III) violation of, or failure to observe applicable terms and conditions of the Act, this chapter, or of the certificate of registration or order of the agency; or

(IV) existing conditions that constitute a substantial threat to the public health or safety or the environment.

(iv) If another state or federal entity takes an action such as modification, revocation, or suspension of the certificate of registration, the agency may take a similar action against the registrant.

(v) When the agency determines that the action provided for in clause (viii) of this subparagraph or subparagraph (D) of this paragraph is not to be taken immediately, the agency may offer the registrant an opportunity to attend an enforcement conference to discuss the following with the agency:

(I) methods and schedules for correcting the violation(s); or

(II) methods and schedules for showing compliance with applicable provisions of the Act, the requirements of this chapter, certificate of registration conditions, or any orders of the agency.

(vi) Notice of any enforcement conference shall be delivered by personal service, or certified mail, addressed to the last known address. An enforcement conference is not a prerequisite for the action to be taken under clause (viii) of this subparagraph or subparagraph (D) of this paragraph.

(vii) Except in cases in which the occupational and public health, or safety requires otherwise, no certificate of registration shall be suspended or revoked unless, prior to the institution of proceedings therefore, facts or conduct that may warrant such action shall have been called to the attention of the registrant in writing, and the registrant shall have been accorded an opportunity to demonstrate compliance with all lawful requirements.

(viii) When the agency contemplates modification, suspension, or revocation of the certificate of registration, the registrant shall be afforded the opportunity for a hearing. Notice of the contemplated action, along with a complaint, shall be given to the registrant by personal service or certified mail, addressed to the last known address.

(ix) Any applicant or registrant against whom the agency contemplates an action described in clause (viii) of this subparagraph may request a hearing by submitting a written request to the director within 30 days of service of the notice.

(I) The written request for a hearing must contain the following:

(-a-) statement requesting a hearing;

(-b-) name, address, and identification number of the registrant against whom the action is being taken.

(II) Failure to submit a written request for a hearing within 30 days will render the agency action final.

(D) Assessment of administrative penalties.

(i) When the agency determines that monetary penalties are appropriate, proposals for assessment of and hearings on administrative penalties shall be made in accordance with the Act, Health and Safety Code, §401.384, Title 1, TAC, Chapter 155, and applicable sections of Formal Hearing Procedures, §§1.21, 1.23, 1.25, and 1.27 of this title.

(ii) Assessment of administrative penalties shall be based on the following criteria:

(I) the seriousness of the violation(s);

(II) previous compliance history;

(III) the amount necessary to deter future violations;

(IV) efforts to correct the violation; and

(V) any other mitigating or enhancing factors.

(iii) Application of administrative penalties. The agency may impose differing levels of penalties for different severity level violations and different classes of users as follows.

(I) Administrative penalties may be imposed for severity level I and II violations. Administrative penalties may be imposed for severity level III, IV, and V violations when they are combined with those of higher severity level(s) or for repeated violations.

(II) The following Tables IIA and IIB show the base administrative penalties.

Figure: 25 TAC §289.233(k)(2)(D)(iii)(II)

(III) Adjustments to the severity levels and percentages in Table IIB may be made for the presence or absence of the following factors:

(-a-) prompt identification and reporting;

(-b-) corrective action to prevent recurrence;

(-c-) compliance history;

(-d-) prior notice of similar event;

(-e-) multiple occurrences; and

(-f-) negligence that resulted in or increased adverse effects.

(IV) The penalty may be in an amount not to exceed $10,000 a day for a person who violates the Act or requirements of this chapter, order, certificate of registration issued under the Act. Each day a violation continues may be considered a separate violation for purposes of penalty assessment.

(iv) The agency may conduct settlement negotiations.

(E) Severity levels of violations for registrants or other persons.

(i) Violations for registrants or other persons shall be categorized by one of the following severity levels.

(I) Severity level I are violations that are most significant and may have a significant negative impact on occupational and/or public health and safety or on the environment.

(II) Severity level II are violations that are very significant and may have a negative impact on occupational and/or public health and safety or on the environment.

(III) Severity level III are violations that are significant and which, if not corrected, could threaten occupational and/or public health and safety or the environment.

(IV) Severity level IV are violations that are of more than minor significance, but if left uncorrected, could lead to more serious circumstances.

(V) Severity level V are violations that are of minor safety or environmental significance.

(ii) Criteria to elevate or reduce severity levels.

(I) Violations may be elevated to a higher severity level for the following reasons:

(-a-) more than one violation resulted from the same underlying cause;

(-b-) a violation contributed to or was the consequence of the underlying cause, such as a management breakdown or breakdown in the control of licensed or registered activities;

(-c-) a violation occurred multiple times between inspections;

(-d-) a violation was willful. This means the violation was the result of careless regard for requirements, deception, or other indications of willfulness by the registrant or employees of the registrant; or

(-e-) compliance history.

(II) Violations may be reduced to a lower level for the following reasons:

(-a-) the registrant identified and corrected the violation prior to the agency inspection; or

(-b-) the registrant's actions corrected the violation and prevented recurrence.

(iii) Examples of severity levels. Examples of severity levels are available upon request to the agency.

(F) Impoundment of radiation machines. Radiation machines shall be subject to impounding in accordance with the Act, Health and Safety Code, §401.068, and this paragraph.

(i) In the event of an emergency, the agency shall have the authority to impound or order the impounding of radiation machines possessed by any person not equipped to observe or failing to observe the provisions of the Act, Health and Safety Code, Chapter 401, or any rules, certificate of registration conditions, or orders issued by the agency. The agency shall submit notice of the action to be published in the Texas Register no later than 30 days following the end of the month in which the action was taken.

(ii) At the agency's discretion, the impounded radiation machines may be disposed of by:

(I) returning the source of radiation to a properly registered owner, upon proof of ownership, who did not cause the emergency;

(II) releasing the source of radiation as evidence to police or courts;

(III) returning the source of radiation to a registrant after the emergency is over and settlement of any compliance action; or

(IV) sale, destruction or other disposition within the agency's discretion.

(iii) If agency action is necessary to protect the public health and safety, no prior notice need be given the owner or possessor. If agency action is not necessary to protect the public health and safety, the agency will give written notice to the owner and/or the possessor of the radiation machine of the intention to dispose of the radiation machine. Notice shall be the same as provided in subparagraph (C)(viii) of this paragraph. The owner or possessor shall have 30 days from the date of personal service or mailing to request a hearing under Title 1, TAC, Chapter 155, and the Formal Hearing Procedures, §§1.21, 1.23, 1.25, and 1.27 of this title, and in accordance with subparagraph (C)(ix) of this paragraph, concerning the intention of the agency. If no hearing is requested within that period of time, the agency may take the contemplated action, and such action is final.

(iv) Upon agency disposition of a radiation machine, the agency may notify the owner and/or possessor of any expense the agency may have incurred during the impoundment and/or disposition and request reimbursement. If the amount is not paid within 60 days from the date of notice, the agency may request the Attorney General to file suit against the owner/possessor for the amount requested.

(v) If the agency determines from the facts available to the agency that an impounded radiation machine is abandoned, with no reasonable evidence showing its owner or possessor, the agency may make such disposition of the radiation machine as it sees fit.

(G) Emergency orders.

(i) When an emergency exists requiring immediate action to protect the public health or safety or the environment, the agency may, without notice or hearing, issue an order citing the existence of such emergency and require that certain actions be taken as it shall direct to meet the emergency. The agency shall, no later than 30 days following the end of the month in which the action was taken, submit notice of the action for publication in the Texas Register . The action taken will remain in full force and effect unless and until modified by subsequent action of the agency.

(ii) An emergency order takes effect immediately upon service.

(iii) Any person receiving an emergency order shall comply immediately.

(iv) The person receiving the order shall be afforded the opportunity for a hearing on an emergency order. Notice of the action, along with a complaint, shall be given to the person by personal service or certified mail, addressed to the last known address. A hearing shall be held on an emergency order if the person receiving the order submits a written request to the director within 30 days of the date of the order.

(I) The hearing shall be held not less than 10 days nor more than 20 days after receipt of the written application for hearing.

(II) At the conclusion of the hearing and after the proposal for decision is made as provided in the Texas Administrative Procedure Act, Texas Government Code, Chapter 2001, the commissioner shall take one of the following actions:

(-a-) determine that no further action is warranted;

(-b-) amend the certificate of registration;

(-c-) revoke or suspend the certificate of registration;

(-d-) rescind the emergency order; or

(-e-) issue such other order as is appropriate.

(III) The application and hearing shall not delay compliance with the emergency order.

(H) Miscellaneous provisions.

(i) Computation of time. A time period established by the requirements of this chapter shall begin on the first day after the event that invokes the time period. When the last day of the period falls on a Saturday, Sunday, or state or federal holiday, the period shall end on the next day that is not a Saturday, Sunday, or state or federal holiday. The time period shall expire at 5:00 p.m. of the last day of the computed period.

(ii) Hearing location. Hearings will be held at the offices of the State Office of Administrative Hearings in Austin unless the ALJ specifies another location.

(iii) Non-party witness and mileage fees.

(I) A witness or deponent who is not a party (or an employee, agent, or representative of a party) and who is subpoenaed or otherwise compelled to attend an agency hearing or a proceeding to give a deposition, or to produce books, records, papers, accounts, documents, or other objects necessary and proper for the purposes of the hearing or proceeding may receive reimbursement for transportation and other costs at rates established by the current Appropriations Act for state employees.

(II) The person requesting the attendance of the witness or deponent must deposit with the agency the funds estimated to accrue in accordance with subclause (I) of this clause when filing a motion for the issuance of a subpoena or a commission to take a deposition.

(iv) Service. A return of service by the person who performed personal service, postal return receipt, or proof of mailing to the last known address shall be conclusive evidence of service.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on January 15, 2004.

TRD-200400298

Susan K. Steeg

General Counsel

Texas Department of Health

Earliest possible date of adoption: February 29, 2004

For further information, please call: (512) 458-7236


Subchapter F. LICENSE REGULATIONS

The Texas Department of Health (department) proposes the repeal of §289.251 and new §289.251, concerning radiation control exemptions, general licenses, and general license acknowledgements.

Government Code, §2001.039, requires that each state agency review and consider for readoption each rule adopted by that agency pursuant to the Government Code, Chapter 2001 (Administrative Procedure Act). Section 289.251 has been reviewed, and the department has determined that the reasons for adopting the section continue to exist; however, revisions to the rule are necessary as outlined in this preamble.

The department published a Notice of Intention to Review for §289.251 regarding Government Code, §2001.039, in the Texas Register (27 TexReg 1537) on March 1, 2002. No comments were received by the department on this section following publication of the notice.

The proposed revision incorporates legislation passed by the 78th Legislature, Regular Session. House Bill (HB) 2292 requires two-year terms for radioactive material licenses and requires recovery through fees of 100% of regulatory program costs for the two-year term of the license. In order to incorporate the provisions of HB 2292 concerning two-year terms, the department is implementing an administrative renewal. The general licensee will be required to renew the general license acknowledgement every two years by paying the required fee and having a satisfactory compliance history. The change to the rule is reflected in subsection (j).

House Bill 253, 78th Legislature, Regular Session, requires the department to deny a radioactive material application, amendment or renewal if the applicant's compliance history reveals a recurring pattern of conduct that demonstrates a consistent disregard for the regulatory process through significant violations of the Radiation Control Act or the department's radiation control rules. The department has defined "a recurring pattern of conduct that demonstrates a consistent disregard for the regulatory process through significant violations..." by adding a requirement that states the department will revoke, suspend, or restrict a general license if at least three department or judicial orders are issued that assess administrative or civil penalties against the general licensee or revoke or suspend the general license. The change to the rule is reflected in subsection (f)(1).

The entire section has been reorganized and reformatted to better differentiate between general licenses for source material and general licenses for material other than source material.

The definitions of "general license" and "general license acknowledgement" in subsection (c) are clarified, as these requirements are items of compatibility with the United States Nuclear Regulatory Commission (NRC) regulations, and as an agreement state, Texas must adopt these requirements.

The revisions to §289.251 incorporate items of compatibility regarding general licensed devices. NRC has implemented a "registration" of certain generally licensed devices based on not only type of generally licensed device, but also quantities of radioactive material contained in the device. The "registration" requirement is similar to the department's general license acknowledgement (GLA) concept and many of the NRC compatibility requirements already exist in this section. However, requirements are added specifying how long a device that is not in use may be held and requiring a quarterly physical inventory of devices being kept in standby for future use. A GLA for generally licensed in vitro testing will no longer be required. In vitro testing general licensees will be required to notify the department, on an application for registration as prescribed by the department, of the devices in their possession. The requirements for certain generally licensed measuring, detecting, gauging or controlling devices pertain to all such devices. However, those devices that contain the specified quantities also require a general license acknowledgement. Other minor grammatical changes have been made throughout the section.

This repeal and new section are part of the department's continuing effort to update, clarify, and simplify its rules regarding the control of radiation based upon technological advances, public concerns, legislative directives, other factors, or to incorporate requirements that are items of compatibility with NRC regulations because as an agreement state, Texas must adopt compatible requirements.

Ruth E. McBurney, C.H.P., Director, Division of Licensing, Registration and Standards, Bureau of Radiation Control, has determined that for each year of the first five years the section is in effect, there will be fiscal implications for state government as a result of enforcing or administering the section as proposed. In vitro testing general licensees will no longer be required to obtain a general license acknowledgment and will no longer pay a fee for a general license acknowledgement. The department will have a decrease in fee recovery of approximately $3,036 for each year of the first five years the section will be in effect. There will be no fiscal implications for local government as a result of enforcing or administering the section as proposed.

Mrs. McBurney has also determined that for each year of the first five years the proposed section is in effect, the public benefit anticipated as a result of enforcing the section will be to ensure continued protection of the public, workers, and the environment from unnecessary exposure to radiation by ensuring that rules are clear and specific and that security of certain gauging, measuring, and controlling devices is enhanced. There will be a fiscal impact on all general license acknowledgement holders who hold devices that are not in use for longer than two years and do not perform a quarterly physical inventory of devices in standby for future use. Such devices must be disposed of, typically by return to the manufacturer. The cost to return devices to the manufacturer ranges from approximately $655 for a device containing a 10 millicurie source to $1,195 for a device containing a 200 millicurie source. There is no anticipated impact on local employment.

Comments on the proposal may be submitted to Ruth E. McBurney, C.H.P., Director, Division of Licensing, Registration and Standards, Bureau of Radiation Control, Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756-3189, Telephone (512) 834-6688 or electronic mail at Ruth.McBurney@tdh.state.tx.us. Public comments will be accepted for 30 days following publication of this proposal in the Texas Register . In addition, a public meeting to accept oral comments will be held at 1:00 p.m., Wednesday, February 11, 2004, in Conference Room N-218, Texas Department of Health, Bureau of Radiation Control, located at the Exchange Building, 8407 Wall Street, Austin, Texas.

25 TAC §289.251

(Editor's note: The text of the following section proposed for repeal will not be published. The section may be examined in the offices of the Texas Department of Health or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)

The repeal is proposed under the Health and Safety Code, §401.051, which provides the Texas Board of Health (board) with authority to adopt rules and guidelines relating to the control of radiation; and §12.001, which provides the board with the authority to adopt rules for its procedure and for the performance of each duty imposed by law on the board, the department, or the commissioner of health.

The repeal affects Health and Safety Code, Chapters 12 and 401. The review of the rule implements Government Code, §2001.039.

§289.251.Exemptions, General Licenses, and General License Acknowledgements.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on January 16, 2004.

TRD-200400318

Susan K. Steeg

General Counsel

Texas Department of Health

Earliest possible date of adoption: February 29, 2004

For further information, please call: (512) 458-7236


25 TAC §289.251

The new section is proposed under the Health and Safety Code, §401.051, which provides the Texas Board of Health (board) with authority to adopt rules and guidelines relating to the control of radiation; and §12.001, which provides the board with the authority to adopt rules for its procedure and for the performance of each duty imposed by law on the board, the department, or the commissioner of health.

The new section affects Health and Safety Code, Chapters 12 and 401. The review of the rule implements Government Code, §2001.039.

§289.251.Exemptions, General Licenses, and General License Acknowledgements.

(a) Purpose. This section provides for exemptions to licensing requirements, general licensing of radioactive material, and acknowledgement of general licenses.

(b) Scope. Except as otherwise authorized, no person shall receive, possess, use, transfer, own, or acquire radioactive material except as authorized in a general license or general license acknowledgement issued in accordance with this section, or in a specific license issued in accordance with §289.252 of this title (relating to Licensing of Radioactive Material), §289.254 of this title (relating to Licensing of Radioactive Waste Processing and Storage Facilities), §289.255 of this title (relating to Radiation Safety Requirements and Licensing and Registration Procedures for Industrial Radiography), §289.256 of this title (relating to Medical and Veterinary Use of Radioactive Material), §289.258 of this title (relating to Licensing and Radiation Safety Requirements for Irradiators), §289.259 of this title (relating to Licensing of Naturally Occurring Radioactive Material (NORM)), or §289.260 of this title (relating to Licensing of Uranium Recovery and Byproduct Material Disposal Facilities).

(c) Definitions. The following words and terms when used in this section shall have the following meanings unless the context clearly indicates otherwise.

(1) General license--An authorization in accordance with this section that grants authority to a person for certain activities involving radioactive material, and is effective without the filing of applications with the agency or the issuance of licensing documents to the particular persons. The general licensee is subject to all other applicable portions of this chapter and any limitations of the general license.

(2) General license acknowledgement--A written recognition of a general license issued in accordance with this section. The issuance of a general license acknowledgement requires the submission of an application to the agency. A written acknowledgement of a general license granted in accordance with this section is issued by the agency. The holder of a general license acknowledgement is subject to all other applicable portions of this chapter as well as any conditions specified in the acknowledgement document.

(d) Exemptions for source material.

(1) Any person is exempt from this section and §289.252 of this title if that person receives, possesses, uses, or transfers source material in any chemical mixture, compound, solution, or alloy in which the source material is by weight less than 1/20 of 1.0% (0.05%) of the mixture, compound, solution, or alloy.

(2) Any person is exempt from this section and §289.252 of this title if that person receives, possesses, uses, or transfers unrefined and unprocessed ore containing source material; provided that, except as authorized in a specific license, such person shall not refine or process such ore. This exemption does not apply to the mining of ore containing source material.

(3) Any person is exempt from this section and §289.252 of this title if that person receives, possesses, uses, or transfers:

(A) any quantities of thorium contained in:

(i) incandescent gas mantles;

(ii) vacuum tubes;

(iii) welding rods;

(iv) electric lamps for illuminating purposes provided that each lamp does not contain more than 50 milligrams (mg) of thorium;

(v) germicidal lamps, sunlamps, and lamps for outdoor or industrial lighting provided that each lamp does not contain more than two grams of thorium;

(vi) rare earth metals and compounds, mixtures, and products containing not more than 0.25% by weight thorium, uranium, or any combination of these; or

(vii) personnel neutron dosimeters, provided that each dosimeter does not contain more than 50 mg of thorium;

(B) source material contained in the following products:

(i) glazed ceramics, for example tableware, provided that the glaze contains not more than 20% by weight source material;

(ii) glassware containing not more than 10% by weight source material, but not including commercially manufactured glass brick, pane glass, ceramic tile, or other glass or ceramic used in construction;

(iii) glass enamel or glass enamel frit containing not more than 10% by weight source material imported or ordered for importation into the United States, or initially distributed by manufacturers in the United States, before July 25, 1983; or

(iv) piezoelectric ceramic containing not more than 2.0% by weight source material;

(C) photographic film, negatives, and prints containing uranium or thorium;

(D) any finished product or part fabricated of, or containing, metal-thorium alloys, provided that the thorium content of the alloy does not exceed 4% by weight and that the exemption contained in this subparagraph shall not be deemed to authorize the chemical, physical, or metallurgical treatment or processing of any such product or part;

(E) depleted uranium contained in counterweights installed in aircraft, rockets, projectiles, and missiles, or stored or handled in connection with installation or removal of such counterweights, provided that:

(i) the counterweights are manufactured in accordance with a specific license issued by the United States Nuclear Regulatory Commission (NRC) authorizing distribution by the licensee in accordance with Title 10, Code of Federal Regulations (CFR), Part 40;

(ii) each counterweight has been impressed with the following legend clearly legible through any plating or other covering: "DEPLETED URANIUM" (The requirements specified in this clause need not be met by counterweights manufactured prior to December 31, 1969, provided that such counterweights are impressed with the legend, "CAUTION - RADIOACTIVE MATERIAL - URANIUM," as previously required by this chapter);

(iii) each counterweight is durably and legibly labeled or marked with the identification of the manufacturer and the statement: "UNAUTHORIZED ALTERATIONS PROHIBITED" (The requirements specified in this clause need not be met by counterweights manufactured prior to December 31, 1969, provided that such counterweights are impressed with the legend, "CAUTION - RADIOACTIVE MATERIAL - URANIUM," as previously required by this chapter); and

(iv) the exemption contained in this subparagraph shall not be deemed to authorize the chemical, physical, or metallurgical treatment or processing of any such counterweights other than repair or restoration of any plating, covering, or labeling;

(F) depleted uranium used as shielding constituting part of any shipping container, provided that:

(i) the shipping container is conspicuously and legibly impressed with the legend "CAUTION - RADIOACTIVE SHIELDING - URANIUM;" and

(ii) the uranium metal is encased in a one-eighth inch minimum wall thickness of mild steel or equally fire resistant material;

(G) thorium contained in finished optical lenses, provided that each lens does not contain more than 30% by weight of thorium, and that the exemption contained in this subparagraph shall not be deemed to authorize either:

(i) the shaping, grinding, or polishing of such lens or manufacturing processes other than the assembly of such lens into optical systems and devices without any alteration of the lens; or

(ii) the receipt, possession, use, or transfer of thorium contained in contact lenses, or in spectacles, or in eyepieces in binoculars or in other optical instruments;

(H) uranium contained in detector heads for use in fire detection units, provided that each detector head contains not more than 0.005 microcurie (µCi) of uranium; or

(I) thorium contained in any finished aircraft engine part containing nickel-thoria alloy, provided that:

(i) the thorium is dispersed in the nickel-thoria alloy in the form of finely divided thoria (thorium dioxide); and

(ii) the thorium content in the nickel-thoria alloy does not exceed 4.0% by weight.

(4) The exemptions in subsection (d)(3) of this section do not authorize the manufacture of any of the products described.

(e) Exemptions for radioactive material other than source material.

(1) Exempt concentrations.

(A) Except as provided in subparagraph (B) of this paragraph, any person is exempt from this section and §289.252 of this title if that person receives, possesses, uses, transfers, or acquires products or materials containing radioactive material in concentrations not in excess of those listed in subsection (q)(1) of this section.

(B) No person may introduce radioactive material into a product or material, including waste, knowing or having reason to believe that it will be transferred to persons exempt in accordance with subparagraph (A) of this paragraph or equivalent regulations of the NRC, any agreement state, or any licensing state, except in accordance with a specific license issued in accordance with §289.252(i) of this title or the general license provided in §289.252(ee) of this title.

(2) Exempt quantities.

(A) Except as provided in subparagraph (C) of this paragraph, any person is exempt from these rules if that person receives, possesses, uses, transfers, or acquires radioactive material in individual quantities, each of which does not exceed the applicable quantity set forth in subsection (q)(2) of this section.

(B) Any person who possesses radioactive material received or acquired, prior to September 25, 1971, in accordance with the general license provided in subsection (f)(4)(A) of this section, is exempt from the requirements for a license set forth in §289.252 of this title if that person possesses, uses, or transfers such radioactive material.

(C) This paragraph does not authorize the production, packaging, or repackaging of radioactive material for purposes of commercial distribution, or the incorporation of radioactive material into products intended for commercial distribution.

(D) No person may, for purposes of commercial distribution, transfer radioactive material in quantities greater than the individual quantities set forth in subsection (q)(2) of this section, knowing or having reason to believe that such quantities of radioactive material will be transferred to persons exempt in accordance with this paragraph or equivalent regulations of the NRC, any agreement state, or any licensing state, except in accordance with a specific license issued by the NRC in accordance with Title 10, CFR, §32.18 or by the agency in accordance with §289.252(j) of this title, which states that the radioactive material may be transferred by the licensee to persons exempt in accordance with this paragraph or the equivalent regulations of the NRC, any agreement state, or any licensing state.

(E) The schedule of quantities set forth in subsection (q)(2) of this section applies only to radioactive materials distributed as exempt quantities in accordance with a specific license issued by the agency, another licensing state, or the commission. Subsection (q)(2) of this section does not apply to radioactive materials that have decayed from quantities not originally exempt and does not make such material, or the sources or devices in which the material is contained, exempt from the licensing requirements in this section or §289.252 of this title.

(3) Exempt items.

(A) Certain items containing radioactive material.

(i) Except for persons who apply radioactive material to, or persons who incorporate radioactive material into the following products, any person is exempt from this chapter if that person receives, possesses, uses, transfers, or acquires the following products:

(I) timepieces, hands, or dials containing not more than the following specified quantities of radioactive material and not exceeding the following specified levels of radiation:

(-a-) 25 millicuries (mCi) of tritium per timepiece;

(-b-) 5 mCi of tritium per hand;

(-c-) 15 mCi of tritium per dial (bezels when used shall be considered as part of the dial);

(-d-) 100 µCi of promethium-147 per watch or 200 µCi of promethium-147 per any other timepiece;

(-e-) 20 µCi of promethium-147 per watch hand or 40 µCi of promethium-147 per other timepiece hand;

(-f-) 60 µCi of promethium-147 per watch dial or 120 µCi of promethium-147 per other timepiece dial (bezels when used shall be considered as part of the dial);

(-g-) the levels of radiation from hands and dials containing promethium-147 will not exceed, when measured through 50 milligrams per square centimeter (mg/cm 2 ) of absorber:

(-1-) for wrist watches, 0.1 millirad per hour (mrad/hr) at 10 centimeters (cm) from any surface;

(-2-) for pocket watches, 0.1 mrad/hr at 1 cm from any surface; and

(-3-) for any other timepiece, 0.2 mrad/hr at 10 cm from any surface; or

(-h-) 1 µCi of radium-226 per timepiece in timepieces, hands, or dials manufactured or initially distributed prior to January 1, 1986;

(II) lock illuminators containing not more than 15 mCi of tritium or not more than 2 mCi of promethium-147 installed in automobile locks. The levels of radiation from each lock illuminator containing promethium-147 will not exceed 1 mrad/hr at 1 cm from any surface when measured through 50 mg/cm2 of absorber;

(III) balances of precision containing not more than 1 mCi of tritium per balance or not more than 0.5 mCi of tritium per balance part;

(IV) automobile shift quadrants containing not more than 25 mCi of tritium;

(V) marine compasses containing not more than 750 mCi of tritium gas and other marine navigational instruments containing not more than 250 mCi of tritium gas;

(VI) thermostat dials and pointers containing not more than 25 mCi of tritium per thermostat;

(VII) electron tubes, provided that each tube does not contain more than one of the following specified quantities of radioactive material and that the levels of radiation from each electron tube containing byproduct material do not exceed 1 mrad/hr at 1 cm from any surface when measured through 7 mg/cm 2 of absorber (For purposes of this clause, "electron tubes" include spark gap tubes, power tubes, gas tubes including glow lamps, receiving tubes, microwave tubes, indicator tubes, pick-up tubes, radiation detection tubes, and any other completely sealed tube designed to control electrical currents):

(-a-) 150 mCi of tritium per microwave receiver protector tube or 10 mCi of tritium per any other electron tube;

(-b-) 1 µCi of cobalt-60;

(-c-) 5 µCi of nickel-63;

(-d-) 30 µCi of krypton-85;

(-e-) 5 µCi of cesium-137; or

(-f-) 30 µCi of promethium-147;

(VIII) ionizing radiation measuring instruments containing, for purposes of internal calibration or standardization, a source of radioactive material not exceeding the applicable quantity set forth in subsection (q)(2) of this section or 0.05 µCi of americium-241; or

(IX) spark gap irradiators containing not more than 1 µCi of cobalt-60 per spark gap irradiator for use in electrically ignited fuel oil burners having a firing rate of at least 3 gallons per hour.

(ii) Authority to transfer possession or control by the manufacturer, processor, or producer of any equipment, device, commodity, or other product containing source material or byproduct material whose subsequent possession, use, transfer, and disposal by all other persons are exempted from regulatory requirements may be obtained only from the United States Nuclear Regulatory Commission, Washington, DC 20555.

(B) Self-luminous products containing tritium, krypton-85, promethium-147, or radium-226.

(i) Except for persons who manufacture, process, or produce self-luminous products containing tritium, krypton-85, or promethium-147, any person is exempt from this chapter if that person receives, possesses, uses, transfers, owns, or acquires tritium, krypton-85, or promethium-147 in self-luminous products manufactured, processed, produced, imported, or transferred in accordance with a specific license issued by the NRC in accordance with Title 10, CFR, §32.22, which authorizes the transfer of the product to persons who are exempt from regulatory requirements. The exemption in this subparagraph does not apply to tritium, krypton-85, or promethium-147 used in products for frivolous purposes or in toys or adornments.

(ii) Any person is exempt from this chapter if that person receives, possesses, uses, transfers, or owns articles acquired prior to January 1, 1986, each of which contains less than 0.1 µCi of radium-226.

(C) Gas and aerosol detectors containing radioactive material.

(i) Except for persons who manufacture, process, or produce gas and aerosol detectors containing radioactive material, any person is exempt from this chapter if that person receives, possesses, uses, transfers, owns, or acquires radioactive material in gas and aerosol detectors designed to protect life or property from fires and airborne hazards provided that:

(I) detectors containing radioactive material shall have been manufactured, imported, or transferred in accordance with a specific license issued by the NRC in accordance with Title 10, CFR, §32.26, or an agreement state or a licensing state in accordance with §289.252(k) of this title; and

(II) the specific license issued in accordance with §289.252 of this title authorizes the transfer of the detectors to persons who are exempt from regulatory requirements.

(ii) Authority to transfer possession or control by the manufacturer, processor, or producer of any equipment, device, commodity, or other product containing source material or byproduct material whose subsequent possession, use, transfer, and disposal by all other persons are exempted from regulatory requirements may be obtained only from the United States Nuclear Regulatory Commission, Washington, DC 20555.

(iii) Gas and aerosol detectors previously manufactured and distributed to general licensees in accordance with a specific license issued by an agreement state or a licensing state shall be considered exempt in accordance with clause (i) of this subparagraph, provided that the devices are labeled in accordance with the specific license authorizing distribution of the generally licensed device, and provided further that they meet the requirements of §289.252 of this title.

(D) Resins containing scandium-46 and designed for sand consolidation in oil wells. Any person is exempt from this chapter if that person receives, possesses, uses, transfers, or acquires synthetic plastic resins containing scandium-46, which are designed for sand consolidation in oil wells. Such resins shall have been manufactured or imported in accordance with a specific license issued by the NRC, or shall have been manufactured in accordance with the specifications contained in a specific license issued by the agency or any agreement state to the manufacturer of such resins in accordance with licensing requirements equivalent to those in Title 10, CFR, §§32.16 and 32.17. This exemption does not authorize the manufacture of any resins containing scandium-46.

(4) Exemption for capsules containing carbon-14 urea for "in vivo" diagnostic use in humans.

(A) Except as provided in subparagraphs (B) and (C) of this paragraph, a person is exempt from the requirements of this section and §289.256 of this title provided that such person receives, possesses, uses, transfers, owns, or acquires capsules containing 1 µCi (37 kilobecquerels) or less of carbon-14 urea each (allowing for nominal variation that may occur during the manufacturing process), for "in vivo" diagnostic use in humans.

(B) A person desiring to use the capsules for research involving human subjects shall apply for and receive a specific license in accordance with §289.256 of this title.

(C) A person desiring to manufacture, prepare, process, produce, package, repackage, or transfer for commercial distribution such capsules shall apply for and receive a specific license in accordance with Title 10, CFR, §32.21.

(D) Nothing in this subsection relieves a person from complying with applicable requirements of the United States Food and Drug Administration (FDA) and other federal and state requirements governing the receipt, administration, and use of drugs.

(f) General licenses. In addition to the requirements of this section, all general licenses, unless otherwise specified, are subject to the requirements of §289.201 of this title (relating to General Provisions for Radioactive Material), §289.202(ww) and (xx) of this title (relating to Standards for Protection Against Radiation from Radioactive Materials), §289.204 of this title (relating to Fees for Certificates of Registration, Radioactive Material Licenses, Emergency Planning and Implementation, and Other Regulatory Services), §289.205 of this title (relating to Hearing and Enforcement Procedures), and §289.257 of this title (relating to Packaging and Transportation of Radioactive Material).

(1) In making a determination whether to revoke, suspend, or restrict a general license, the agency may consider the technical competence and compliance history of a general licensee. After an opportunity for a hearing, the agency may revoke, suspend, or restrict a general license if the general licensee's compliance history reveals that at least three agency or judicial orders have been issued against the general licensee that assess administrative or civil penalties against the general licensee, or that revoke or suspend the general license.

(2) Modification, suspension, and revocation of a general license.

(A) The terms and conditions of all general licenses shall be subject to revision or modification.

(B) A general license may be suspended or revoked by reason of amendments to the Texas Radiation Control Act (Act), Health and Safety Code, Chapter 401, by reason of rules in this chapter, or orders issued by the agency.

(C) Any general license may be revoked, suspended, or modified, in whole or in part, for any of the following:

(i) any material false statement in the application for a general license acknowledgement or any statement of fact required in accordance with provisions of the Act;

(ii) conditions revealed by such application or statement of fact or any report, record, or inspection, or other means that would warrant the agency to refuse to grant a general license on an original application;

(iii) violation of, or failure to observe, any of the terms and conditions of the Act, this chapter, or of the general license, or order of the agency; or

(iv) existing conditions that constitute a substantial threat to the public health or safety or the environment.

(D) Except in cases in which the occupational and public health, interest, or safety requires otherwise, no general license shall be suspended or revoked unless, prior to the institution of proceedings therefore, facts or conduct that may warrant such action shall have been called to the attention of the holder of the general license in writing and the holder of the general license shall have been afforded an opportunity to demonstrate compliance with all lawful requirements.

(E) Each general license revoked by the agency expires at the end of the day on the date of the agency's final determination to revoke the general license, or on the revocation date stated in the determination, or as otherwise provided by agency order.

(3) General licenses for source material.

(A) A general license is issued authorizing commercial and industrial firms, research, educational and medical institutions, and state and local government agencies to use and transfer not more than 15 pounds of source material at any one time for research, development, educational, commercial, or operational purposes.

(i) A person authorized to use or transfer source material, in accordance with this general license, may not possess more than a total of 150 pounds of source material in any one calendar year.

(ii) Persons who receive, possess, use, or transfer source material in accordance with the general license in subparagraph (A) of this paragraph are prohibited from administering source material, or the radiation therefrom, either externally or internally, to humans except as may be authorized by the agency in a specific license.

(B) A general license is issued to own source material without regard to quantity. This general license does not authorize any person to receive, possess, use or transfer source material.

(C) A general license is issued to mine, transport, and transfer ores containing source material without regard to quantity. In addition to the provisions of subsection (f) of this section, persons who mine, transport, and transfer ores containing source material in accordance with this section shall comply with the provisions of §289.202(n) and (ff) of this title.

(D) A general license is issued to receive, acquire, possess, use, or transfer depleted uranium contained in products or devices for the purpose of providing shielding, including beam shaping and collimation, in accordance with the provisions of clauses (i)-(iv) of this subparagraph.

(i) The general license in this paragraph applies only to products or devices that have been manufactured either in accordance with a specific license issued by the agency to the manufacturer of the products or devices in accordance with §289.252(s) of this title or in accordance with a specific license issued to the manufacturer by another agreement state or the NRC that authorizes manufacture of the products or devices for distribution to persons generally licensed by another agreement state or the NRC.

(ii) Persons who receive, acquire, possess, or use depleted uranium in accordance with the general license in this paragraph shall notify the agency within 30 days after the first receipt of acquisition of such depleted uranium. The general licensee shall furnish the following information and such other information as may be required by the agency:

(I) name and address of the general licensee;

(II) a statement that the general licensee has developed and will maintain procedures designed to establish physical control over the depleted uranium in accordance with this paragraph and designed to prevent transfer of such depleted uranium in any form, including metal scrap, to persons not authorized to receive the depleted uranium; and

(III) name and/or title, address, and telephone number of the individual duly authorized to act for and on behalf of the general licensee in supervising the procedures identified in clause (ii) of this subparagraph.

(iii) The general licensee possessing or using depleted uranium in accordance with the general license in this paragraph shall report in writing to the agency any changes in information furnished by the general licensee. The report shall be submitted within 30 days after the effective date of such change.

(iv) A person who receives, acquires, possesses, or uses depleted uranium in accordance with the general license in this paragraph:

(I) shall not introduce such depleted uranium, in any form, into a chemical, physical, or metallurgical treatment or process, except a treatment or process for repair or restoration of any plating or other covering of the depleted uranium;

(II) shall not abandon such depleted uranium;

(III) shall transfer or dispose of such depleted uranium only in accordance with the provisions of §289.252(cc) of this title. In the case where the transferee receives the depleted uranium in accordance with the general license in this paragraph or equivalent rule of the NRC or an agreement state, the transferor shall furnish the transferee a copy of this paragraph;

(IV) within 30 days of transfer, shall report in writing to the agency the name and address of the person receiving the depleted uranium in accordance with such transfer; and

(V) shall not export such depleted uranium except in accordance with a license issued by the NRC in accordance with Title 10, CFR, Part 110.

(v) Any person receiving, acquiring, possessing, using, or transferring depleted uranium in accordance with the general license in this paragraph is exempt from the requirements of §289.202 of this title and §289.203 of this title (relating to Notices, Instructions, and Reports to Workers; Inspections) with respect to the depleted uranium covered by that general license.

(4) General licenses for radioactive material other than source material.

(A) General licenses for static elimination devices and ion generating tubes. A general license is issued to transfer, receive, acquire, possess, and use radioactive material incorporated in the devices or equipment specified in clauses (i) and (ii) of this subparagraph that have been manufactured, tested, and labeled by the manufacturer in accordance with a specific license issued to the manufacturer by the NRC. In addition to the provisions of subsection (f) of this section, this general license is subject to the provisions of subsection (e)(1)(B) of this section and §289.252(cc) of this title:

(i) static elimination devices designed for use as static eliminators that contain, as a sealed source or sources, radioactive material totaling not more than 500 µCi of polonium-210 per device; or

(ii) ion generating tubes designed for ionization of air that contain, as a sealed source or sources, radioactive material totaling not more than 500 µCi of polonium-210 per device or a total of not more than 50 mCi of tritium per device.

(B) General license for luminous safety devices for aircraft.

(i) A general license is issued to receive, acquire, possess, and use tritium or promethium-147 contained in luminous safety devices for use in aircraft, provided:

(I) each device contains not more than 10 curies (Ci) of tritium or 300 mCi of promethium-147; and

(II) each device has been manufactured, assembled, or initially transferred in accordance with a specific license issued by the NRC, or each device has been manufactured or assembled in accordance with the specifications contained in a specific license issued by the agency or any agreement state that authorizes the manufacture or assembly of the device to persons generally licensed by the agency or an agreement state.

(ii) The general license in clause (i) of this subparagraph does not authorize the manufacture, assembly, or repair of luminous safety devices containing tritium or promethium-147.

(iii) The general license in clause (i) of this subparagraph does not authorize the receipt, acquisition, possession, or use of tritium or promethium-147 contained in instrument dials.

(C) General license for ownership of radioactive material. A general license is issued to own radioactive material without regard to quantity. Notwithstanding any other provisions of this section, this general license does not authorize the manufacture, production, transfer, receipt, possession, or use of radioactive material.

(D) General license for calibration, stabilization, and reference sources.

(i) A general license is issued to own, receive, acquire, possess, use, and transfer, in accordance with the provisions of clauses (ii) and (iii) of this subparagraph, americium-241, plutonium, and/or radium-226, in the form of calibration, stabilization, or reference sources to any person who holds a specific license issued by the:

(I) agency that authorizes that person to receive, possess, use, and transfer radioactive material; and

(II) NRC that authorizes that person to receive, possess, use, and transfer radioactive material.

(ii) The general license in clause (i) of this subparagraph applies only to calibration, stabilization, or reference sources that have been manufactured or initially transferred in accordance with the specifications contained in a specific license issued to the manufacturer or importer of the sources by the NRC in accordance with Title 10, CFR, §32.57 or Title 10, CFR, §70.39 or that have been manufactured or initially transferred in accordance with the authorizations contained in a specific license issued to the manufacturer by the agency, any agreement state, or any licensing state, in accordance with licensing requirements equivalent to those contained in Title 10, CFR, §32.57 or 10 CFR, §70.39.

(iii) Persons who own, receive, acquire, possess, use, or transfer one or more calibration or reference sources in accordance with these general licenses:

(I) shall not possess at any one time, at any one location of storage or use, more than 5 µCi each of americium-241, plutonium-238, plutonium-239, and radium-226 in such sources;

(II) shall not receive, possess, use, or transfer such source unless the source or the storage container bears a label that includes the following statements, or a substantially similar statement that contains the information in the following statements:

(-a-) option 1, as appropriate:

Figure: 25 TAC §289.251(f)(4)(D)(iii)(II)(-a-)

(-b-) option 2, as appropriate:

Figure: 25 TAC §289.251(f)(4)(D)(iii)(II)(-b-)

(III) shall not transfer, abandon, or dispose of such source except by transfer to a person authorized by a specific license from the agency, the NRC, an agreement state, or a licensing state to receive the source;

(IV) shall store such source, except when the source is being used, in a closed container adequately designed and constructed to contain americium-241, plutonium-238, plutonium-239, or radium-226 that might otherwise escape during storage; and

(V) shall not use such source for any purpose other than the calibration of radiation detectors or the standardization of other sources.

(iv) The general license in subparagraph (A) of this paragraph does not authorize the manufacture of calibration or reference sources containing americium-241, plutonium-238, plutonium-239, or radium-226.

(E) General license for ice detection devices.

(i) A general license is issued to own, receive, acquire, possess, use, and transfer strontium-90 contained in ice detection devices, provided each device contains not more than 50 µCi of strontium-90 and each device has been manufactured or initially transferred in accordance with a specific license issued by the NRC or each device has been manufactured in accordance with the authorizations contained in a specific license issued by the agency or any agreement state to the manufacturer of such device in accordance with licensing requirements equivalent to those in Title 10, CFR, §32.61.

(ii) Persons who receive, acquire, possess, use, or transfer strontium-90 contained in ice detection devices in accordance with the general license in clause (i) of this paragraph shall do the following:

(I) upon occurrence of visually observable damage, such as bend or crack or discoloration from overheating to the device, discontinue use of the device until it has been inspected, tested for leakage, and repaired by a person holding a specific license from the NRC or an agreement state to manufacture or service such devices; or dispose of the device by transfer to a person authorized by a specific license from the agency, the NRC, or an agreement state; and

(II) assure that all labels affixed to the device at the time of receipt, and which bear a statement prohibiting removal of the labels, are maintained on the device.

(iii) The general license in subparagraph (A) of this paragraph does not authorize the manufacture, assembly, disassembly, or repair of strontium-90 in ice detection devices.

(F) General license for intrastate transportation of radioactive material.

(i) A general license is issued to any common or contract carrier to transport and store radioactive material in the regular course of their carriage for another or storage incident to transport, provided the transportation and storage is in accordance with the applicable requirements of §289.257 of this title insofar as such requirements relate to the loading and storage of packages, placarding of the transporting vehicle, and incident reporting. Any notification of incidents referred to in those requirements shall be filed with the agency and the United States Department of Transportation (DOT). Persons who transport and store radioactive material in accordance with the general license in this paragraph are exempt from the requirements of §§289.202 and 289.203 of this title.

(ii) A general license is issued to any private carrier to transport radioactive material, provided the transportation is in accordance with the applicable requirements, appropriate to the mode of transport, of the DOT insofar as such requirements relate to the loading and storage of packages, placarding of the transporting vehicle, and incident reporting. Any notification of incidents referred to in those requirements shall be filed with the agency and the DOT.

(G) General license for the use of radioactive material for certain in vitro clinical or laboratory testing, not to include research and development. (The New Drug provisions of the Federal Food, Drug, and Cosmetic Act also govern the availability and use of any specific diagnostic drugs in interstate commerce.)

(i) A general license is issued to any physician, veterinarian, clinical laboratory, or hospital to receive, acquire, possess, transfer, or use, for any of the following stated tests, in accordance with the provisions of clauses (ii)-(iii) of this subparagraph, the following radioactive materials in prepackaged units:

(I) iodine-125, in units not exceeding 10 µCi each for use in in vitro clinical or laboratory tests not involving internal or external administration of radioactive material, or the radiation therefrom, to humans or animals;

(II) iodine-131, in units not exceeding 10 µCi each for use in in vitro clinical or laboratory tests not involving internal or external administration of radioactive material, or the radiation therefrom, to humans or animals;

(III) carbon-14, in units not exceeding 10 µCi each for use in in vitro clinical or laboratory tests not involving internal or external administration of radioactive material, or the radiation therefrom, to humans or animals;

(IV) hydrogen-3 (tritium), in units not exceeding 50 µCi each for use in in vitro clinical or laboratory tests not involving internal or external administration of radioactive material, or the radiation therefrom, to humans or animals;

(V) iron-59, in units not exceeding 20 µCi each for use in in vitro clinical or laboratory tests not involving internal or external administration of radioactive material, or the radiation therefrom, to humans or animals;

(VI) selenium-75, in units not to exceed 10 µCi each for use in in vitro clinical or laboratory tests not involving internal or external administration of radioactive material, or the radiation therefrom, to humans or animals;

(VII) mock iodine-125 reference or calibration sources, in units not exceeding 0.05 µCi of iodine-129 and 0.005 µCi of americium-241 each for use in in vitro clinical or laboratory tests not involving internal or external administration of radioactive material, or the radiation therefrom, to humans or animals; or

(VIII) cobalt-57, in units not exceeding 10 µCi each for use in in vitro clinical or laboratory tests not involving internal or external administration of radioactive material, or the radiation therefrom, to humans or animals.

(ii) A person who receives, acquires, possesses, or uses radioactive material in accordance with the general license in clause (i) of this subparagraph shall comply with the following.

(I) The general licensee shall not possess at any one time, at any one location of storage or use, a total amount of iodine-125, iodine-131, selenium-75, iron-59, and/or cobalt-57 in excess of 200 µCi.

(II) The general licensee shall store the radioactive material in the original shipping container or in a container providing equivalent radiation protection and meeting the requirements of §289.202(cc) of this title until used.

(III) The general licensee shall use the radioactive material only for the uses authorized by clause (i) of this subparagraph.

(IV) The general licensee shall not transfer the radioactive material to a person who is not authorized to receive it in accordance with a specific license issued by the agency, the NRC, any agreement state, or any licensing state, nor transfer the radioactive material in any manner other than in the unopened, labeled shipping container as received from the supplier.

(V) The general licensee shall dispose of the mock iodine-125 reference or calibration sources described in clause (i)(VII) of this subparagraph as required by §289.202(ff) of this title.

(iii) The general licensee shall not receive, acquire, possess, or use radioactive material in accordance with the general license in clause (i) of this subparagraph:

(I) except as prepackaged units that are labeled in accordance with the provisions of an applicable specific license issued in accordance with §289.252(p) of this title or in accordance with the provisions of a specific license issued by the NRC, any agreement state, or any licensing state that authorizes the manufacture and distribution of iodine-125, iodine-131, carbon-14, hydrogen-3 (tritium), iron-59, selenium-75, cobalt-57, or mock iodine-125 to general licensees in accordance with this subparagraph or its equivalent; and

(II) unless one of the statements in the following figures, as appropriate, or a substantially similar statement that contains the information called for in one of the following statements, appears on a label affixed to each prepackaged unit or appears in a leaflet or brochure that accompanies the package:

(-a-) option 1, as appropriate:

Figure: 25 TAC §289.251(f)(4)(G)(iii)(II)(-a-)

(-b-) option 2, as appropriate:

Figure: 25 TAC §289.251(f)(4)(G)(iii)(II)(-b-)

(iv) No person shall receive, acquire, possess, use, or transfer radioactive material in accordance with the general license in clause (i) of this subparagraph until that person has filed an application for registration on a form prescribed by the agency and has received from the agency a notification of receipt with an assigned registration number. The applicant shall submit the following information and any other information as may be required by the agency:

(I) name and address of the physician, veterinarian, clinical laboratory, or hospital;

(II) the location of use; and

(III) a statement that the physician, veterinarian, clinical laboratory, or hospital has appropriate radiation measuring instruments to carry out in vitro clinical or laboratory tests with radioactive material as authorized in accordance with clause (i) of this subparagraph, and that such tests will be performed only by personnel competent in the use of such instruments and in the handling of the radioactive material.

(H) General license for certain detecting, measuring, gauging, or controlling devices and certain devices for producing light or an ionized atmosphere.

(i) A general license is issued to commercial and industrial firms and to research, educational, and medical institutions, individuals in the conduct of their business, and state or local government agencies to receive, acquire, possess, use, or transfer in accordance with the provisions of clauses (ii)-(iv) of this subparagraph, radioactive material, excluding special nuclear material, contained in devices designed and manufactured for the purpose of detecting, measuring, gauging or controlling thickness, density, level, interface location, radiation, leakage, or qualitative or quantitative chemical composition or for producing light or an ionized atmosphere.

(ii) The general license in clause (i) of this subparagraph applies only to radioactive material contained in devices that have been manufactured or initially transferred and labeled in accordance with the specifications contained in a specific license issued by the agency in accordance with §289.252(l) of this title or in a specific license issued by the NRC, an agreement state, or a licensing state that authorizes distribution of devices to persons generally licensed by the NRC, an agreement state, or a licensing state.

(iii) The devices must have been received from a specific licensee described in clause (ii) of this subparagraph or through a transfer made in accordance with clause (iv)(XII) of this subparagraph.

(iv) Any person who receives, acquires, possesses, uses, or transfers radioactive material in a device in accordance with the general license in this subparagraph shall do the following:

(I) assure that all labels, affixed to the device at the time of receipt and bearing a statement that removal of the label is prohibited are maintained on the device and are clearly visible and legible. The general licensee shall comply with all instructions and precautions provided by such labels;

(II) assure that the device is tested for leakage of radioactive material and proper operation of the "on-off" mechanism and indicator, if any, at no longer than six-month intervals or at such other intervals as specified in the label; however:

(-a-) devices containing only krypton need not be tested for leakage of radioactive material; and

(-b-) devices containing only tritium or not more than 100 µCi of other beta and/or gamma emitting material or 10 µCi of alpha emitting material and devices held in storage in the original shipping container prior to initial installation need not be tested for any purpose, provided that each source is tested for leakage within six months prior to being used or transferred;

(III) assure that the tests required by subclause (II) of this clause and other testing, installation (removal of the manufacturer's lock and initial alignment of the radiation beam), servicing, and removal from location of installation involving the radioactive materials, its shielding or containment, are performed:

(-a-) in accordance with the instructions provided by the labels;

(-b-) in accordance with written instructions provided by the manufacturer as specified in §289.252(l)(3) of this title; or

(-c-) by a person holding a specific license from the agency, the NRC, an agreement state, or a licensing state to perform such activities;

(IV) maintain records for inspection by the agency showing compliance with the requirements of subclauses (II) and (III) of this clause. The records shall show the test results. The records also shall identify the device tested by manufacturer, model and serial number of the device, serial number of the sealed source, and show the dates of performance of and the names of persons performing testing, installation, servicing, and removal from location of installation, of the radioactive material, its shielding or containment. Retention shall be as follows:

(-a-) records for tests for leakage or radioactive material required by subclause (II) of this clause must be kept for three years after the next required leak text is performed or until the sealed source is transferred or disposed of; and

(-b-) records of the test of the on-off mechanism and indicator required by subclause (II) of this clause must be kept for three years after the next required test of the on-off mechanism and indicator is performed or until the sealed source is transferred or disposed of.

(-c-) records of the testing, installation (removal of the manufacturer's lock and initial alignment of the radiation beam), servicing, and removal from location of installation involving the radioactive materials, its shielding or containment required by subclause (III) of this clause shall be kept for three years from the date of the recorded event or until the device is transferred or disposed of.

(V) maintain assignment records (utilization records) for portable or mobile devices for inspection by the agency at the location listed in the general license acknowledgement in accordance with subsection (g) of this section. These records shall include:

(-a-) a unique identification (for example, serial number) of each portable or mobile device;

(-b-) the location(s) where each portable or mobile device is assigned; and

(-c-) the date(s) each portable or mobile device is assigned to the location(s) in accordance with item (-b-) of this subclause;

(VI) have a copy of the appropriate operating and instruction manual at each temporary site for agency inspection;

(VII) immediately suspend operation of the device if there is a failure of, or damage to, or any indication of a possible failure of or damage to, the shielding of the radioactive material or the "on-off" mechanism, or indicator, or upon the detection of 1.85 becquerels (0.005 µCi) or more of removable radioactive material. The device shall not be operated until it has been repaired by the manufacturer or other person holding a specific license from the agency, the NRC, an agreement state, or a licensing state to repair such devices. The device and any radioactive material from the device may only be disposed of by transfer to a person authorized by a specific license to receive the radioactive material in the device. A report containing a brief description of the event and the remedial action taken and in the case of detection of 1.85 becquerels (0.005 µCi) or more removable radioactive material or failure of, or damage to a source likely to result in contamination of the premises or the environs, a plan for ensuring that the premises and environs are acceptable for unrestricted use shall be furnished to the agency within 30 days. Under these circumstances, the requirements in §289.202(ddd) of this title may be applicable, as determined by the agency on a case-by-case basis;

(VIII) not abandon the device containing radioactive material;

(IX) transfer or dispose of the device containing radioactive material only by transfer to another general licensee as authorized in subclause (XII) of this clause or to a person authorized to receive the device by a specific license issued by the agency in accordance with §289.252(l) of this title, or an equivalent specific license issued by the NRC, an agreement state, or a licensing state, or as otherwise approved under subclause (XI) of this clause;

(X) furnish a report to the agency within 30 days after the transfer of a device to a specific licensee. The report must contain the following:

(-a-) identification of the device by manufacturer's (or initial transferor's) name, model and serial number;

(-b-) name, address, and license number of the person receiving the device; and

(-c-) date of the transfer.

(XI) obtain written agency approval before transferring the device to any other specific licensee not specifically identified in subclause (IX) of this clause;

(XII) transfer the device to another general licensee only if:

(-a-) the device remains in use at a particular location. In such case, the transferor shall give the transferee a copy of this section and any safety documents identified in the label on the device. Within 30 days of the transfer, the transferor shall report the following to the agency:

(-1-) manufacturer's (or initial transferor's) name;

(-2-) model and serial number of the device transferred;

(-3-) transferee's name and mailing address for the location of use; and

(-4-) name, title, and phone number of the responsible individual identified by the transferee in accordance with subclause (XIII) of this clause to have knowledge of and authority to take actions to ensure compliance with the appropriate regulations and requirements; or

(-b-) the device is held in storage by an intermediate person in the original shipping container at its intended location of use prior to initial use by a general licensee.

(XIII) appoint an individual responsible for having knowledge of the appropriate agency requirements and the authority for taking required actions to comply with appropriate agency requirements. The general licensee, through this individual, shall ensure the day-to-day compliance with appropriate agency requirements. This appointment does not relieve the general licensee of any of its responsibility in this regard;

(XIV) report changes to the mailing address for the location of use (including change in name of general licensee) to the agency within 30 days of the effective date of the change. If it is a portable device, a report of address change is only required for a change in the device's primary place of storage; and

(XV) not hold devices that are not in use for longer than two years. If devices with shutters are not being used, the shutter shall be locked in the closed position. The testing required by clause (iv) of this subparagraph need not be performed during the period of storage only. However, when devices are put back into service or transferred to another person, and have not been tested within the required test interval, they shall be tested for leakage before use or transfer and the shutter tested before use. Devices kept in standby for future use are excluded from the two-year time limit if the general licensee performs quarterly physical inventories of these devices while they are in standby. The licensee shall make and maintain, for intervals of five years, records of the quarterly physical inventories for inspection by the agency.

(I) The general license in subparagraph (H) of this paragraph does not authorize the manufacture or import of devices containing radioactive material.

(J) The written instructions specified in subparagraph (H)(iv)(III)(-a-) of this paragraph shall be followed while performing the testing and shall be maintained for inspection by the agency.

(g) General license acknowledgements for radioactive material other than source material. In addition to the requirements of this section, all general license acknowledgement holders, unless otherwise specified, are subject to the requirements of §§289.201, 289.202(ww) and (xx), 289.204, 289.205, and 289.257 of this title.

(1) Persons possessing a general license for devices in accordance with subsection (f)(4)(H) of this section and being in the possession of radioactive material in devices containing at least 370 MBq (10 mCi) of cesium-137, 3.7 MBq (0.1 mCi) of strontium-90, 37 MBq (1 mCi) of cobalt-60, 37 MBq (1 mCi) of americium-241, or any transuranic (for example, element with atomic number greater than uranium (92)), based on the activity indicated on the label on the device, shall file an application for acknowledgement within 30 days of receipt, acquisition, or possession of such a device. The application shall be on a form prescribed by the agency to include the following information and any other information specifically requested by the agency:

(A) name and mailing address of the general licensee;

(B) information about each device to include the manufacturer (or initial transferor), model number, and serial number of the device, and the radioisotope and activity (as indicated on the label);

(C) name, title, and telephone number of the responsible person designated as a representative of the general licensee in accordance with subparagraph (H)(iv)(XIII) of this paragraph;

(D) address or location at which the device(s) are used and/or stored. For portable devices, the address of the primary place of storage;

(E) certification by the responsible representative of the general licensee that the information concerning the device(s) has been verified through a physical inventory and checking of label information;

(F) certification by the responsible representative of the general licensee that they are aware of the requirements of this section; and

(G) a completed BRC Form 252-1, Business Information Form and the applicable fee as required by §289.204 of this title.

(2) Persons generally licensed by the agency with respect to devices meeting the criteria in paragraph (1) of this subsection, are not subject to the requirements of paragraph (1) of this subsection if the devices are used in areas subject to agency jurisdiction for a period less than 30 days in any calendar year.

(h) Issuance of general license acknowledgements.

(1) When the agency determines that an application meets the requirements of the Act and the rules of the agency, the agency will issue a general license acknowledgement recognizing the general license authorizing the activity in such form and containing the conditions and limitations as it deems appropriate or necessary.

(2) The agency may incorporate in any general license acknowledgement at the time of issuance, or thereafter by amendment, additional requirements and conditions with respect to the licensee's receipt, possession, use, and transfer of radioactive material subject to this section as the agency deems appropriate or necessary in order to:

(A) minimize danger to occupational and public health and safety or the environment;

(B) require reports and the keeping of records, and to provide for inspections of activities in accordance with the license as may be appropriate or necessary; and

(C) prevent loss or theft of material subject to this section.

(3) The agency may request, and the licensee shall provide, additional information after the general license acknowledgement has been issued to enable the agency to determine whether the general license acknowledgement should be modified in accordance with subsection (l) of this section.

(i) Specific terms and conditions.

(1) Each general license acknowledgement issued in accordance with this section shall be subject to the applicable provisions of the Act, now or hereafter in effect, and to the applicable rules and orders of the agency.

(2) Each person holding a general license acknowledgement issued by the agency in accordance with this section shall confine use and possession of the devices and radioactive material identified in the general license acknowledgement to the locations specified in the general license acknowledgement.

(3) Each holder of a general license acknowledgement shall notify the agency, in writing, immediately following the filing of a voluntary or involuntary petition for bankruptcy by the general license acknowledgement holder or its parent company.

(4) The notification in paragraph (3) of this subsection shall include:

(A) the bankruptcy court in which the petition for bankruptcy was filed; and

(B) the date of the filing of the petition.

(5) A copy of the "Petition for Bankruptcy" shall be submitted to the agency with the written notification.

(j) Expiration of general license acknowledgement and administrative renewal.

(1) Effective September 1, 2004, the term of the general license acknowledgement is two years. Each general license acknowledgement expires at the end of the day, in the month and year stated in the general license acknowledgement. Upon payment of the fee required by §289.204 of this title and if the agency does not deny the renewal in accordance with subsection (f)(1) of this section, the general license acknowledgement will be administratively renewed.

(2) Expiration of the general license acknowledgement does not relieve the holder of the general license acknowledgement of the requirements of this chapter.

(3) If the holder of the general license acknowledgement does not pay the fee required by §289.204 of this title and the general license acknowledgement is not renewed, the holder of the general license acknowledgement shall:

(A) terminate use of all generally licensed devices; and

(B) submit to the agency a record of the disposition of the devices and if transferred, to whom it was transferred, within 30 days following the expiration date.

(k) Termination of general license acknowledgements.

(1) Each holder of a general license acknowledgement shall notify the agency immediately, in writing, and request termination of the general license acknowledgement when the holder of the general license acknowledgement decides to terminate all activities involving materials specified in the general license acknowledgement.

(2) Each holder of a general license acknowledgement shall, no less than 30 days before vacating or relinquishing possession of control of premises that have been used as a place of storage or use of radioactive material as a result of general licensed activities, notify the agency in writing of intent to vacate and do the following:

(A) terminate use of radioactive material;

(B) dispose of radioactive material in accordance with this section and/or §289.202(ff) of this title; and

(C) pay any outstanding fees in accordance with §289.204 of this title.

(l) Amendment of general license acknowledgements.

(1) The holder of the general license acknowledgement required by subsection (g)(1) of this section shall report in writing to the agency any changes in information furnished by the holder of the general license acknowledgement. The report shall be submitted within 30 days after the effective date of such change.

(2) Applications for amendments of a general license acknowledgement shall be filed in accordance with subsection (g)(1)(A)-(F) of this section, as applicable, and shall specify the respects in which the holder of a general license acknowledgement desires a general license acknowledgement to be amended.

(m) Appendices.

(1) Exempt concentrations.

Figure: 25 TAC §289.251(m)(1)

(2) Exempt quantities.

Figure: 25 TAC §289.251(m)(2)

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on January 16, 2004.

TRD-200400317

Susan K. Steeg

General Counsel

Texas Department of Health

Earliest possible date of adoption: February 29, 2004

For further information, please call: (512) 458-7236


25 TAC §289.252

The Texas Department of Health (department) proposes an amendment to §289.252, concerning licensing of radioactive material.

Government Code, §2001.039, requires that each state agency review and consider for readoption each rule adopted by that agency pursuant to the Government Code, Chapter 2001 (Administrative Procedure Act). Section 289.252 has been reviewed and the department has determined that the reasons for adopting the section continue to exist; however, revisions to the rule are necessary as outlined in this preamble.

The department published a Notice of Intention to Review for §289.252 regarding Government Code, §2001.039, in the Texas Register (28 TexReg 11118) on December 12, 2003. No comments were received by the department on this section following publication of the notice.

The proposed revision incorporates legislation passed by the 78th Legislature, Regular Session. House Bill (HB) 2292 requires two-year terms for radioactive material licenses and requires recovery through fees of 100% of regulatory program costs for the two-year term of the license. The department has historically required renewal of specific licenses that includes submission to the department of updated technical information regarding the radioactive material possessed, operating, safety and emergency procedures, and personnel responsible for the security of safe use of the radioactive materials. In order to incorporate the provisions of HB 2292 concerning two-year terms and to continue requiring a renewal that includes pertinent technical information, the department is implementing an administrative renewal and a technical renewal. The licensee will be required to renew the license every two years by paying the required fee and having a satisfactory compliance history. This administrative renewal will not involve review of technical information regarding the license. At a longer interval, the licensee will be required to submit certain technical information for review. This technical renewal date will be specified in the license and will be for an interval of an even number of years in order to eventually coincide with the fee renewal. Maintaining the more resource-intensive technical renewal allows the department to ensure continued security and safe use of radioactive material. The change to the rule is reflected in revised subsections (y) and (z).

House Bill 253, 78th Legislature, Regular Session, requires the department to deny a radioactive material application, amendment or renewal if the applicant's compliance history reveals a recurring pattern of conduct that demonstrates a consistent disregard for the regulatory process through significant violations of the Radiation Control Act or the department's radiation control rules. The department has defined "a recurring pattern of conduct that demonstrates a consistent disregard for the regulatory process through significant violations..." by adding a requirement that states the department will deny an application if at least three department or judicial orders are issued that assess administrative or civil penalties against the licensee or to revoke or suspend the radioactive material license. The change to the rule is reflected in new subsection (x)(7).

The proposed revision changes references to the Formal Hearing Procedures throughout the rule to properly cite the references. In subsection (f)(1), the sentence "A single individual may be designated as RSO for more than one license if authorized by the agency." is added to clearly state the department's current practice in approving an individual to be a radiation safety officer (RSO) for a license. New subsection (f)(3)(L) is added as a requirement of the RSO to ensure both licensees and the department have an accounting of all authorized sources. This requirement is being added to enhance security by increasing accountability for sources of radiation.

Several revisions are made to the subsection concerning specific licenses for the manufacture and commercial distribution of devices to persons generally licensed. The requirements are items of compatibility with the United States Nuclear Regulatory Commission and as an agreement state, Texas is required to adopt them. These revisions include new subsection (l)(1)(D) and (E) concerning labeling, new (l)(4)(G) concerning enforcement, and new subsection (l)(5) concerning alternative approaches to informing customers. The revisions also include addition of new and clarification of existing language concerning reports that are required by the licensee.

Subsection (x)(4) is revised to add the words "by the licensee or its parent company, if the parent company is involved in the bankruptcy" at the end of the sentence to be consistent with language used throughout this chapter. New subsection (y)(5)(A) adds the words "or has been revoked" after "expired" to clearly state that the license can also be revoked as is intended by the rule. Subsection (dd) adds the word ", suspension," after "Modification" to state the complete list of options for this subsection as is intended within the rule language. New subparagraph (D) is added to subsection (dd) to state that a license may also be modified, suspended, or revoked in whole or in part as a result of existing conditions that constitute a substantial threat to the public health or safety or the environment. Subsection (gg)(6)(B)(ii) replaced the word "Fund" with "Account" after "Care" to accurately state the name of the account as a result of implementing changes authorized by House Bill 1678 (78th Legislature 2003). In the figure for subsection (ii)(2), the radionuclides "Th-232" and "U-238" are deleted from the category of the 0.01µCi limit and moved to the category of the 1.0 mCi limit so these radionuclides are included in the correct limit category.

Concerning the entire section, several changes were made to rule citations to state the correct citations and for renumbering purposes as needed due to language being added or deleted throughout the section. Other minor grammatical changes have been made throughout the section.

This amendment is part of the department's continuing effort to update, clarify, and simplify its rules regarding the control of radiation based upon technological advances, public concerns, legislative directives, other factors, or to incorporate requirements that are items of compatibility with NRC regulations because as an agreement state, Texas must adopt compatible requirements.

Ruth E. McBurney, C.H.P., Director, Division of Licensing, Registration and Standards, Bureau of Radiation Control, has determined that for each year of the first five years the section is in effect, there will be no fiscal implications for state or local government as a result of enforcing or administering the section as proposed.

Mrs. McBurney has also determined that for each year of the first five years the proposed section is in effect, the public benefit anticipated as a result of enforcing the section will be to ensure continued protection of the public, workers, and the environment from unnecessary exposure to radiation by ensuring adequate requirements relative to the risk associated with radioactive material. There will be no fiscal impact on applicants/licensees that are small businesses, micro-businesses or other persons required to comply with the rule. No additional costs will be incurred because the additional requirements are relatively minor changes to existing requirements to current reporting and record-keeping requirements. The revisions correct reference citations and clarify the intent. There is no anticipated impact on local employment.

Comments on the proposal may be submitted to Ruth E. McBurney, C.H.P., Director, Division of Licensing, Registration and Standards, Bureau of Radiation Control, Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756-3189, Telephone (512) 834-6688 or electronic mail at Ruth.McBurney@tdh.state.tx.us. Public comments will be accepted for 30 days following publication of this proposal in the Texas Register . In addition, a public meeting to accept oral comments will be held at 1:00 p.m., Wednesday, February 11, 2004, in Conference Room N-218, Texas Department of Health, Bureau of Radiation Control, located at the Exchange Building, 8407 Wall Street, Austin, Texas.

The amendment is proposed under the Health and Safety Code, §401.051, which provides the Texas Board of Health (board) with the authority to adopt rules and guidelines relating to the control of radiation; and §12.001, which provides the board with the authority to adopt rules for its procedure and for the performance of each duty imposed by law on the board, the department, or the commissioner of health.

The amendment affects Health and Safety Code, Chapters 12 and 401. The review of the rule implements Government Code, §2001.039.

§289.252.Licensing of Radioactive Material.

(a)-(c) (No change.)

(d) Filing application for specific licenses. The agency may, at any time after the filing of the original application, require further statements in order to enable the agency to determine whether the application should be denied or the license should be issued.

(1)-(8) (No change.)

(9) Notwithstanding the provisions of §289.204(d)(1) [ §289.204(e)(1) ] of this title, reimbursement of application fees may be granted in the following manner.

(A)-(B) (No change.)

(C) If the request for full reimbursement authorized by subparagraph (A) of this paragraph is denied, the applicant may then request a hearing by appeal to the Commissioner of Health for a resolution of the dispute. The appeal will be processed in accordance with Title 1, Texas Administrative Code, Chapter 155, and the Formal Hearing Procedures, §§1.21, 1.23, 1.25, and 1.27 of this title (relating to the Texas Board of Health).

(10) (No change.)

(e) General requirements for the issuance of specific licenses. A license application will be approved if the agency determines that:

(1)-(9) (No change.)

(10) there is no reason to deny the license as specified in subsection (d)(10) or (x)(7) of this section.

(f) Radiation safety officer.

(1) An RSO shall be designated for every license issued by the agency. A single individual may be designated as RSO for more than one license if authorized by the agency.

(2) (No change.)

(3) The specific duties of the RSO include, but are not limited to, the following:

(A)-(K) (No change.)

(L) to perform an inventory of the radioactive material sources authorized for use on the license every six months and make and maintain records of the inventory of the radioactive material sources authorized for use on the license every six months, to include, but not be limited to the following:

(i) isotope(s);

(ii) quantity(ies);

(iii) activity(ies);

(iv) form(s);

(v) last date(s) of use;

(vi) name of individual making the inventory; and

(vii) signature of individual making the inventory.

(M) [ (L) ] to ensure that personnel are complying with this chapter, the conditions of the license, and the operating, safety, and emergency procedures of the licensee; and

(N) [ (M) ] to serve as the primary contact with the agency.

(4)-(5) (No change.)

(g)-(h) (No change.)

(i) Specific licenses for introduction of radioactive material into products in exempt concentrations.

(1) (No change.)

(2) the applicant provides reasonable assurance that:

(A) the concentrations of radioactive material at the time of transfer will not exceed the concentrations in §289.251(m)(1) [ §289.251(q)(1) ] of this title;

(B) reconcentration of the radioactive material in concentrations exceeding those in §289.251(m)(1) [ §289.251(q)(1) ] of this title will not occur;

(C)-(D) (No change.)

(3)-(4) (No change.)

(j)-(k) (No change.)

(l) Specific licenses for the manufacture and commercial distribution of devices to persons generally licensed in accordance with §289.251(f)(4)(H) [ §289.251(h)(1)(C) and (k)(1) ] of this title.

(1) In addition to the requirements in subsection (e) of this section, a specific license to manufacture or commercially distribute devices containing radioactive material to persons generally licensed in accordance with §289.251(f)(4)(H) [ §289.251(h)(1)(C) and (k)(1) ] of this title or equivalent requirements of the NRC, an agreement state, or a licensing state will be issued if the agency approves the following information submitted by the applicant:

(A)-(C) (No change.)

(D) Each device having a separable source housing that provides the primary shielding for the source also bears, on the source housing, a durable label containing the device model number and serial numbers, the isotope and quantity, the words, "Caution-Radioactive Material," the radiation symbol described in §289.202(z) of this title, and the name of the manufacturer or initial distributor.

(E) Each device meeting the criteria of §289.251(g)(1) of this title, bears a permanent (for example, embossed, etched, stamped, or engraved) label affixed to the source housing if separable, or the device if the source housing is not separable, that includes the words, "Caution-Radioactive Material," and, if practicable, the radiation symbol described in §289.202(z) of this title.

(2) (No change.)

(3) In the event the applicant desires that the general licensee in accordance with §289.251(f)(4)(H) [ §289.251(h)(1)(C) and (k)(1) ] of this title or in accordance with equivalent regulations of the NRC, an agreement state, or a licensing state, be authorized to mount the device, collect the sample to be analyzed by a specific licensee for radioactive material leakage, perform maintenance of the device consisting of replacement of labels, rust and corrosion prevention, and for fixed gauges, repair and maintenance of sealed source holder mounting brackets, test the "on-off" mechanism and indicator, or remove the device from installation, the applicant shall include in the application written instructions to be followed by the general licensee, estimated annual doses associated with such activity or activities, and bases for such estimates. The submitted information shall demonstrate that performance of such activity or activities by an individual untrained in radiological protection, in addition to other handling, storage, and use of devices in accordance with the general license, is unlikely to cause that individual to receive an annual dose in excess of 10% of the limits specified in §289.202(f) of this title.

(4) Before the device may be transferred, each person licensed in accordance with this subsection to commercially distribute devices to generally licensed persons shall furnish:

(A) a copy of the general license in §289.251(f)(4)(H) [ §289.251(h)(1)(C) and (k)(1) ] of this title to each person to whom the licensee directly commercially distributes radioactive material in a device for use in accordance with the general license in §289.251(f)(4)(H) [ §289.251(h)(1)(C) and (k)(1) ] of this title;

(B) a copy of the general license in the NRC's, agreement state's, or licensing state's regulation equivalent to §289.251(f)(4)(H) [ §289.251(h)(1)(C) and (k)(1) ] of this title, or alternatively, a copy of the general license in §289.251(f)(4)(H) [ §289.251(h)(1)(C) and (k)(1) ] of this title to each person to whom the licensee directly commercially distributes radioactive material in a device for use in accordance with the general license of the NRC, the agreement state, or the licensing state. If certain requirements of the regulations do not apply to the particular device, those requirements may be omitted. If a copy of the general license in §289.251(f)(4)(H) [ §289.251(h)(1)(C) and (k)(1) ] of this title is furnished to such a person, it shall be accompanied by an explanation that the use of the device is regulated by the NRC, agreement state, or licensing state in accordance with requirements substantially the same as those in §289.251(f)(4)(H) [ §289.251(h)(1)(C) and (k)(1) ] of this title;

(C) a copy of §289.251(g) [ §289.251(h)(1)(C) and (k)(1) ] of this title;

(D) (No change.)

(E) information on acceptable disposal options including estimated costs of disposal; [ and ]

(F) the name or position , address, and phone number of a contact person at the agency, an agreement state, or licensing state , or the NRC from which additional information may be obtained ; and [ . ]

(G) an indication that it is the NRC's policy to issue high civil penalties for improper disposal if the device is commercially distributed to a general licensee of the NRC.

(5) An alternative approach to informing customers may be submitted by the licensee for approval by the agency.

(6) [ (5) ] In the case of a transfer through an intermediate person, each licensee who commercially distributes radioactive material in a device for use in accordance with the general license in §289.251(f)(4)(H) [ §289.251(h)(1)(C) and (k)(1) ] of this title, shall furnish the information in paragraph (4) of this subsection to the intended user prior to the initial transfer to the intermediate person.

(7) [ (6) ] Each person licensed in accordance with this subsection to commercially distribute devices to generally licensed persons shall:

(A) report to the agency all commercial distributions of devices to persons for use in accordance with the general license in §289.251(f)(4)(H) [ §289.251(h)(1)(C) and (k)(1) ] of this title and all receipts of devices from general licensees licensed in accordance with §289.251(f)(4)(H) of this title .

(i) The report shall :

(I) cover each calendar quarter ; [ , ]

(II) [ shall ] be filed within 30 days thereafter ; [ , and shall include: ]

(III) be submitted on a form prescribed by the agency or in a clear and legible report containing all of the data required by the form;

(IV) clearly indicate the period covered by the report;

(V) clearly identify the specific licensee submitting the report and include the license number of the specific licensee;

(VI) [ (I) ] identify [ identity of ] each general licensee by name and mailing address for the location of use; if there is no mailing address for the location of use, an alternate address for the general licensee shall be submitted along with information on the actual location of use ;

(VII) [ (II) ] identify [ identity of ] an individual by name , [ and/or position ] title, and phone number who has knowledge of and authority to take required actions to ensure compliance with the appropriate regulations and requirements [ may constitute a point of contact between the agency and the general licensee ];

(VIII) [ (III) ] identify the type, model and serial number of device, and serial number of sealed source commercially distributed; [ and ]

(IX) [ (IV) ] identify the quantity and type of radioactive material contained in the device ; and [ . ]

(X) include the date of transfer.

(ii) If one or more intermediate persons will temporarily possess the device at the intended place of use prior to its possession by the user, the report shall also include the information in accordance with paragraph (7)(A)(i) of this subsection for both the intended user and [ identification of ] each intermediate person and clearly designate the intermediate person(s) [ by name, address, contact, and relationship to the intended user ].

(iii) If no commercial distributions have been made to persons generally licensed in accordance with §289.251(f)(4)(H) [ §289.251(h)(1)(C) and (k)(1) ] of this title during the reporting period, the report shall so indicate.

(iv) For devices received from a general licensee, the report shall include the identity of the general licensee by name and address, the type, model number, and serial number of the device received, the date of receipt, and, in the case of devices not initially transferred by the reporting licensee, the name of the manufacturer or initial transferor.

(B) report the following to the NRC to include covering each calendar quarter to be filed within 30 days thereafter , clearly indicating the period covered by the report, the identity of the specific licensee submitting the report, and the license number of the specific licensee :

(i) all commercial distributions of such devices to persons for use in accordance with the NRC general license in Title 10, CFR, §31.5 and all receipts of devices from general licensees in areas under NRC jurisdiction including the following :

(I) identity of each general licensee by name and address;

[ (II) identity of an individual by name and/or position who may constitute a point of contact between the agency and the general licensee;]

(II) [ (III) ] the type, model and serial number of device, and serial number of sealed source commercially distributed; [ and ]

(III) [ (IV) ] the quantity and type of radioactive material contained in the device; [ or ]

(IV) the date of transfer; or

(ii) if the licensee makes changes to a device possessed in accordance with the general license in §289.251(f)(4)(H) of this title, such that the label must be changed to update required information, the report shall identify the licensee, the device, and the changes to information on the device label;

(iii) in the case of devices not initially transferred by the reporting licensee, the name of the manufacturer or initial transferor;

(iv) [ (ii) ] if no commercial distributions have been made to the NRC licensees during the reporting period; the report shall so indicate; and

(C) report to the appropriate agreement state or licensing state all transfers of devices manufactured and commercially distributed in accordance with this subsection for use in accordance with a general license in that state's requirements equivalent to §289.251(f)(4)(H) [ §289.251(h)(1)(C) and (k)(1) ] of this title and all receipts of devices from general licensees .

(i) The report shall :

(I) be submitted within 30 days after the end of each calendar quarter in which such a device is commercially distributed to the generally licensed person ; [ and shall include the following: ]

(II) clearly indicate the period covered by the report;

(III) clearly identify the specific licensee submitting the report and include the license number of the specific licensee;

(IV) [ (I) ] identify [ identity of ] each general licensee by name and mailing address for the location of use; if there is no mailing address for the location of use an alternate address for the licensee shall be submitted along with the information on the actual location of use ;

(V) [ (II) ] identify [ identity of ] an individual by name , [ and/or ] position , and phone number who has knowledge of and authority to take required actions to ensure compliance with the appropriate regulations and requirements [ may constitute a point of contact between the agency and the general licensee ];

(VI) [ (III) ] the type, model and serial number of the device, and serial number of sealed source commercially distributed; [ and ]

(VII) [ (IV) ] the quantity and type of radioactive material contained in the device ; and [ . ]

(VIII) date of receipt.

(ii) If one or more intermediate persons will temporarily possess the device at the intended place of use prior to its possession by the user, the report shall also include the same information for both the intended user and [ identification of ] each intermediate person , and clearly designate the intermediate person(s) [ by name, address, contact, and relationship to the intended user ]; and

(iii) If no commercial distributions have been made to persons in the agreement state or licensing state during the reporting period, the report shall so indicate.

(iv) For devices received from a general licensee, the report shall include the identity of the general licensee by name and address, the type, model number, and serial number of the device received, the date of receipt, and, in the case of devices not initially transferred by the reporting licensee, the name of the manufacturer or initial transferor.

(D) keep records for three years following the date of the recorded event, showing the name, address, and the point of contact for each general licensee to whom the licensee directly or through an intermediate person commercially distributes radioactive material in devices for use in accordance with the general license provided in §289.251(f)(4)(H) [ §289.251(h)(1)(C) and (k)(1) ] of this title, or equivalent requirements of the NRC, an agreement state, or a licensing state.

(i) The records shall show the following:

(I) date of each commercial distribution;

(II) the isotope and the quantity of radioactivity in each device commercially distributed;

(III) the identity of any intermediate person; and

(IV) compliance with the reporting requirements of this subsection.

(ii) If no commercial distributions have been made to persons generally licensed in accordance with §289.251(f)(4)(H) [ §289.251(h)(1)(C) and (k)(1) ] of this title during the reporting period, the records shall so indicate.

(8) [ (7) ] If a notification of bankruptcy has been made in accordance with subsection (x)(4) of this section or the license is to be terminated, each person licensed under this subsection shall provide, upon request to the NRC and to any appropriate agreement state or licensing state, records of final disposition required under subsection (y)(16)(A) [ (y)(14)(A) ] of this section.

(9) Each device that is transferred after February 19, 2002, shall meet the labeling requirements in accordance with paragraph (1)(C)-(E) of this subsection.

(m) Specific licenses for the manufacture, assembly, or repair of luminous safety devices for use in aircraft for commercial distribution to persons generally licensed in accordance with §289.251(f)(4)(B) [ §289.251(h)(4) ] of this title. In addition to the requirements in subsection (e) of this section, a specific license to manufacture, assemble, or repair luminous safety devices containing tritium or promethium-147 for use in aircraft, for commercial distribution to persons generally licensed in accordance with §289.251(f)(4)(B) [ §289.251(h)(4) ] of this title, will be issued if the agency approves the information submitted by the applicant. The information shall satisfy the requirements of Title 10, CFR, §§32.53, 32.54, 32.55, 32.56, and 32.101 or their equivalent.

(n) Specific licenses for the manufacture of calibration sources containing americium-241, plutonium, or radium-226 for commercial distribution to persons generally licensed in accordance with §289.251(f)(4)(D) [ §289.251(h)(6) ] of this title. In addition to the requirements in subsection (e) of this section [ title ], a specific license to manufacture calibration sources containing americium-241, plutonium, or radium-226 to persons generally licensed in accordance with §289.251(f)(4)(D) [ §289.251(h)(6) ] of this title will be issued if the agency approves the information submitted by the applicant. The information shall satisfy the requirements of Title 10, CFR, §§32.57, 32.58, 32.59, and 32.102, and 10 CFR 70.39 or their equivalent.

(o) (No change.)

(p) Specific licenses for the manufacture and commercial distribution of radioactive material for certain in vitro clinical or laboratory testing in accordance with the general license. In addition to the requirements in subsection (e) of this section, a specific license to manufacture or commercially distribute radioactive material for use in accordance with the general license in §289.251(f)(4)(G) [ §289.251(k)(2) ] of this title will be issued if the agency approves the following information submitted by the applicant:

(1)-(4) (No change.)

(q) Specific licenses for the manufacture and commercial distribution of ice detection devices. In addition to the requirements of subsection (e) of this section, a specific license to manufacture and commercially distribute ice detection devices to persons generally licensed in accordance with §289.251(f)(4)(E) [ §289.251(h)(5) ] of this title will be issued if the agency approves the information submitted by the applicant. This information shall satisfy the requirements of Title 10, CFR, §§32.61, 32.62, and 32.103.

(r) (No change.)

(s) Specific licenses for the manufacture and commercial distribution of products containing depleted uranium for mass-volume applications.

(1) In addition to the requirements in subsection (e) of this section, a specific license to manufacture products and devices containing depleted uranium for use in accordance with §289.251(f)(3)(D) [ §289.251(g)(5) ] of this title or equivalent regulations of the NRC or an agreement state, will be issued if the agency approves the following information submitted by the applicant:

(A)-(B) (No change.)

(2)-(3) (No change.)

(4) Each person licensed in accordance with paragraph (1) of this subsection shall:

(A)-(C) (No change.)

(D) furnish a copy of the following:

(i) the general license in §289.251(f)(3)(D) [ §289.251(g)(5) ] of this title to each person to whom the licensee commercially distributes depleted uranium in a product or device for use in accordance with the general license in §289.251(f)(3)(D) [ §289.251(g)(5) ] of this title;

(ii) the NRC's or agreement state's requirements equivalent to the general license in §289.251(f)(3)(D) [ §289.251(g)(5) ] of this title and a copy of the NRC's or agreement state's certificate; or

(iii) alternately, a copy of the general license in §289.251(f)(3)(D) [ §289.251(g)(5) ] of this title to each person to whom the licensee commercially distributes depleted uranium in a product or device for use in accordance with the general license of the NRC or an agreement state;

(E) report to the agency all commercial distributions of products or devices to persons for use in accordance with the general license in §289.251(f)(3)(D) [ §289.251(g)(5) ] of this title.

(i) (No change.)

(ii) If no commercial distributions have been made to persons generally licensed in accordance with §289.251(f)(3)(D) [ §289.251(g)(5) ] of this title during the reporting period, the report shall so indicate;

(F) report to the NRC and each responsible agreement state agency all commercial distributions of industrial products or devices to persons for use in accordance with the general license in the NRC's or agreement state's equivalent requirements to §289.251(f)(3)(D) [ §289.251(g)(5) ] of this title. The report shall meet the provisions of subparagraph (E)(i) and (ii) of this paragraph; and

(G) keep records showing the name, address, and point of contact for each general licensee to whom the licensee commercially distributes depleted uranium in products or devices for use in accordance with the general license provided in §289.251(f)(3)(D) [ §289.251(g)(5) ] of this title or equivalent requirements of the NRC or of an agreement state. The records shall be maintained for a period of two years for inspection by the agency and shall show the date of each commercial distribution, the quantity of depleted uranium in each product or device commercially distributed, and compliance with the report requirements of this section.

(t)-(v) (No change.)

(w) Issuance of specific licenses.

(1) When the agency determines that an application meets the requirements of the Act and the rules of the agency, the agency will issue a specific license authorizing the proposed activity in such form and containing the conditions and limitations as the agency [ it ] deems appropriate or necessary.

(2) The agency may incorporate in any license at the time of issuance, or thereafter by amendment, additional requirements and conditions with respect to the licensee's receipt, possession, use, and transfer of radioactive material subject to this section as the agency [ it ] deems appropriate or necessary in order to:

(A)-(C) (No change.)

(3) The agency may request , and the licensee shall provide, additional information after the license has been issued to enable the agency to determine whether the license should be modified in accordance with subsection (dd) of this section.

(x) Specific terms and conditions of licenses.

(1)-(3) (No change.)

(4) Each licensee shall notify the agency, in writing, immediately following the filing of a voluntary or involuntary petition for bankruptcy by the licensee or its parent company, if the parent company is involved in the bankruptcy .

(5)-(6) (No change.)

(7) In making a determination whether to grant, deny, amend, renew, revoke, suspend, or restrict a license, the agency may consider the technical competence and compliance history of an applicant or holder of a license. After an opportunity for a hearing, the agency shall deny an application for a license, an amendment to a license, or renewal of a license if the applicant's compliance history reveals that at least three agency or judicial orders have been issued against the applicant that assess administrative or civil penalties against the applicant, or that revoke or suspend the license.

(y) Expiration and termination of licenses , and administrative renewal; [ and ] decommissioning of sites and separate buildings or outdoor areas.

(1) Effective September 1, 2004, the term of the specific license is two years. Except as provided in paragraph (3) [ (2) ] of this subsection and subsection (z)(2) of this section, each specific license expires at the end of the day, in the month and year stated in the license. Upon payment of the fee required by §289.204 of this title and if the agency does not deny the renewal in accordance with subsection (x)(7) of this section, the specific license will be administratively renewed.

(2) If the fee is not paid and the license is not renewed in accordance with paragraph (1) of this subsection, the license expires, and the licensee is in violation of the rules and is subject to administrative penalties in accordance with §289.205 of this title.

(A) If the licensee pays the fee required by §289.204 of this title within 30 days after expiration of the license, the license will be reinstated and the licensee will not be required to file an application in accordance with subsection (d) of this section.

(B) If the licensee fails to pay the fee within 30 days after expiration of the license, the licensee shall file an application in accordance with subsection (d) of this section.

(3) Expiration of the specific license does not relieve the licensee of the requirements of this chapter.

(4) [ (2) ] All license provisions continue in effect beyond the expiration date, with respect to possession of radioactive material until the agency notifies the former licensee in writing that the provisions of the license are no longer binding. During this time, the former licensee shall:

(A) be limited to actions involving radioactive material that are related to decommissioning; and

(B) continue to control entry to restricted areas until the location(s) is suitable for release for unrestricted use in accordance with the requirements in §289.202(ddd) of this title.

(5) [ (3) ] Within 60 days of the occurrence of any of the following, each licensee shall provide notification to the agency in writing and either begin decommissioning its site, or any separate building or outdoor area that contains residual radioactivity, so that the building and/or outdoor area is suitable for release in accordance with §289.202(eee) of this title, or submit within 12 months of notification a decommissioning plan, if required by paragraph (8) [ (6) ] of this subsection, and begin decommissioning upon approval of that plan if:

(A) the license has expired or has been revoked in accordance with this subsection or subsection (dd) [ (dd)(3) ] of this section;

(B) the licensee has decided to permanently cease principal activities, as defined in §289.201(b) of this title, at the entire site or in any separate building or outdoor area;

(C) no principal activities under the license have been conducted for a period of 24 months; or

(D) no principal activities have been conducted for a period of 24 months in any separate building or outdoor area that contains residual radioactivity such that the building or outdoor area is unsuitable for release in accordance with §289.202(eee) of this title.

(6) [ (4) ] Coincident with the notification required by paragraph (5) [ (3) ] of this subsection, the licensee shall maintain in effect all decommissioning financial assurances established by the licensee in accordance with subsection (gg) of this section in conjunction with a license issuance or renewal or as required by this section. The amount of the financial assurance shall be increased, or may be decreased, as appropriate, with agency approval, to cover the detailed cost estimate for decommissioning established in accordance with paragraph (11)(E) [ (9)(E) ] of this subsection.

(7) [ (5) ] The agency may grant a request to delay or postpone initiation of the decommissioning process if the agency determines that such relief is not detrimental to the occupational and public health and safety and is otherwise in the public interest. The request shall be submitted no later than 30 days before notification in accordance with paragraph (5) [ (3) ] of this subsection. The schedule for decommissioning set forth in paragraph (5) [ (3) ] of this subsection may not commence until the agency has made a determination on the request.

(8) [ (6) ] A decommissioning plan shall be submitted if required by license condition or if the procedures and activities necessary to carry out decommissioning of the site or separate building or outdoor area have not been previously approved by the agency and these procedures could increase potential health and safety impacts to workers or to the public, such as in any of the following cases:

(A) procedures would involve techniques not applied routinely during cleanup or maintenance operations;

(B) workers would be entering areas not normally occupied where surface contamination and radiation levels are significantly higher than routinely encountered during operation;

(C) procedures could result in significantly greater airborne concentrations of radioactive materials than are present during operation; or

(D) procedures could result in significantly greater releases of radioactive material to the environment than those associated with operation.

(9) [ (7) ] The agency may approve an alternate schedule for submittal of a decommissioning plan required in accordance with paragraph (5) [ (3) ] of this subsection if the agency determines that the alternative schedule is necessary to the effective conduct of decommissioning operations and presents no undue risk from radiation to the occupational and public health and safety and is otherwise in the public interest.

(10) [ (8) ] The procedures listed in paragraph (8) [ (6) ] of this subsection may not be carried out prior to approval of the decommissioning plan.

(11) [ (9) ] The proposed decommissioning plan for the site or separate building or outdoor area shall include the following:

(A) a description of the conditions of the site or separate building or outdoor area sufficient to evaluate the acceptability of the plan;

(B) a description of planned decommissioning activities;

(C) a description of methods used to ensure protection of workers and the environment against radiation hazards during decommissioning;

(D) a description of the planned final radiation survey;

(E) an updated detailed cost estimate for decommissioning, comparison of that estimate with present funds set aside for decommissioning, and a plan for assuring the availability of adequate funds for completion of decommissioning; and

(F) for decommissioning plans calling for completion of decommissioning later than 24 months after plan approval, a justification for the delay based on the criteria in paragraph (15) [ (13) ] of this subsection.

(12) [ (10) ] The proposed decommissioning plan will be approved by the agency if the information in the plan demonstrates that the decommissioning will be completed as soon as practicable and that the health and safety of workers and the public will be adequately protected.

(13) [ (11) ] Except as provided in paragraph (15) [ (13) ] of this subsection, licensees shall complete decommissioning of the site or separate building or outdoor areas as soon as practicable but no later than 24 months following the initiation of decommissioning.

(14) [ (12) ] Except as provided in paragraph (15) [ (13) ] of this subsection, when decommissioning involves the entire site, the licensee shall request license termination as soon as practicable but no later than 24 months following the initiation of decommissioning.

(15) [ (13) ] The agency may approve a request for an alternate schedule for completion of decommissioning of the site or separate building or outdoor area, and license termination if appropriate, if the agency determines that the alternative is warranted by consideration of the following:

(A) whether it is technically feasible to complete decommissioning within the allotted 24 month period;

(B) whether sufficient waste disposal capacity is available to allow completion of decommissioning within the allotted 24 month period;

(C) whether a significant volume reduction in wastes requiring disposal will be achieved by allowing short-lived radionuclides to decay;

(D) whether a significant reduction in radiation exposure to workers can be achieved by allowing short-lived radionuclides to decay; and

(E) other site-specific factors that the agency may consider appropriate on a case-by-case basis, such as the regulatory requirements of other government agencies, lawsuits, groundwater treatment activities, monitored natural ground-water restoration, actions that could result in more environmental harm than deferred cleanup, and other factors beyond the control of the licensee.

(16) [ (14) ] As the final step in decommissioning, the licensee shall do the following:

(A) certify the disposition of all licensed material, including accumulated wastes; and

(B) conduct a radiation survey of the premises where the licensed activities were carried out and submit a report of the results of this survey unless the licensee demonstrates that the premises are suitable for release in accordance with the radiological requirements for license termination specified in §289.202(ddd) of this title. The licensee shall do the following, as appropriate:

(i) report the following levels:

(I) gamma radiation in units of microroentgen per hour (µR/hr) (millisieverts per hour (mSv/hr)) at 1 meter (m) from surfaces;

(II) radioactivity, including alpha and beta, in units of disintegrations per minute (dpm) or microcuries (µCi) (megabecquerels (MBq)) per 100 square centimeters (cm 2 ) for surfaces;

(III) µCi (MBq) per milliliter for water; and

(IV) picocuries (pCi) (becquerels (Bq)) per gram (g) for solids such as soils or concrete; and

(ii) specify the manufacturer's name and model and serial number of survey instrument(s) used and certify that each instrument is properly calibrated and tested.

(17) [ (15) ] The agency will provide written notification to specific licensees, including former licensees with provisions continued in effect beyond the expiration date in accordance with paragraph (4) [ 2 ] of this subsection, that the provisions of the license are no longer binding. The agency will provide such notification when the agency determines that:

(A) radioactive material has been properly disposed;

(B) reasonable effort has been made to eliminate residual radioactive contamination, if present;

(C) a radiation survey has been performed that demonstrates that the premises are suitable for release in accordance with the radiological requirements for license termination specified in §289.202(ddd) of this title, or other information submitted by the licensee is sufficient to demonstrate that the premises are suitable for release in accordance with the radiological requirements for license termination specified in §289.202(ddd) of this title; and

(D) any outstanding fees in accordance with §289.204 of this title are paid and any outstanding notices of violations of this chapter or of license conditions are resolved.

(18) [ (16) ] Each licensee shall submit to the agency all records required by §289.202(nn)(2) of this title before the license is terminated.

(z) Technical renewal of licenses [ Renewal of license ].

(1) An application [ Requests ] for a technical renewal of specific licenses shall be filed in accordance with subsection (d)(1)-(3) and (5)-(7) of this section. An application for a technical renewal of a specific license shall be filed by the date specified in the existing license condition. If the licensee fails to apply and pay the fee required by §289.204 of this title, the license expires and the licensee shall comply with the requirements of subsection (y) of this section. In any application for renewal, the applicant may incorporate drawings by clear and specific reference (for example, title, date and unique number of drawing), if no modifications have been made since previously submitted.

(2) In any case in which a licensee, [ not less than 30 days ] prior to expiration of an existing license, has filed a request in proper form for a technical renewal or for a new license authorizing the same activities, such existing license shall not expire until the request has been finally determined by the agency. In any case in which a licensee, not more than 30 [ 90 ] days after the expiration of an existing license, has filed an application for technical renewal in entirety and paid the fee required by §289.204 of this title [ a request in proper form for renewal ] or for a new license authorizing the same activities, the agency may reinstate the license and extend the expiration until the request has been finally determined by the agency.

(3) An application for technical renewal of a license will be approved if the agency determines that the requirements of subsection (e) of this section have been satisfied.

(4) If the application for technical renewal of the license is not approved in accordance with paragraph (3) of this subsection, the license expires, and the former licensee is in violation of the rules and is subject to administrative penalties.

(5) Expiration of the specific license does not relieve the former licensee of the requirements of this chapter.

(aa)-(cc) (No change.)

(dd) Modification , suspension, and revocation of licenses.

(1) The terms and conditions of all licenses shall be subject to [ amendment, ] revision[ , ] or modification. A license may be modified, suspended or revoked by reason of amendments to the Act, by reason of rules in this chapter, or orders issued by the agency.

(2) Any license may be revoked, suspended, or modified, in whole or in part, for any of the following:

(A) (No change.)

(B) conditions revealed by such application or statement of fact or any report, record, or inspection, or other means that would warrant the agency to refuse to grant a license on an original application; [ or ]

(C) violation of, or failure to observe any of the terms and conditions of the Act, this chapter, the license, or order of the agency ; or [ . ]

(D) existing conditions that constitute a substantial threat to the public health or safety or the environment.

(3) (No change.)

(4) Except in cases in which the occupational and public health[ , interest ] or safety requires otherwise, no license shall be [ modified, ] suspended[ , ] or revoked unless, prior to the institution of proceedings therefore, facts or conduct that may warrant such action shall have been called to the attention of the licensee in writing and the licensee shall have been afforded an opportunity to demonstrate compliance with all lawful requirements.

(ee) Reciprocal recognition of licenses.

(1) Subject to this section, any person who holds a specific license from NRC, any agreement state, or any licensing state, and issued by the agency having jurisdiction where the licensee maintains an office for directing the licensed activity and at which radiation safety records are normally maintained, is granted a general license to conduct the activities authorized in such licensing document within the State [ state ] of Texas provided that:

(A) (No change.)

(B) the out-of-state licensee notifies the agency in writing at least three working days prior to engaging in such activity. If, for a specific case, the three-working-day period would impose an undue hardship on the out-of-state licensee, the licensee may, upon application to the agency, obtain permission to proceed sooner. The agency may waive the requirement for filing additional written notifications during the remainder of the calendar year following the receipt of the initial notification from a person engaging in activities in accordance with the general license provided in this subsection. Such notification shall include:

(i)-(iii) (No change.)

(iv) a copy of the applicant's pertinent license;

(v) (No change.)

(vi) a [ an annual ] fee as specified in §289.204 of this title.

(C)-(E) (No change.)

(2) In addition to the provisions of paragraph (1) of this subsection, any person who holds a specific license issued by NRC, an agreement state, or a licensing state authorizing the holder to manufacture, transfer, install, or service the device described in §289.251(f)(4)(H) [ §289.251 (h)(1)(C) and (k)(1) ] of this title, within areas subject to the jurisdiction of the licensing body, is granted a general license to install, transfer, demonstrate, or service the device in the State [ state ] of Texas provided that:

(A)-(C) (No change.)

(D) the holder of the specific license furnishes to each general licensee to whom the holder of the specific license transfers the device, or on whose premises the holder of the specific license installs the device, a copy of the general license contained in §289.251(f)(4)(H) [ §289.251 (h)(1)(C) and (k)(1) ] of this title.

(3) (No change.)

(ff) (No change.)

(gg) Financial assurance and record keeping for decommissioning.

(1)-(5) (No change.)

(6) Financial assurance for decommissioning shall be provided by one or more of the following methods. The financial instrument obtained shall be continuous for the term of the license in a form prescribed by the agency. The applicant or licensee shall obtain written approval of the financial instrument or any amendment to it from the agency.

(A) (No change.)

(B) A surety method, insurance, or other guarantee method. These methods guarantee that decommissioning costs will be paid. A surety method may be in the form of a surety bond, letter of credit, or line of credit. A parent company guarantee of funds for decommissioning costs based on a financial test may be used if the guarantee and test are as contained in subsection (ii)(3) of this section. A parent company guarantee may not be used in combination with other financial methods to satisfy the requirements of this section. For commercial corporations that issue bonds, a guarantee of funds by the applicant or licensee for decommissioning costs based on a financial test may be used if the guarantee and test are as contained in subsection (ii)(4) of this section. For commercial companies that do not issue bonds, a guarantee of funds by the applicant or licensee for decommissioning costs may be used if the guarantee and test are as contained in subsection (ii)(5) of this section. For nonprofit entities, such as colleges, universities, and nonprofit hospitals, a guarantee of funds by the applicant or licensee may be used if the guarantee and test are as contained in subsection (ii)(6) of this section. A guarantee by the applicant or licensee may not be used in combination with any other financial methods to satisfy the requirements of this section or in any situation where the applicant or licensee has a parent company holding majority control of the voting stock of the company. Any surety method or insurance used to provide financial assurance for decommissioning shall contain the following conditions.

(i) (No change.)

(ii) The surety method or insurance shall be payable in the State [ state ] of Texas to the Radiation and Perpetual Care Account [ Fund ].

(iii) (No change.)

(C)-(E) (No change.)

(7)-(8) (No change.)

(hh) (No change.)

(ii) Appendices.

(1) (No change.)

(2) Isotope quantities (for use in subsection (gg) of this section).

Figure: 25 TAC §289.252(ii)(2)

(3)-(4) (No change.)

(5) Criteria relating to use of financial tests and self guarantees for providing reasonable assurance of funds for decommissioning by commercial companies that have no outstanding rated bonds.[ ) ]

(A)-(C) (No change.)

(6)-(8) (No change.)

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on January 16, 2004.

TRD-200400319

Susan K. Steeg

General Counsel

Texas Department of Health

Earliest possible date of adoption: February 29, 2004

For further information, please call: (512) 458-7236


Chapter 295. OCCUPATIONAL HEALTH

Subchapter J. TEXAS MOLD ASSESSMENT AND REMEDIATION RULES

25 TAC §§295.301 - 295.338

The Texas Department of Health (department) proposes new §§295.301 - 295.338, concerning the regulation of mold-related activities that affect indoor air quality. The sections cover the following: general provisions; definitions; exceptions and exemptions to licensing and registration; code of ethics; general conditions; general responsibilities; requirements for licensing, registration, and accreditation; minimum work practices and procedures for mold assessment and mold remediation; and enforcement.

These rules are required as a result of House Bill 329, 78th Legislative Session, 2003, which added Chapter 1958 to the Occupations Code, and requires the department to develop rules to regulate mold-related activities, including licensing and regulation of mold assessors and remediators and to establish minimum performance standards for the licensees; Senate Bill 1152, 78th Legislative Session, 2003, which amended Government Code, Chapter 2054, regarding the TexasOnline Authority; and House Bill 2292, 78th Legislative Session, 2003, which revised Health and Safety Code, §§12.0111 and 12.0112, and requires two-year licenses effective January 1, 2005, with a provision for staggering the issuance and renewal of licenses.

Alan Morris, Director, Toxic Substances Control Division, has determined that for each year of the first five years the sections are in effect there will be fiscal implications as a result of administering the rules as proposed. The effect on state government will be increased revenue to the department estimated to be $361,500 in fiscal year 2004, and $343,225 in each of fiscal years 2005 to 2008 from collection of licensing, registration, accreditation, notification and examination fees. It is estimated that the costs to the department to administer the new program will equal the estimated revenue increases.

No significant fiscal impact to units of local government is anticipated. Situations where mold affects more than 25 square feet for a project may require a licensed mold assessor or remediator and could cause a fiscal impact. Factors that could increase the cost to local government include fees for training and licensing in-house personnel, fees for the state exam, notification fees, and increased costs of third-party services. Factors that could decrease the cost to local government include savings from using licensed in-house personnel rather than third-party services, from more efficient remediation practices by both in-house and third-party personnel, from fewer sick days for occupants working in remediated buildings, and from a decreased risk of lawsuits due to concern over mold exposure. Whether these rules create increased costs or savings will depend on the circumstances of each case.

Mr. Morris has also determined that for each year of the first five years the sections are in effect, the public benefit anticipated as a result of administering the sections will be to ensure compliance by mold assessors and mold remediators with the new legislative mandates. There will be a varying impact on micro-businesses, small businesses, and individuals who are required to comply with the sections. These are outlined in the paragraphs that follow. Economic costs to persons who are required to comply with the rules will be the fees for licensing, registration, or accreditation; costs to take required training courses and refresher training through accredited training providers; fees for the state exam; project notification fees; and costs to maintain required liability insurance. There will be no impact on local employment.

Prior to January 1, 2005, individuals who meet the qualifications to be a mold assessment technician, mold assessment consultant, or mold remediation contractor, may take the state licensing examination required for those categories without attending a state-accredited training course. For these individuals, costs will be $25 to take the state examination, and licensing costs as follows: $100 for a one-year mold assessment technician license; $300 for a one-year mold assessment consultant license; and $250 for a one-year mold remediation contractor license. Individuals seeking initial licenses in these categories after January 1, 2005, will be required to attend, depending on the license sought, a three- to five-day state-accredited training course taught by a training provider from the private sector at an estimated tuition cost of $450-$750. Mold remediation workers will be required to attend a four-hour training course provided by either their employer or a state-accredited training provider from the private sector at an estimated tuition cost of $75 and to pay $30 for a one-year registration prior to January 1, 2005.

House Bill 2292 requires all licenses, including registrations, issued by the state on or after January 1, 2005, to be for a two-year period, with a provision for staggering the issuance and renewal of licenses. For 2005, licenses will be valid for either one or two years, depending upon the birth year of the applicant. Effective January 1, 2006, all licenses will be issued for a two-year period. Fees for two-year licenses will be double the fees for one-year licenses. Costs for a mold assessment or remediation company, mold analysis laboratory, or training provider are $500 for a one-year license or accreditation and $1000 for a two-year license or accreditation. Companies may pay the licensing or registration fees for individual employees, which shifts the cost but results in no change in fees or revenues to the department. Licensed companies and sole proprietors are required to have a minimum amount of $1 million of liability insurance. Many micro-businesses and small businesses conducting mold assessment and remediation already carry such insurance, at an approximate cost of $50-$1,000 per month (depending on the amount of business activity), so this requirement is not an increased cost to those companies. Some companies in these categories may cease operation, including those that conduct only a few projects per year and may not generate adequate income to pay the costs of insurance, training, licensing and notification fees. In-house and third-party remediation contractors and companies are also required to remit a $100 notification fee to the department for each remediation project conducted when the mold contamination affects a total surface area for the project of 25 contiguous square feet or greater.

There may be increased costs of an estimated 1-5% to property owners that hire licensed mold companies, as these companies may raise their rates as a result of the new rules. On the other hand, costs may decrease for some property owners, particularly homeowners, as the new regulations may discourage fraudulent or overzealous practices by licensees. Based on reports in the news media, some companies took advantage of the public's fear of "toxic mold" resulting in unneeded or excessive testing and remediation. Some companies, having no performance standards as guidance in remediation, would unnecessarily remove or clean items and areas. Increased education of the public regarding the prevention, control and mitigation of mold, as required by House Bill 329, should decrease costs.

Written comments on the proposal may be sent to Mr. Alan Morris, Director, Toxic Substances Control Division, Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756, or by e-mail to alan.morris@tdh.state.tx.us. Comments will be accepted for 30 days following publication of the proposal in the Texas Register . In addition, a public hearing on the proposed sections will be held at 9:00 a.m., Friday, February 13, 2004, in the Texas Department of Health Auditorium, Room K-100, 1100 West 49th Street, Austin, Texas.

Individuals needing additional information should contact Quade Stahl, Ph.D., Chief, Environmental Lead and Indoor Air Quality Branch, at (512) 834-4509 or (800) 293-0753, extension 2444. Those needing ADA assistance should contact Mr. Redge Westbrook at (512) 458-7627 or T.D.D. (877) 432-7232.

The new sections are proposed under the Occupations Code, §1958.053, which provides the department with the authority to adopt necessary regulations to discharge the powers and duties of Chapter 1958; and Health and the Safety Code, §12.001, which provides the Texas Board of Health (board) with the authority to adopt rules for the performance of every duty imposed by law on the board, the department, and the commissioner of health.

These new sections affect the Occupations Code, Chapter 1958.

§295.301.General Provisions.

(a) Purpose. This subchapter implements the provisions of the Texas Occupations Code, Chapter 1958 (relating to Mold Assessors and Remediators), concerning the regulation of mold assessors and remediators conducting mold-related activities that affect indoor air quality in regulated buildings.

(b) Scope. This subchapter contains requirements for the licensing and registration of persons performing mold assessments and mold remediation, requirements for the accreditation of mold training providers, minimum work standards for the conduct of mold assessments and remediation by licensed and registered persons, a code of ethics, and penalties.

(c) Severability. Should any section or subsection in this subchapter be found to be void for any reason, such finding shall not affect any other sections.

(d) TexasOnline. The department is authorized to collect subscription and convenience fees, in amounts determined by the TexasOnline Authority, to recover costs associated with processing applications, examinations, and notifications specified under this subchapter through TexasOnline, in accordance with the Texas Government Code, Chapter 2054, §2054.111 (relating to Use of TexasOnline Project).

§295.302.Definitions.

The following words and terms within this subchapter shall have the following meanings, unless the context clearly indicates otherwise.

(1) Accredited training program--A training program that has been accredited by the department to provide training for persons seeking licensure or registration under this subchapter.

(2) Act--The Texas Occupations Code, Chapter 1958 (relating to Mold Assessors and Remediators).

(3) Allied field--Mold assessment, mold remediation, and any field whose principles and practices are applicable to mold analysis or mold remediation, including asbestos abatement, lead abatement, industrial hygiene, building sciences, public health, and environmental remediation.

(4) Assessor--A person who conducts mold assessment as defined in this section and who is licensed under this subchapter as a mold assessment technician, consultant, or company.

(5) Board--The Texas Board of Health.

(6) Building sciences--The field of study covering the design, construction, management, and performance of building systems, including structures, enclosures, electrical and mechanical systems, environmental systems (such as temperature and moisture control), safety systems (such as fire suppression and alarms), lighting, acoustics, and diagnosis and correction of problems with building systems.

(7) Commissioner--The Texas Commissioner of Health.

(8) Containment area--An area that has been enclosed to prevent the release of mold or mold-containing dust or materials into surrounding areas.

(9) Contiguous--In close proximity; neighboring.

(10) Contiguous square feet--See "Total surface area of contiguous square feet".

(11) Credential--A license, registration, or accreditation issued under this subchapter.

(12) Department--The Texas Department of Health.

(13) Direct microscopic examination--Visible examination of a surface (as opposed to a sample collected from a surface) through a microscope having a minimum magnification of 100 times (100X), during which particles that are or resemble mold are counted by a licensed mold assessment consultant.

(14) Dwelling unit--A room or rooms occupied or intended for occupancy as separate living quarters, including such rooms that are vacant or under construction. Examples of dwelling units include single houses, individual apartments or condominiums, mobile homes, and rooms other than common areas in dormitories, fraternity houses, sorority houses, rooming houses, and boarding houses.

(15) Employee--An individual who is paid a salary, wage, or remuneration by another person or entity for services performed and over whom the person or entity exerts supervision or control as to the place, time, and manner of the individual's work.

(16) Facility--Any institutional, commercial, public, governmental, industrial or residential structure or building.

(17) Indoor air--Air within the envelope of a building, including air in spaces normally occupied by persons in the building.

(18) Indoor mold--Mold contamination that was not purposely grown or brought into a building and that has the potential to affect the indoor air quality of the building.

(19) License--Any license issued under this subchapter. The term "license" does not include a registration, accreditation, or approval issued under this subchapter.

(20) Mold--Any living or dead fungi or related products or parts, including spores, hyphae, and mycotoxins.

(21) Mold analysis--The examination of a sample collected during a mold assessment for the purpose of:

(A) determining the amount or presence of or identifying the genus or species of any living or dead mold or related parts (including spores and hyphae) present in the sample;

(B) growing or attempting to grow fungi for the purposes of subparagraph (A) of this paragraph; or

(C) identifying or determining the amount or presence of any fungal products, including but not limited to mycotoxins and fungal volatile organic compounds, present in the sample.

(22) Mold assessment--Activity that involves:

(A) an inspection, investigation, or survey of a dwelling or other structure to provide the owner or occupant with information regarding the presence, identification, or evaluation of mold;

(B) the development of a mold management plan or mold remediation protocol; or

(C) the collection or analysis of a mold sample.

(23) Mold assessment report--A document, prepared by a licensed mold assessment consultant for a client, that describes any observations made, measurements taken, and locations and analysis results of samples taken by the consultant or by a licensed mold assessment technician during a mold assessment. An assessment report can be either a stand-alone document or a part of a mold management plan or mold remediation protocol.

(24) Mold management plan--A document, prepared by a licensed mold assessment consultant for a client, that provides guidance on how to prevent and control indoor mold growth at a location.

(25) Mold-related activities--The performance of mold assessment, mold remediation or any other related activities.

(26) Mold remediation--The removal, cleaning, sanitizing, demolition, or other treatment, including preventive activities, of mold or mold-contaminated matter that was not purposely grown at a location. Preventive activities include those intended to prevent future mold contamination of a remediated area, including applying biocides or anti-microbial compounds.

(27) Mold remediation protocol (mold remediation work analysis)--A document, prepared by a licensed mold assessment consultant for a client, that specifies the estimated quantities and locations of materials to be remediated and the proposed remediation methods and clearance criteria for each type of remediation in each type of area for a mold remediation project.

(28) Mold remediation work plan--A document, prepared by a licensed mold remediation contractor that provides specific instructions and/or standard operating procedures for how a mold remediation project will be performed.

(29) Office--A stationary physical location assigned a street address by the United States Postal Service, where a licensee or an employee of a licensee may be contacted to conduct business related to mold assessment and/or mold remediation.

(30) Person--An individual, corporation, company, contractor, subcontractor, association, firm, partnership, joint stock company, foundation, institution, trust, society, union, governmental entity, or any other association of individuals.

(31) Program administrator--The administrator of the Texas Department of Health's Mold Licensing Program.

(32) Project--All activities connected with a mold remediation work plan, including activities necessary for the preparation of the work plan and any associated mold remediation protocol(s), site preparation, and post-remediation assessment and clearance.

(33) Remediator--A person who conducts mold remediation as defined in this section and who is credentialed under this subchapter as a mold remediation worker, contractor, or company.

(34) Residential property--A building, group of buildings, or portion of a building that is intended to provide living quarters for a person for an extended period of time, including a residential property that is vacant or under construction and portions of non-residential properties that serve as living quarters for employees (such as a caretaker's dwelling at a commercial property or staff housing at an institutional facility). Residential properties do not include:

(A) lodgings (such as hotels and motels) that rent units on a transient basis;

(B) institutional facilities that provide care for residents or inmates (such as hospitals, nursing homes, homes for children with physical or mental disabilities, mental institutions, jails, prisons and detention centers); and

(C) former residential properties that do not currently provide living quarters (such as houses converted into shops or restaurants).

(35) Responsible person--An employee or principal designated by a licensed mold assessment company, mold remediation company, or mold analysis laboratory or by an accredited mold training provider as responsible for its operations and compliance with rules concerning mold-related activities or mold-related training.

(36) Start date--The date on which the actual remediation of mold begins.

(37) Stop date (completion date)--The date following the date on which final clearance is achieved following a mold remediation project.

(38) Supervise--To direct and exercise control over the activities of a person by being physically present at the job site or, if not physically present, accessible by telephone and able to be at the site within one hour of being contacted.

(39) Survey--An activity undertaken in a building to determine the presence, location, or quantity of indoor mold or to determine the underlying condition(s) contributing to indoor mold growth, whether by visual or physical examination or by collecting samples of potential mold for further analysis.

(40) Total surface area of contiguous square feet--The contiguous area of surface material that needs to be cleaned or removed to remediate visible mold contamination.

(41) Training hours--Hours spent in classroom instruction, hands-on activities, and field trips, including time used for course tests and brief breaks but not including scheduled lunch periods.

(42) Visible--Exposed to view; capable of being seen.

(43) Work analysis--A mold remediation protocol.

(44) Work plan--A mold remediation work plan.

(45) Working days--Monday through Friday, including holidays that fall on those days.

§295.303.Exceptions and Exemptions.

(a) Exceptions. This subchapter does not apply to:

(1) the following activities when not conducted for the purpose of mold assessment or mold remediation:

(A) routine cleaning;

(B) the diagnosis, repair, cleaning, or replacement of plumbing, heating, ventilation, air conditioning, electrical, or air duct systems or appliances;

(C) commercial or residential real estate inspections; and

(D) the incidental discovery or emergency containment of potential mold contamination during the conduct or performance of services listed in this subsection. For purposes of this subsection, an emergency exists if a delay in mold remediation services in response to a water damage occurrence would increase mold contamination;

(2) the repair, replacement, or cleaning of construction materials during the building phase of the construction of a structure;

(3) the standard performance of custodial activities for, preventive maintenance of, and the routine assessment of property owned or operated by a governmental entity; or

(4) a pest control inspection conducted by a person regulated under the Texas Occupations Code, Chapter 1951 (relating to Structural Pest Control).

(b) Minimum area exemption. A person is not required to be licensed under this subchapter to perform mold remediation in an area in which the mold contamination for the project affects a total surface area of less than 25 contiguous square feet.

(c) Residential property exemption. An owner, or a managing agent or employee of an owner, is not required to be licensed under this subchapter to perform mold assessment or mold remediation on a residential property which is owned by that person, and which has fewer than 10 dwelling units. This exemption applies regardless of the total surface area within the residential property that is affected by mold growth. This exemption does not apply to a managing agent or employee who engages in the business of performing mold assessment or mold remediation for the public.

(d) Facility exemption. An owner or tenant, or a managing agent or employee of an owner or tenant, is not required to be licensed under this subchapter to perform mold assessment or mold remediation on property owned or leased by the owner or tenant. This exemption does not apply:

(1) if the managing agent or employee engages in the business of performing mold assessment or mold remediation for the public;

(2) if the mold remediation is performed in an area in which the mold contamination affects a total surface area of 25 contiguous square feet or more; or

(3) to a person exempt under subsection (c) of this section.

(e) Construction and improvement exemption. A person is not required to be licensed under this subchapter to perform mold assessment or mold remediation in a one-family or two-family dwelling that the person constructed or improved if the person performs the mold assessment or mold remediation at the same time the person performs the construction or improvement or at the same time the person performs repair work on the construction or improvement. This exemption applies regardless of the total surface area that is affected by mold growth. This exemption does not apply if the person engages in the business of performing mold assessment or mold remediation for the public. For purposes of this subsection, "improve" means "to build, construct, or erect a new building or structure or a new portion of a building or structure that is attached to an existing building or structure" and "improvement" means "a building or structure, or a portion of a building or structure, that was built, constructed, or erected as an attachment to an existing building or structure after the construction or erection of the existing building or structure".

(f) Supervised employee exemption. An employee of a license holder is not required to be licensed under this subchapter to perform mold assessment or mold remediation while supervised by the license holder. Such an employee must, however, be registered as provided under §295.314 of this title (relating to Mold Remediation Worker: Registration Requirements).

(g) Loss of exemption. A person who is performing mold remediation under the licensing exemptions of subsection (b) or (d) of this section and identifies additional mold such that the total mold contamination affects a total surface area of 25 contiguous square feet or more shall:

(1) immediately cease all remediation work and implement emergency containment if necessary; and

(2) advise the person requesting the remediation that the exemption under subsection (b) or (d) of this section has been lost and that any additional mold remediation and post-remediation assessment in the area must be done by a person licensed or registered under this subchapter.

§295.304.Code of Ethics.

(a) The purpose of this section is to establish the standards of professional and ethical conduct required of all persons holding credentials or approvals issued under this subchapter.

(b) All credentialed persons or approved instructors shall, as applicable to their discipline:

(1) undertake to perform only services for which they are qualified by license, education, training or experience in the specific technical fields involved;

(2) meet or exceed the minimum standards for mold assessment and remediation as set forth in this subchapter;

(3) not participate in activities where a conflict of interest might arise, pursuant to §295.307 of this title (relating to Conflict of Interest and Disclosure Requirement) and disclose any known or potential conflicts of interest to any party affected or potentially affected by such conflicts;

(4) provide only necessary and desired services to a client and not sell unnecessary or unwanted products or services;

(5) to the extent required by law, keep confidential any personal information regarding a client (including medical conditions) obtained during the course of a mold-related activity;

(6) not misrepresent any professional qualifications or credentials;

(7) not provide to the department any information that is false, deceptive, or misleading;

(8) cooperate with the department by promptly furnishing required documents or information and by promptly responding to requests for information;

(9) not work if impaired as a result of drugs, alcohol, sleep deprivation or other conditions and not allow those under their supervision to work if known to be impaired;

(10) maintain knowledge and skills for continuing professional competence and participate in continuing education programs and activities;

(11) not make any false, misleading, or deceptive claims, or claims that are not readily subject to verification, in any advertising, announcement, presentation, or competitive bidding;

(12) not make a representation that is designed to take advantage of the fears or emotions of the public or a customer;

(13) provide cost-effective mold-related activities; and

(14) notify each client of the name, mailing address, and telephone number of the department for the purpose of directing complaints to the department:

(A) on each written contract for services; or

(B) in each bill for services provided to the client.

(c) Duty to report ethical violations. All credentialed persons:

(1) have the responsibility of promptly reporting alleged misrepresentations or violations of the Act or this subchapter to the department;

(2) are responsible for competent and efficient performance of their duties and shall report to the department incompetent, illegal or unethical conduct of any practitioner of mold assessment and/or remediation; and

(3) shall not retaliate against any person who reported in good faith to the department alleged incompetent, illegal or unethical conduct.

§295.305.Credentials: General Conditions.

(a) Licensing or registration requirement. A person must be licensed or registered in compliance with this subchapter to engage in mold assessment or mold remediation unless specifically exempted under §295.303 of this title (relating to Exceptions and Exemptions).

(b) Accreditation requirement. A person must be accredited as a mold training provider in compliance with this subchapter to offer mold training for fulfillment of specific training requirements for licensing under this subchapter.

(c) Age requirement. Each individual applying to be licensed or registered under this subchapter must be at least 18 years old at the time of application.

(d) Office requirement. A person licensed under this subchapter must maintain an office in Texas. An individual employed by a person licensed under this subchapter is considered to maintain an office in Texas through that employer.

(e) Training requirement.

(1) An applicant for an initial license under §295.311 of this title (relating to Mold Assessment Technician: Licensing Requirements), §295.312 of this title (relating to Mold Assessment Consultant: Licensing Requirements), or §295.315 of this title (relating to Mold Remediation Contractor: Licensing Requirements) must successfully complete an initial training course offered by a department-accredited training provider in the discipline for which the credential is sought and receive a course-completion certificate before applying for the license. This paragraph does not apply to applicants who submit complete applications to the department before January 1, 2005, as evidenced by a postmark or shipping paperwork.

(2) Except as described under subsection (g)(3) of this section, an applicant for renewal of a license listed under paragraph (1) of this subsection must successfully complete a refresher training course offered by a department-accredited training provider in the discipline for which renewal is sought and receive a course-completion certificate before applying for the renewal. The applicant must successfully complete the refresher course no later than 24 months after successful completion of the previous course and no earlier than 12 months prior to the expiration date of the license.

(3) Except as described under subsection (g)(3) of this section, an applicant for an initial or renewal registration under §295.314 of this title (relating to Mold Remediation Worker: Registration Requirements) must successfully complete a training course as described under §295.320(d) and (f) of this title (relating to Training: Required Mold Training Courses) and receive a course-completion certificate before applying for the registration. If a refresher course is required, the applicant must successfully complete the refresher course no later than 24 months after successful completion of the previous course and no earlier than 12 months prior to the expiration date of the registration.

(f) Examination requirement. In accordance with §295.310 of this title (relating to Licensing: State Licensing Examination), an applicant for an initial license under §§295.311, 295.312, or 295.315 of this title must pass the state licensing examination in the discipline for which licensure is sought with a score of at least 70% correct before applying for the license. All applicants must pass the state examination within six months of completing any training course required under subsection (e)(1) of this section in three or fewer attempts or must successfully complete a new initial training course before re-taking the state examination.

(g) Applications. Each application for a credential or approval must provide all required information. An applicant shall indicate that a question does not apply by answering "not applicable" or "N/A". Applicants must submit complete applications, including all supporting documents, for each credential or approval sought.

(1) An applicant for an initial license under §§295.311, 295.312, or 295.315 of this title must submit the complete application to the department within six months of passing the required state licensing examination, as evidenced by a postmark or shipping documents, or must successfully complete a new initial training course, receive a new training certificate, and pass a new state examination before submitting a new initial license application.

(2) An applicant for an initial or renewal registration under §295.314 of this title must submit the complete application to the department within five working days of successfully completing the required training course, as evidenced by a postmark or shipping paperwork.

(3) An applicant for a renewal of a license listed under paragraph (1) of this subsection must successfully complete a required refresher training course and receive a course-completion certificate before applying for renewal, except that this paragraph does not apply to a holder of an initial license that is valid for one year, as described under subsections (h)(1) and (h)(2)(A) of this section. The applicant must complete the refresher course before the expiration date of the license but no earlier than 12 months prior to the expiration date of the license and no later than 24 months after completion of the previous course.

(h) Term and expiration.

(1) All credentials issued before January 1, 2005, are valid for one year and expire on the anniversary of the effective date.

(2) A credential issued between January 1, 2005, and December 31, 2005, (including renewal of a credential issued before January 1, 2005, regardless of the issue date of the renewal) is valid for:

(A) one year and expires on the anniversary of the effective date, if the birth year of the applicant (or the birth year of the mold training manager or the first individual named as a responsible person, as described under subsection (j) of this section, if the applicant is not an individual) is an odd number; or

(B) two years and expires on the second anniversary of the effective date, if the birth year of the applicant (or the birth year of the mold training manager or the first individual named as a responsible person, as described under subsection (j) of this section, if the applicant is not an individual) is an even number.

(3) All credentials issued on or after January 1, 2006, except as specified in paragraph (2) of this subsection, are valid for two years and expire on the second anniversary of the effective date.

(4) Fees commensurate with a two-year credential must be included with any application for a credential that will expire on the second anniversary of its effective date.

(5) A credential holder is in violation of this subchapter if the holder practices with lapsed qualifications.

(i) Condition of issuance. No credential, identification (ID) card, or approval issued under this subchapter shall be sold, assigned, or transferred. ID cards issued by the department must be present at the worksite any time an individual is engaged in mold-related activities. The department retains the right to confiscate and revoke any credential, ID card, or approval that has been altered.

(j) Persons other than individuals. A mold assessment company, mold remediation company, mold analysis laboratory, or mold training provider that has been issued a credential under this subchapter:

(1) shall designate one or more individuals as responsible persons. The credentialed person must notify the department in writing of any additions or deletions of responsible persons within 10 days of such occurrences;

(2) shall not transfer that credential to any other person, including to any company that has bought the credentialed entity. The credentialed entity must apply for a new credential within 60 days of being bought; and

(3) must submit to the department a name-change application and a processing fee of $20 within 60 days of any change.

§295.306.Credentials: General Responsibilities.

(a) Persons who are licensed, registered, or accredited under this subchapter shall:

(1) adhere to the code of ethics prescribed by §295.304 of this title (relating to Code of Ethics);

(2) comply with work practices and procedures of this subchapter;

(3) refrain from engaging in activity prohibited under §295.307(a) of this title (relating to Conflict of Interest and Disclosure Requirement);

(4) maintain any insurance required under §295.309 of this title (relating to Licensing: Insurance Requirements) while engaging in mold-related activities regulated under this subchapter;

(5) cooperate with department personnel in the discharge of their official duties, as described in §295.329 of this title (relating to Compliance: Inspections and Investigations); and

(6) notify the department of changes in mailing address and telephone number.

(b) All individuals who are required to be licensed or registered under this subchapter must have a valid department-issued identification card present at the worksite when engaged in mold-related activities, except as provided under §295.314(e) of this title (relating to Mold Remediation Worker: Registration Requirements) for applicants for registration as mold remediation workers.

(c) The license holder overseeing mold-related activities, with the exception of activities performed by a mold analysis laboratory, must ensure that a client is provided a copy of the department Consumer Mold Information Sheet prior to the initiation of any mold-related activity.

(d) A credentialed person who becomes aware of violations of this subchapter must report these violations within 24 hours to the department if, to that person's knowledge, the responsible party has not corrected the violations within that timeframe.

(e) The individual that is designated by a licensed mold assessment company or mold remediation company as its responsible person shall not be the responsible person for another licensee with the same category of license.

§295.307.Conflict of Interest and Disclosure Requirement.

(a) Conflict of interest.

(1) A licensee shall not perform both mold assessment and mold remediation on the same project.

(2) A person shall not own an interest in an entity that performs mold assessment services and an entity that performs mold remediation services on the same project.

(b) Disclosure requirement. At the time of application for licensing, an applicant that is not an individual shall disclose to the department the name, address, and occupation of each person that has an ownership interest of 10% or more in the applicant. A licensee shall report to the department within 10 days any change related to a person who has an ownership interest of 10% or more including additions to or deletions from any list of such persons previously supplied to the department and any changes in the names, addresses, or occupations of any persons on such a list.

§295.308.Credentials: Applications and Renewals.

(a) General requirements. Applications for a license, registration or accreditation must be made on forms provided by the department and signed by the applicant. The department shall consider only complete applications. The application form must be accompanied by:

(1) a check or money order for the amount of the required fee made payable to the Texas Department of Health, unless the application fee is paid through TexasOnline, as provided under the Texas Government Code, Chapter 2054, §2054.252 (relating to TexasOnline Project);

(2) a current one-inch by one-inch photograph of the applicant's face (or, if the application is for a company license, of the face of the individual designated as the responsible person for the company) with a white background. The photograph of the face is not required with applications for approvals. If the application is for an individual license and successful completion of a department-approved training course is being used to satisfy the training requirement, a copy of the wallet-size photo-identification card from the applicable training course as required under §295.318(f)(6)(B) of this title (relating to Mold Training Provider: Accreditation) must also be submitted; and

(3) proof that the applicant meets all other requirements for obtaining the credential being sought.

(b) Inquiries. Applicants who wish to discuss or obtain information concerning qualification requirements may call the program administrator at (512) 834-4509 or (800) 293-0753 (toll-free). Applicants may visit the Mold Licensing Program's website at www.tdh.state.tx.us/beh/mold to obtain information and download forms.

(c) Denials. The department may deny a credential to a person who fails to meet the standards established by this subchapter.

(d) Processing applications and renewals.

(1) Reimbursement of fees. The department shall refund application fees, less an administrative fee of $50 ($20 for remediation worker applications), if an applicant does not meet the requirements for the credential. The department shall refund fees paid in excess of the amounts required under this subchapter, less a $10 administrative fee. The department will not refund fees if the application was abandoned due to the applicant's failure to respond to a written request from the department for a period of 90 days.

(2) Contested case hearing. The applicant has the right to request a hearing in writing within 30 days of the date on the department's letter denying the credential. The hearing will be conducted in accordance with the Administrative Procedure Act (Texas Government Code, Chapter 2001) and the department's formal hearing rules in Chapter 1 of this title (relating to the Board of Health).

(e) Renewal notices. At least 60 days before a person's license, registration, or accreditation is scheduled to expire, the department shall send a renewal notice by first-class mail to the person's last known address from the department's records. A person credentialed by the department retains full responsibility for supplying the department with a correct current address and phone number. The renewal notice will state:

(1) the type of credential requiring renewal;

(2) the time period allowed for renewal;

(3) the amount of the renewal fee; and

(4) how to obtain and submit a renewal application.

(f) Renewal requirements. A person seeking to renew a license, registration, or accreditation shall submit a renewal application no sooner than 60 days before the credential expires. The department shall renew the license, registration, or accreditation for a term as provided under §295.305(h) of this title (relating to Credentials: General Conditions) if the person:

(1) is qualified to be credentialed;

(2) pays to the department the nonrefundable renewal fee;

(3) submits to the department a renewal application on the prescribed form along with all required documentation; and

(4) has complied with all final orders resulting from any violations of this subchapter, unless an exception is granted in writing by the department and submitted with the application.

(g) Renewals and late fees. A person shall not perform any mold-related activity with an expired license, registration, or accreditation. If a person makes a timely and complete application for the renewal of a valid credential, the credential does not expire until the department has finally granted or denied the application. The department shall renew a credential that has been expired for 180 days or less if the person meets the requirements of subsection (f) of this section. A person whose credential has been expired for more than 180 days must obtain a new credential and must comply with current requirements and procedures, including any state examination requirements.

(h) Replacements. A person desiring a replacement credential or ID card shall submit a request in writing on a department-issued form with a $20 fee.

§295.309.Licensing: Insurance Requirements.

(a) Persons required to have insurance must obtain policies for general liability insurance in the amount of not less than $1 million per occurrence. Self-insurance is allowed for persons who meet the self-insurance requirements under the insurance laws of Texas and receive written approval from the Texas Department of Insurance (TDI). An individual required to have insurance must obtain individual coverage unless covered under the policy of the individual's employer or employed by a person approved by TDI to be self-insured. Insurance policies required under this section must be currently in force and must be written by:

(1) an insurance company authorized to do business in Texas;

(2) an eligible Texas surplus lines insurer as defined in the Texas Insurance Code, Article 1.14-2 (relating to Surplus Lines Insurance);

(3) a Texas registered risk retention group; or

(4) a Texas registered purchasing group.

(b) The certificate of insurance must be complete, including all applicable coverages and endorsements, and must name the Texas Department of Health, Toxic Substances Control Division, as a certificate holder. Each required policy shall be endorsed to provide the department with at least a ten-day notice of cancellation.

(c) An applicant for initial or renewal licenses must provide proof of insurance in one of the following forms:

(1) a copy of the required certificate of insurance;

(2) a copy of the approval for self-insurance granted by the TDI; or

(3) proof that the applicant is employed by a licensed mold assessment or remediation company that has the required insurance.

(d) The department may impose an administrative penalty or take other disciplinary action against any person who fails to have the insurance required under this section.

(1) If a policy is canceled, the licensee shall notify the department in writing not later than 10 working days prior to the cancellation effective date. A licensed company may file a single notification for the company and its licensed employees.

(2) If a policy expires or is canceled, the policy shall promptly be renewed or replaced without any lapse in coverage. If no insurance is in effect, the licensee shall cease work. The licensee must provide a certificate of the renewal or replacement policy to the department prior to resuming work.

(3) If an individual licensee ceases to be covered under an employer's insurance, the individual must obtain replacement coverage either individually or through a new employer. The individual must submit the documentation required under subsection (c) of this section to the department before engaging in any mold-related activities.

§295.310.Licensing: State Licensing Examination.

(a) Examination requirements.

(1) An applicant for an initial individual license who has successfully completed the required training from a department-accredited training provider must pass the state examination prior to applying for the license. The applicant must pass the examination within six months of completing the training course.

(2) An applicant is permitted to take the state examination before January 1, 2005, without completing a department-approved training course. The applicant must pass the examination with a score of at least 70% correct and submit a complete application to the department before January 1, 2005, (as evidenced by a postmark or shipping paperwork). An applicant who fails to pass the examination in three or fewer attempts or to submit a complete application before January 1, 2005, must successfully complete a state accredited training course and then pass a state examination with a score of at least 70% correct before re-applying for a license.

(b) Re-examination. An individual is permitted to take two re-examinations after failing an initial examination. An individual who fails both re-examinations must repeat the initial training course, submit a new application for the licensing examination, and provide a copy of the new training certificate.

(c) Scheduling and registration. Annually, the department shall publish a schedule of examination dates and locations. Training providers shall provide state examination schedules as a part of their instruction. Registrations must be submitted by mailing, faxing, or e-mailing a registration form to the administrator and must be received by the department no later than five working days before the examination date. Information on the examination schedule and assistance with registration is available by calling the Mold Licensing Program at (512) 834-4509 or (800) 293-0753 (toll-free in Texas). Entrance into the examination site will be allowed only upon presentation of a valid photo identification from an accredited training provider. Companies with 30 or more employees to be tested may call the department to arrange an additional examination date for a $50 per person examination fee.

(d) Fees. A fee of $25 is required for any examination or re-examination. A fee of $50 per person shall be paid for examinations administered at locations and times other than those published. The department must receive the required fees no later than five working days before the examination.

(e) Grading and reporting of examination scores. A grade of at least 70% correct must be achieved in order to pass the examination. Scores will be reported only by mail no later than 30 working days after the date the examination is taken. Information regarding re-examination, if necessary, will be included.

(f) Request for information concerning examination. If requested in writing by an individual who fails a licensing examination, the department shall furnish the individual with a written analysis of the individual's performance on the examination.

§295.311.Mold Assessment Technician: Licensing Requirements.

(a) Licensing requirement. Unless exempted under §295.303 of this title (relating to Exceptions and Exemptions), as of January 1, 2005, an individual must be licensed as a mold assessment technician to perform activities listed under subsection (b) of this section, except that an individual licensed under §295.312 of this title (relating to Mold Assessment Consultant: Licensing Requirements) is not required to be separately licensed under this section.

(b) Scope. An individual licensed under this section is authorized to determine the location and extent of mold or suspected mold present in a facility. A mold assessment technician is licensed to:

(1) record visual observations and take on-site measurements, including temperature, humidity, and moisture levels, during an initial or post-remediation mold assessment;

(2) collect samples for mold analysis during an initial mold assessment; and

(3) as directed by an on-site assessment consultant, collect samples during a post-remediation mold assessment.

(c) Qualifications. In addition to the requirements for all applicants listed in §295.305 of this title (relating to Credentials: General Conditions) and §295.309 of this title (relating to Licensing: Insurance Requirements), an applicant must be a high-school graduate or have obtained a General Educational Development (GED) certificate. If the application is for an initial license and a complete application is submitted to the department before January 1, 2005, as evidenced by a postmark or shipping paperwork, the applicant may satisfy the training requirement under §295.305(e)(1) of this title by either:

(1) successfully completing an initial mold assessment technician course offered by a department-accredited training provider and receiving a course-completion certificate; or

(2) successfully completing, within two years prior to the application date, a minimum of 24 hours of instruction in mold assessment. The applicant is not required to receive all 24 hours of instruction from the same organization. Successful completion shall be shown by a certificate of course completion. Any instruction used to satisfy this requirement must be offered by one of the following:

(A) a college or university accredited by an organization recognized by the Council for Higher Education Accreditation;

(B) a training provider accredited by the federal government to provide instruction on hazardous materials;

(C) a national professional organization that is administered by an active board of directors and whose criteria for full membership include minimum education and experience requirements and adherence to a published code of ethics;

(D) an organization that is administered by an active board of directors, that offers certification to individuals who fulfill minimum education and experience requirements at least equivalent to the education and experience requirements under this section, and that requires passing a certification examination with a score of at least 70% correct in order to receive the certification; or

(E) a training provider that is approved by an organization meeting the requirements under subparagraph (D) of this paragraph to offer training required by the organization.

(d) Fees. The fees for a mold assessment technician license are:

(1) $100 for a one-year license issued before January 1, 2006; and

(2) $200 for a two-year license issued on or after January 1, 2005.

(e) Applications and renewals. Applications shall be submitted as required by §295.308(a) of this title (relating to Credentials: Applications and Renewals). An applicant shall include the following:

(1) if the application is for an initial license and a complete application is submitted to the department before January 1, 2005, as evidenced by a postmark or shipping paperwork:

(A) a copy of a high school diploma or GED certificate;

(B) proof of compliance with the insurance requirement specified in §295.309 of this title;

(C) proof of successfully fulfilling the training requirement under subsection (c)(1)-(2) of this section; and

(D) proof of successfully passing the state licensing examination with a score of at least 70% correct;

(2) if the application is for an initial license and a complete application is submitted to the department on or after January 1, 2005:

(A) a copy of a high school diploma or GED certificate;

(B) proof of compliance with the insurance requirement specified in §295.309 of this title;

(C) a copy of a certificate of training as described in §295.320(b) of this title (relating to Training: Required Mold Training Courses); and

(D) proof of successfully passing the state licensing examination with a score of at least 70% correct; or

(3) if the application is for renewal of a license:

(A) a copy of a certificate of training as described in §295.320(g) of this title, unless the applicant is exempt under §295.305(g)(3) of this title; and

(B) proof of compliance with the insurance requirement specified in §295.309 of this title.

(f) Responsibilities. In addition to the requirements listed in §295.306 of this title (relating to Credentials: General Responsibilities), a licensed mold assessment technician shall:

(1) perform only activities allowed under subsection (b) of this section;

(2) comply with mold sampling protocols accepted as industry standards, as presented in training course materials or as required by his/her employer; and

(3) utilize the services of a laboratory that is licensed by the department to provide analysis of mold samples, except as provided under §295.312(b)(4) of this title.

§295.312.Mold Assessment Consultant: Licensing Requirements.

(a) Licensing requirements. Unless exempted under §295.303 of this title (relating to Exceptions and Exemptions), as of January 1, 2005, an individual must be licensed as a mold assessment consultant to perform activities listed under subsection (b) of this section. A licensed mold assessment consultant who employs one or more individuals required to be licensed under this section or §295.311 of this title (relating to Mold Assessment Technician: Licensing Requirements) must be separately licensed as a mold assessment company under §295.313 of this title (relating to Mold Assessment Company: Licensing Requirements), except that an individual licensed as a mold assessment consultant and doing business as a sole proprietorship is not required to be separately licensed under §295.313 of this title.

(b) Scope. An individual licensed under this section is also licensed to perform all activities of a mold assessment technician listed in §295.311(b) and (f) of this title. In addition, a licensed mold assessment consultant is licensed to:

(1) plan surveys to identify conditions favorable for indoor mold growth or to determine the presence, extent, amount, or identity of mold or suspected mold in a building;

(2) conduct activities recommended in a plan developed under paragraph (1) of this subsection and describe and interpret the results of those activities;

(3) determine locations at which a licensed mold assessment technician will record observations, take measurements, or collect samples;

(4) perform direct microscopic examination;

(5) prepare a mold assessment report, including the observations made, measurements taken, and locations and analysis results of samples taken by the consultant or by a licensed mold assessment technician during the mold assessment;

(6) develop a mold management plan for a building, including recommendations for periodic surveillance, response actions, and prevention and control of mold growth;

(7) prepare a mold remediation protocol, including the evaluation and selection of appropriate methods, personal protective equipment, engineering controls, project layout, and preparation of plans and specifications;

(8) evaluate a mold remediation project for the purpose of certifying that mold contamination identified for the remediation project has been remediated as outlined in a mold remediation protocol;

(9) evaluate a mold remediation project for the purpose of certifying that the underlying cause of the mold has been remediated so that it is reasonably certain that the mold will not return from that remediated cause; and

(10) complete appropriate sections of a mold remediation certificate as specified under §295.327(b) of this title (relating to Photographs; Certificate of Mold Remediation; Duty of Property Owner).

(c) Qualifications. In addition to the requirements for all applicants listed in §295.305 of this title (relating to Credentials: General Conditions) and §295.309 of this title (relating to Licensing: Insurance Requirements), an applicant must:

(1) meet at least one of the following education and/or experience requirements:

(A) a bachelor's degree from an accredited college or university with a major in a natural or physical science, engineering, architecture, building construction, or building sciences, and at least one year of experience in an allied field;

(B) at least 60 college credit hours with a grade of C or better in the natural sciences, physical sciences, environmental sciences, building sciences, or a field related to any of those sciences, and at least three years of experience in an allied field;

(C) a high-school diploma or a General Educational Development (GED) certificate and at least five years of experience in an allied field; or

(D) certification as an industrial hygienist, a professional engineer, a professional registered sanitarian, a certified safety professional, or a registered architect and at least one year of experience in an allied field; and

(2) if a complete application for an initial license is submitted to the department before January 1, 2005 as evidenced by a postmark or shipping paperwork, satisfy the training requirement under §295.305(e)(1) of this title by either:

(A) successfully completing an initial mold assessment consultant course offered by a department-accredited training provider and receiving a course-completion certificate; or

(B) successfully completing, within two years prior to the application date, a minimum of 40 hours of instruction in mold assessment. The applicant is not required to receive all 40 hours of instruction from the same organization. Successful completion shall be shown by a certificate of course completion. Any instruction used to satisfy this requirement must include classroom and hands-on training and must be offered by an entity meeting one of the qualifications listed under §295.311(c)(2)(A)-(E) of this title.

(d) Fees. The fees for a mold assessment consultant license are:

(1) $300 for a one-year license issued before January 1, 2006; and

(2) $600 for a two-year license issued on or after January 1, 2005.

(e) Applications and renewals. Applications shall be submitted as required by §295.308(a) of this title (relating to Credentials: Applications and Renewals). An applicant shall include the following in the application package:

(1) if the application is for an initial license and a complete application is submitted to the department before January 1, 2005, as evidenced by a postmark or shipping paperwork:

(A) verifiable evidence that the applicant meets at least one of the eligibility requirements under subsection (c)(1)(A)-(D) of this section;

(B) proof of compliance with the insurance requirement specified in §295.309 of this title;

(C) proof of successfully fulfilling the training requirement under subsection (c)(2) of this section; and

(D) proof of successfully passing the state licensing examination with a score of at least 70% correct;

(2) if the application is for an initial license and a complete application is submitted to the department on or after January 1, 2005:

(A) all documentation required under paragraphs (1)(A), (1)(B), and (1)(D) of this subsection; and

(B) a copy of a certificate of training as described in §295.320(c) of this title (relating to Training: Required Mold Training Courses); or

(3) if the application is for renewal of a license:

(A) a copy of a certificate of training as described in §295.320(g) of this title, unless the applicant is exempt under §295.305(g)(3) of this title; and

(B) proof of compliance with the insurance requirement specified in §295.309 of this title.

(f) Responsibilities. In addition to the requirements listed in §295.306 of this title (relating to Credentials: General Responsibilities), a licensed mold assessment consultant shall:

(1) provide adequate consultation to the client to diminish or eliminate hazards or potential hazards to building occupants caused by the presence of mold growth in buildings;

(2) provide, in accordance with a client's instructions, professional services concerning surveys, building conditions that have or might have contributed to mold growth, proper building operations and maintenance to prevent mold growth, and compliance with work practices and standards;

(3) comply with mold sampling protocols as presented in training course materials or as required by his/her employer;

(4) inquire of the client whether any hazardous materials, including lead-based paint and asbestos, are present in the project area;

(5) provide to the client a mold assessment report following an initial (pre-remediation) mold assessment. If the consultant includes the results of the initial assessment in a mold remediation protocol or a mold management plan, a separate assessment report is not required;

(6) provide to the client a mold remediation protocol before a remediation project begins;

(7) utilize the services of a laboratory that is licensed by the department to provide analysis of mold samples, except as permitted under subsection (b)(4) of this section;

(8) if he/she performs post-remediation assessment on a project and ceases to be involved with the project before it achieves clearance, provide a final status report to the client and to the mold remediation contractor or company performing mold remediation work for the client as specified under §295.324(f) of this title (relating to Post-Remediation Assessment and Clearance);

(9) provide a passed clearance report to the client as specified under §295.324(e) of this title and complete applicable sections of a certificate of mold remediation as specified under §295.327(b) of this title (relating to Photographs; Certificate of Mold Remediation; Duty of Property Owner);

(10) comply with recordkeeping responsibilities under §295.326(c) of this title (relating to Recordkeeping);

(11) sign and date each mold assessment report and each mold management plan that he/she prepares and include his/her license number and expiration date on each report and each plan;

(12) sign and date each mold remediation protocol on the cover page, including his/her license number and expiration date. The consultant must also initial the protocol on every page that addresses the scope of work and on all drawings related to the remediation work; and

(13) review and approve changes to any protocol by signing or initialing according to paragraph (11) of this subsection.

§295.313.Mold Assessment Company: Licensing Requirements.

(a) Licensing requirements. A person performing mold assessment work on or after January 1, 2005 must be licensed as a mold assessment company if the person employs two or more individuals required to be licensed under §295.311 of this title (relating to Mold Assessment Technician: Licensing Requirements) or §295.312 of this title (relating to Mold Assessment Consultant: Licensing Requirements), except that an individual licensed as a mold assessment consultant and doing business as a sole proprietorship is not required to be separately licensed under this section. A mold assessment company shall designate one or more individuals licensed as mold assessment consultants as its responsible person(s).

(b) Authorization and conditions. As a condition of licensure, a mold assessment company must:

(1) notify the department in writing of any changes in individual licensed mold assessment consultants as responsible persons within 10 days of such occurrences;

(2) maintain general liability insurance, as described in §295.309 of this title (relating to Licensing: Insurance Requirements);

(3) refrain from mold assessment activity during any period without the active employment of at least one individual licensed mold assessment consultant designated as the responsible person for the company;

(4) notify the department in writing of any change related to a person who has an ownership interest of 10% or more (including additions to or deletions from any list of such persons previously supplied to the department and any changes in the names, addresses, or occupations of any persons on such a list) within 10 days of the change; and

(5) refrain from engaging in activity prohibited under §295.307(a) of this title (relating to Conflict of Interest and Disclosure Requirement).

(c) Eligibility for licensing. To be eligible for licensing, an applicant must:

(1) employ at least one licensed mold assessment consultant; and

(2) maintain an office in Texas.

(d) Fees. The fees for a mold assessment company license are:

(1) $500 for a one-year license issued before January 1, 2006; and

(2) $1,000 for a two-year license issued on or after January 1, 2005.

(e) Applications and renewals. Applications shall be submitted as required by §295.308(a) of this title (relating to Credentials: Applications and Renewals). An applicant shall include the following in the application package:

(1) proof of compliance with the insurance requirement specified in §295.309 of this title;

(2) the name, address, and occupation of each person that has an ownership interest of 10% or more in the company; and

(3) the name and license number of each licensed mold assessment consultant designated by the applicant as a responsible person.

(f) Responsibilities. In addition to the requirements as listed in §295.306 of this title (relating to Credentials: General Responsibilities), a licensed mold assessment company shall:

(1) follow the recordkeeping requirements, at both the Texas office and work site locations, as described in §295.326(c) of this title (relating to Recordkeeping);

(2) provide each client with a mold assessment report following an initial (pre-remediation) mold assessment. If the company includes the results of the initial assessment in a mold remediation protocol or a mold management plan, a separate assessment report is not required;

(3) provide each client a mold remediation protocol before remediation begins;

(4) ensure that all employees who will conduct mold assessment activities are provided with, fit tested for, and trained in the correct use of personal protection equipment appropriate for the activities to be performed;

(5) ensure that the training and license of each licensed employee are current, as described in §295.320 of this title (relating to Training: Required Mold Training Courses);

(6) utilize the services of a laboratory that is licensed by the department to provide analysis of mold samples, except as permitted under §295.312(b)(4) of this title;

(7) maintain general liability insurance, as described in §295.309 of this title;

(8) if the company performs post-remediation assessment on a project and ceases to be involved with the project before it achieves clearance, provide a final status report to the client and to the mold remediation contractor or company performing mold remediation work for the client as specified under §295.324(f) of this title (relating to Post-Remediation Assessment and Clearance); and

(9) provide a passed clearance report to the client as specified under §295.324(e) of this title and provide a certificate of mold remediation, with applicable sections completed by a mold assessment consultant, to a mold remediation company or contractor, as specified under §295.327(b) of this title (relating to Photographs; Certificate of Mold Remediation; Duty of Property Owner).

§295.314.Mold Remediation Worker: Registration Requirements.

(a) Registration requirement. Unless exempted under §295.303 of this title (relating to Exceptions and Exemptions), as of January 1, 2005, an individual must be registered as a mold remediation worker to perform mold remediation, except that an individual licensed under §295.315 of this title (relating to Mold Remediation Contractor: Licensing Requirements) is not required to be separately registered under this section.

(b) Qualifications. In addition to the requirements for all applicants listed in §295.305 of this title (relating to Credentials: General Conditions), an applicant must:

(1) be employed by a licensed mold remediation contractor or company; and

(2) complete a mold remediation worker training course provided by either the applicant's employer or an accredited mold training provider, as described under §295.320(d) of this title (relating to Training: Required Mold Training Courses).

(c) Fees. The fees for a mold remediation worker registration are:

(1) $30 for a one-year registration issued before January 1, 2006; and

(2) $60 for a two-year registration issued on or after January 1, 2005.

(d) Applications and renewals. Applications shall be submitted as required by §295.308(a) of this title (relating to Credentials: Applications and Renewals) and shall include a copy of the training certificate required under §295.320(d)(5)(A) of this title, unless the applicant is exempt under §295.305(g)(3) of this title. An applicant must submit an application to the department within five working days of completing a worker training course, as evidenced by a postmark or shipping paperwork.

(e) Temporary registration. An individual who has successfully completed remediation worker training and received a training certificate may perform mold remediation work allowed under this section for a period of not more than 30 days from the training date if:

(1) the individual has submitted an application for registration to the department as required under subsection (d) of this section;

(2) a copy of the training certificate is present at the work site at all times while the individual engages in mold remediation; and

(3) the individual is in possession of a valid government-issued photo identification at all times while performing mold remediation work.

(f) Responsibilities. In addition to the requirements as listed in §295.306 of this title (relating to Credentials: General Responsibilities), a registered mold remediation worker shall use remediation techniques specified in the project mold remediation work plan.

(g) Prohibitions. Registered mold remediation workers are prohibited from:

(1) performing mold remediation except under the supervision, as defined in §295.303(f) of this title, of a licensed remediation contractor; and

(2) engaging in any mold-related activity as a contractor.

§295.315.Mold Remediation Contractor: Licensing Requirements.

(a) Licensing requirements. Unless exempted under §295.303 of this title (relating to Exceptions and Exemptions), as of January 1, 2005, an individual must be licensed as a mold remediation contractor to perform activities listed under subsection (b) of this section. A licensed mold remediation contractor who employs one or more individuals required to be licensed under this section or §295.314 of this title (relating to Mold Remediation Worker: Registration Requirements) must be separately licensed as a mold remediation company under §295.316 of this title (relating to Mold Remediation Company: Licensing Requirements), except that an individual licensed as a mold remediation contractor and doing business as a sole proprietorship is not required to be separately licensed under §295.316 of this title. A mold remediation company shall designate one or more individuals licensed as mold remediation contractors as its responsible person(s).

(b) Scope. An individual licensed under this section may perform mold remediation and supervise registered mold remediation workers performing mold remediation. In addition, a licensed mold remediation contractor is licensed to provide mold remediation services including:

(1) preparing a mold remediation work plan providing instructions for the remediation efforts to be performed for a mold remediation project; and

(2) conducting and interpreting the results of activities recommended in a work plan developed under paragraph (1) of this subsection, including any of the activities of a registered mold remediation worker under §295.314 of this title.

(c) Qualifications. In addition to the requirements for all applicants listed in §295.305 of this title (Credentials: General Conditions) and §295.309 of this title (relating to Licensing: Insurance Requirements), an applicant must:

(1) meet at least one of the following education and/or experience requirements:

(A) a bachelor's degree from an accredited college or university with a major in a natural or physical science, engineering, architecture, building construction, or building sciences and at least one year of experience either in an allied field or as a general contractor in building construction;

(B) at least 60 college credit hours with a grade of C or better in the natural sciences, physical sciences, environmental sciences, building sciences, or a field related to any of those sciences, and at least three years of experience in an allied field or as a general contractor in building construction;

(C) a high school diploma or General Educational Development (GED) certificate, plus at least five years of experience in an allied field or as a general contractor in building construction; or

(D) certification as an industrial hygienist, a professional engineer, a professional registered sanitarian, a certified safety professional, or a registered architect, and at least one year of experience in an allied field or as a general contractor in building construction; and

(2) if the application is for an initial license and a complete application is submitted to the department before January 1, 2005, as evidenced by a postmark or shipping paperwork, satisfy the training requirement under §295.305(e)(1) of this title by either:

(A) successfully completing an initial mold remediation contractor course offered by a department-accredited training provider and receiving a course-completion certificate; or

(B) successfully completing, within two years prior to the application date, a minimum of 40 hours of instruction in mold remediation. The applicant is not required to receive all 40 hours of instruction from the same organization. Successful completion shall be shown by a certificate of course completion. Any instruction used to satisfy this requirement must include classroom and hands-on training and must be offered by an entity meeting one of the qualifications listed under §295.311(c)(2)(A)-(E) of this title (relating to Mold Assessment Technician: Licensing Requirements).

(d) Fees. The fees for a mold remediation contractor license are:

(1) $250 for a one-year license issued before January 1, 2006; and

(2) $500 for a two-year license issued on or after January 1, 2005.

(e) Applications and renewals. Applications shall be submitted as required by §295.308(a) of this title (relating to Credentials: Applications and Renewals). An applicant shall include the following in the application package:

(1) if the application is for an initial license and a complete application is submitted to the department before January 1, 2005, as evidenced by a postmark or shipping paperwork:

(A) verifiable evidence that the applicant meets at least one of the eligibility requirements under subsection (c)(1) of this section;

(B) proof of compliance with the insurance requirement specified in §295.309 of this title;

(C) proof of successfully fulfilling the training requirement under subsection (c)(2) of this section; and

(D) proof of successfully passing the state licensing examination with a score of at least 70% correct;

(2) if the application is for an initial license and a complete application is submitted to the department on or after January 1, 2005:

(A) verifiable evidence that the applicant meets at least one of the qualifications under subsection (c)(1) of this section;

(B) proof of compliance with the insurance requirement specified in §295.309 of this title;

(C) a copy of a certificate of training indicating successful completion within the past six months of an initial training course offered by a department-accredited training provider as described in §295.320(e) of this title (relating to Training: Required Mold Training Courses); and

(D) proof of successfully passing the state licensing examination; or

(3) if the application is for renewal of a license:

(A) a copy of a certificate of training as described in §295.320(g) of this title, unless the applicant is exempt under §295.305(g)(3) of this title; and

(B) proof of compliance with the insurance requirement specified in §295.309 of this title.

(f) Responsibilities. In addition to the requirements as listed in §295.306 of this title (relating to Credentials: General Responsibilities), the mold remediation contractor shall be responsible for:

(1) accurate interpretation of field notes, drawings, and reports relating to mold assessments;

(2) advising clients about options for mold remediation;

(3) complying with standards for preparing work plans, as presented in training course materials or as required by the mold remediation company by whom the contractor is employed;

(4) providing to a client a mold remediation project work plan before the mold remediation begins;

(5) inquiring of the client whether any known or suspected hazardous materials, including lead-based paint and asbestos, are present in the project area;

(6) signing and dating each mold remediation work plan that he/she prepares on the cover page. The cover page shall also include his/her license number and expiration date. He/she must also initial the work plan on every page that addresses the scope of work and on all drawings related to the remediation work;

(7) submitting the required notification to the department, as described in §295.325 of this title (relating to Notifications), unless employed by a licensed mold remediation company;

(8) ensuring that all individuals who conduct activities specified under paragraph (4) of this subsection are provided with, fit tested for, and trained in the correct use of personal protection equipment required under §295.322(c) of this title (relating to Minimum Work Practices and Procedures for Mold Remediation);

(9) if the mold remediation contractor is doing business as a sole proprietorship and is not required to be separately licensed as a mold remediation company under §295.316 of this title (Mold Remediation Company: Licensing Requirements):

(A) ensuring that the training, as described in §295.320 of this title (relating to Training: Required Mold Training Courses), and license of each employee who is required to be licensed under this subchapter is current;

(B) ensuring that the training, as described in §295.320 of this title, and registration of each registered employee is current;

(C) ensuring that each unregistered employee who is required to be registered under this subchapter is provided the training required under §295.320(d) of this title before performing any mold remediation work;

(D) complying with all requirements under §295.320(d) of this title if the contractor provides the training; and

(E) ensuring that a previously unregistered employee who is provided training as specified in subparagraph (C) of this paragraph:

(i) has applied to the department for registration before allowing that employee to perform any mold remediation work, except as provided under §295.314(e) of this title; and

(ii) is registered before allowing that employee to perform any mold remediation work more than 30 days after the date of the training, in accordance with §295.314(e) of this title;

(10) complying with recordkeeping responsibilities under §295.326 of this title (relating to Recordkeeping); and

(11) providing to the property owner a completed mold remediation certificate as specified under §295.327 of this title (relating to Photographs; Certificate of Mold Remediation; Duty of Property Owner).

§295.316.Mold Remediation Company: Licensing Requirements.

(a) Licensing requirements. A person performing mold remediation work on or after January 1, 2005 must be licensed as a mold remediation company if the person employs one or more individuals required to be licensed under §295.314 of this title (relating to Mold Remediation Worker: Registration Requirements) or §295.315 of this title (relating to Mold Remediation Contractor: Licensing Requirements), except that an individual licensed as a mold remediation contractor and doing business as a sole proprietorship is not required to be separately licensed under this section.

(b) Authorization and conditions. A licensed mold remediation company is specifically authorized to employ mold remediation contractors and mold remediation workers who are currently licensed or registered under this subchapter to assist in the company's mold remediation activity. As a condition of licensure, a mold remediation company must:

(1) employ at least one licensed mold remediation contractor and refrain from mold remediation activity during any period without the active employment of at least one individual licensed mold remediation contractor designated as the responsible person for the company;

(2) notify the department in writing of any additions or deletions of responsible persons within 10 days of such occurrences;

(3) maintain general liability insurance, as described under §295.309 of this title (relating to Licensing: Insurance Requirements);

(4) notify the department in writing of any change related to a person who has an ownership interest of 10% or more (including additions to or deletions from any list of such persons previously supplied to the department and any changes in the names, addresses, or occupations of any persons on such a list) within 10 days of the change; and

(5) refrain from engaging in activity prohibited under §295.307(a) of this title (relating to Conflict of Interest and Disclosure Requirement).

(c) Fees. The fees for a mold remediation company license are:

(1) $500 for a one-year license issued before January 1, 2006; and

(2) $1,000 for a two-year license issued on or after January 1, 2005.

(d) Applications and renewals. Applications shall be submitted as required by §295.308(a) of this title (relating to Credentials: Applications and Renewals). An applicant shall include the following in the application package:

(1) proof of compliance with the insurance requirement specified in §295.309 of this title;

(2) the name, address, and occupation of each person that has an ownership interest of 10% or more in the company; and

(3) the name and license number of each licensed mold remediation contractor designated by the applicant as a responsible person.

(e) Responsibilities. In addition to the requirements as listed in §295.306 of this title (relating to Credentials: General Responsibilities), the mold remediation company shall be responsible for:

(1) complying with recordkeeping requirements, at both central office and work site locations, as described in §295.326 of this title (relating to Recordkeeping);

(2) submitting the required notification to the department, as required under §295.325 of this title (relating to Notifications);

(3) providing to each client a mold remediation work plan project before the mold remediation begins;

(4) ensuring that all employees who will conduct mold remediation activities are provided with, fit tested for, and trained in the correct use of personal protection equipment required under §295.322 of this title (relating to Minimum Work Practices and Procedures for Mold Remediation);

(5) ensuring that the training, as described in §295.320 of this title (relating to Training: Required Mold Training Courses), and license of each employee who is required to be licensed under this subchapter is current;

(6) ensuring that the training, as described in §295.320 of this title, and registration of each registered employee is current;

(7) ensuring that each unregistered employee who is required to be registered under this subchapter is provided the training required under §295.320(d) of this title before performing any mold remediation work;

(8) complying with all requirements under §295.320(d) of this title if the company provides the training; and

(9) ensuring that a previously unregistered employee who is provided training as specified in paragraph (7) of this subsection:

(A) has applied to the department for registration before allowing that employee to perform any mold remediation work, except as provided under §295.314(e) of this title; and

(B) is registered before allowing that employee to perform any mold remediation work more than 30 days after the date of the training, in accordance with §295.314(e) of this title.

§295.317.Mold Analysis Laboratory: Licensing Requirements.

(a) Licensing requirement. A person other than an individual must be licensed in compliance with the provisions of this section to engage in activities listed under subsection (b) of this section on or after January 1, 2005. Branch offices that perform mold analysis must fulfill the same equipment and operational standards as the main office that has been licensed and must be accredited in accordance with subsection (c) of this section for the types of analysis they will be performing.

(b) Scope. A person licensed under this section is authorized to analyze samples collected during mold-related activities to:

(1) determine the presence, identity, or amount of mold present;

(2) provide any other information regarding the sample that the submitter requests; or

(3) obtain any other information that the laboratory deems useful.

(c) Qualifications. Applicants must submit documentation showing that:

(1) the laboratory is either:

(A) accredited by the American Industrial Hygiene Association under the Environmental Microbiology Laboratory Accreditation Program (EMLAP); or

(B) accredited or certified by a program deemed equivalent by the department; and

(2) mold analysis activity at the laboratory is overseen by a full-time mycologist or microbiologist with an advanced academic degree.

(d) Fees. The fees for a mold analysis laboratory license are:

(1) $500 for a one-year license issued before January 1, 2006; and

(2) $1,000 for a two-year license issued on or after January 1, 2005.

(e) Applications and renewals. Applications shall be submitted as required by §295.308(a) of this title (relating to Credentials: Applications and Renewals). An applicant shall include the following in the application package:

(1) the name, address, and occupation of each person that has an ownership interest of 10% or more in the laboratory;

(2) evidence of laboratory accreditation and the most recently available results of proficiency analytical testing in accordance with subsection (c) of this section;

(3) proof of compliance with the insurance requirements specified in §295.309 of this title (relating to Licensing: Insurance Requirements); and

(4) the name of each individual designated by the applicant as a responsible person.

(f) Responsibilities. In addition to the requirements as listed in §295.306 of this title (relating to Credentials: General Responsibilities), the mold analysis laboratory shall be responsible for:

(1) following recordkeeping requirements as described in §295.326(d) of this title (relating to Recordkeeping);

(2) providing to a client, as applicable, details of analysis methods used, amounts (percentages) analyzed, raw counts for each genus of mold that is identified, magnification used for counting and identifying mold, and culture media and conditions used;

(3) ensuring that all employees who will conduct mold analysis are properly trained in analysis techniques;

(4) maintaining accreditation required under subsection (c) of this section. A licensed mold assessment laboratory that loses the required accreditation must:

(A) provide to the department written notification of a change in accreditation status within 10 working days of the change; and

(B) cease providing services related to the licensure until the accreditation is reinstated;

(5) notifying the department in writing of any additions or deletions of responsible persons within 10 days of such occurrences; and

(6) maintaining general liability insurance, as described in §295.309 of this title.

§295.318.Mold Training Provider: Accreditation.

(a) Accreditation requirement. A person must be accredited as a mold training provider to offer mold training courses that are prerequisites for licensing.

(b) Authorizations and Conditions. The following shall apply to issuance of accreditations under this section.

(1) No person shall advertise or offer as initial or refresher training courses, for fulfillment of requirements for licensing under this subchapter, any courses that the department has not approved under §295.319 of this title (relating to Training: Approval Of Training Courses and Instructors). Accredited training providers may offer, without department approval, mold remediation technician training courses and other courses relevant to mold-related activities, including, but not limited to, courses on respirator training and compliance.

(2) Accredited training providers must offer approved courses as described below.

(A) Each initial and refresher course shall address only one discipline and shall not be combined with other disciplines. Initial training courses shall not be combined with refresher courses. This prohibition against combined training applies to hands-on training sessions as well as other aspects of the course.

(B) Each course shall be conducted in one language throughout and not combined with the same course taught in another language. A training provider may offer a course in a language other than English if all instructors and guest speakers are fluent in that language and all books, training materials, and course tests are in that language.

(3) Each accredited training provider shall submit schedules for approved training courses to the department at least 14 calendar days prior to the start of any course on the schedule. Requests for exceptions to the 14-day rule shall be submitted in writing to the program administrator along with a written justification describing why the notice could not be submitted earlier. Approval requests for shorter notice must be received by the department 72 hours prior to the start of the course and will be granted in writing if approved. A training provider that cancels a scheduled course must notify the department in writing at least 24 hours prior to the scheduled start time of the course. The department will accept facsimiles of cancellation notices. If the training provider cannot provide written notice of cancellation at least 24 hours in advance, the training provider shall notify the department by phone not later than two hours after the scheduled class start time and provide a written explanation of the short cancellation notice within 24 hours of the phone call.

(4) Training courses must be conducted during scheduled hours as notified in accordance with paragraph (3) of this subsection. Training providers shall not conduct any approved course for more than eight training hours (including hands-on portions) in a calendar day.

(5) A training provider must require instructors and guest speakers to present in person at least 50% of the classroom instruction and all of the hands-on instruction. The training provider may allow an instructor or guest speaker to use training films and videotapes, but audiovisual materials shall not be used as substitutes for the required in-person presentations or the hands-on instruction.

(6) Courses requiring hands-on practical training must be presented in an environment that permits each student to have actual experience performing tasks associated with the mold-related activity.

(7) The maximum number of students in a lecture session shall be 40. Hands-on training sessions shall maintain a student-to-instructor ratio of not more than 15 to one and must be conducted so that the instructor is able to assist and evaluate each student individually. Field trips shall maintain a student-to-instructor ratio of not more than 40 to one.

(8) Approved training courses shall be conducted in facilities acceptable as classrooms and conducive to learning. The facilities must have restrooms available for the students.

(9) Course instructors shall maintain a master attendance record for each course and take attendance at the beginning of each four-hour instruction segment. A student who is absent from more than 10% of the course instruction, including hands-on sessions and field trips, is ineligible to complete the course.

(10) An accredited training provider must verify and keep a written record of any student achieving a minimum score of 70% correct on each course test. The training provider shall have a written policy concerning the administration of tests, including allowing only one re-test per student for each course. The use of the same questions for both the original and re-test is not allowed. Oral tests are not allowed; however, a training provider may read the written test questions and possible answers to a student who must then mark his or her answer on an answer sheet. If a student fails the re-test, the student must repeat the course and pass a new test.

(11) Each training provider shall send at least one course instructor to any meeting held by the department for the purpose of ensuring quality training. The department shall hold no more than two such meetings per year.

(12) An individual instructor shall not train himself/herself to qualify for a license or a registration.

(c) Qualification. To qualify for an accreditation, each applicant:

(1) must have a written policy concerning refunds and cancellations in all languages in which training is offered. The refund and cancellation policy must be made available to students prior to payment of fees and shall include the cancellation procedures;

(2) shall employ a mold training manager who:

(A) meets at least one of the following requirements:

(i) at least two years of experience, education, or training in teaching workers or adults;

(ii) a bachelor's or graduate degree in building construction technology, engineering, industrial hygiene, safety, public health, education, or business administration or program management; or

(iii) at least two years of experience in managing an occupational health and safety training program specializing in environmental hazards; and

(B) has demonstrated experience, education, or training in mold assessment or remediation, lead or asbestos abatement, occupational safety and health, or industrial hygiene;

(3) shall provide for each course a qualified principal instructor who meets the requirements under §295.319 of this title; and

(4) must develop and implement a plan to maintain and improve the quality of the training program. This plan shall contain at least the following elements:

(A) procedures for periodic revision of training materials and the course test to reflect innovations in the field; and

(B) procedures for the training manager's annual review of instructor competency.

(d) Fees. The fees for mold training provider accreditation are:

(1) $500 for a one-year accreditation issued before January 1, 2006; and

(2) $1,000 for a two-year accreditation issued on or after January 1, 2005.

(e) Applications and renewals. Applications shall be submitted as required by §295.308(a) of this title (relating to Credentials: Applications and Renewals). An applicant shall include:

(1) for an initial accreditation, at least one complete application for approval of a training course and at least one complete application for approval of an instructor, as described under §295.319 of this title;

(2) for a renewal accreditation, a list of all of the training provider's courses and instructors currently approved by the department; and

(3) a description of the training provider's organization, including the address of its central office, the names and business addresses of its principals, a statement of any affiliation with another mold-related company doing business in Texas, and a listing of the courses to be offered. The organization shall designate a staff member as the mold training manager who meets the qualifications of subsection (c)(2) of this section.

(f) Responsibilities. In addition to the requirements listed in §295.306 of this title (relating to Credentials: General Responsibilities), an accredited mold training provider shall be responsible for:

(1) confirming, before enrolling a student in a refresher training course, that the student has successfully completed a previous training course in the same discipline within 24 months;

(2) maintaining the hands-on skills assessment to ensure that it accurately evaluates student performance of the work practices and procedures associated with the course topics contained in §295.320 of this title (relating to Training: Required Mold Training Courses);

(3) maintaining the validity and integrity of the course test to ensure that it accurately evaluates the student's knowledge and retention of the course topics;

(4) furnishing appropriate equipment in good working order and in sufficient quantities for each training session in which equipment is required;

(5) presenting to students all course information and material approved by the department;

(6) at the conclusion of each training course, providing to each student who successfully completes the course and passes the required test:

(A) a course-completion certificate as described in §295.319(c)(8) of this title;

(B) a wallet-size photo-identification card, indicating the course completed, the effective date, and a number identifier for the student;

(C) a current one-inch square photo of the student's face on a white background taken during the course to be attached by the student to an application for licensing or registration; and

(D) a copy of the application and schedule for the state licensing examination;

(7) submitting to the department, within 10 working days of the completion date of each course:

(A) the names and number identifiers of each student who attended the course, on a form provided by the department;

(B) individual one-inch square photos of the face of each student on a white background taken during the course; and

(C) a group photo taken at the end of the course that identifies which students did and did not pass the course. Digital or scanned images will be accepted. The group photograph must be no smaller than a standard 3 1/2-inch by 4 1/4-inch print;

(8) documenting that each person who receives a certificate has successfully completed an initial course in accordance with §295.320 of this title (relating to Training: Required Mold Training Courses) and has achieved a passing score on the written test. The training provider must maintain a file for each course that includes the training course name, dates and discipline, a copy of the course test and each student's name and graded answer sheet, the date and location where the test was administered, the name of the test proctor, the names of students receiving certificates, the certificate numbers, and the expiration date of the training. All information from the training course and test must correspond to the information on each person's course-completion certificate. All records under this section shall be available for inspection by the department immediately upon conclusion of the course and the test; and

(9) complying with all requirements under §295.320(d) of this title if the company provides training to individuals seeking registration as mold remediation workers and maintaining copies of the required training documents at a central location at its Texas office.

(g) Inspections and audits. Training providers shall permit department representatives to attend, evaluate, and monitor any training course, without charge or advance notice, to ensure compliance with this subchapter. The following criteria are grounds for suspending or withdrawing training provider accreditations or instructor approvals under §295.330 of this title (relating to Compliance: Reprimand, Suspension, Revocation, Probation) or for assessing administrative penalties under §295.331 of this title (relating to Compliance: Administrative Penalty):

(1) failure to adhere to the training standards and requirements of this subchapter;

(2) misrepresentation of the extent of approval of a training course or instructor;

(3) falsification of records or submitting false information to the department;

(4) failure to submit required information in a timely manner; or

(5) failure to comply with these regulations in a manner that demonstrates a lack of ability, capacity or fitness to perform training duties and responsibilities.

§295.319.Training: Approval Of Training Courses and Instructors.

(a) General provisions. The department must approve all training courses and instructors in advance of the course being offered except as provided under §295.318(b)(1) of this title (relating to Mold Training Provider: Accreditation). Applications for approval of courses or instructors submitted with an application for initial accreditation under §295.318 of this title will be reviewed at the same time for no additional approval fee. Each application for course or instructor approval must be made on a separate application form.

(b) Fees. The application fee for approval of each initial or refresher training course is $100 per mold training course, except as provided in subsection (a) of this section. There is no separate application fee for approval of an instructor.

(c) Application for course approval. An application must be submitted to the department in writing. Within 30 working days after receiving an application, the department shall acknowledge receipt of the application and notify the applicant of any deficiency in the application. The department will approve or deny the application upon receipt of the complete application. A complete application for training course approval shall include:

(1) the training program provider's name, business address and telephone number;

(2) the discipline and type of course (initial or refresher) for which approval is being sought, including the course length in training hours;

(3) a detailed outline of each course curriculum including the specific topics taught, the amount of time allotted to each topic, the amount and type of hands-on training, and the name(s) and qualifications of the individual(s) teaching the instruction program for each topic;

(4) a description of the facilities and equipment available for lecture and hands-on training;

(5) a copy of the course test blueprint (written documentation of the proportion of test questions devoted to each major topic in the course);

(6) a copy of all course materials (student manuals, instructor notebooks, handouts, and other course-related materials) in all languages taught;

(7) the names and qualifications of all course instructors. Instructors must meet the requirements under subsection (e) of this section; and

(8) a description and example of the photo identification cards and course certificates to be issued to students. Each certificate must have a unique certificate number and must include:

(A) the school's name, address, and telephone number;

(B) the student's name;

(C) a statement that the student successfully completed the course and the name and dates of the training course completed;

(D) an expiration date two years after the date of course completion;

(E) the signature of the course instructor; and

(F) the signature of the course director or the principal officer, owner, or chief executive officer of the training provider.

(d) Changes to training courses. An accredited training provider must receive department approval for changes to any of the items in subsections (c)(2)-(9) of this section. Accredited training providers must submit requests in writing and shall not offer training courses incorporating any changes until the department has granted approval.

(e) Application for instructor approval. Only state-approved instructors are permitted to provide instruction in courses required under this subchapter, except that guest speakers are permitted to provide limited instruction as provided under subsection (f) of this section. A training provider shall submit for approval a resume or other documentation to show the qualifications of each instructor conducting mold training courses. The department must approve all instructors before they are permitted to provide instruction. The training provider will notify the department of additions and deletions to its instructor roster within 15 working days of actual occurrence. Department approval of an instructor or a guest speaker for a discipline applies to that discipline only and does not convey approval for any other disciplines.

(1) Instructor qualifications. Instructors shall be qualified in at least one of the categories in subparagraphs (A)-(D) of this paragraph. Instructor qualifications must be fully documented and verifiable by the department. The categories include:

(A) at least two years of actual hands-on experience in mold-related activities for the subject that the instructor will teach, and a high school diploma and completion of at least one teacher education course in vocational or industrial teaching;

(B) graduation from an accredited college or university with a bachelor's degree or advanced degree in natural or physical sciences or a related field, with one year's hands-on experience in mold-related activities;

(C) at least three years teaching experience and completion of one or more teacher education courses in vocational or industrial teaching from an accredited two or four year college; or

(D) a vocational teacher with certification from the Texas Education Agency with one year's hands-on experience in mold-related activities.

(2) Instructor training. Each instructor shall meet the training requirements under §295.305(e)(1)-(2) of this title (relating to Credentials: General Conditions) for each discipline in which the instructor seeks department approval to teach. Instructors are not required to be separately licensed or registered.

(3) Professional references. Each instructor application shall include three professional references attesting to teaching experience and mold-related qualifications of the applicant. No more than two references will be accepted from an applicant's current company. References must be submitted on a form provided by the department and must be mailed directly to the department by the author.

(4) Complete applications. The department shall consider only complete applications for instructor approval including sufficient, verifiable references.

(f) Guest speakers. Training providers may utilize guest speakers to present training who have documentable and verifiable professional expertise on the subject about which they are speaking. Training providers are not required to obtain department approval for guest speakers but must maintain proof of each guest speaker's qualifications as described under §295.326 of this title (relating to Recordkeeping).

(g) Suspension and revocation of approval. The following criteria are grounds for suspending or withdrawing approval from a training course or instructor under §295.330 of this title (relating to Compliance: Reprimand, Suspension, Revocation, Probation):

(1) failure of an instructor or guest speaker to adhere to the standards and requirements of this subchapter;

(2) failure of a training course, instructor, or guest speaker to provide training that meets the requirements of the department or this subchapter;

(3) falsification or misrepresentation by an instructor of his/her qualifications;

(4) submittal by an accredited training provider to the department of false information for training course or instructor approval;

(5) misrepresentation by an accredited training provider of the extent of a department approved training course or instructor; and

(6) violation by an approved training course instructor or a guest speaker of other mold-related activity regulations in a manner that indicates a lack of ability, capacity or fitness to perform training duties and responsibilities.

§295.320.Training: Required Mold Training Courses.

(a) General provisions. Individual applicants for licensing or renewal must submit evidence acceptable to the department of fulfillment of specific training requirements.

(b) Assessment technician training. The assessment technician course shall consist of at least 24 training hours that includes lectures, demonstrations, audio-visuals and hands-on training, course review, and a written test of 100 multiple-choice questions. The course requirements in paragraphs (3), (5)-(8), and (10) of this subsection require hands-on training as an integral part of the course. The assessment technician course shall include:

(1) sources of indoor mold and conditions necessary for indoor mold growth;

(2) potential health effects;

(3) workplace hazards and safety, including personal protective equipment, and respirators;

(4) technical and legal considerations for mold assessment, including applicable regulatory requirements, the role of the mold assessment technician, and the roles of other professionals (including an assessment consultant);

(5) performance of visual inspections where mold might be present and determining sources of moisture problems, including exterior spaces (including crawlspaces and attics), interior components (including windows, plumbing, walls, and ceilings) and heating, ventilation, and air-conditioning (HVAC) systems (including return air and supply ducts);

(6) utilization of physical measurement equipment and tools, including moisture meters, humidity meters, particle counters, data-logging equipment, and visual and robotic inspection equipment;

(7) biological sampling strategies and methodologies, including sampling locations and techniques, and minimizing cross-contamination;

(8) sampling methodologies, including bulk, surface (including tape, swab, and vacuum sampling), and air sampling (including the differences between culturable and particulate sampling, sampling times, calibrating pumps, selecting media for culturable samples, and sampling for fungal volatile organic compounds);

(9) state-of-the-art work practices and new technologies;

(10) proper documentation for reports, including field notes, measurement data, photographs, structural diagrams, and chain-of-custody forms;

(11) an overview of mold remediation projects and requirements, including containment and air filtration; and

(12) clearance testing and procedures, including review of mold remediation protocols, work plans, visual inspections, and sampling strategies.

(c) Assessment consultant training. The assessment consultant course shall consist of at least 40 training hours that includes lectures, demonstrations, audio-visuals and hands-on training, course review, and a written test of 100 multiple-choice questions. The assessment consultant course shall include:

(1) all topics listed under subsection (b) of this section, including appropriate hands-on activities;

(2) workplace safety, including development of respiratory protection plans and programs, workplace safety plans, and medical surveillance programs;

(3) technical and legal considerations for mold assessment, including applicable regulatory requirements, the role of the assessment consultant, the roles of other professionals, recordkeeping and notification requirements, insurance, and legal liabilities;

(4) an overview of building construction, building sciences, moisture control, and water intrusion events;

(5) prevention of indoor air quality problems, including avoiding design and construction defects and improving maintenance and housekeeping;

(6) basics of HVAC systems and their relationship to indoor air quality (including pyschrometrics, filtration, ventilation and humidity control), HVAC inspection and assessment, and remediation of HVAC systems;

(7) survey protocols for effective assessment, covering the areas described under subsection (b)(5)-(8) of this section;

(8) interpretation of data and sampling results;

(9) interviewing building occupants, minimum requirements for questionnaires, and interpreting results;

(10) writing mold management plans and mold remediation protocols, including format and contents (including structural components, HVAC systems, and building contents), defining affected areas (including floor plans), identifying and repairing moisture sources and their causes, developing a scope of work analysis, specifying containment and air filtration strategies, determining post-remediation assessment criteria, and clearance criteria;

(11) post-remediation clearance testing and procedures, including review of mold remediation plans, visual inspections, sampling strategies, and quality assurance; and

(12) case studies.

(d) Remediation worker training. Remediation worker training shall consist of at least four training hours that includes lectures, demonstrations, audio-visuals, and hands-on training. The training shall include all course information and material required under this subsection. An individual must successfully complete worker training and submit an application for registration as a mold remediation worker prior to performing any work on a mold remediation project.

(1) The training must be provided by either:

(A) the licensed mold remediation contractor or company employing the individual receiving the training; or

(B) a mold training provider accredited by the department.

(2) The principal instructor for the training must be either:

(A) a licensed mold remediation contractor; or

(B) an individual who is approved by the department under §295.319 of this title to teach mold-related courses.

(3) The training shall adequately address the following areas and shall include hands-on training in the areas described in subparagraphs (C) and (E)-(F) of this paragraph:

(A) sources of indoor mold and conditions necessary for indoor mold growth;

(B) potential health effects and symptoms from mold exposure;

(C) workplace hazards and safety, personal protective equipment including respirators, personal hygiene, personal decontamination, confined spaces, and water, structural, and electrical hazards;

(D) technical and legal considerations for mold remediation, including applicable regulatory requirements, the role of the worker, and the roles of other professionals;

(E) an overview of how mold remediation projects are conducted, including containment and air filtration; and

(F) work practices for removing, cleaning, and treating mold.

(4) The person providing the training shall submit to the department, within five working days of a training session:

(A) the following items, on a form provided by the department:

(i) the name, address, telephone number, and license number of the person listed under paragraph (1) of this subsection who provided the training;

(ii) the date of the training;

(iii) the printed name, address, telephone number, number identifier, and signature of each individual who attended the training; and

(iv) the printed name and signature of the principal instructor;

(B) a group photo, taken at the end of the training, that identifies each individual who attended the training. Digital or scanned images will be accepted. The group photograph must be no smaller than a standard 3 1/2-inch by 4 1/4-inch print; and

(C) a statement indicating which individuals successfully completed the training and which individuals did not.

(5) The person providing the training shall provide the following to each individual who successfully completes the training:

(A) a training certificate. Each certificate must include:

(i) the name, address, telephone number, and license number of the person listed under paragraph (1) of this subsection who provided the training;

(ii) the date of the training;

(iii) the name, address, telephone number and number identifier of the individual;

(iv) the printed name and signature of the principal instructor; and

(v) a statement that the individual successfully completed the training;

(B) a current one-inch square photo of the individual's face on a white background, taken during the course, to be attached by the individual to an application for registration; and

(C) a copy of the registration application.

(6) The person providing the training must maintain a file for each training session that includes the date, the certificate numbers, and the names, addresses, and telephone numbers of students receiving training certificates. All information from the training must correspond to the information on each certificate.

(e) Remediation contractor training. The remediation contractor course shall consist of at least 40 training hours that includes lectures, demonstrations, audio-visuals and hands-on training, course review, and a written test of 100 multiple-choice questions. The course requirements in paragraphs (3) and (7)-(8) of this subsection require hands-on training as an integral part of the training. The course shall adequately address:

(1) sources of indoor mold and conditions necessary for indoor mold growth;

(2) potential health effects;

(3) workplace hazards and safety, personal protective equipment including respirators, personal hygiene, personal decontamination, confined spaces, and water, structural, and electrical hazards;

(4) worker protection, including development of respiratory protection plans and programs, workplace safety plans, and medical surveillance programs;

(5) technical and legal considerations for mold remediation, including applicable regulatory requirements, the role of the mold remediation contractor, the role of the mold remediation worker, the roles of other professionals, insurance, legal liabilities, and recordkeeping and notification requirements;

(6) building sciences, moisture control, and water intrusion events;

(7) an overview of how mold remediation projects are conducted and requirements thereof, including containment, and air filtration;

(8) work practices for removing, cleaning, and treating mold, including state-of-the-art work practices and new technologies;

(9) development of a mold remediation work plan from a protocol, including writing the work plan, detailing remediation techniques for the building structure, HVAC system, and contents, delineating affected areas from floor plans, developing appropriate containment designs, determining HEPA air filtration requirements, and determining dehumidification requirements;

(10) clearance testing and procedures, including a review of typical clearance criteria, visual inspection of the work area prior to clearance, and achieving clearance;

(11) contract specifications, including estimating job costs from a protocol and determining insurance and liability issues; and

(12) protecting the public and building occupants from mold exposures.

(f) Refresher training. The refresher courses for mold assessment technicians, mold assessment consultants, and mold remediation contractors shall be at least eight training hours in length. Refresher training for mold remediation workers shall be at least four training hours in length and shall be provided by a person specified under subsection (d)(1) of this section. Refresher training shall include a review of state regulations, state-of-the-art developments, and key aspects of the initial training course. All disciplines shall receive refresher training every two years.

(g) Course tests. Each training provider shall administer a closed-book written test consisting of 100 multiple-choice questions to students who have completed an initial or refresher training course, except that no examination is required of students in remediation worker training. Training providers may include demonstration testing as part of the test. A student must answer correctly at least 70% of the questions to receive a course-completion certificate. Training providers shall use tests provided or approved by the department.

§295.321.Minimum Work Practices and Procedures for Mold Assessment.

(a) Purpose. The purpose of a mold assessment is to determine the sources, locations and extent of mold growth in a building, to determine the condition(s) that caused the mold growth, and to enable the consultant to prepare a mold remediation protocol.

(b) Building occupants. A mold assessment consultant shall consider whether to recommend to a client that, before remediation begins, the client should inform building occupants of mold-related activities that will disturb or will have the potential to disturb areas of mold contamination.

(c) Sampling and data collection. If samples for laboratory analysis are collected during the assessment:

(1) sampling must be performed according to nationally accepted methods;

(2) preservation methods shall be implemented for all samples where necessary;

(3) proper sample documentation, including the sampling method, the sample identification code, each location and material sampled, the date collected, the name of the person who collected the samples, and the project name or number must be recorded for each sample;

(4) proper chain of custody procedures must be used; and

(5) samples must be analyzed by a laboratory licensed under §295.317 of this title (relating to Mold Analysis Laboratory: Licensing Requirements).

(d) Mold remediation protocol. An assessment consultant shall prepare a mold remediation protocol for each project and provide the protocol to the client before the remediation begins. The mold remediation protocol must specify:

(1) the rooms or areas where the work will be performed;

(2) the estimated quantities of materials to be cleaned or removed;

(3) the proposed methods for each type of remediation in each type of area;

(4) the proposed types of containment to be used during the project in each type of area; and

(5) the proposed clearance procedures and criteria for each type of remediation in each type of area.

§295.322.Minimum Work Practices and Procedures for Mold Remediation.

(a) Scope. These general work practices are minimum requirements and do not constitute complete or sufficient specifications for a mold remediation project. More detailed requirements developed by a remediation contractor for a particular project shall take precedence over the provisions of this section.

(b) Remediation work plan. A remediation contractor shall prepare a mold remediation work plan based on a mold remediation protocol and shall provide the mold remediation work plan to the client before the mold remediation begins.

(c) Personal protective equipment (PPE) requirements. An employer shall provide PPE, including respirators, to all employees who engage in remediation activities who will, or are anticipated to, disturb or remove mold contamination. Each employee who is provided PPE must receive training on the appropriate use and care of the provided PPE. The employer must document successful completion of the training before the employee performs regulated activities.

(1) When the mold affects a total surface area of 25 to 100 contiguous square feet for the project, the required minimum PPE is an N-95 respirator, gloves, and goggles/eye protection.

(2) When the mold affects a total surface area of more than 100 contiguous square feet, the required minimum PPE is a full-face respirator with high-efficiency particulate air (HEPA) filter, gloves, disposable full body clothing, headgear, and foot coverings.

(d) Containment requirements. Containment must be used on a mold remediation project when the mold affects a total surface area of 25 contiguous square feet or more for the project. Containment is not required if no person who is not licensed or registered under this subchapter occupies the building in which the remediation takes place at any time between the start date and stop date for the project as specified on the notification required under §295.325 of this subchapter (relating to Notifications). The containment, when constructed as described in the remediation work plan and under normal conditions of use, must prevent the spread of mold to areas outside the containment. If walk-in containment is used, supply and return air vents must be blocked, and air pressure within the walk-in containment must be lower than the pressure in building areas adjacent to the containment.

(e) Warning signs. Warning signs advising that a mold remediation project is in progress shall be displayed at all entrances to remediation areas adjacent to occupied areas of a building.

(f) Removal of containment. No person shall remove or dismantle any walk-in containment structures or materials from a project site prior to receipt by the licensed mold remediation contractor or remediation company overseeing the project of a written notice from a licensed mold assessment consultant that the project has achieved clearance as described under §295.324 of this title (relating to Post-Remediation Assessment and Clearance).

(g) Biocides. Biocides may be used only if they are registered by the United States Environmental Protection Agency (EPA) for the intended use and if the use is consistent with the manufacturer's labeling instructions. A person who applies a biocide to wood to control a wood-infesting organism must be licensed by the Texas Structural Pest Control Board as provided under the Texas Occupations Code, Chapter 1951 (relating to Structural Pest Control) unless exempt under the Texas Occupations Code, Chapter 1951, Subchapter B (relating to Exemptions).

(h) Anti-microbial agents. Anti-microbial agents may be used only if they are registered by the EPA for the intended use and if the use is consistent with the manufacturer's labeling instructions. A decision by a consultant or contractor to use such products must take into account the potential for occupant sensitivities and possible adverse reactions to chemicals that have the potential to be off-gassed from surfaces coated with such products.

§295.323.Mold Remediation of Heating, Ventilation and Air Conditioning (HVAC) Systems.

(a) Disinfectants, biocides and antimicrobial coatings. A licensee under this subchapter may apply a disinfectant, biocide or antimicrobial coating in an HVAC system only if it is registered by the EPA for the intended use and if the use is consistent with the manufacturer's labeling instructions. The licensee shall apply the product only after the building owner or manager has been provided a material safety data sheet for the product, has agreed to the application, and has notified building occupants prior to the application. The licensee shall follow all manufacturer's label directions when using the product.

(b) Other license requirements. Persons who perform air conditioning and refrigeration contracting (including the repair, maintenance, service, or modification of equipment or a product in an environmental air conditioning system, a commercial refrigeration system, or a process cooling or heating system) must be licensed by the Texas Department of Licensing and Registration, as provided under the Texas Occupations Code, Chapter 1302 (relating to Air Conditioning and Refrigeration Contractors). A person who performs biomedical remediation as defined under 16 TAC, §75.10(5) (relating to Definitions) must be licensed by the Texas Department of Licensing and Regulation in accordance with 16 TAC, Chapter 75 (relating to Air Conditioning and Refrigeration Contractor License Law) unless exempt under 16 TAC, §75.30 (relating to Exemptions) or 16 TAC, §75.100 (relating to Technical Requirements).

§295.324.Post-Remediation Assessment and Clearance.

(a) Clearance criteria. For a remediation project to achieve clearance, a licensed mold assessment consultant shall conduct a post-remediation assessment to determine that:

(1) the work area is free from all visible mold and wood rot; and

(2) all work has been completed in compliance with the remediation protocol and remediation work plan and meets clearance criteria specified in the protocol.

(b) Moisture sources. Post-remediation assessment shall, to the extent feasible, verify that all moisture sources previously identified as causes of the mold that necessitated the remediation project have been corrected.

(c) Sampling within containment. If walk-in containment is used at a project site, the post-remediation assessment shall be conducted while the walk-in containment is in place. Any air filtration equipment must be deactivated for at least four hours prior to the post-remediation assessment.

(d) Analytical methods. The assessment consultant shall either use direct microscopic examination or shall use a swab, a tape lift, or an equivalent methodology to collect one representative sample within each remediated area in order to determine whether the remediation project passes clearance. Where visual inspection reveals visible mold, or other deficiencies sufficient to fail clearance, analytical sampling need not be conducted. For an acceptable clearance, the fungal structures (including hyphae and conidia) and spores present in a sample shall not exceed 30 counts per square inch of surface sampled.

(1) If all remediated material has been removed from a project or containment area and is not available to sample, an adjacent area shall be examined or sampled to confirm that contamination was not spread during the remediation.

(2) If direct microscopic examination is used, the consultant shall retain in the project file, for each field counted, a printed copy of a photograph of the field and a record of the area of the field, to confirm that the total number of fungal structures and spores counted for a sample did not exceed 30. Digital photographs are acceptable for purposes of this paragraph.

(e) Passed clearance report. An assessment consultant who determines that remediation has been successful shall issue a written passed clearance report to the client at the conclusion of each mold remediation project. The report must include the following:

(1) a description of relevant worksite observations;

(2) all data collected at the worksite including temperature, humidity, and material moisture readings;

(3) the type, location, and results of samples collected;

(4) copies of all photographs the consultant took, including copies of photographs from any direct microscopic examinations; and

(5) a clear statement that clearance has been achieved.

(f) Final status report. If the mold assessment consultant determines that remediation has not been successful and ceases to be involved with the project before the project achieves clearance, the consultant shall issue a written final status report to the client and to the remediation contractor or company performing the project. The status report must include the items listed in subsection (e)(1)-(4) of this section and any conclusions that the consultant has drawn.

§295.325.Notifications.

(a) General provision. A contractor or company shall notify the department of a mold remediation project when mold contamination affects a total surface area of 25 contiguous square feet or more. Notification shall be received by the department no less than five working days (not calendar days) prior to the anticipated start date of the activity and shall be submitted by United States Postal Service, commercial delivery service, hand-delivery, electronic mail (E-mail), or facsimile on a form specified by the department. The form must be filled out completely and properly. Blanks that do not apply shall be marked "N/A". The designation of "N/A" will not be accepted for identification of the work site, building description, building owner, individuals required to be identified on the notification form, or start and stop dates. A signature of the responsible person is required on each notification form. The contractor or company shall retain a confirmation that the notification was received by the department.

(b) Start-date change to later date. When mold remediation activity begins later than the date contained in the notice, the department shall be notified by telephone as soon as possible but prior to the original start date. A written amended notification is required immediately following the telephone notification and shall be faxed or overnight mailed to the department.

(c) Start-date change to earlier date. When mold remediation activities begin on a date earlier than the date contained in the notice, the department shall be provided with written notice of the new start date at least five working days before the start of work unless the provisions of subsection (e) of this section apply. The licensee shall confirm that the notice is received five working days before the start of work.

(d) Start-date/stop-date (completion date) requirement. In no event shall mold remediation begin or be completed on a date other than the date contained in the written notice except for operations covered under subsection (e) of this section. Amendments to start date changes must be submitted as required in subsections (b) and (c) of this section. An amendment is required for any stop dates that change by more than one workday for each week (seven calendar day period). The contractor or company shall provide schedule changes to the department no less than 24 hours prior to the new stop date. Changes less than five days in advance shall be confirmed with the appropriate department regional office by telephone, facsimile, or e-mail and followed up in writing to the department's central office at 1100 West 49th Street, Austin, Texas, 78756.

(e) Provision for emergency. In an emergency, notification to the department shall be made as soon as practicable but not later than the following business day after the license holder identifies the emergency. Initial notification shall be made to the department's central office either immediately by telephone, followed by formal notification on the department's notification form, or immediately by facsimile on the department's notification form. The contractor or company shall retain a confirmation that the notification was received by the department. Emergencies shall be documented. An emergency exists if a delay in mold remediation services in response to a water damage occurrence would increase mold contamination.

(f) Notification fees.

(1) The contractor or company shall remit to the department a fee of $100 for each initial notification of a mold remediation project. Amendments to a notification shall not require a separate fee.

(2) The department shall send an invoice for the required fee to the contractor or company after the department has received the notification. Payment must be remitted in the manner instructed on the invoice no later than 60 working days following the date on the notification invoice. Failure to pay the required fee after an invoice has been sent is a violation, and the department may seek administrative penalties as listed in §295.331 of this title (relating to Compliance: Administrative Penalty).

§295.326.Recordkeeping.

(a) Record retention. Records and documents required by this section shall be retained for a period of three years from the date of project completion unless otherwise stated. Such records and documents shall be made available for inspection by the department or any law enforcement agency immediately upon request. Licensees and accredited training providers who cease to do business shall notify the department in writing 30 days prior to such event to advise how they will maintain all records during the minimum three-year retention period. The department, upon receipt of such notification and at its option, may provide instructions for how the records shall be maintained during the required retention period. A licensee or accredited person shall notify the department that it has complied with the department's instructions within 30 days of their receipt or make other arrangements approved by the department. Failure to comply may result in disciplinary action against individual licensees.

(b) Mold remediation companies and contractors. A licensed mold remediation company shall maintain the records listed in paragraphs (1) and (2) of this subsection for each mold remediation project performed by the company and the records listed in paragraph (3) of this subsection for each remediation worker training session provided by the company. A licensed mold remediation contractor not employed by a company shall personally maintain the records listed in paragraphs (1) and (2) of this subsection for each mold remediation project performed by the contractor and the records listed in paragraph (3) of this subsection for each remediation worker training session provided by the contractor.

(1) A licensed mold remediation contractor shall maintain the following records and documents on-site at a project for its duration:

(A) a current copy of the mold remediation work plan and all mold remediation protocols used in the preparation of the work plan; and

(B) a listing of the names and license/registration numbers of all individuals working on the remediation project.

(2) A licensed mold remediation company shall maintain the following records and documents at a central location at its Texas office for three years following the stop date of each project that the company performs. A licensed mold remediation contractor not employed by a company shall maintain the following records and documents at a central location at his or her Texas office for three years following the stop date of each project that the contractor performs:

(A) all records and documents listed in paragraph (1) of this subsection;

(B) photographs of the scene of the mold remediation taken before and after the remediation;

(C) the written contract between the mold remediation company or remediation contractor and the client, and any written contracts related to the mold remediation project between the company or contractor and any other party;

(D) all invoices issued regarding the mold remediation;

(E) copies of all regulatory agency correspondence concerning a mold-related activity, including letters, notices, citations received and notifications; and

(F) copies of all certificates of mold remediation issued by the company or contractor.

(3) A licensed mold remediation contractor or remediation company who trains employees to meet the requirements under §295.320(d) of this title (relating to Training: Required Mold Training Courses) shall maintain copies of the required training documents at a central location at its Texas office.

(c) Mold assessment companies and consultants.

(1) A licensed mold assessment company shall maintain the following records and documents at a central location at its Texas office for the time period required under paragraph (2) of this subsection for each project that the company performs. A licensed mold assessment consultant not employed by a company shall maintain the following records and documents at a central location at his or her Texas office for the time period required under paragraph (2) of this subsection for each project that the contractor performs:

(A) the name and mold certificate number of each of its employees who worked on the project and a description of each employee's involvement with the project;

(B) the written contract between the mold assessment company or consultant and the client;

(C) all invoices issued regarding the mold assessment;

(D) copies of all regulatory agency correspondence concerning a mold-related activity, including letters, notices, and citations received;

(E) copies of all laboratory reports and sample analyses;

(F) Copies of all photographs required under §295.324 of this title (relating to Post-Remediation Assessment and Clearance);

(G) copies of all mold assessment reports, mold management plans, and protocols and changes prepared as a result of mold assessment activities;

(H) copies of all final status reports issued by the company or consultant;

(I) copies of all passed clearance reports issued by the company or consultant; and

(J) copies of any signed certificates of mold remediation provided to a mold remediation company or contractor by the mold assessment company or consultant.

(2) For each project, a licensed mold assessment company or consultant shall maintain all the records listed in paragraph (1) of this subsection for:

(A) three years from the date of the mold assessment report, management plan, or remediation protocol, if the company or consultant performs only the initial assessment for the project;

(B) three years from the date of the final status report, if a final status report is issued; or

(C) three years from the date on the signed certificate of mold remediation, if a certificate of mold remediation is signed.

(d) Mold analysis laboratories. A licensed mold analysis laboratory shall maintain copies of the results, including the sample identification number, of all analyses performed as part of a mold assessment or mold remediation for three years from the date of the sample analysis.

(e) Training providers. Accredited training providers shall comply with the following record-keeping requirements. The training provider shall maintain the records in a manner that allows verification of the required information.

(1) Training course materials. An accredited training provider must retain one copy of each instructional aid used in classroom training, including student manuals, instructor notebooks and handouts for three years from the date last used.

(2) Training records. The training provider shall maintain records for at least three years from the date of the class in accordance with §295.318(f)(8) and (9) of this title (relating to Mold Training Provider: Accreditation).

(3) Courses, instructors and guest speakers. An accredited training provider must retain for at least three years copies of resumes or other documentation to prove the qualifications of all instructors and guest speakers and the course and instructor approval documents issued by the department. Records must accurately identify the instructors and guest speakers that taught each particular course for each date that a course is offered together with the course student roster.

§295.327.Photographs; Certificate of Mold Remediation; Duty of Property Owner.

(a) Not later than one week after completion of a mold remediation project, the licensed mold remediation contractor or company shall provide the property owner with copies of required photographs of the scene of the mold remediation taken before and after the remediation.

(b) Not later than the 10th day after the project stop date, the licensed mold remediation contractor or company shall provide a certificate of mold remediation to the property owner on a form adopted by the Texas Commissioner of Insurance. The certificate must include the following:

(1) a statement by a licensed mold assessment consultant (not the licensed mold remediator) that based on visual, procedural, and analytical evaluation, the mold contamination identified for the project has been remediated as outlined in the mold remediation protocol; and

(2) a statement on the certificate that the underlying cause of the mold has been remediated, if the licensed mold assessment consultant determines that the underlying cause of the mold has been remediated so that it is reasonably certain that the mold will not return from that same cause.

(c) Copies of the completed certificate shall be retained in the business files of the assessment consultant/company and the remediation contractor/company.

(d) If a property owner sells the property, the property owner shall provide to the buyer a copy of each remediation certificate that has been issued for the property under this section.

§295.328.Complaints.

A person who believes that any provision of the Act or this subchapter has been violated may file a written complaint with the department. The department shall conduct an investigation, including for an anonymous complaint if the complainant provides sufficient information.

§295.329.Compliance: Inspections and Investigations.

(a) The department may inspect or investigate the business practices of any persons involved with mold-related activity for compliance with this subchapter.

(b) A department representative, upon presenting a department identification card, shall have the right to enter at all reasonable times any area or environment, including but not limited to any containment area, building, construction site, storage or office area, or vehicle to review records, to question any person, or to locate, identify, or assess areas of mold growth for the purpose of inspection and investigation for compliance with this subchapter.

(c) A department representative in pursuance of official duties is not required to notify or seek permission to conduct inspections or investigations. It is a violation for any person to interfere with, deny, or delay an inspection or investigation conducted by a department representative. A department representative shall not be impeded or refused entry in the course of official duties by reason of any regulatory or contractual specification.

§295.330.Compliance: Reprimand, Suspension, Revocation, Probation.

(a) After notice of the opportunity for a hearing in accordance with subsection (d) of this section, the department may take any of the disciplinary actions outlined in subsection (c) of this section. If the department suspends a credential on an emergency basis, the department shall provide an opportunity for a hearing in accordance with subsection (d) of this section within 20 days.

(b) A person who is denied a credential for failure to meet the qualifications under this subchapter is ineligible to reapply until all qualifications are met. A suspension shall be for a period of not more than two years. A person whose application or credential has been revoked shall be ineligible to reapply for any mold-related credential for up to three years.

(c) The department may issue an administrative penalty as described in §295.331 of this title (relating to Compliance: Administrative Penalty), deny an application, suspend, suspend on an emergency basis, suspend with probationary terms, or revoke a credential of a person who:

(1) fails to comply with this subchapter;

(2) has fraudulently or deceptively obtained or attempted to obtain the credential, ID card or approval, including engaging in misconduct or dishonesty during the state licensing examination, such as cheating or having another person take or attempt to take the examination for that person;

(3) duplicates or allows another person to duplicate a credential, ID card or approval;

(4) uses a credential issued to another person or allows any other person to use a credential, ID card or approval not issued to that other person;

(5) falsifies records for mold-related activities that the department requires the person to create, submit, or maintain;

(6) is convicted of a felony or misdemeanor arising from mold-related activity.

(d) The contested-case hearing provisions of the Administrative Procedure Act (Texas Government Code, Chapter 2001) and the formal hearing procedures of the department in Chapter 1 of this title (relating to the Board of Health) shall apply to any enforcement action under this section. A person charged with a violation shall be notified of the alleged violation, the grounds upon which any disciplinary action is based, the proposed penalty, and the opportunity to request a hearing.

§295.331.Compliance: Administrative Penalty.

(a) If a person violates the Act, this subchapter or an order, the department may assess an administrative penalty.

(b) The penalty shall not exceed $5,000 per violation except as indicated. Each day a violation continues will be considered a separate violation for violations listed in subsection (d)(1)(A)-(B) and (d)(2)(A)-(B) of this section. The department may reduce or enhance penalties as warranted.

(c) In assessing administrative penalties, including reductions or enhancements, the department shall consider:

(1) whether the violation was committed knowingly, intentionally, or fraudulently;

(2) the seriousness of the violation;

(3) any hazard created to the public health and safety;

(4) the person's history of previous violations; and

(5) any other matter that justice may require, including demonstrated good faith.

(d) Violations shall be placed in one of the following severity levels.

(1) Critical violation. Severity Level I violations have or may have a direct negative impact on public health and safety. This category includes fraud and misrepresentation. The penalty for a Level I violation may be up to $5,000 per violation. Violations listed in subparagraphs (A) and (B) of this paragraph may be assessed at up to $5,000 per violation per day. Examples include but are not limited to:

(A) working without a valid credential, ID card or approval or with a credential or ID card that has been expired for more than one month;

(B) engaging in a conflict of interest as described in §295.307(a)(1)-(2) of this title (relating to Conflict of Interest);

(C) engaging in misconduct or dishonesty during the state licensing examination;

(D) submitting a forged or altered training certificate;

(E) offering training required under this subchapter without valid department approval of the course, instructor(s) or guest speaker(s); and

(F) providing training certificates for a course required by the department to persons who have not successfully completed the course.

(2) Serious violation. Severity Level II violations could compromise public health and safety. The maximum penalty for Level II violations is $2,500 per violation. Violations listed in subparagraphs (A) and (B) of this paragraph may be assessed at up to $2,500 per violation per day. Examples include but are not limited to:

(A) working with a credential or ID card that has been expired for one month or less;

(B) failing to disclose an ownership interest as required in §295.307(b) of this title;

(C) failing to submit a timely notification;

(D) failure to conduct a training course as specified under §295.320 of this title (relating to Training: Required Mold Training Courses); and

(E) failure of a credentialed person to maintain current required training.

(3) Significant violation. Severity Level III violations, while not having a direct negative impact on health and safety, could lead to more serious circumstances. The maximum penalty for Level III violations is $1,000 per violation. Examples include but are not limited to:

(A) failure to provide the department Consumer Mold Information Sheet as required under §295.306 of this title (relating to Credentials: General Responsibilities);

(B) failure to have a department-issued identification card at a job site;

(C) submitting an incorrect or improper notification;

(D) failure of a training provider to submit information to the department regarding training course schedules or to notify the department of cancellations within the specified time periods;

(E) failure of a training provider to submit course completion information within the time period specified in §295.319(f)(7) of this title (relating to Mold Training Provider: Accreditation);

(F) failure of a remediation company, remediation contractor, or training provider to submit worker training information within the time period specified in §295.320(d) of this title (relating to Mold Training Provider: Accreditation); and

(G) failure of a training provider to maintain the required trainee-instructor ratio in a training course.

§295.332.Compliance: Exception to the Administrative Penalty.

(a) The commissioner may choose not to impose an administrative penalty under §295.331 of this title (relating to Compliance: Administrative Penalty) if, not later than the 10th day after the date on a written notice of a violation as provided under §295.333 of this title (relating to Compliance: Notice; Opportunity for Hearing; Order), the person charged with the violation provides conclusive evidence satisfactory to the department that the circumstances giving rise to the violation have been corrected and all actual damages are paid.

(b) This section does not apply to a violation alleged under:

(1) the Texas Occupations Code, Chapter 1958, §1958.101 (relating to License Required; Rules);

(2) §295.305(a)-(b) of this title (relating to Credentials: General Conditions);

(3) the Texas Occupations Code, Chapter 1958, §1958.155 (relating to Conflict of Interest; Disclosure Required); or

(4) §295.307 of this title (relating to Conflict of Interest and Disclosure Requirement).

§295.333.Compliance: Notice; Opportunity for Hearing; Order.

(a) The commissioner shall impose an administrative penalty under this subchapter only after a person is given written notice of the opportunity for a hearing conducted in accordance with the Administrative Procedure Act (Texas Government Code, Chapter 2001) and the department's formal hearing procedures in Chapter 1 of this title (relating to the Board of Health).

(b) The written notice of violation must state the facts that constitute the alleged violation, the law or rule that has been violated, the proposed penalty, and the opportunity for a hearing.

(c) If a hearing is held, the commissioner shall make findings of fact and issue a written decision as to the occurrence of the violation and the amount of any penalty that is warranted.

(d) If a person fails to exercise the opportunity for a hearing, the commissioner, after determining that a violation occurred and the amount of penalty warranted, is authorized to impose a penalty and issue an order requiring the person to pay.

(e) Not later than the 30th day after the date the commissioner issues an order, the commissioner shall inform the person of the amount of any penalty imposed.

(f) The commissioner is authorized to consolidate a hearing under this section with another proceeding.

§295.334.Compliance: Options Following Administrative Order.

(a) Not later than the 30th day after the date the commissioner's decision or order concerning an administrative penalty assessed under §295.331 of this title (relating to Compliance: Administrative Penalty) becomes final as provided by the Texas Government Code, Chapter 2001, §2001.144, (relating Decisions; When Final) to the person against whom the penalty is assessed either shall pay the administrative penalty or shall file a petition for judicial review.

(b) A person who files a petition for judicial review can stay enforcement of the penalty either by paying the penalty to the commissioner for placement in an escrow account or by giving the commissioner a bond, in a form approved by the commissioner, that is for the amount of the penalty and that is effective until judicial review of the commissioner's decision or order is final.

§295.335.Compliance: Collection of Administrative Penalty; Judicial Review.

(a) At the request of the commissioner, the Texas Attorney General is authorized to bring a civil action to recover an administrative penalty imposed under §295.331 of this title (relating to Compliance: Administrative Penalty).

(b) Judicial review of a decision or order of the commissioner imposing a penalty is instituted by filing a petition with a district court in Travis County and is under the substantial evidence rule as provided by the Texas Government Code, Chapter 2001, Subchapter G (relating to Contested Cases: Judicial Review).

(c) If, after judicial review, the administrative penalty is reduced or is not upheld by the court, not later than the 30th day after the date of the determination, the commissioner shall:

(1) remit the appropriate amount, plus accrued interest, to a person who paid the penalty as provided under §295.334 of this title (relating to Compliance: Options Following Administrative Order); or

(2) execute a release of a bond provided under §295.334(b) of this title to the person who gave the bond.

§295.336.Compliance: Civil Penalty.

A person who violates the Act or this subchapter is liable for a civil penalty in an amount not to exceed $2,000 for the first violation or $10,000 for a second or later violation. The commissioner may request the Texas Attorney General or the district, county, or city attorney having jurisdiction to bring an action to collect a civil penalty under this section.

§295.337.Compliance: Injunctive Relief.

The commissioner may request the Texas Attorney General or the district, county, or city attorney having jurisdiction to bring an action for a restraining order, injunction, or other relief the court determines is appropriate if it appears to the department that a person is violating or has violated the Act or this subchapter.

§295.338.Civil Liability Exemption for Certain Property Owners or Governmental Entities.

(a) A property owner is not liable for damages related to mold remediation on a property if a certificate of mold remediation has been issued under §295.327 of this title (relating to Photographs; Certificate of Mold Remediation; Duty of Property Owner) for that property and the damages accrued on or before the date of the issuance of the certificate.

(b) A person is not liable in a civil lawsuit for damages related to a decision to allow occupancy of a property after mold remediation has been performed on the property if a certificate of mold remediation has been issued §295.327 of this title for the property, the property is owned or occupied by a governmental entity, including a school, and the decision was made by the owner, the occupier, or any person authorized by the owner or occupier to make the decision.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on January 16, 2004.

TRD-200400344

Susan K. Steeg

General Counsel

Texas Department of Health

Earliest possible date of adoption: February 29, 2004

For further information, please call: (512) 458-7236


Part 2. TEXAS DEPARTMENT OF MENTAL HEALTH AND MENTAL RETARDATION

Chapter 405. CLIENT (PATIENT) CARE

Subchapter H. BEHAVIOR MANAGEMENT - FACILITIES SERVING PERSONS WITH MENTAL RETARDATION

25 TAC §§405.156 - 405.169

(Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Department of Mental Health and Mental Retardation or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)

The Texas Department of Mental Health and Mental Retardation (department) proposes the repeal of §§405.156-405.169 of Chapter 405, Subchapter H, governing behavior management - facilities serving persons with mental retardation.

The subject matter of the subchapter proposed for repeal is addressed in two new subchapters proposed in the January 23, 2004, issue of the Texas Register . The repeal of the existing subchapter and the proposal of two new subchapters is in response to recent and considerable interest at the federal and state levels by legislators and advocate/stakeholder groups, and by Texas and national media in the use of restraint in all institutional settings.

Proposed new §§415.401-415.413 of new Chapter 415, Subchapter I, governing behavior therapy in state mental retardation facilities describes policies and procedures that a state mental retardation facility (state MR facility) must implement to ensure that the health, safety, welfare, rights, and privileges of an individual are protected when a behavior therapy program is recommended by the individual's interdisciplinary team (IDT) to address inappropriate behavior exhibited by the individual.

Proposed new §§415.351-415.366 of new Chapter 415, Subchapter H, governing the use of restraint in state mental retardation facilities, describes policies and procedures that a state mental retardation facility (state MR facility) must implement to ensure that the health, safety, welfare, rights, and privileges of an individual residing in the state MR facility are protected during the use of restraint.

Cindy Brown, chief financial officer, has determined that for each year of the first five year period that the proposed repeal of the subchapter is in effect, enforcing or administering the repeal does not have foreseeable implications relating to costs or revenues of state government. It is not anticipated that the proposed repeal will have an adverse economic effect on small businesses or micro-businesses. It is not anticipated that there will be any additional economic cost to persons required to comply with the proposed repeal. It is not anticipated that the proposed repeal will affect a local economy.

Robert Kifowit, director, State Mental Retardation Facilities, has determined that, for each year of the first five-year period the proposed repeal is in effect, the public benefit expected is that rules describing dated policies and procedures for the use of restraint and behavior therapy programs in state mental retardation facilitates are replaced by rules that effectively protect the health, safety, welfare, rights, and privileges of an individual residing in a state MR facility.

Comments concerning the proposed repeal must be submitted in writing to Linda Logan, director, Policy Development, by mail to P.O. Box 12668, Austin, Texas 78711, by fax to 512/206-4744, or by e-mail to policy.co@mhmr.state.tx.us within 30 days of publication of this notice.

The repeal is proposed under the Texas Health and Safety Code (THSC), §532.015(a), which provides the Texas Mental Health and Mental Retardation Board (board) with broad rulemaking authority; THSC, §591.004, which requires the board to ensure the implementation of the Persons with Mental Retardation Act (THSC, Title 7, Subtitle D); and THSC, §592.002, which requires the board to ensure the implementation of certain rights enumerated in THSC, Chapter 592.

The proposed repeals affect THSC, Title 7, Subtitle D, and Chapter 592.

§405.156.Purpose.

§405.157.Application.

§405.158.Definitions.

§405.159.General Principles Regarding Behavior Management.

§405.160.Plan for Behavioral Services.

§405.161.Facility Behavioral Services Director; Facility Behavior Intervention Committee.

§405.162.Initiation and Approval of Behavior Intervention Programs.

§405.163.Informed Consent.

§405.164.Use of Physical Restraint; Use of Protective Restraint; Use of Mechanical Restraint.

§405.165.Staff Training in Behavior Management.

§405.166.Enforcement.

§405.167.Exhibits.

§405.168.References.

§405.169.Distribution.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on January 15, 2004.

TRD-200400253

Rodolfo Arredondo

Chair, Texas MHMR Board

Texas Department of Mental Health and Mental Retardation

Earliest possible date of adoption: February 29, 2004

For further information, please call: (512) 206-5232