Volume 42 Number 39 September 29, 2017 Pages 5185 - 5282/67531/metapth... · Texas Register, (ISSN...

Volume 42 Number 39 September 29, 2017 Pages 5185 - 5282

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Secretary of State - Rolando B. Pablos Director - Robert Sumners Staff Leti Benavides Belinda Kirk Deana Lackey Jill S. Ledbetter Cecilia Mena Joy L. Morgan Breanna Mutschler Barbara Strickland Tami Washburn

mailto:[email protected]:http://www.sos.state.tx.us

GOVERNOR Executive Order GA 02 .................................................................5189

Proclamation 41-3559....................................................................5189

Proclamation 41-3560....................................................................5190

ATTORNEY GENERAL Requests for Opinions....................................................................5191

EMERGENCY RULES SCHOOL LAND BOARD

LAND RESOURCES 31 TAC §155.17.............................................................................5193

PROPOSED RULES DEPARTMENT OF INFORMATION RESOURCES

STATE WEBSITES 1 TAC §206.1.................................................................................5196

1 TAC §206.50, §206.52................................................................5197

1 TAC §206.70, §206.72................................................................5198

TEXAS DEPARTMENT OF LICENSING AND REGULATION

WARRANTORS OF VEHICLE PROTECTION PRODUCTS 16 TAC §§71.1, 71.10, 71.20, 71.22, 71.70, 71.80, 71.90.............5199

TEXAS EDUCATION AGENCY SCHOOL DISTRICTS

19 TAC §61.1023...........................................................................5200

PLANNING AND ACCOUNTABILITY 19 TAC §§97.1051, 97.1053, 97.1057, 97.1059, 97.1065, 97.1073 ..........................................................................................5201

TEXAS BOARD OF CHIROPRACTIC EXAMINERS APPLICATIONS AND APPLICANTS

22 TAC §72.9.................................................................................5210

CHIROPRACTIC FACILITIES 22 TAC §§73.1 - 73.5 ....................................................................5211

LICENSES AND RENEWALS 22 TAC §75.2.................................................................................5211

22 TAC §75.4.................................................................................5213

TEXAS STATE BOARD OF EXAMINERS OF PSYCHOLOGISTS

APPLICATIONS AND EXAMINATIONS 22 TAC §463.11 .............................................................................5214

22 TAC §463.13.............................................................................5219

22 TAC §463.14.............................................................................5220

22 TAC §463.15.............................................................................5221

22 TAC §463.27.............................................................................5221

22 TAC §463.29.............................................................................5223

22 TAC §463.29.............................................................................5223

COMPLAINTS AND ENFORCEMENT 22 TAC §469.7...............................................................................5224

FEES 22 TAC §473.2...............................................................................5226

22 TAC §473.7...............................................................................5226

TEXAS PARKS AND WILDLIFE DEPARTMENT EXECUTIVE

31 TAC §§51.161 - 51.167 ............................................................5227

FISHERIES 31 TAC §§57.1010 - 57.1012, 57.1015 .........................................5231

COMPTROLLER OF PUBLIC ACCOUNTS TAX ADMINISTRATION

34 TAC §3.588...............................................................................5235

TEXAS EMERGENCY SERVICES RETIREMENT SYSTEM

GENERAL PROVISIONS RELATING TO THE TEXAS EMERGENCY SERVICES RETIREMENT SYSTEM 34 TAC §302.5...............................................................................5240

34 TAC §302.6...............................................................................5241

34 TAC §302.8...............................................................................5241

BENEFITS FROM THE TEXAS EMERGENCY SERVICES RETIREMENT SYSTEM 34 TAC §308.2...............................................................................5242

ADMINISTRATION OF THE TEXAS EMERGENCY SERVICES RETIREMENT SYSTEM 34 TAC §310.12.............................................................................5243

ADOPTED RULES TEXAS FUNERAL SERVICE COMMISSION

LICENSING AND ENFORCEMENT--SPECIFIC SUBSTANTIVE RULES 22 TAC §203.44.............................................................................5245

RULE REVIEW Adopted Rule Reviews Texas Commission on Fire Protection ...........................................5247

IN ADDITION Comptroller of Public Accounts

TABLE OF CONTENTS 42 TexReg 5187

Local Sales Tax Rate Changes Effective October 1, 2017 ............5249

Office of Consumer Credit CommissionerNotice of Rate Ceilings..................................................................5255

Credit Union DepartmentApplication to Expand Field of Membership.................................5255

Notice of Final Action Taken.........................................................5256

Texas Education AgencyNotice of Correction: Request for Applications Concerning the 2017-2018 Transformation Zone Planning Grant ...................................5256

Texas Commission on Environmental QualityAgreed Orders................................................................................5256

Enforcement Orders .......................................................................5259

Notice of Water Rights Application...............................................5263

Texas Ethics CommissionList of Late Filers...........................................................................5263

General Land OfficeNotice and Opportunity to Comment on Requests for ConsistencyAgreement/Concurrence Under the Texas Coastal Management Pro-gram ...............................................................................................5265

Texas Health and Human Services CommissionNotice of Public Hearing on Proposed Medicaid Payment Rates forHospice Services............................................................................5265

Public Notice - Renewal of the Deaf Blind with Multiple DisabilitiesWaiver Program .............................................................................5266

Department of State Health ServicesOrder Placing Acetyl Fentanyl into Schedule I .............................5267

Texas Department of Housing and Community AffairsNotice of Public Hearing on the Section 8 Program 2018 StreamlinedAnnual Public Housing Agency Plan for the Housing Choice VoucherProgram..........................................................................................5269

University of Houston SystemBusiness and Service Review of Bookstore Contract....................5269

Texas Department of Licensing and RegulationCorrection of Error.........................................................................5270

Texas Lottery CommissionScratch Ticket Game Number 2005 "Reindeer Riches" ................5271

Scratch Ticket Game Number 2085 "Feliz Navidad" ....................5275

Texas Parks and Wildlife DepartmentNotice of Hearing and Opportunity for Public Comment..............5279

Notice of Proposed Real Estate Transactions ................................5279

Public Utility Commission of TexasNotice of Application for Sale, Transfer, or Merger......................5280

Notice of Application to Relinquish a Service Provider Certificate ofOperating Authority .......................................................................5280

Request for Proposal - Technical Consulting Services ..................5280

Teacher Retirement System of TexasNotice of Contract Award ..............................................................5281

Texas Department of TransportationAviation Division - Request for Qualifications for Professional Engi-neering Services .............................................................................5281

TABLE OF CONTENTS 42 TexReg 5188

Executive Order GA 02 Relating to the suspension of the seven-day waiting period for cer-tain state unemployment insurance claimants who have become unem-ployed as a direct result of the disaster created by Hurricane Harvey.

WHEREAS, a disaster proclamation was issued on Wednesday, August 23, 2017, certifying that Tropical Depression Harvey posed a threat of imminent disaster in certain counties in Texas; and

WHEREAS, Tropical Depression Harvey was upgraded to a hurricane that struck the Texas coast on Friday, August 25, 2017, causing a nat-ural catastrophe that destroyed crucial infrastructure, threatened phys-ical harm, and endangered the public welfare; and

WHEREAS, the disaster caused by Hurricane Harvey has resulted in loss of life and widespread human suffering, loss of income, and prop-erty loss and damage including the interruption in the operation and delivery of essential services and supplies; and

WHEREAS, many places of employment have sustained extensive damage or been completely destroyed or are physically inaccessible creating a lack of work and loss of salaries and revenues; and

WHEREAS, workers and employees totally or partially unemployed by the disaster have found the current seven-day waiting period for certain state unemployment insurance claims a hardship to receiving benefits; and

WHEREAS, the President of the United States issued a major disaster declaration (FEMA 4332-DR) on August 25, 2017, under the authority of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. Section 5121 et seq.;

NOW, THEREFORE, I, GREG ABBOTT, Governor of Texas, by virtue of the power and authority vested in me by Section 207.0212 of the Texas Labor Code, do hereby order the suspension of the seven-day waiting period requirement imposed under Section 207.021(a)(8) of the Texas Labor Code to authorize an individual to receive benefits for that waiting period if the individual is:

1. Unemployed as a direct result of a natural disaster that resulted in the major disaster declaration issued by the President of the United States (FEMA 4332-DR) under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. Section 5121 et seq.; and

2. Otherwise eligible for unemployment compensation benefits under the Texas Unemployment Compensation Act; and

3. Not receiving disaster unemployment assistance benefits for the pe-riod included in that waiting period.

This executive order supersedes all previous orders in conflict or incon-sistent with its terms and shall remain in effect and in full force until modified, amended, rescinded, or superseded by me or by a succeeding governor.

IN TESTIMONY WHEREOF, I have hereunto signed my name and have officially caused the Seal of State to be affixed at my office in the City of Austin, Texas, this the 7th day of September, 2017.

Greg Abbott, Governor TRD-201703639

♦ ♦ ♦ Proclamation 41-3559 TO ALL TO WHOM THESE PRESENTS SHALL COME:

WHEREAS, I, GREG ABBOTT, Governor of the State of Texas, did issue a series of proclamations declaring a state of disaster in multiple counties in South and Southeast Texas as a result of the catastrophic damage caused by Hurricane Harvey; and

WHEREAS, voters and taxpayers in the area impacted by the storm may still be unable to participate in and provide input on important matters of local government business; and

WHEREAS, political subdivisions in parts of the disaster area may face logistical and practical difficulties holding open meetings and deliber-ating on matters of public concern as they focus on assisting Texans coping with the immediate aftermath of the storm; and

WHEREAS, Section 26.05 of the Texas Tax Code requires the gov-erning body of each local taxing unit to adopt an ad valorem tax rate before the later of September 30 or the 60th day after the date the certi-fied appraisal roll is received, and a budget must be adopted before the tax may be levied; and

WHEREAS, certain political subdivisions that remain focused on dis-aster response are unable to meet the September 30, 2017, deadline in a way that provides the public a sufficient opportunity to participate in the decision; and

WHEREAS, Section 418.016(e) of the Texas Government Code autho-rizes the Governor, on the request of a political subdivision, to "waive or suspend a deadline imposed by a statute . . . including a deadline relating to a budget or ad valorem tax, if the waiver or suspension is reasonably necessary to cope with a disaster;" and

WHEREAS, the City of Corpus Christi has requested an extension of the September 30, 2017, statutory deadline to adopt its ad valorem tax rate and budget;

NOW, THEREFORE, in accordance with the authority vested in me by Section 418.016(e) of the Texas Government Code, I do hereby grant the City of Corpus Christi’s request to suspend the deadline prescribed by Texas law for the City of Corpus Christi to adopt its ad valorem tax rate and budget until October 27, 2017.

In accordance with the statutory requirements, copies of this proclama-tion shall be filed with the applicable authorities.



GOVERNOR September 29, 2017 42 TexReg 5189

♦ ♦ ♦

♦ ♦ ♦

Proclamation 41-3560 TO ALL TO WHOM THESE PRESENTS SHALL COME:

I, GREG ABBOTT, Governor of Texas, issued a disaster proclama-tion on August 23, 2017, certifying that Hurricane Harvey posed a threat of imminent disaster, including severe flooding, storm surge and damaging winds, for Angelina, Aransas, Atascosa, Austin, Bastrop, Bee, Bexar, Brazoria, Brazos, Burleson, Caldwell, Calhoun, Cameron, Chambers, Colorado, Comal, DeWitt, Fayette, Fort Bend, Galveston, Goliad, Gonzales, Grimes, Guadalupe, Hardin, Harris, Jackson, Jasper, Jefferson, Jim Wells, Karnes, Kerr, Kleberg, Lavaca, Lee, Leon, Lib-erty, Live Oak, Madison, Matagorda, Montgomery, Newton, Nueces, Orange, Polk, Refugio, Sabine, San Jacinto, San Patricio, Trinity, Tyler, Victoria, Walker, Waller, Washington, Wharton, Willacy and Wilson counties. Those same conditions continue to exist in these and other counties in Texas.

THEREFORE, in accordance with the authority vested in me by Sec-tion 418.014 of the Texas Government Code, I do hereby amend the aforementioned proclamation and declare a disaster in Milam and San Augustine counties in Texas.

Pursuant to Section 418.017 of the code, I authorize the use of all avail-able resources of state government and of political subdivisions that are reasonably necessary to cope with this disaster.

Pursuant to Section 418.016 of the code, any regulatory statute pre-scribing the procedures for conduct of state business or any order or rule of a state agency that would in any way prevent, hinder or delay necessary action in coping with this disaster shall be suspended upon written approval of the Office of the Governor. However, to the ex-tent that the enforcement of any state statute or administrative rule re-garding contracting or procurement would impede any state agency’s emergency response that is necessary to protect life or property threat-ened by this declared disaster, I hereby authorize the suspension of such statutes and rules for the duration of this declared disaster.

In accordance with the statutory requirements, copies of this proclama-tion shall be filed with the applicable authorities.



42 TexReg 5190 September 29, 2017 Texas Register

Requests for Opinions RQ-0179-KP

Requestor:

The Honorable Lisa L. Peterson

Nolan County Attorney

100 East 3rd Street, Suite 106A

Sweetwater, Texas 79556

Re: The establishment and funding of salaries for a court administrator and court reporter in a multicounty court at law (RQ-0179-KP)

Briefs requested by October 18, 2017

RQ-0180-KP

Requestor:

The Honorable Eddie Lucio, Jr.

Chair, Committee on Intergovernmental Relations

Texas State Senate

Post Office Box 12068

Austin, Texas 78711-2068

Re: Whether and when a municipal law enforcement agency is au-thorized or required to release audio or video recordings from a body worn camera to members of the public, members of the governing

body of the municipality, and civilian employees of the municipality (RQ-0174-KP)


RQ-0181-KP

Requestor:

Sherif Zaafran, M.D., President

Texas Medical Board

Post Office Box 2018

Austin, Texas 78768-2018

Re: Whether section 483.102 of the Health and Safety Code authorizes an eligible prescriber to directly or by standing order prescribe an opi-oid antagonist to law enforcement agencies (RQ-0181-KP)


For further information, please access the website at www.texasattor-neygeneral.gov or call the Opinion Committee at (512) 463-2110. TRD-201703698 Amanda Crawford General Counsel Office of the Attorney General Filed: September 20, 2017

♦ ♦ ♦

ATTORNEY GENERAL September 29, 2017 42 TexReg 5191

http:neygeneral.govwww.texasattor

TITLE 31. NATURAL RESOURCES AND CONSERVATION

PART 4. SCHOOL LAND BOARD CHAPTER 155. LAND RESOURCES SUBCHAPTER A. COASTAL PUBLIC LANDS 31 TAC §155.17 Pursuant to §2001.034 of the Texas Government Code, the School Land Board (Board) adopts on an emergency basis new §155.17, concerning Emergency Provisions for Rebuilding Authorized Structures Damaged by Hurricane Harvey. This rule is adopted on an emergency basis due to the imminent peril to the public health, safety and welfare caused by Hurricane Harvey.

Hurricane Harvey made landfall near Corpus Christi, Texas, on August 25, 2017, as a Category 4 hurricane, and proceeded to move northeast, devastating coastal and inland areas with storm surge, extreme winds, unprecedented rainfall, and major/record flooding. Many structures on coastal public lands within bays, estuaries, and tidal rivers have been damaged or destroyed.

Coastal lease and easement holders, concerned littoral property owners, and citizens with interests in coastal public lands have begun contacting the General Land Office (GLO) for information and assistance regarding their ability to rebuild or repair struc-tures on coastal public lands, or to take actions to address shore-line impacts. GLO staff anticipate receiving and responding to many more requests in coming days and weeks.

The Board has determined that it is necessary to adopt an emer-gency rule allowing immediate repair or rebuilding of structures currently under a coastal lease or easement, authorizing certain measures to restore and stabilize shorelines, and allowing GLO staff to waiver certain fees. By facilitating rebuilding and restora-tion of these structures and areas, the rule will provide protec-tion from further injury, damage, or destruction from subsequent storm events.

The Board has determined that a takings impact assessment (TIA), pursuant to §2007.043 of the Texas Government Code, is not required for the adoption of this rule because the rule is adopted in response to a real and substantial threat to public health, safety, and welfare.

The new section is adopted on an emergency basis under Texas Government Code, §2001.034. The section is also adopted un-der Texas Natural Resources Code, §33.064, which provides the Board with the authority to adopt procedural and substan-tive rules that it considers necessary to administer, implement, and enforce Chapter 33 of the Texas Natural Resources Code.

§155.17. Emergency Provisions Authorizing Actions Necessary to Respond to the Effects of Hurricane Harvey.

(a) Purpose. This section is intended to:

(1) allow littoral owners who have School Land Board au-thorization to place and maintain certain structures on coastal public lands to repair and rebuild certain structures damaged or destroyed by Hurricane Harvey;

(2) authorize littoral owners to take certain actions to ad-dress shoreline impacts of Hurricane Harvey; and

(3) allow for the General Land Office (GLO) to waive cer-tain fees for coastal lease or easement holders with structures impacted by Hurricane Harvey.

(b) Applicability.

(1) This section applies only to the following counties: Aransas, Brazoria, Calhoun, Cameron, Chambers, Galveston, Harris, Jackson, Jefferson, Kenedy, Kleberg, Liberty, Matagorda, Nueces, Orange, Refugio, San Patricio, Victoria, Willacy.

(2) This section shall be in effect for 120 days from the date of filing with the Office of the Secretary of State and may be extended once by the Board for not longer than 60 days as necessary to protect public health, safety, and welfare.

(3) This section does not apply to any beaches bordering on the Gulf of Mexico or other areas fronting on or in the Gulf of Mexico.

(4) This section does not apply to any cabins or associ-ated structures subject to permits issued under Texas Natural Resources Code, §33.119.

(c) Definitions. For the purposes of this section only, the fol-lowing terms and words shall have the following meaning.

(1) Contract--Any easement, lease, or registration issued by the School Land Board authorizing a project on coastal public land. This term does not include a permit issued under §155.4 of this title and Texas Natural Resources Code, §33.119.

(2) GISWEB--An interactive mapping application that give the user access to the collection of spatial data and aerial photog-raphy available at the GLO at http://gisweb.glo.texas.gov/glomap/in-dex.html.

(3) Grantee--Any person, company or entity that is cur-rently under a contract authorizing a project on coastal public land.

(d) Structures authorized under current contracts.

(1) Rebuilding certain structures on coastal public lands to pre-Hurricane Harvey dimensions.

(A) Grantees shall adhere to any specific contractual provisions regarding repair and rebuilding structures as provided in the current contract unless permitted otherwise as provided in paragraph (2) of this subsection.

EMERGENCY RULES September 29, 2017 42 TexReg 5193

http://gisweb.glo.texas.gov/glomap/in

♦ ♦ ♦

(B) Grantees must rebuild or repair the structures to the original specifications and conditions as provided in the current con-tract in the absence of specific provisions regarding repair and rebuild-ing as described in the previous paragraph unless permitted otherwise as provided in paragraph (2) of this subsection.

(2) Increasing or decreasing the size of structure.

(A) If grantee desires to rebuild the same type of struc-ture but smaller than provided in the current contract, grantee may re-build under the current contract, and the GLO will amend the current contract and waive the amendment fee. If GLO field office staff deems it appropriate, the GLO may convert the contract to a Structure Regis-tration as authorized in §155.5 of this title (relating to Registration of Structures) and waive the one-time registration fee.

(B) If GLO field office staff determine that a grantee must rebuild a longer structure than provided in current contract and the need for a longer structure is due to bay, tidal river, or estuary shoreline change caused by Hurricane Harvey, grantee may rebuild under the current contract. The GLO will amend the contract to reflect the new dimensions, waive the amendment fee, and adjust the fees accordingly.

(C) If grantee, in consultation with the GLO, deter-mines that an authorized structure is substantially destroyed due to damage caused by Hurricane Harvey and grantee determines that it is necessary to rebuild to a different configuration than previously authorized, grantee must obtain approval for the modification from the GLO. GLO field office staff will evaluate the proposal and may approve an enlargement or other modification of the authorized struc-ture; provided, however, there are minimal impacts to critical habitat, the modified project will not impact safety or navigation, and the modified project complies with existing statutes, rules and guidelines. The GLO will amend the contract to reflect the new dimensions, waive the amendment fee, and adjust the rental fees accordingly.

(e) Shoreline of bays, tidal rivers, and estuaries.

(1) Grantees may rebuild previously permitted bulkheads on coastal public lands to the pre-Hurricane Harvey location as in-dicated on the most recent pre-storm aerial photographs available on GISWEB, and may fill to the same location as existed immediately prior to the storm and as specified in the current contract.

(2) Littoral owners with bulkheads previously constructed on private property may rebuild the bulkhead and may fill to the same location as existed immediately prior to Hurricane Harvey as indicated on the most recent pre-storm aerial photographs available on GISWEB.

(3) Littoral owners with bay, tidal river, or estuary shore-line that did not have a bulkhead may fill to the same location as existed immediately prior to Hurricane Harvey as indicated on the most recent

pre-storm aerial photographs available on GISWEB; provided, how-ever, this Section does not authorize placement of a new bulkhead on coastal public land. Any bay, tidal river, or estuary shoreline restored to the pre-Hurricane Harvey location must be stabilized by riprap, vegeta-tive planting or other GLO-approved means of shoreline stabilization.

(4) Under no circumstance does this Section authorize any person to construct any bulkhead or place fill that extends the bay, tidal river, or estuary shoreline into the adjacent water body beyond the pre-storm location as indicated on the most recent pre-Hurricane Harvey aerial photographs available on GISWEB at the GLO, unless the littoral owner presents evidence satisfactory to the GLO that the location of the pre-Hurricane Harvey shoreline was in a different location.

(f) NOTICE. This Section is promulgated to assist littoral owners responding to the catastrophic impacts of Hurricane Harvey. Under no circumstance shall this Section be construed as the School Land Board or General Land Office's acquiescence or agreement to the location of any shoreline depicted on the most recent pre-Hurricane Harvey aerial photography available on GISWEB as the boundary between state-owned and private land (particularly if state-owned submerged land was previously filled without appropriate and legal authorization). This Section will not operate to waive claims that have been or may be asserted by the State for title to illegal filled state-owned submerged lands. Any person who places fill or any other structure on state-owned submerged land beyond the shoreline depicted on the most recent pre-Hurricane Harvey aerial photography available on GISWEB without a proper easement or lease under Chapter 33 or Chapter 51 of the Texas Natural Resources Code is liable for a penalty of not less than $50 or more than $1000 per day for each day that a violation occurs as provided in Texas Natural Resources Code, §51.302.

The agency certifies that legal counsel has reviewed the emer-gency adoption and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on September 12,

2017. TRD-201703611 Anne L. Idsal Chief Clerk, Deputy Land Commissioner School Land Board Effective date: September 12, 2017 Expiration date: January 9, 2018 For further information, please call: (512) 475-1859


TITLE 1. ADMINISTRATION PART 10. DEPARTMENT OF INFORMATION RESOURCES CHAPTER 206. STATE WEBSITES The Texas Department of Information Resources (the Depart-ment) proposes amendments to 1 TAC Chapter 206, §§206.1, 206.50, 206.52, 206.70, and 206.72, concerning the State Web-sites, to clarify the processes and policies of current practices and correct typographical errors. The Department published a formal notice of rule review in the March 11, 2016, issue of the Texas Register (41 TexReg 1980). Review of the sections im-plements Government Code, §2001.039.

In 1 TAC §206.1, the Department proposes adding the defini-tion for assistive technologies. The definition is consistent with 1 TAC §213 and provides clarification to the rule. The Depart-ment clarifies the definition of Section 508. The Department re-vised the definition of Electronic and information resources to be consistent with 1 TAC §213. The Department adds a defini-tion for Worldwide Web Consortium Web Content Accessibility Guidelines 2.0. Finally, the Department proposes renumbering the definitions to reflect the changes.

In 1 TAC §206.50(a), the Department clarifies the effective date of complying with the standards referenced in US Section 508 Appendix A Chapter 7 §702.10 (WCAG 2.0 Level AA excluding Guideline 1.2 Time Based Media).

In 1 TAC §206.50(b), the Department in consultation with Accessibility coordinators, determined each state agency must consider captioning and alternative forms of accommodation for videos posted on state websites.

In 1 TAC §206.50(c), the Department staff proposes language changes to clarify the rule.

In 1 TAC §206.50(d), the Department staff proposes a language change to clarify the rule and allow increased flexibility for state agencies.

In 1 TAC §206.50(e), the Department staff proposes removing unnecessary language.

In 1 TAC §206.50(f), the Department staff proposes adding new language to ensure state agencies remain up to date on emerg-ing technologies and content delivery platforms.

In 1 TAC §206.50(g), the Department staff proposes adding a re-quirement for the Department to assist in setting statewide goals and track agencies’ progress towards those goals.

In 1 TAC §206.52, the Department staff proposes correction of an incorrect Texas Penal Code legal citation.

In 1 TAC §206.70(a), the Department clarifies the effective date of complying with the standards referenced in US Section 508 Appendix A Chapter7 §702.10 (WCAG 2.0 Level AA excluding 1.2 Time Based Media).

In 1 TAC §206.70(b), the Department in consultation with Acces-sibility coordinators, determined each institute of higher educa-tion must consider captioning and alternative forms of accom-modation for videos posted on state websites.

In 1 TAC §206.70(c), the Department staff proposes language changes to clarify the rule.

In 1 TAC §206.70(d), the Department staff proposes a language change to clarify the rule and allow increased flexibility for insti-tutions of higher education.

In 1 TAC §206.70(e), the Department staff proposes removing unnecessary language.

In 1 TAC §206.70(f), the Department staff proposes adding new language to ensure institutions of higher education remain up to date on emerging technologies and content delivery platforms.

In 1 TAC §206.70(g), the Department staff proposes adding a requirement for the Department to assist in setting institution of higher education goals and track institutions of higher education progress towards those goals.

In 1 TAC §206.72, the Department staff proposes correction of an incorrect Texas Penal Code legal citation.

The changes to the chapter apply to state agencies and institu-tions of higher education. The assessment of the impact of the adopted changes on institutions of higher education was pre-pared in consultation with the Information Technology Council for Higher Education (ITCHE) in compliance with §2054.121(c), Texas Government Code.

John Hoffman, Chief Technology Officer, has determined dur-ing the first five-year period following the amendments to 1 TAC Chapter 206 there will be no fiscal impact on state agencies, in-stitutions of higher education and local governments.

Mr. Hoffman has further determined for each year of the first five years following the adoption of the amendments to 1 TAC Chap-ter 206 there are no anticipated additional economic costs to per-sons or small businesses required to comply with the amended rule.

Mr. Hoffman has further determined that for the first five years the sections are in effect, the public benefit anticipated as a result of the amended rules will result in better accessibility to state websites for citizens with disabilities.

Written comments on the proposed rules may be submitted to Martin Zelinsky, General Counsel, 300 West 15th Street, Suite 1300, Austin, Texas 78701, or to [email protected].

PROPOSED RULES September 29, 2017 42 TexReg 5195

mailto:[email protected]

Comments will be accepted for 30 days after publication in the Texas Register.

SUBCHAPTER A. DEFINITIONS 1 TAC §206.1 The amendments are proposed under §2054.052(a), Texas Government Code, which authorizes the department to adopt rules as necessary to implement its responsibilities under Chapter 2054, and §§2054.112, 2054.116, 2054.125, 2054.126, and 2054.458, Texas Government Code, which reference rules created by the department regarding the development of State Websites.

No other code, article or statute is affected by this proposal.

§206.1. Applicable Terms and Technologies for State Websites.

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

(1) Section 508--The technical standards issued by the US Access Board implementing Section 508 of the Rehabilitation Act of 1973 as amended, 29 U.S.C. §794(d). In particular, the standards re-lated to web accessibility (WCAG 2.0 AA) contained in 36 CFR Part 1194.

(2) Accessible--A web page that can be used in a variety of ways and [that] does not depend on a single sense or ability.

(3) Agency head--The top-most senior executive with op-erational accountability for an agency, department, commission, board, office, council, authority, or other agency in the executive or judicial branch of state government, that is created by the constitution or a statute of the state; or institutions of higher education, as defined in §61.003, Education Code.

(4) Alternate formats--Alternate formats usable by people with disabilities may include, but are not limited to, Braille, ASCII text, large print, recorded audio, and electronic formats that comply with this chapter.

(5) Alternate methods--Different means of providing infor-mation, including product documentation, to people with disabilities. Alternate methods may include, but are not limited to, voice, fax, re-lay service, TTY, Internet posting, captioning, text-to-speech synthesis, and audio description.

(6) Assistive Technologies--Any item, piece of equipment, or system, whether acquired commercially, modified, or customized, that is commonly used to increase, maintain, or improve functional capabilities of individuals with disabilities.

(7) [(6)] Contact information--A list of key personnel, po-sitions, or program names, with corresponding phone numbers and/or email addresses for each; and other information deemed necessary by the agency or institution of higher education for facilitating public ac-cess.

(8) [(7)] Compact With Texans--Customer service stan-dards and performance measures required of state agencies, including institutions of higher education, by §2113.006 and §2114.006, Texas Government Code.

(9) [(8)] Electronic and information resources--Includes information technology and any equipment or interconnected system or subsystem of equipment [that is] used to create, convert, duplicate, or deliver [in the creation, conversion, duplication, storage, or delivery of] data or information. EIR [The term] includes [but is not limited to,] telecommunications products [(such as telephones)], information kiosks and transaction machines, web sites, multimedia, and office

equipment such as copiers and fax machines. The term does not in-clude any equipment that contains embedded information technology that is used as an integral part of the product, but the principal function of which is not the acquisition, storage, manipulation, management, movement, control, display, switching, interchange, transmission, or reception of data or information. For example, [HVAC (heating, ventilation and air conditioning)] equipment such as thermostats or temperature control devices, and medical equipment that contain [where] information technology that is integral to its operation, are not information technology [electronic and] [resources]. If the embedded information technology has an externally available web or computer interface, that interface is considered EIR. Other terms such as, but not limited to, Information and Communications Technology (ICT), Electronic Information Technology (EIT), etc. can be considered interchangeable terms with EIR for purposes of applicability or compliance with this chapter.

(10) [(9)] Exception--A justified, documented non-confor-mance with one or more standards or specifications of Chapter 206 and/or Chapter 213 of this title, which has been approved by the agency head.

(11) [(10)] Exemption--A justified, documented non-con-formance with one or more standards or specifications of Chapter 206 and/or Chapter 213 of this title, which has been approved by the De-partment and which is applicable statewide.

(12) [(11)] High-value data set--Information that can be used to increase state agency accountability and responsiveness, improve public knowledge of the agency and its operations, further the core mission of the agency, create economic opportunity, or respond to need and demand as identified through public consultation. The term does not include information that is confidential or protected from disclosure under state or federal law.

(13) [(12)] Home page--The initial page that serves as the front door or entry point to a state website.

(14) [(13)] Internet--An electronic communications net-work that connects computer networks and computer facilities around the world.

(15) [(14)] Intranet--A computer network operating like the Internet but having access restricted to a limited group of autho-rized users such as employees of an agency or an institution of higher education.

(16) [(15)] Key public entry point--A web page on a state website that is frequently accessed directly by members of the pub-lic, which a state agency or institution of higher education has specif-ically designed to enable direct access to official agency or institution of higher education information.

(17) [(16)] Open standard format--Stable, published for-mats for data that are nonproprietary, free from licensing restrictions, independent of any individual vendor, and free to use, reuse, and redis-tribute.

(18) [(17)] Personal identifying information -- Information that could serve to identify an individual as defined by §521.002, Texas Business and Commerce Code.

(19) [(18)] Site policies page--A web page containing the website policies of the state agency or institution of higher education, or a link to each policy.

(20) [(19)] State website--A website that is connected to the Internet and is owned, funded, or operated by or for a state agency [or institution of higher education], including key public entry points.


♦ ♦ ♦

(21) [(20)] TRAIL--Texas Records and Information Loca-tor or its successor, providing a method to do a statewide search.

(22) [(21)] Transaction Risk Assessment--An evaluation of the security and privacy required for an interactive web session provid-ing public access to government information and services. Additional information and guidelines are included in Part 2: Risks Pertaining to Electronic Transactions and Signed Records in "The Guidelines for the Management of Electronic Transactions and Signed Records" available on the Department's website.

(23) Worldwide Web Consortium Web Content Accessi-bility Guidelines 2.0--a referenceable, international technical standard containing 12 guidelines that are organized under 4 principles: perceiv-able, operable, understandable, and robust. For each guideline, there are testable success criteria, which are at three levels: A, AA, and AAA. Also known as ISO/IEC International Standard ISO/IEC 40500:2012.

(24) [(22)] Web page--Presentation of state website con-tent, including documents and files containing text, graphics, sounds, video, or other content, that is accessed through a web browser.

The agency certifies that legal counsel has reviewed the pro-posal and found it to be within the state agency's legal authority to adopt.


2017. TRD-201703641 Martin Zelinsky General Counsel Department of Information Resources Earliest possible date of adoption: October 29, 2017 For further information, please call: (512) 936-7577

SUBCHAPTER B. STATE AGENCY WEBSITES 1 TAC §206.50, §206.52 The amendments are proposed under §2054.052(a), Texas Government Code, which authorizes the department to adopt rules as necessary to implement its responsibilities under Chapter 2054, and §§2054.112, 2054.116, 2054.125, 2054.126 and 2054.458, Texas Government Code, which reference rules created by the department regarding the development of State Websites.


§206.50. Accessibility. (a) Effective April 18, 2020, [September 1, 2006,] unless an

exception is approved by the agency head or an exemption has been made for specific technologies pursuant to §213.17 of this title, all new or changed web pages must comply with:

(1) the standards referenced [described] in US Section 508 Appendix A Chapter 7 §702.10 (WCAG 2.0 Level AA excluding Guideline 1.2 Time Based Media): [Subpart B §1194.22, paragraphs (a) through (p), excluding paragraphs (b) and (k);]

(A) Agencies shall consider the use of these standards for new websites or web applications prior to the effective date; or

(B) may continue to use US Section 508 standards published in the Federal Register on December 21, 2000, subpart B §1194.22, paragraphs (a) through (p), excluding paragraphs (b) and (k) prior to the effective date;

tion; and (2) the standards and specifications described in this sec-

(3) the standards and specifications applicable to a state agency's accessibility policy described in §213.21 of this title.

(b) Based on a request for accommodation of a webcast of a live/real time open meeting (Open Meetings Act, Texas Government Code, Chapter 551) or training and informational video productions which support the agency's mission, each state agency must consider captioning and alternative forms of accommodation for videos posted on state websites. Refer to §206.1 of this chapter for definitions for Alternate Formats and Alternate Methods.

(c) When compliance cannot be accomplished for an EIR, an alternative version of the page, form, application, document, or other EIR with equivalent information or functionality, must be provided to make a website comply with the provisions of this section. The alterna-tive version must remain synchronized to the primary EIR and updated whenever the primary EIR changes. An alternative version page, with equivalent information or functionalit

[y, must be provided to make a

website comply with the provisions of this section, when compliance cannot be accomplished in any other way. The content of the alterna-tive page must be updated whenever the primary page changes.]

(d) Effective September 1, 2006, unless an exception is ap-proved by the agency head or an exemption has been made for specific technologies pursuant to §213.17 of this title, all new or changed web page/site designs must be tested by the state agency using one or more EIR accessibility validation tools, including but not limited to the use of automated methods, manual methods or assistive technologies to val-idate compliance with this chapter. [Section 508 compliance tools in conjunction with manual procedures to validate compliance with this chapter.]

(e) A state agency must establish an accessibility policy as de-scribed in §213.21 of this title which must include criteria for monitor-ing its website for compliance with the standards and specifications of this chapter. [Additional information about testing tools and resources are available on the Department's website.]

(f) State websites and web applications should be designed to support: [Each state website should be designed with consideration for current and emerging Internet connection technologies available to the general public.]

(1) variations in internet connection speeds and emerging communications protocols and technologies; and

(2) the ability to adapt content to end user devices such as mobile phone, tablets, or other devices which are available to the gen-eral public.

(g) The department shall assist with establishing statewide agency website accessibility compliance goals, and track agency progress towards achieving those goals.

§206.52. Privacy.

(a) Each state agency must protect the privacy and personal identifying information of members of the public who provide or re-ceive information from or through the state agency website.

(b) Each state agency must publish a privacy notice that de-scribes applicable provisions of its privacy policy on its home page and all key public entry points or its site policies page.

(c) The privacy notice:

(1) Must describe the practices employed by the state agency to protect personal identifying information.


♦ ♦ ♦

(2) Must conform to requirements of Chapters 552 and 559, Texas Government Code.

(3) Must be consistent with the State Website Linking and Privacy Policy published on the Department's website.

(d) Prior to providing access to information or services on a state website that requires personal identifying information, each state agency must conduct a transaction risk assessment, and implement ap-propriate privacy and security safeguards that conform to requirements of Chapter 202 of this title.

(e) Any web based form on a state agency's website that re-quests information from the public must have a link to the state agency's website privacy notice.

(f) Web pages designed for children must comply with all ap-plicable federal and state laws, including provisions of the Children's Online Privacy Protection Act of 1998 and Texas Penal Code Chapter 33 [Texas Government Code, Chapter 420], intended to protect minors.




SUBCHAPTER C. INSTITUTION OF HIGHER EDUCATION WEBSITES 1 TAC §206.70, §206.72 The amendments are proposed under §2054.052(a), Texas Government Code, which authorizes the department to adopt rules as necessary to implement its responsibilities under Chapter 2054, and §§2054.112, 2054.116, 2054.125, 2054.126 and 2054.458, Texas Government Code, which reference rules created by the department regarding the development of State Websites.


§206.70. Accessibility. (a) Effective April 18, 2020, [September 1, 2006,] unless an

exception is approved by the agency head or an exemption has been made for specific technologies pursuant to §213.17 of this title, all new or changed web pages must comply with:

(1) the standards referenced in US Section 508 Appendix A Chapter 7 §702.10 (WCAG 2.0 Level AA excluding Guideline 1.2 Time Based Media): [described in Section 508 Subpart B §1194.22, paragraphs (a) through (p), excluding paragraphs (b) and (k);]

(A) Agencies shall consider the use of these standards for new websites or web applications prior to the effective date; or

(B) may continue to use US Section 508 standards published in the Federal Register on December 21, 2000, subpart B §1194.22, paragraphs (a) through (p), excluding paragraphs (b) and (k) prior to the effective date;

tion; and (2) the standards and specifications described in this sec-

(3) the standards and specifications applicable to a state agency's accessibility policy described in §213.21 of this title.

(b) Based on a request for accommodation of a webcast of a live/real time open meeting (Open Meetings Act, Texas Government Code, Chapter 551) or training and informational video productions which support the institute of higher education's mission, each institute of higher education must consider captioning and alternative forms of accommodation for videos posted on state websites. Refer to §206.1 of this chapter for definitions for Alternate Formats and Alternate Meth-ods.

(c) When compliance cannot be accomplished for an EIR, an alternative version of the page, form, application, document, or other EIR with equivalent information or functionality, must be provided to make a website comply with the provisions of this section. The alterna-tive version must remain synchronized to the primary EIR and updated whenever the primary EIR changes. [An alternative version page, with equivalent information or functionality, must be provided to make a website comply with the provisions of this section, when compliance cannot be accomplished in any other way. The content of the alterna-tive page must be updated whenever the primary page changes.]

(d) Effective September 1, 2006, unless an exception is ap-proved by the agency head or an exemption has been made for specific technologies pursuant to §213.37 of this title, all new or changed web page/site designs must be tested by the institution of higher education using one or more EIR accessibility validation tools, including but not limited to the use of automated methods, manual methods or assistive technologies to validate compliance with this chapter. [Section 508 compliance tools in conjunction with manual procedures to validate compliance with this chapter.]

(e) An institution of higher education must establish an acces-sibility policy as described in §213.41 of this title which must include criteria for monitoring its website for compliance with the standards and specifications of this chapter. [Additional information about test-ing tools and resources are available on the Department's website.

(f) Institutions of higher education websites and web appl

]

ica-tions should be designed to support: [Each state website should be de-signed with consideration for current and emerging Internet connection technologies available to the general public.]

(1) variations in internet connection speeds and emerging communications protocols and technologies;

(2) the ability to adapt content to end user devices such as mobile phone, tablets, or other devices which are available to the gen-eral public.

(g) The Department shall assist in consultation with ITCHE with establishing statewide agency website accessibility compliance goals for institutions of higher education, and track progress towards achieving those goals.

§206.72. Privacy.

(a) Each institution of higher education must protect the pri-vacy and personal identifying information of members of the public who provide or receive information from or through the institution of higher education website.

(b) Each institution of higher education must publish a privacy notice that describes applicable provisions of its privacy policy on its home page and all key public entry points or its site policies page.

(c) The privacy notice:


(1) Must describe the practices employed by the institution of higher education to protect personal identifying information.

(2) Must conform to requirements of Chapters 552 and 559, Texas Government Code.

(3) Must be consistent with the State Website Linking and Privacy Policy published on the Department's website.

(d) Prior to providing access to information or services on a state website that requires personal identifying information, each insti-tution of higher education must conduct a transaction risk assessment, and implement appropriate privacy and security safeguards that con-form to requirements of Chapter 202 of this title.

(e) Any web based form on an institution of higher education's website that requests information from the public must have a link to the institution of higher education's website privacy notice.

(f) Web pages designed for children must comply with all ap-plicable federal and state laws, including provisions of the Children's Online Privacy Protection Act of 1998 and Texas Penal Code Chapter 33, [Texas Government Code, Chapter 420,] intended to protect mi-nors.




♦ ♦ ♦ TITLE 16. ECONOMIC REGULATION PART 4. TEXAS DEPARTMENT OF LICENSING AND REGULATION CHAPTER 71. WARRANTORS OF VEHICLE PROTECTION PRODUCTS 16 TAC §§71.1, 71.10, 71.20, 71.22, 71.70, 71.80, 71.90 The Texas Department of Licensing and Regulation (De-partment) proposes the repeal of existing rules at 16 Texas Administrative Code (TAC), Chapter 71, §§71.1, 71.10, 71.20, 71.22, 71.70, 71.80, and 71.90, regarding the Vehicle Protection Product Warrantors Program.

JUSTIFICATION AND EXPLANATION OF THE RULES

This proposal repeals the existing rules of the Texas Commission of Licensing and Regulation (Commission), the Department’s governing body, regarding the licensing and regulation of Vehicle Protection Product Warrantors by the Department. The existing rules under 16 TAC Chapter 71 implemented the former Texas Occupations Code, Chapter 2306.

The repeal of the existing rules is necessary to implement Sen-ate Bill (S.B.) 2065, 85th Legislature, Regular Session, 2017. This bill, in part, repealed Texas Occupations Code, Chapter

2306, Vehicle Protection Product Warrantors, and relocated the regulation of vehicle protection products and warrantors to Texas Business and Commerce Code, Chapter 17, Subchapter E, the Deceptive Trade Practices-Consumer Protection Act. These statutory changes were effective September 1, 2017.

This proposal repeals the existing rules for the Vehicle Protection Product Warrantors Program under 16 TAC Chapter 71, §§71.1, 71.10, 71.20, 71.22, 71.70, 71.80, and 71.90. As of September 1, 2017, the Department no longer regulates or licenses vehicle protection products or warrantors.

FISCAL IMPACT ON STATE AND LOCAL GOVERNMENT

Brian E. Francis, Executive Director, has determined that for each year of the first five years the proposed repeal of the rules is in effect, there will be a reduction in costs to the State. While S.B. 2065 repealed the Vehicle Protection Product Warrantors statute, the rules under 16 TAC Chapter 71 implemented the program. There will be a reduction in costs to the State in the amount of $7,460 each year for the first five years due to the De-partment no longer needing to pay full time employees (FTEs) to collect application and renewal fees, to enforce the statutes and rules, and to provide compliance assistant and information. No FTEs worked on this program on a full-time basis, so there is no loss of FTEs.

In addition, Mr. Francis has determined that for each year of the first five years the proposed repeal of the rules is in effect, there will be a loss of revenue to the State. While S.B. 2065 repealed the Vehicle Protection Product Warrantors statute, the rules under 16 TAC Chapter 71 set out the specific fee amounts that were paid to the Department. Vehicle Protection Product Warrantors paid $250 in application fees and $250 - $1,000 in annual renewal fees depending on the number of warranties sold each year. Elimination of the application and annual renewal fees will result in a loss of revenue to the State in the amount of $36,300 each year for the first five years.

Mr. Francis has determined that enforcing or administering the proposed repeal of the rules under 16 TAC Chapter 71 does not have foreseeable implications relating to costs or revenues of local governments for the first five years the proposed repeal is in effect. Local governments were not involved in the regulation of the Vehicle Protection Product Warrantors Program, and S.B. 2065 did not transfer any responsibilities to local governments.

LOCAL EMPLOYMENT IMPACT STATEMENT

Mr. Francis has determined that the proposed rules will not af-fect the local economy, so the agency is not required to prepare a local employment impact statement under Government Code §2001.022.

PUBLIC BENEFITS

Mr. Francis also has determined that for each year of the first five-year period the proposed repeal of the rules is in effect, the public benefit will be elimination of obsolete rules. The rules un-der 16 TAC Chapter 71 implemented Texas Occupations Code Chapter 2306, which was repealed by S.B. 2065. In addition, the repeal of the Vehicle Protection Product Warrantors statute and rules eliminate the cost of a regulatory program with a small license population, zero to little enforcement activity, and mini-mal risk of consumer harm. There will be less of a tax burden on taxpayers. Companies will no longer be required to submit initial or renewal applications and fees, so there is less of a reg-ulatory burden on the businesses in this industry, potentially en-abling a reduction of the prices of vehicle protection products


for consumers. Consumers are still protected through certain consumer protection provisions in the Deceptive Trade Prac-tices-Consumer Protection Act, Business and Commerce Code, Chapter 17, Subchapter E.

PROBABLE ECONOMIC COSTS TO PERSONS REQUIRED TO COMPLY WITH PROPOSAL

Mr. Francis has determined that for each year of the first five-year period the proposed repeal of the rules is in effect, there will be a reduction in costs to persons who are required to comply with the proposed repeal of the rules. Vehicle Protection Product Warrantors will no longer have to pay $250 in application fees or $250 - $1,000 in annual renewal fees, based on the number of warranties sold. The elimination of the application and annual renewal fees will be a reduction in costs in the amount of $36,300 each year for the first five years.

ECONOMIC IMPACT STATEMENT AND REGULATORY FLEXIBILITY ANALYSIS- FISCAL IMPACT ON SMALL BUSI-NESSES, MICRO-BUSINESSES, AND RURAL COMMUNITIES

There will be no adverse effect on small businesses, micro-busi-nesses, or rural communities as a result of the proposed repeal of the rules.

Since the agency has determined that the proposed repeal of the rules will have no adverse economic effect on small businesses, micro-businesses, or rural communities, preparation of an Eco-nomic Impact Statement and a Regulatory Flexibility Analysis, as detailed under Texas Government Code §2006.002, are not required.

ONE-FOR-ONE REQUIREMENT FOR RULES WITH A FISCAL IMPACT

Under Government Code §2001.0045, a state agency may not adopt a proposed rule if the fiscal note states that the rule imposes a cost on regulated persons, including another state agency, a special district, or a local government, unless the state agency: (a) repeals a rule that imposes a total cost on regulated persons that is equal to or greater than the total cost imposed on regulated persons by the proposed rule; or (b) amends a rule to decrease the total cost imposed on regulated persons by an amount that is equal to or greater than the cost imposed on the persons by the proposed rule. There are exceptions for certain types of rules under §2001.0045(c).

The proposed repeal of the rules does not have a fiscal note that imposes a cost on regulated persons, including another state agency, a special district, or a local government. Therefore, the agency is not required to take any further action under Govern-ment Code §2001.0045.

PUBLIC COMMENTS

Comments on the proposal may be submitted to Pauline Easley, Legal Assistant, Texas Department of Licensing and Regulation, P.O. Box 12157, Austin, Texas 78711, or facsimile (512) 475-3032, or electronically: [email protected]. The deadline for comments is 30 days after publication in the Texas Register.

STATUTORY AUTHORITY

The repeal of the existing rules is proposed under Texas Occu-pations Code, Chapter 51, which authorizes the Commission, the Department’s governing body, to adopt rules as necessary to implement these chapters and any other law establishing a program regulated by the Department.

The statutory provisions affected by the proposal are those set forth in Texas Occupations Code, Chapter 51 and former Chap-ter 2306, and Texas Business and Commerce Code, Chapter 17. No other statutes, articles, or codes are affected by the proposal.

§71.1. Authority. §71.10. Definitions. §71.20. Registration and Renewal Requirements--General. §71.22. Registration Requirements--Financial Security Require-ments. §71.70. Responsibilities of Registrant. §71.80. Fees. §71.90. Administrative Penalties and Sanctions. The agency certifies that legal counsel has reviewed the pro-posal and found it to be within the state agency's legal authority to adopt.


2017. TRD-201703661 Brian E. Francis Executive Director Texas Department of Licensing and Regulation Earliest possible date of adoption: October 29, 2017 For further information, please call: (512) 463-8179

♦ ♦ ♦ TITLE 19. EDUCATION PART 2. TEXAS EDUCATION AGENCY CHAPTER 61. SCHOOL DISTRICTS SUBCHAPTER BB. COMMISSIONER'S RULES ON REPORTING REQUIREMENTS 19 TAC §61.1023 The Texas Education Agency (TEA) proposes the repeal of §61.1023, concerning community and student engagement. The proposed repeal is necessary because the statutory au-thority for the rule was repealed.

House Bill (HB) 5, 83rd Texas Legislature, 2013, added the Texas Education Code (TEC), §39.0545, establishing commu-nity and student engagement indicators and requiring districts to report to TEA self-assigned district and campus ratings in eight specific categories. The commissioner adopted 19 TAC §61.1023 effective June 26, 2014, to provide instructions for the required reporting.

HB 2804, 84th Texas Legislature, 2015, added the TEC, §39.0546, requiring that community and student engagement ratings be part of the state academic accountability system. The TEA amended 19 TAC §61.1023 effective June 8, 2017, to provide instructions for reporting these ratings.

HB 22, 85th Texas Legislature, Regular Session, 2017, repealed the TEC, §39.0545 and §39.0546. The proposed repeal of 19 TAC §61.1023 is necessary because the statutory authority for the rule has been repealed.

The proposed repeal would eliminate the use of certain data el-ements related to community and student engagement in the



♦ ♦ ♦

Texas Student Data System Public Education Information Man-agement System (TSDS PEIMS).

The proposed repeal would have no locally maintained paper-work requirements.

FISCAL NOTE. Penny Schwinn, deputy commissioner for aca-demics, has determined that for the first five-year period the re-peal is in effect, there will be no fiscal implications for state or local government as a result of enforcing or administering the repeal. There is no effect on local economy for the first five years that the proposed repeal is in effect; therefore, no local employment impact statement is required under Texas Govern-ment Code, §2001.022. The proposed repeal does not impose a cost on regulated persons and, therefore, is not subject to Texas Government Code, §2001.0045.

PUBLIC BENEFIT/COST NOTE. Ms. Schwinn has determined that for each year of the first five years the repeal is in effect the public benefit anticipated as a result of enforcing the repeal will be reflecting statutory changes and removing obsolete pro-visions from rule. There is no anticipated economic cost to per-sons who are required to comply with the proposed repeal.

ECONOMIC IMPACT STATEMENT AND REGULATORY FLEX-IBILITY ANALYSIS FOR SMALL BUSINESSES, MICROBUSI-NESSES, AND RURAL COMMUNITIES. There is no direct ad-verse economic impact for small businesses, microbusinesses, and rural communities; therefore, no regulatory flexibility anal-ysis, specified in Texas Government Code, §2006.002, is re-quired.

REQUEST FOR PUBLIC COMMENT. The public comment period on the proposal begins September 29, 2017, and ends October 30, 2017. Comments on the proposal may be sub-mitted to Cristina De La Fuente-Valadez, Rulemaking, Texas Education Agency, 1701 North Congress Avenue, Austin, Texas 78701. Comments may also be submitted electronically to [email protected]. A request for a public hearing on the proposal submitted under the Administrative Procedure Act must be received by the commissioner of education not more than 14 calendar days after notice of the proposal has been published in the Texas Register on September 29, 2017.

STATUTORY AUTHORITY. The repeal is proposed under the Texas Education Code (TEC), §39.0545, as repealed by House Bill (HB) 22, 85th Texas Legislature, Regular Session, 2017, which required each school district to annually evaluate its per-formance and the performance of each of its campuses in the area of community and student engagement using eight specific categories and also required each district to report to the Texas Education Agency (TEA) the rating of Exemplary, Recognized, Acceptable, or Unacceptable that it had assigned to itself and to each of its campuses for overall performance in community and student engagement and for each of the eight categories; and TEC, §39.0546, as repealed by HB 22, 85th Texas Legislature, Regular Session, 2017, which required each school district and campus to annually select three of the eight categories in com-munity and student engagement on which it would rate itself for the purpose of academic accountability ratings. It also required each district and campus to report to TEA the rating of A, B, C, D, or F that it had assigned to itself for overall performance in community and student engagement and for each of the three categories.

CROSS REFERENCE TO STATUTE. The repeal implements the Texas Education Code, §39.0545 and §39.0546, as repealed by House Bill 22, 85th Texas Legislature, Regular Session, 2017.

§61.1023. Community and Student Engagement.



2017. TRD-201703662 Cristina De La Fuente-Valadez Director, Rulemaking Texas Education Agency Earliest possible date of adoption: October 29, 2017 For further information, please call: (512) 475-1497

CHAPTER 97. PLANNING AND ACCOUNTABILITY SUBCHAPTER EE. ACCREDITATION STATUS, STANDARDS, AND SANCTIONS 19 TAC §§97.1051, 97.1053, 97.1057, 97.1059, 97.1065, 97.1073 The Texas Education Agency (TEA) proposes amendments to §§97.1051, 97.1053, 97.1057, 97.1059, 97.1065, and 97.1073, concerning accreditation status, standards, and sanctions. The proposed amendments would provide additional clarity regarding who may qualify as a professional service provider; outline the standards used by the commissioner to determine the imposition of sanctions and add clarity regarding when conservators, management teams, and boards of managers will be appointed; and update the process for transitioning from a board of managers to the board of trustees. The proposed amendments would also update references to the Texas Edu-cation Code (TEC) based on recodification legislation from the 85th Texas Legislature, Regular Session, 2017.

§97.1051, Definitions

TEC, §39A.902, authorizes the commissioner to require a cam-pus or district to acquire professional services to address certain deficiencies. The statute does not define what type of entity may provide the professional services. The proposed amendment to §97.1051 would expand the current definition of professional service provider to include any partners, not just educators, that satisfy the agency vetting process to provide the services. The proposed amendment would increase the quality and availabil-ity of professional services by expanding the type of entities that may provide the services.

§97.1057, Interventions and Sanctions; Lowered Rating or Ac-creditation Status, and §97.1059, Standards for All Accreditation Sanction Determinations

TEC, Chapter 39A, authorizes the commissioner to impose sanctions and interventions on districts and campuses that do not satisfy applicable standards.

The proposed amendment to §97.1057(d) would place into rule the statutory authorization to appoint a board of managers found



in TEC, §39A.006, when, for two consecutive school years, in-cluding the current school year, the district has had a conserva-tor or management team assigned. The proposed amendment would define a school year as starting on the first day of instruc-tion and including any portion of the school year. Since school years can vary between districts, the proposed language would use the first day of instruction as a common starting point be-tween districts. By defining school year as any portion of the school year, the proposed language clarifies that the current school year need not be the entire school year. If the current school year were required to be the full school year, one could never satisfy the standard because once the current school year was completed, it would no longer be the current school year. The proposed amendment would implement past practice by the agency.

The proposed amendments to §97.1057(f) and §97.1059 would establish an additional standard that the commissioner may con-sider when making determinations to impose sanctions and in-terventions. Section 97.1057 establishes the primary consider-ation to be the best interest of the district's students. The pro-posed amendment to §97.1057(f) would make clear that an in-ability to implement effective change to improve student perfor-mance at the district or campus is contrary to the best interest of the district's students. Additionally, §97.1059 establishes what constitutes a material deficiency for which sanctions shall be im-posed. The proposed amendment to §97.1059 would make ex-plicit that an inability to implement effective change to improve student performance at the district or campus is considered a material deficiency for which sanctions on a district or campus shall be imposed. The statutory framework establishes a sys-tem to ensure that public schools improve student performance. The proposed amendments would make clear that an inability to initiate change focused on improving student performance acts against students' best interest and will initiate intervention pro-cesses.

§97.1065, Commissioner Determinations for Decisions Preced-ing Alternative Management, Campus Closure, or Board of Man-agers

TEC, §39A.001, requires the commissioner to take actions for districts under TEC, Chapter 39A, Subchapter A, Accountability Interventions and Sanctions, to the extent the commissioner de-termines necessary. TEC, §39A.002, allows the commissioner to take several actions if a district does not satisfy one of several standards, including the appointment of monitors, conservators, and management teams. TEC, §39A.102, allows the commis-sioner to appoint a monitor, conservator, management team, or board of managers to the school district to ensure support of low-performing campuses and implementation of the targeted improvement plan.

Proposed new §97.1065(b) would make explicit that actions taken against campuses under TEC, §39A.107, are subject to commissioner rules adopted in 19 TAC Chapter 157, Hearings and Appeals, for challenging interventions. The rules in 19 TAC Chapter 157 comply with the statutory requirements established under TEC, §39A.301. Clarification of the challenge process would ensure uniformity in applying interventions and recourse to interventions.

TEC, §39A.112, authorizes the commissioner to establish the time and manner for a parent petition to direct the sanction im-posed based on five consecutive years of unacceptable campus performance. The proposed amendment to §97.1065(d) would update the requirements for a parent petition, making it clear that

the superintendent is responsible for certifying a valid petition and that parent signatures collected after the issuance of pre-liminary ratings for the fourth consecutive year of unacceptable performance are part of the petition. The proposed amendment should facilitate the processing and delivery of a valid petition. The proposed amendment would also make clear that the sanc-tion will be implemented for the current year or, if necessary, for the subsequent school year regardless of performance rating. This change would recognize the difference in timing between the appointment of a board of managers, which can be done relatively quickly, or the closure of the campus, which would dis-place students if done immediately. The change would ensure that a campus would not be required to close in the middle of a school year.

§97.1073, Appointment of Monitor, Conservator, or Board of Managers

The proposed amendment to §97.1073(b) would make explicit that a monitor may be appointed when a district is assigned an accreditation status of warned or probated. This would ensure that the commissioner may be kept apprised of actions of the district to enact change. The proposed amendment implements TEC, §39A.102, which authorizes the assignment of a monitor to ensure support of low-performing campuses and implementation of a targeted improvement plan.

The proposed amendment to §97.1073(c) would make explicit that a conservator or management team may be appointed when a district is assigned an accreditation status of probation. The proposed amendment would also implement TEC, §39A.102, which authorizes the assignment of a conservator or manage-ment team when necessary to ensure district-level support of low-performing campuses or implementation of a targeted im-provement plan. This change would ensure that actions may be required of the district to initiate necessary changes to improve performance.

The proposed amendment to §97.1073(d) would make clear that the appointment of additional conservators to establish or add to a management team is not an additional sanction subject to additional review. The imposition of a conservator or manage-ment team is driven by performance, and the district has a review opportunity at that time. The use of multiple conservators or a single conservator is a decision of efficiency and efficacy of the intervention tool, not a question of whether the district is subject to the intervention.

TEC, §39A.111, requires the commissioner to either close a cam-pus or appoint a board of managers if a campus reaches five con-secutive years of unacceptable performance. TEC, §39A.115, authorizes the commissioner to adopt rules to implement TEC, Chapter 39A, Subchapter C, Campus Turnaround Plan. The proposed amendment to §97.1073(e) would make clear that the commissioner may appoint a board of managers if closure of a campus is not ordered when a campus meets the standards un-der TEC, §39A.111. The proposed amendment would implement TEC, §39A.102, which authorizes the assignment of a board of managers when necessary to ensure district-level support of low-performing campuses or implementation of a targeted im-provement plan. The proposed amendment would make clear that a board of managers may be placed based on deficiencies identified in a special accreditation investigation. The proposed changes incorporate the explicit statutory authorizations.

TEC, §39A.208, requires that a board of managers transition back to a board of trustees over the last three years of the


board of managers appointment, as close to one-third of the members at a time as possible. The statute also requires the board of managers to continue to call for elections of board of trustees although the board of trustees's authority is suspended. The statute further requires that a board of trustees may only be restored if the members were elected under an election called by the board of managers. The proposed amendment to §97.1073(g) would clarify that the commissioner may determine the order of the trustee positions restored to authority during a board of managers transition. The proposed amendment would also state that in the absence of a designation, the default transition established in §97.1073 would be maintained. As districts have multiple configurations of trustee positions, providing for commissioner determination of transition would allow the commissioner to adjust for unique circumstances and ensure the transition occurs in an orderly fashion.

Several sections of the TEC authorize the commissioner to appoint a board of managers. TEC, Chapter 39A, Subchapter E, establishes parameters and requirements of a board of managers. Decisions of number of the board of managers and terms of the board of managers are not statutorily defined. TEC, §39A.207, provides explicit authorization of the commissioner to replace members of the board of managers when placed due to campus-based interventions. The proposed amendment to §97.1073(g) would make clear that the commissioner may ex-pand or reduce the number of members on a board of managers and may remove a member as needed. This change would ensure that as circumstances change, the board of managers would remain an effective intervention to improve performance of the district.

§§97.1051, 97.1053, 97.1057, 97.1065, and 97.1073

Senate Bill 1488, 85th Texas Legislature, Regular Session, 2017, recodified TEC, Chapter 39, Subchapter E, into TEC, Chapter 39A. Sections 97.1051, 97.1053, 97.1057, 97.1065, and 97.1073 would be amended to update cross references affected by the recodification.

The proposed amendments would have no procedural or report-ing implications. The proposed amendments would have no lo-cally maintained paperwork requirements.

FISCAL NOTE. A.J. Crabill, deputy commissioner for gover-nance, has determined that for the first five-year period the amendments are in effect, there will be no fiscal implications for state or local government as a result of enforcing or admin-istering the amendments. There is no effect on local economy for the first five years that the proposed amendments are in effect; therefore, no local employment impact statement is required under Texas Government Code, §2001.022. The pro-posed amendments do not impose a cost on regulated persons and, therefore, are not subject to Texas Government Code, §2001.0045.

GOVERNMENT GROWTH IMPACT: In accordance with Texas Government Code, §2001.0221, TEA staff has determined that the proposed amendments would expand, limit, or repeal an ex-isting regulation. The proposed amendment to §97.1051 lim-its an existing regulation by expanding the types of entities that can provide professional services. The proposed amendments to §97.1057(f) and §97.1059 expand an existing regulation by adding the district inability to implement effective change to im-prove student performance as a reason that a sanction or inter-vention may be ordered.

PUBLIC BENEFIT/COST NOTE. Mr. Crabill has determined that for each year of the first five years the proposed amendments are in effect the public benefit anticipated as a result of enforcing the proposed amendments will be providing clarity in the adminis-tration of interventions and sanctions. There is no anticipated economic cost to persons who are required to comply with the proposed amendments.

ECONOMIC IMPACT STATEMENT AND REGULATORY FLEX-IBILITY ANALYSIS FOR SMALL BUSINESSES, MICROBUSI-NESSES, AND RURAL COMMUNITIES. There is no direct ad-verse economic impact for small businesses, microbusinesses, and rural communities; therefore, no regulatory flexibility anal-ysis, specified in Texas Government Code, §2006.002, is re-quired.

REQUEST FOR PUBLIC COMMENT. The public comment period on the proposal begins September 29, 2017, and ends October 30, 2017. Comments on the proposal may be sub-mitted to Cristina De La Fuente-Valadez, Rulemaking, Texas Education Agency, 1701 North Congress Avenue, Austin, Texas 78701. Comments may also be submitted electronically to [email protected]. A request for a public hearing on the proposal submitted under the Administrative Procedure Act must be received by the commissioner of education not more than 14 calendar days after notice of the proposal has been published in the Texas Register on September 29, 2017.

STATUTORY AUTHORITY. The amendments are proposed un-der the Texas Education Code (TEC), §39.051, which requires the commissioner to determine accreditation statuses; TEC, §39.057, as amended by Senate Bill (SB) 7 and SB 1488, 85th Texas Legislature, Regular Session, 2017, which authorizes the commissioner to take intervention actions based on a special accreditation action, which includes the appointment of a board of managers under TEC, §39A.004, lowering the accreditation, or both; TEC, §39.102(a)(9), as amended by House Bill (HB) 1553 and SB 1566, 85th Texas Legislature, Regular Session, 2017, which expands the commissioner intervention tools when districts fail to meet accreditation, academic accountability, or financial accountability standards to include authorizing a district to enter into a memorandum of understanding with an institution of higher education to improve the district's performance; TEC, §39.102(a)(12), which expands the commissioner interven-tion tools when districts fail to meet accreditation, academic accountability, or financial accountability standards to include requiring the use of a board improvement and evaluation tool as provided by TEC, §11.182; TEC, §39A.001, which requires the commissioner to take actions for districts under the TEC, Chapter 39A, Subchapter A, Interventions and Sanctions for School Districts, to the extent the commissioner determines necessary, including any action the commissioner determines is appropriate on the bases of a special accreditation inves-tigation; TEC, §39A.002, which allows the commissioner to take several actions if a district does not satisfy one of several standards, including the appointment of monitors, conservators, and management teams; TEC, §39A.003, which establishes the powers, duties, and limitations on the authority of a con-servator or management team; TEC, §39A.004, which allows the commissioner to appoint a board of managers upon the satisfaction of certain conditions; TEC, §39A.005, which allows the commissioner to revoke the accreditation of a district upon the satisfaction of certain conditions; TEC, §39A.006, which allows the commissioner to appoint a board of managers after the assignment of a conservator or management team for two consecutive years; TEC, §39A.007, which allows the commis-



sioner to impose additional sanctions designed to improve high school completion rates if the district fails any standard because of a district's dropout rate; TEC, §39A.051, which allows the commissioner to take actions as provided by TEC, Chapter 39A, as the commissioner determines necessary when a campus fails to meet the standard on any accountability indicator; TEC, §39A.052, which allows the commissioner to include certain educational personnel on a campus intervention team; TEC, §39A.053, which establishes the requirements for onsite needs assessments performed by a campus intervention team; TEC, §39A.054, which establishes the parameters for the recom-mendations that a campus intervention team provides; TEC, §39A.055, which requires a campus intervention team to assist in developing a targeted improvement plan; TEC, §39A.056, which establishes public notice requirements for a targeted improvement plan; TEC, §39A.057, which establishes hearing requirements for a targeted improvement plan; TEC, §39A.058, which requires submission of a targeted improvement plan to the commissioner for approval; TEC, §39A.059, which allows a campus intervention team, if appropriate, to take certain actions in executing a targeted improvement plan; TEC, §39A.060

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Volume 42 Number 39 September 29, 2017 Pages 5185 - 5282/67531/metapth... · Texas Register, (ISSN...

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