REVIEW OF AGENCY RULES

Proposed Rule Reviews

Office of the Governor

Title 1, Part 1

The Texas Military Preparedness Commission (Commission) files this notice of intention to review 1 TAC Chapter 4, Texas Military Preparedness Commission. The review is being conducted in accordance with Texas Government Code §2001.039.

An assessment will be made by the Commission as to whether the reasons for adopting the rules continue to exist. Each rule will be reviewed to determine whether to readopt, readopt with amendments, or repeal the rule.

Comments may be submitted for 30 days following the date of publication of this notice by mail to Alexandra Taylor, Office of the Governor, Texas Military Preparedness Commission, P.O. Box 12428, Austin, Texas 78711 or by email to Alexandra.Taylor@gov.texas.gov with the subject line "TMPC Rule Review."

TRD-201904022

Keith Graf

Director, Texas Military Preparedness Commission

Office of the Governor

Filed: October 30, 2019


Adopted Rule Reviews

Texas Board of Nursing

Title 22, Part 11

In accordance with Government Code §2001.039, the Texas Board of Nursing (Board) filed a notice of intention to review and consider for re-adoption, re-adoption with amendments, or repeal, 22 Texas Administrative Code Chapters 211 and 217, pursuant to the rule review plan adopted by the Board at its July 2018 quarterly meeting. The notice appeared in the September 13, 2019, edition of the Texas Register, and the comment period ended on October 14, 2019. The Board did not receive any comments on either rule chapter.

The Board has completed its review of these chapters and has determined that the reasons for originally adopting the rules continue to exist. Chapter 211 is necessary to organize and structure Board functions and Chapter 217 contains procedures and requirements for nursing licensure in Texas, criteria for the Board's peer assistance program, and standards for nursing practice and professional conduct. The rules were also reviewed to determine whether they were obsolete, whether they reflected current legal and policy considerations and current procedures and practices of the Board, and whether they were in compliance with Texas Government Code Chapter 2001 (Texas Administrative Procedure Act). The Board finds that the rules are not obsolete, reflect current legal and policy considerations, current procedures and practices of the Board, and that the rules are in compliance with the Texas Administrative Procedure Act.

The Board readopts the rules in Chapters 211 and 217 without changes, pursuant to the Texas Government Code §2001.039 and Texas Occupations Code §301.151, which authorizes the Board to adopt, enforce, and repeal rules consistent with its legislative authority under the Nursing Practice Act. This concludes the rule review of Chapter 211 and 217 under the 2019 rule review plan adopted by the Board.

TRD-201904011

Jena Abel

Deputy General Counsel

Texas Board of Nursing

Filed: October 29, 2019


In accordance with Government Code §2001.039, the Texas Board of Nursing (Board) filed a notice of intention to review and consider for re-adoption, re-adoption with amendments, or repeal, 22 Texas Administrative Code Chapter 219, pursuant to the rule review plan adopted by the Board at its July 2018 quarterly meeting. The notice appeared in the September 13, 2019 edition of the Texas Register, and the comment period ended on October 14, 2019. The Board received one written comment from the Texas Society of Anesthesiologists.

With regard to §219.2(2), a commenter representing the Texas Society of Anesthesiologists states that the definition of advanced practice registered nurse found in the Nursing Practice Act (NPA) is more appropriate than the expanded version found in current §219.2. The commenter suggests amending the last sentence of §219.2(2) to read "[t]he advanced practice registered nurse acts independently, under the delegated authority of a physician and/or in collaboration with other healthcare professionals in the delivery of healthcare services". The commenter states that its suggested language is based on references found in the Texas Occupations Code §301.002(2)(G) and §301.152(b)(1) and (2)(A) and (B). The commenter further states that, on September 5, 2019, Attorney General Ken Paxton issued Opinion KP-0266, which confirms that providing and administering anesthesia is the practice of medicine and that physicians may delegate certain acts associated with the administration of anesthesia to a certified registered nurse anesthetist. Further, the commenter states that the opinion confirms a physician's ability to delegate certain medical acts to an advanced practice registered nurse, as well as the advanced practice registered nurse's authority to perform the delegated medical acts. The commenter believes, with this background, that the phrase "under the delegated authority of a physician" is both appropriate and needed to harmonize Rule 219.2 with the NPA and the Medical Practice Act.

The commenter also suggests alternative language for §219.2(10). The commenter believes, as written, this section of the rule implies that advanced practice registered nurses are authorized to perform acts of medical diagnosis. The commenter states that the legislature has said otherwise, with a specific statement that the practice of professional nursing does not include acts of medical diagnosis in §301.002(2). The commenter believes references to "diagnosis" and "medical diagnosis" should be removed from Rule 219.2(10).

The Board declines to make the commenter's suggested changes. The Board believes the definition of advanced practice registered nurse in §219.2(2) is consistent with the statutory use of that term in the Texas Occupations Code §301.002(2)(G) and §301.152 and the Medical Practice Act. Section 219.2(2) does not alter the existing authorized scope of practice for an advanced practice registered nurse, the existing standards of nursing practice for an advanced practice registered nurse, or the requirements of the Medical Practice Act that relate to physician delegation, collaboration, supervision, or prescriptive authority. The commenter points out that advanced practice registered nurses may perform medical acts only when those acts are delegated by a physician. The Board does not disagree, and the definitions in Rule 219 do not alter this interpretation of Texas law. The Board agrees that an advanced practice registered nurse may only perform medical aspects of care through proper physician delegation.

The Board also finds than an individual must be properly educated and qualified to perform such delegated functions. If that were not the case, patient safety would be at risk. If an advanced practice registered nurse is delegated medical aspects of care, the advanced practice registered nurse must have the proper educational foundation in order to properly perform those delegated acts. The definitions in §219.2 do not imply that an advanced practice registered nurse may provide medical aspects of care independent of proper physician delegation. Rather, when an advanced practice registered nurse is delegated medical aspects of care, including diagnoses, he/she must be appropriately educated and trained to safely execute the delegated tasks. The Board does not find the definitions in §219.2 to be confusing, misleading, or overreaching in this regard, and therefore, declines to include the commenter's suggested language in the rule text.

Further, in completing its review of Chapter 219, the Board has determined that the reasons for originally adopting the rules continue to exist. Chapter 219 is necessary to establish the standards for advanced practice registered nurse education in Texas. The rules were also reviewed to determine whether they were obsolete, whether they reflected current legal and policy considerations and current procedures and practices of the Board, and whether they were in compliance with Texas Government Code Chapter 2001 (Texas Administrative Procedure Act). The Board finds that the rules are not obsolete, reflect current legal and policy considerations, current procedures and practices of the Board, and that the rules are in compliance with the Texas Administrative Procedure Act.

The Board thereafter readopts the rules in Chapter 219 without changes, pursuant to the Texas Government Code §2001.039 and Texas Occupations Code §301.151, which authorizes the Board to adopt, enforce, and repeal rules consistent with its legislative authority under the Nursing Practice Act. This concludes the rule review of Chapter 219 under the 2019 rule review plan adopted by the Board.

TRD-201904020

Jena Abel

Deputy General Counsel

Texas Board of Nursing

Filed: October 29, 2019


Texas Commission on Environmental Quality

Title 30, Part 1

The Texas Commission on Environmental Quality (commission) has completed its Rule Review of 30 TAC Chapter 111, Control of Air Pollution from Visible Emissions and Particulate Matter, as required by Texas Government Code, §2001.039. Texas Government Code, §2001.039, requires a state agency to review and consider for readoption, readoption with amendments, or repeal each of its rules every four years. The commission published its Notice of Intent to Review these rules in the May 24, 2019, issue of the Texas Register (44 TexReg 2621).

The review assessed whether the initial reasons for adopting the rules continue to exist and the commission has determined that those reasons exist. The rules in Chapter 111 are required because those rules were developed to regulate air pollution from visible emissions and particulate matter (PM) from different emission sources and process types and from outdoor burning. The two subchapters within Chapter 111: Subchapter A, Visible Emissions and Particulate Matter, and Subchapter B, Outdoor Burning, include emission limits, control requirements, and monitoring and sampling methods. Portions of the Chapter 111 rules were in effect prior to the creation of the United States Environmental Protection Agency but were later submitted and approved as part of the state implementation plan to attain or maintain the National Ambient Air Quality Standards for PM, with the exception of §§111.123 - 111.125, §111.127, and §111.129, relating to incineration, and §§111.131, 111.133, 111.135, 111.137, and 111.139, relating to abrasive blasting of water storage tanks by portable operations. The rules for incineration were adopted to implement Texas statutory requirements while the rules for abrasive blasting of water storage tanks were adopted in response to a particular incident.

The commission determined that §§111.111, 111.113, 111.175, and 111.181 reference outdated sections of the Texas Administrative Code that have been repealed or replaced. Section 111.111(a)(4)(A) refers to repealed §101.11(a) relating to Exemptions from Rules and Regulations. Section 111.111(a)(4)(A)(ii) refers to repealed §101.6 relating to Notification Requirements for Major Upset. Section 111.113 refers to repealed §§103.31 - 103.34 relating to Initiation of Other Than Rulemaking Hearings and §§103.41 - 103.65 relating to Adjudicative Hearings. Sections 111.175 and 111.181 refer to repealed §111.155 relating to Ground Level Concentrations.

Public Comment

The public comment period closed on June 25, 2019. The commission did not receive comments on the rules review of this chapter.

As a result of the review the commission finds that the reasons for adopting the rules in 30 TAC Chapter 111 continue to exist and readopts these sections in accordance with the requirements of Texas Government Code, §2001.039. Changes to the rules identified as part of this review process may be addressed in a separate rulemaking action, in accordance with the Texas Administrative Procedure Act.

TRD-201903944

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Filed: October 25, 2019


The Texas Commission on Environmental Quality (commission) has completed its Rule Review of 30 TAC Chapter 220, Regional Assessments of Water Quality, as required by Texas Government Code, §2001.039. Texas Government Code, §2001.039, requires a state agency to review and consider for readoption, readoption with amendments, or repeal each of its rules every four years. The commission published its Notice of Intent to Review these rules in the May 24, 2019, issue of the Texas Register (44 TexReg 2621).

The review assessed whether the initial reasons for adopting the rules continue to exist and the commission has determined that those reasons exist. The rules in Chapter 220 are required because the rules establish procedures for the implementation of the Texas Clean Rivers Program under Texas Water Code (TWC), §26.0135. The rules and statute establish requirements for the strategic and comprehensive monitoring of water quality, periodic assessment of water quality in each river basin and watershed, and a process for public participation. Because TWC, §26.0135 still exists, the rules in Chapter 220 are still needed.

Public Comment

The public comment period closed on June 25, 2019. The commission did not receive comments on the rules review of this chapter.

As a result of the review the commission finds that the reasons for adopting the rules in 30 TAC Chapter 220 continue to exist and readopts these sections in accordance with the requirements of Texas Government Code, §2001.039.

TRD-201903968

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Filed: October 25, 2019


The Texas Commission on Environmental Quality (commission) has completed its Rule Review of 30 TAC Chapter 323, Waste Disposal Approvals, as required by Texas Government Code, §2001.039. Texas Government Code, §2001.039, requires a state agency to review and consider for readoption, readoption with amendments, or repeal each of its rules every four years. The commission published its Notice of Intent to Review these rules in the May 24, 2019, issue of the Texas Register (44 TexReg 2621).

The review assessed whether the initial reasons for adopting the rules continue to exist and the commission has determined that those reasons exist. The rules in Chapter 323 are required because the rules allow the executive director to develop a system for evaluating waste disposal facilities to determine if the design and operation merit state approval. The rules provide conditions under which a person whose waste disposal facility attained an approved rating can erect signs to show that the facility has been approved, and establish procedures used to evaluate waste disposal facilities after the rating system has been established. The rules in Chapter 323 implement Texas Water Code, §26.033, Rating of Waste Disposal Systems.

Public Comment

The public comment period closed on June 25, 2019. The commission did not receive comments on the rules review of this chapter.

As a result of the review the commission finds that the reasons for adopting the rules in 30 TAC Chapter 323 continue to exist and readopts these sections in accordance with the requirements of Texas Government Code, §2001.039.

TRD-201903969

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Filed: October 25, 2019


The Texas Commission on Environmental Quality (commission) has completed its Rule Review of 30 TAC Chapter 333, Brownfields Initiatives, as required by Texas Government Code, §2001.039. Texas Government Code, §2001.039, requires a state agency to review and consider each of its rules for readoption, readoption with amendments, or repeal every four years. The commission published its Notice of Intent to Review these rules in the May 24, 2019, issue of the Texas Register (44 TexReg 2622).

The review assessed whether the initial reasons for adopting the rules continue to exist and the commission has determined that those reasons continue to exist. The rules in Chapter 333, Subchapter A are required because they implement Texas Health and Safety Code (THSC), Chapter 361, Subchapter S, Voluntary Cleanup Program (VCP). The stated statutory purpose of the VCP is to provide incentive to remediate property by removing liability of lenders and future landowners under certain circumstances. Sections 333.1 - 333.10 implement the VCP statute by defining relevant terms and establishing procedures relating to VCP applications and agreements, work plans and reports, and certificates of completion.

The rules in Chapter 333, Subchapter B are required because they implement THSC, Chapter 361, Subchapter V, Immunity from Liability of Innocent Owner or Operator. The statute provides certain liability protection for an owner or operator who demonstrates that his or her property has become contaminated due to a release or migration of contaminants from a source not located on the property under certain circumstances. Sections 333.31 - 333.43 implement the statute by defining relevant terms and establishing procedures relating to Innocent Owner/Operator Program applications, as well as, to the issuance, denial, or revocation of an innocent owner/operator certificate.

Public Comment

The public comment period closed on June 25, 2019. The commission did not receive comments on the rules review of this chapter.

As a result of the review the commission finds that the reasons for adopting the rules in 30 TAC Chapter 333 continue to exist and readopts these sections in accordance with the requirements of Texas Government Code, §2001.039.

TRD-201903970

Charmaine Backens

Director, Litigation Division

Texas Commission on Environmental Quality

Filed: October 25, 2019


The Texas Commission on Environmental Quality (commission) has completed its Rule Review of 30 TAC Chapter 344, Landscape Irrigation, as required by Texas Government Code, §2001.039. Texas Government Code, §2001.039, requires a state agency to review and consider for readoption, readoption with amendments, or repeal each of its rules every four years. The commission published its Notice of Intent to Review these rules in the May 24, 2019, issue of the Texas Register (44 TexReg 2622).

The review assessed whether the initial reasons for adopting the rules continue to exist and the commission has determined that those reasons exist. The rules in Chapter 344 are required to implement Texas Occupations Code, §1903.053, which authorizes the adoption of standards for irrigation, including water conservation, irrigation system design and installation, and for compliance with local municipal codes and Texas Occupations Code, §1903.053, by an irrigator or irrigation technician. These requirements prohibit a person from acting as an irrigator or irrigation technician without first being licensed.

Public Comment

The public comment period closed on June 25, 2019. The commission did not receive comments on the rules review of this chapter.

As a result of the review the commission finds that the reasons for adopting the rules in 30 TAC Chapter 344 continue to exist and readopts these sections in accordance with the requirements of Texas Government Code, §2001.039.

TRD-201903945

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Filed: October 25, 2019


Texas Board of Pardons and Paroles

Title 37, Part 5

The Texas Board of Pardons and Paroles (Board) files this notice of readoption of 37 TAC, Part 5, Chapter 147, Hearings, Subchapter A, General Rules for Hearings. The review was conducted pursuant to Government Code, §2001.039. Notice of the Board's intention to review was published in the May 3, 2019, issue of the Texas Register (44 TexReg 2274).

As a result of the review, the Board has determined that the original justifications for these rules continue to exist. No comments on the proposed review were received. The Board readopts Chapter 147 Hearings, Subchapter A, General Rules for Hearings without amendments.

This concludes the review of 37 TAC Chapter 147, Hearings, Subchapter A, General Rules for Hearings.

TRD-201903904

Bettie Wells

General Counsel

Texas Board of Pardons and Paroles

Filed: (512) 463-8216