TITLE 37. PUBLIC SAFETY AND CORRECTIONS

PART 1. TEXAS DEPARTMENT OF PUBLIC SAFETY

CHAPTER 6. LICENSE TO CARRY HANDGUNS

SUBCHAPTER A. GENERAL PROVISIONS

37 TAC §6.1, §6.2

The Texas Department of Public Safety (the department) adopts the repeal of §6.1 and §6.2, concerning General Provisions. These repeals are adopted without changes to the proposed text as published in the December 30, 2016, issue of the Texas Register (41 TexReg 10519) and will not be republished.

The repeal of Subchapter A is filed simultaneously with proposed new Chapter 6. This repeal, and the proposal of new Chapter 6, is necessary to implement the requirements of Texas Government Code, Chapter 411 as amended by House Bill 910, 84th Legislative Session. House Bill 910 authorized a person who is licensed to carry a handgun to openly carry a handgun so this repeal and new proposed rules are necessary to remove references to "concealed" in the license to carry a handgun rules. The rules in Chapter 6 were consolidated and updated to eliminate unnecessary references and to reflect current licensing procedures applicable to applicants for a handgun license and for certification as a qualified handgun instructor.

No comments were received regarding the adoption of these repeals.

These repeals are adopted pursuant to Texas Government Code, §411.004(3), which authorizes the Public Safety Commission to adopt rules considered necessary for carrying out the department's work, and §411.197 which authorizes the director to adopt rules to administer this subchapter.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on February 23, 2017.

TRD-201700713

D. Phillip Adkins

General Counsel

Texas Department of Public Safety

Effective date: March 15, 2017

Proposal publication date: December 30, 2016

For further information, please call: (512) 424-5848


37 TAC §6.1

The Texas Department of Public Safety (the department) adopts new §6.1, concerning Definitions. This rule is adopted without changes to the proposed text as published in the December 30, 2016, issue of the Texas Register (41 TexReg 10520) and will not be republished.

The proposal of a new §6.1 is necessary to implement the requirements of Texas Government Code, Chapter 411, as amended by House Bill 910, 84th Legislative Session. House Bill 910 authorized a person who is licensed to carry a handgun to openly carry a handgun so this repeal and new proposed rules are necessary to remove references to "concealed" in the license to carry a handgun rules. The new §6.1 removes unnecessary terms and clarifies references in current existing definitions.

No comments were received regarding the adoption of this rule.

This new rule is adopted pursuant to Texas Government Code, §411.004(3), which authorizes the Public Safety Commission to adopt rules considered necessary for carrying out the department's work, and §411.197 which authorizes the director to adopt rules to administer this subchapter.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on February 23, 2017.

TRD-201700714

D. Phillip Adkins

General Counsel

Texas Department of Public Safety

Effective date: March 15, 2017

Proposal publication date: December 30, 2016

For further information, please call: (512) 424-5848


SUBCHAPTER B. ELIGIBILITY AND APPLICATION PROCEDURES

37 TAC §§6.11 - 6.15

The Texas Department of Public Safety (the department) adopts the repeal of §§6.11 - 6.15, concerning Eligibility and Application Procedures. These repeals are adopted without changes to the proposed text as published in the December 30, 2016, issue of the Texas Register (41 TexReg 10520) and will not be republished.

The repeal of Subchapter B is filed simultaneously with proposed new Chapter 6. This repeal, and the proposal of new Chapter 6, is necessary to implement the requirements of Texas Government Code, Chapter 411 as amended by House Bill 910, 84th Legislative Session. House Bill 910 authorized a person who is licensed to carry a handgun to openly carry a handgun so this repeal and new proposed rules are necessary to remove references to "concealed" in the license to carry a handgun rules. The rules in Chapter 6 were consolidated and updated to eliminate unnecessary references and to reflect current licensing procedures applicable to applicants for a handgun license and for certification as a qualified handgun instructor.

No comments were received regarding the adoption of these repeals.

These repeals are adopted pursuant to Texas Government Code, §411.004(3), which authorizes the Public Safety Commission to adopt rules considered necessary for carrying out the department's work, and §411.197 which authorizes the director to adopt rules to administer this subchapter.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on February 23, 2017.

TRD-201700715

D. Phillip Adkins

General Counsel

Texas Department of Public Safety

Effective date: March 15, 2017

Proposal publication date: December 30, 2016

For further information, please call: (512) 424-5848


SUBCHAPTER B. ELIGIBILITY AND APPLICATION PROCEDURES FOR A LICENSE TO CARRY A HANDGUN

37 TAC §§6.11 - 6.16

The Texas Department of Public Safety (the department) adopts new §§6.11 - 6.16, concerning Eligibility and Application Procedures for a License to Carry a Handgun. These rules are adopted without changes to the proposed text as published in the December 30, 2016, issue of the Texas Register (41 TexReg 10521) and will not be republished.

The proposal of new §§6.11 - 6.16 is necessary to implement the requirements of Texas Government Code, Chapter 411 as amended by House Bill 910, 84th Legislative Session. House Bill 910 authorized a person who is licensed to carry a handgun to openly carry a handgun so this repeal and new proposed rules are necessary to remove references to "concealed" in the license to carry a handgun rules. The proposed §§6.11 - 6.16 are reorganized to remove unnecessary duplications, consolidate licensing requirements, remove rules no longer required by statute, clarify licensing requirements, and correct agency references.

No comments were received regarding the adoption of these rules.

These new rules are adopted pursuant to Texas Government Code, §411.004(3), which authorizes the Public Safety Commission to adopt rules considered necessary for carrying out the department's work, and §411.197 which authorizes the director to adopt rules to administer this subchapter.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on February 23, 2017.

TRD-201700716

D. Phillip Adkins

General Counsel

Texas Department of Public Safety

Effective date: March 15, 2017

Proposal publication date: December 30, 2016

For further information, please call: (512) 424-5848


SUBCHAPTER C. QUALIFIED HANDGUN INSTRUCTOR LICENSE

37 TAC §§6.31 - 6.47

The Texas Department of Public Safety (the department) adopts new §§6.31- 6.47, concerning Qualified Handgun Instructor License. These rules are adopted without changes to the proposed text as published in the December 30, 2016, issue of the Texas Register (41 TexReg 10522) and will not be republished.

The proposal of new §§6.31 - 6.47 is necessary to implement the requirements of Texas Government Code, Chapter 411 as amended by House Bill 910, 84th Legislative Session. House Bill 910 authorized a person who is licensed to carry a handgun to openly carry a handgun so the new proposed rules are necessary to remove references to "concealed" in the license to carry a handgun rules. The proposed §§6.31 - 6.47 are reorganized to remove unnecessary duplications, consolidate licensing requirements, remove rules no longer required by statute, clarify licensing requirements, and correct agency references.

No comments were received regarding the adoption of these rules.

These new rules are adopted pursuant to Texas Government Code, §411.004(3), which authorizes the Public Safety Commission to adopt rules considered necessary for carrying out the department's work, and §411.197 which authorizes the director to adopt rules to administer this subchapter.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on February 23, 2017.

TRD-201700717

D. Phillip Adkins

General Counsel

Texas Department of Public Safety

Effective date: March 15, 2017

Proposal publication date: December 30, 2016

For further information, please call: (512) 424-5848


SUBCHAPTER D. SCHOOL SAFETY CERTIFICATION FOR QUALIFIED HANDGUN INSTRUCTORS

37 TAC §6.61, §6.62

The Texas Department of Public Safety (the department) adopts new §6.61 and §6.62, concerning School Safety Certification for Qualified Handgun Instructors. These rules are adopted with changes to the proposed text as published in the December 30, 2016, issue of the Texas Register (41 TexReg 10525) and will be republished. Changes were made to §6.62(d) and (e) to align the rule text with current department practices. Changes were also made to §6.62(g) to eliminate confusion regarding the form provided to the student after completion of the course.

New §6.61 and §6.62 are necessary to implement the requirements of Texas Government Code, Chapter 411 as amended by Senate Bill 1857, 83rd Legislative Session.

No comments were received regarding the adoption of these rules.

These new rules are adopted pursuant to Texas Government Code, §411.004(3), which authorizes the Public Safety Commission to adopt rules considered necessary for carrying out the department's work, and §411.197 which authorizes the director to adopt rules to administer the license to carry a handgun program, and §411.1901(e) which authorizes the department to adopt rules to administer §411.1901.

§6.61.Application for School Safety Instructor Certification.

(a) A person is eligible for a school safety instructor certification if the person is currently certified by the department as a qualified handgun instructor; has no suspension, revocation or other disciplinary actions pending; and has taught at least four license to carry a handgun courses within the year prior to their application.

(b) The application fee for a school safety instructor certification is $100. This fee is nonrefundable.

(c) An applicant for certification as a school safety instructor is required to attend the course in person. If the applicant is unable to attend, the applicant may request to be rescheduled for another course. If the applicant fails to attend the second scheduled course, the application will be terminated and the applicant will be required to submit a new application to attend a course in the future.

(d) The department school safety instructor certification course must have an instructor to student ratio no greater than 1:6 and may have no more than twelve students per course.

(e) School safety instructor certification applicants are required to pass a prequalifying written examination consisting of material from the current license to carry a handgun course. A passing score of 90% or better must be achieved on the first attempt. Failing students will not be permitted to continue the training. The student must reapply as a new applicant for a future course.

(f) School safety instructor applicants who pass the prequalifying written examination will be required to demonstrate handgun proficiency using the current license to carry a handgun course of fire. A passing score of 90% or better must be achieved on the first attempt. A second attempt may be allowed at the discretion of the department if the prior failure was the result of a weapon malfunction. Students may use only one handgun, and the handgun must meet the requirements of the Act and of this chapter. Failing students will not be permitted to continue the training. The student must reapply as a new applicant for a future course.

(g) Only school safety instructor applicants who pass the prequalifying written examination and the proficiency demonstration will be allowed to attend the school safety instructor certification course which includes practical exercises. A student may be removed from the school safety instructor certification course for reasons described in §6.37 of this title (relating to Conduct During Training). Students must pass the department approved final written examination for school safety instructors with a score of 90% or better. Failing students must reapply as a new applicant for a future course.

(h) School safety instructor applicants who pass the course shall be provided a certificate in the form approved by the department.

(i) The school safety instructor certification remains valid so long as the instructor's qualified handgun instructor certification remains valid and is continuously renewed prior to expiration.

(j) In addition to the provisions of this section, a person applying for a school safety instructor certification must comply with all standards and requirements applicable to the eligibility and application procedure for a license to carry a handgun and a qualified handgun license instructor, as detailed in Subchapter B and Subchapter C of this chapter.

§6.62.Certified School Safety Courses.

(a) A certified school safety instructor may provide school safety training to employees of a school district or an open-enrollment charter school who are current holders of a license to carry a handgun.

(b) The school safety course must be taught using the department approved curriculum and examinations. The course of instruction for school safety instructors shall be 15-20 hours in length.

(c) School safety courses must have a certified school safety instructor to student ratio of no greater than 1:6 and may have no more than twelve students per course.

(d) Following the classroom portion and the practical exercises, students must pass the department approved final written examination with a score of 90% or better. Failing students will not receive a certificate of completion from the instructor. The student may reapply as a new applicant for a future course.

(e) The students will participate in 5 practical exercises. One of these exercises involves shooting a handgun. The students must participate and perform adequately to progress through the class, as determined by the instructor. The practical exercises may not be provided to students in advance, and students may not be permitted to practice.

(f) On completion of the school safety course, the certified school safety instructor who conducted the course shall submit a report within five business days to the department indicating only whether the participants in the course passed or failed. The report must be submitted in the manner determined by the department.

(g) Students who pass the course shall be provided a form approved by the department.

(h) Certified school safety instructors must comply with this chapter's rules relating to license to a qualified handgun instructor license course scheduling, reporting, and record retention unless otherwise provided in this section.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on February 23, 2017.

TRD-201700718

D. Phillip Adkins

General Counsel

Texas Department of Public Safety

Effective date: March 15, 2017

Proposal publication date: December 30, 2016

For further information, please call: (512) 424-5848


SUBCHAPTER G. CERTIFIED HANDGUN INSTRUCTORS

37 TAC §§6.71 - 6.88, 6.90 - 6.92

The Texas Department of Public Safety (the department) adopts the repeal of §§6.71- 6.88, 6.90- 6.92, concerning Certified Handgun Instructors. These repeals are adopted without changes to the proposed text as published in the December 30, 2016, issue of the Texas Register (41 TexReg 10526) and will not be republished.

The repeal of Subchapter G is filed simultaneously with proposed new Chapter 6. This repeal, and the proposal of new Chapter 6, is necessary to implement the requirements of Texas Government Code, Chapter 411 as amended by House Bill 910, 84th Legislative Session. House Bill 910 authorized a person who is licensed to carry a handgun to openly carry a handgun so this repeal and new proposed rules are necessary to remove references to "concealed" in the license to carry a handgun rules. The rules in Chapter 6 were consolidated and updated to eliminate unnecessary references and to reflect current licensing procedures applicable to applicants for a handgun license and for certification as a qualified handgun instructor.

No comments were received regarding the adoption of these repeals.

These repeals are adopted pursuant to Texas Government Code, §411.004(3), which authorizes the Public Safety Commission to adopt rules considered necessary for carrying out the department's work, and §411.197 which authorizes the director to adopt rules to administer this subchapter.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on February 23, 2017.

TRD-201700719

D. Phillip Adkins

General Counsel

Texas Department of Public Safety

Effective date: March 15, 2017

Proposal publication date: December 30, 2016

For further information, please call: (512) 424-5848


CHAPTER 12. COMPASSIONATE-USE/LOW-THC CANNABIS PROGRAM

SUBCHAPTER A. GENERAL PROVISIONS

37 TAC §§12.1 - 12.4, 12.7 - 12.9

The Texas Department of Public Safety (the department) adopts amendments to §§12.1 - 12.4, 12.7, 12.8 and new §12.9, concerning General Provisions. The department initially published proposed amendments to §§12.1 - 12.4, 12.7, 12.8 and new §12.9 in the October 28, 2016, issue of the Texas Register (41 TexReg 8520). In response to comments received, the department withdrew the October 28th proposal and republished proposed amendments to §§12.1 - 12.4, 12.7, 12.8 and new §12.9 in the January 13, 2017, issue of the Texas Register (42 TexReg 46). This proposal is adopted with changes to the proposed text as published in the January 13, 2017, issue of the Texas Register (42 TexReg 46) and will be republished.

These amendments are necessary to clarify and enhance certain safety and security requirements and to provide a requirement that dispensers obtain certain levels of commercial liability insurance coverage. New §12.9 provides more specific product testing and waste disposal requirements.

The department accepted comments on the proposed rules through February 13, 2017. Written comments were submitted by Texas Wellness Investment Group and GB Sciences. Additionally, the department received numerous items interpreted as requests for information or questions about the meaning of certain items, and not rule comments. These items will be addressed by either direct correspondence or website communications. Additional information pertaining to the Compassionate-Use Program can be found at: http://dps.texas.gov/rsd/CUP/

Substantive comments received, as well as the department's responses, thereto, are summarized below:

COMMENT: Relating to §12.1(4), Texas Wellness Investment Group and GB Sciences suggest that an ownership threshold is needed to focus the attention on owners with voting rights who are actively involved in the business of the dispensing organization.

RESPONSE: The department agrees that an ownership threshold is needed to clarify that only shareholders who are actively involved in the affairs of the business should be required to register. The proposal has been amended accordingly.

COMMENT: Relating to §12.2(v) and 12.7(b), GB Sciences notes that it appreciates the department's clarification in previous responses to comments with regard to the department's position on testing and research. GB Sciences urges the department to consider third-party testing.

RESPONSE: At this time, the department believes the current rules are adequate and appropriate with respect to testing and research. The department will not be modifying the proposal.

This proposal is adopted pursuant to Texas Government Code, §411.004(3), which authorizes the Public Safety Commission to adopt rules considered necessary for carrying out the department's work, and Texas Health and Safety Code, §487.052, which requires the department adopt rules necessary for the administration and enforcement of Texas Health and Safety Code, Chapter 487.

§12.1.Definitions.

The terms in this section have the following meanings when used in this chapter unless the context clearly indicates otherwise:

(1) Act--Texas Health and Safety Code, Chapter 487.

(2) Application--Includes an original application for a registration or license, or an application to renew a registration or license, issued under the Act.

(3) Department--The Texas Department of Public Safety.

(4) Director--An individual involved in decisions governing the operation or daily functions of the licensed dispensing organization, and any owner, partner, or shareholder of the business with an ownership interest that exceeds 10 percent.

(5) Dispensing organization--An organization licensed to perform the regulated functions of cultivation, processing, and dispensing of low-THC cannabis.

(6) Employee--An individual engaged by or contracting with a licensee to assist with any regulated function, whether or not compensated by salary or wage.

(7) Licensee--An organization licensed under the Act.

(8) Manager--An individual employed or otherwise engaged by a dispensing organization to supervise others in any portion of the regulated functions and processes.

(9) Prescription--An entry in the compassionate-use registry that meets the requirements of Texas Occupations Code, Chapter 169.

(10) Product--Any form of low-THC cannabis that is cultivated, handled, transported, processed, or dispensed, or raw materials used in or by-products created by the production or cultivation of low-THC cannabis.

(11) Registrant--An individual registered with the department as a director, manager, or employee of a licensee; this term does not include a physician registered as a prescriber of low-THC cannabis.

(12) Regulated premises--The physical areas under the control of a licensee, in which low-THC cannabis, or production related raw materials or by-products, are cultivated, handled, transported, processed, or dispensed.

(13) SOAH--State Office of Administrative Hearings.

§12.2.Requirements and Standards.

(a) A licensee may only perform regulated functions at a department approved location. Any change in location must be approved by the department prior to operation in a regulated capacity.

(b) Licensees shall notify the department within five (5) business days of a registrant's termination of employment.

(c) All licensees shall display in a conspicuous location a copy of the department issued license and information on how to submit a complaint to the department.

(d) Licensees must establish and implement a drug-free workplace policy consistent with the Texas Workforce Commission's "Drug-Free Workplace Policy," and shall maintain in each registrant's file a copy of the company's policy signed or otherwise acknowledged by the registrant.

(e) Licensees and registrants must cooperate fully with any inspection or investigation conducted by the department, or by a state fire marshal, or local designee of the state fire marshal, including but not limited to the provision of any laboratory test results, employee records, inventory and destruction records, or other records required under the Act or this chapter, and the compliance with any lawfully issued subpoena.

(f) Licensees and registrants may not cultivate, process, or dispense low-THC cannabis or possess any raw material used in or by-product created by the production or cultivation of low-THC cannabis if the respective license or registration has expired, or has been suspended or revoked.

(g) Licensees and registrants may not dispense to an individual other than a patient for whom low-THC cannabis is prescribed under Chapter 169, Occupations Code, or the patient's legal guardian.

(h) Licensees and registrants may not permit or fail to prevent the diversion of any controlled substance.

(i) Those registered with the department as directors, managers, or employees of a licensed dispensing organization may only perform functions regulated under the Act for the licensee(s) with whom they are registered.

(j) If arrested, charged, or indicted for a criminal offense above the level of Class C misdemeanor, a registrant shall within seventy-two (72) hours notify the employing licensee. When notified by the registrant or otherwise informed, the licensee shall notify the department in writing (including by email) within seventy-two (72) hours of notification. The notification shall include the name of the arresting agency, the offense, court, and cause number of the charge or indictment. The registrant and licensee must supplement their respective notifications as further information becomes available.

(k) Registrants must carry on their person or otherwise display their department issued registration card while performing any functions regulated under the Act involving contact with or exposure to patients or the general public, including the dispensing of low-THC cannabis to patients and the transportation of low-THC cannabis on behalf of a licensee.

(l) All advertisements for functions regulated under the Act must contain the dispensing organization's license number in a font of the same size as the primary text of the advertisement.

(m) Licensees must comply with all applicable local, state and federal regulations and permitting requirements relating to air and environmental quality, advertising, business and occupancy, building, plumbing, electrical, fire safety, noise, and odor or other nuisances. This subsection does not require compliance with a regulation that conflicts with the Act or this chapter.

(n) Licensees must use applicable best practices to limit contamination of the product including but not limited to residual solvents, metals, mold, fungus, bacterial diseases, rot, pests, pesticides, mildew, and any other contaminant identified as posing potential harm.

(o) Licensees must have a plan for establishing a recall of their products in the event a product is shown by testing or other means to be, or potentially to be, defective or have a reasonable probability that their use or exposure to will cause adverse health consequences. At a minimum, the plan should include the method of identification of the products involved; notification to the processing or dispensing organization or others to whom the products were sold or otherwise distributed; and how the products will be disposed of if returned to or retrieved by the licensee.

(p) Licensees shall retain the registration card of all terminated registrants for two (2) years after termination, unless the card is seized or destroyed by department personnel.

(q) Licensees shall maintain commercial general liability insurance coverage, as described in §12.11 of this title (relating to Application for License), and maintain current proof of such insurance on file with the department.

(r) Licensees' regulated premises must annually pass an inspection conducted by the state fire marshal or local designee of the state fire marshal. Proof of the passing inspection must be submitted to the department on a form approved by the department.

(s) Licensees' regulated premises shall be protected by a fire alarm and sprinkler system that complies with local ordinances and applicable Texas Department of Insurance administrative rules, 28 TAC Chapter 34, concerning State Fire Marshal.

(t) Licensees shall install an exterior wall-mounted building key safe at the main entrance to any processing facility, to enable emergency access for fire departments and emergency medical services.

(u) To the extent there is a conflict between the requirements of this chapter, or a conflict between this chapter and the Act, the more restrictive requirement governs. To the extent any requirement of this chapter or the Act conflicts with a regulation incorporated herein, this chapter or the Act shall govern.

(v) Research or development beyond that which is necessary for the cultivation or production of low-THC cannabis is prohibited.

(w) Only low-THC cannabis may be dispensed or sold. By-products must be destroyed.

(x) Registrants must be at least twenty-one (21) years of age at the time of application.

§12.3.Criminal History Disqualifiers.

(a) Registration as a director, manager or employee of a licensed dispensing organization provides these individuals access to sensitive medical information, drugs, and the equipment and raw materials needed to produce drugs. Registration provides those predisposed to commit fraud, theft and drug related crimes with greater opportunities to engage in such conduct and escape detection or prosecution. Therefore, the department has determined that offenses of the types detailed in subsection (b) of this section directly relate to the duties and responsibilities of those who are registered under the Act. Such offenses include crimes under the laws of another state or the United States, if the offense contains elements that are substantially similar to the elements of an offense under the laws of this state. Such offenses also include those "aggravated" or otherwise enhanced versions of the listed offenses.

(b) The list of offenses in this subsection is intended to provide guidance only and is not exhaustive of either the offenses that may relate to the regulated occupation or of those independently disqualifying under Texas Occupations Code, §53.021(a)(2) - (4). The listed offenses are general categories that include all specific offenses within the corresponding chapter of the Texas Penal Code and Texas Health and Safety Code. In addition, after due consideration of the circumstances of the criminal act and its relationship to the position of trust involved in the particular licensed occupation, the department may find that an offense not described in this subsection also renders an individual unfit to hold a registration. In particular, an offense that is committed in one's capacity as a registrant under the Act, or an offense that is facilitated by one's registration under the Act, will be considered related to the regulated occupation and may render the individual unfit to hold the registration.

(1) Bribery--Any offense under the Texas Penal Code, Chapter 36.

(2) Burglary and criminal trespass--Any offense under the Texas Penal Code, Chapter 30.

(3) Fraud--Any offense under the Texas Penal Code, Chapter 32.

(4) Perjury--Any offense under the Texas Penal Code, Chapter 37.

(5) Robbery--Any offense under the Texas Penal Code, Chapter 29.

(6) Theft--Any offense under the Texas Penal Code, Chapter 31.

(7) Organized Crime--Any offense under the Texas Penal Code, Chapter 71.

(8) Any offense under Texas Health and Safety Code, Chapters 481, 482, or 483.

(9) In addition:

(A) An attempt to commit a crime listed in this subsection;

(B) Aiding and abetting in the commission of a crime listed in this subsection; and

(C) Being an accessory before or after the fact to a crime listed in this subsection.

(c) A felony conviction for an offense listed in subsection (b) of this section is disqualifying for ten (10) years from the date of the conviction.

(d) A Class A or B misdemeanor conviction for an offense listed in subsection (b) of this section is disqualifying for five (5) years from the date of conviction.

(e) Conviction for a felony or Class A offense that does not relate to the occupation for which registration is sought is disqualifying for five (5) years from the date of commission, pursuant to Texas Occupations Code, §53.021(a)(2).

(f) Independently of whether the offense is otherwise described or listed in subsection (b) of this section, a conviction for an offense listed in Texas Code of Criminal Procedure, Article 42.12, §3g or Article 42A.054, or that is a sexually violent offense as defined by Texas Code of Criminal Procedure, Article 62.001, is permanently disqualifying subject to the requirements of Texas Occupations Code, Chapter 53.

(g) Any unlisted offense that is substantially similar in elements to an offense listed in subsection (b) of this section is disqualifying in the same manner as the corresponding listed offense.

(h) A pending Class B misdemeanor charged by information for an offense listed in subsection (b) of this section is grounds for suspension.

(i) Any pending Class A misdemeanor charged by information or pending felony charged by indictment is grounds for suspension.

(j) In determining the fitness to perform the duties and discharge the responsibilities of the regulated occupation of an individual against whom disqualifying charges have been filed or who has been convicted of a disqualifying offense, the department may consider evidence of:

(1) The extent and nature of the individual's past criminal activity;

(2) The age of the individual when the crime was committed;

(3) The amount of time that has elapsed since the individual's last criminal activity;

(4) The conduct and work activity of the individual before and after the criminal activity;

(5) Evidence of the individual's rehabilitation or rehabilitative effort while incarcerated or after release;

(6) The date the individual will no longer be disqualified under the provisions of this section; and

(7) Any other evidence of the individual's fitness, including letters of recommendation from:

(A) Prosecutors or law enforcement and correctional officers who prosecuted, arrested, or had custodial responsibility for the individual; or

(B) The sheriff or chief of police in the community where the individual resides.

(k) In addition to the documentation listed in subsection (j) of this section, the applicant or registrant shall, in conjunction with any request for hearing on a criminal history based denial, suspension or revocation, furnish proof in the form required by the department that the individual has:

(1) Maintained a record of steady employment;

(2) Supported the individual's dependents;

(3) Maintained a record of good conduct; and

(4) Paid all outstanding court costs, supervision fees, fines and restitution ordered in any criminal case in which the individual has been charged or convicted.

(l) The information listed in subsection (j) and subsection (k) of this section must be submitted in conjunction with the request for hearing, following notification of the proposed action and prior to the deadline for submission of the request for hearing.

§12.4.Records.

(a) Records required under the Act or this chapter must be maintained and made available for inspection or copying for a period of two (2) years. Records may be maintained in digital form so long as a hard copy may be produced upon request of department personnel.

(b) In addition to any records otherwise required to be maintained under the Act or this chapter, licensees must specifically retain:

(1) Copies of all application materials submitted to the department or relied on in making any representation or affirmation in conjunction with the application process;

(2) Purchase, sale, and inventory records;

(3) Shipping invoices, log books, records of duty status if applicable, delivery records and manifests reflecting the recipient's acknowledgment and establishing the chain of custody, relating to the transportation of:

(A) Low-THC cannabis and any cannabis sativa plants intended for use in the processing of low-THC cannabis;

(B) Raw materials used in or by-products created by the production or cultivation of low-THC cannabis;

(C) Drug paraphernalia used in the production, cultivation or delivery of low-THC cannabis; or

(D) Waste material resulting from cultivation, processing, or dispensing of low-THC cannabis.

(4) Security records, including building access and visitor logs, video recordings, and transportation trip plans;

(5) The licensee's drug-free workplace policy;

(6) Records on all registered directors, managers, and employees, including a color photograph of the individual, a copy of the registration issued by the department, records reflecting the individual's position, assigned duties, and work schedule, and a copy of the company's drug-free workplace policy signed by the individual. These records must be maintained for two (2) years from the date employment is terminated;

(7) Records of any disposal or destruction of waste materials resulting from cultivating, processing, or dispensing low-THC cannabis;

(8) Records of any local or state regulatory inspections, including state or local fire marshal inspections; and

(9) Records of all tests conducted in compliance with §12.7 of this title (relating to Testing, Production, and Packaging).

§12.7.Testing, Production, and Packaging.

(a) Licensees must comply with all applicable provisions of the Texas Agriculture Code and the Texas Department of Agriculture's administrative rules, Title 4, Part 1.

(b) Representative samples of all processed products must be tested for the levels of tetrahydrocannabinol and cannabidiol, and for residual solvents, pesticides, fungicides, fertilizers, mold, and heavy metals, in accordance with applicable provisions of the Texas Agriculture Code and Texas Department of Agriculture's administrative rules, Title 4, Part 1, and Code of Federal Regulations, Title 16, Part 1107.

(c) Only pesticides of minimum risk exempted under the Federal Insecticide, Fungicide, and Rodenticide Act, 7 USC §136, may be used on cannabis. The pesticide's active ingredients may only be those listed in 40 CFR §152.25(f)(1). The pesticide's inert ingredients may only be those that listed in 40 CFR §152.25(f)(2); commonly consumed food commodities, animal feed items, and edible fats and oils as provided in 40 CFR §180.950(a),(b) and (c); and chemical substances listed in 40 CFR §180.950(e). All pesticide ingredients (both active and inert) must be listed on the pesticide container's label. The active ingredient(s) must be listed by label display name and percentage by weight. Each inert ingredient must be listed by label display name. The product may not bear claims to control or mitigate organisms that pose a threat to human health, or insects or rodents carrying specific diseases. The name of the producer or the company for whom the product was produced and the company's contact information must be displayed prominently on the product label. The label cannot include any false or misleading statements. The label must comply with the Texas Department of Agriculture's administrative rule, 4 TAC §7.11, relating to Label Requirements.

(d) All facilities must be inspected and approved for their use by a local fire code official, or by the state fire marshal or local designee of the state fire marshal, and must meet any required fire, safety, and building code requirements specified in:

(1) National Fire Protection Association (NFPA) standards;

(2) International Building Code (IBC);

(3) International Fire Code (IFC);

(4) Texas Department of Insurance administrative rules, 28 TAC Chapter 34, concerning State Fire Marshal; and

(5) Other applicable standards including following all applicable fire, safety, and building codes in processing and the handling and storage of the solvent or gas.

(e) Licensees must provide certification by a Texas licensed professional engineer that the extraction system to be used to produce low-THC cannabis products was commercially manufactured, safe for its intended use, and built to codes of recognized and generally accepted good engineering practices, such as:

(1) The American Society of Mechanical Engineers (ASME);

(2) American National Standards Institute (ANSI);

(3) Underwriters Laboratories (UL); or

(4) The American Society for Testing and Materials (ASTM).

(f) The extraction process must be continuously staffed during operations by a registered employee trained in the extraction process, the transfer of LP-gas where applicable, and all emergency procedures. All staff training records shall be maintained on-site and made available upon request by the department or local law enforcement or regulatory official.

(g) The installation, operation, repair and maintenance of electrical systems, devices, and components shall conform to the National Electrical Code, NFPA 70 as adopted by the Texas Department of Licensing and Regulation. All electrical components within the extraction room shall be interlocked with the hazardous exhaust system and when provided, the gas detection system. When the hazardous exhaust system is not operational, or the gas detection system is activated, light switches and electrical outlets shall be disabled while leaving lights on that are necessary for evacuation. The electrical systems shall include:

(1) Extraction room lighting;

(2) Extraction room ventilation system;

(3) Solvent gas detection system;

(4) Emergency alarm systems;

(5) Automatic fire extinguishing systems;

(6) Vent failure alarm system; and

(7) Emergency power backup system.

(h) For extraction processes utilizing gaseous hydrocarbon-based solvents, a continuous gas detection system shall be provided. The gas detection threshold shall be no greater than 10% of the LEL/LFL limit of the materials.

(i) Signs shall be posted at the entrance to each production area using or storing carbon dioxide, indicating the hazard. Signs shall be durable and permanent in nature and not less than 7 inches wide by 10 inches tall. Signs shall bear the "skull and crossbones" emblem with the warning "DANGER! POTENTIAL OXYGEN DEFICIENT ATMOSPHERE". NFPA 704 signage shall be provided at the building main entry and the rooms where the carbon dioxide is used and stored. The main entrance to the facility and any door to a room where storage, transfer or use of hazardous materials is conducted shall be appropriately posted with markings in accordance with NFPA 704, Standard System for the Identification of the Hazards of Materials for Emergency Response.

(j) Mechanical ventilation within an extraction or processing facility shall be in accordance with the applicable local ordinances or the appropriate NFPA standard as adopted by the State Fire Marshal's Office if no applicable local ordinance exists, and shall have:

(1) Mechanical ventilation in the room or area of rate of not less than 1 cubic foot per minute per square foot;

(2) Exhaust system intake from a point within 12 inches of the floor; and

(3) Ventilation operating at a negative pressure in relation to the surrounding area.

(k) Any liquid extraction process using flammable and combustible liquids in which the liquid is boiled, distilled, or evaporated must operate in compliance with this section and NFPA 30 as adopted by the State Fire Marshal's Office.

(l) Any processing equipment using a flammable or combustible vapor or liquid must meet the requirements of NFPA 30 and NRPA 70. Such equipment shall be located within a hazardous exhaust fume hood, rated for exhausting flammable vapors. Electrical equipment used within the hazardous exhaust fume hood shall be rated for use in flammable atmospheres. Heating of flammable or combustible liquids over an open flame is prohibited, with the exception that the use of a heating element not rated for flammable atmospheres may be used where documentation from the manufacturer or a nationally recognized testing laboratory indicates it is rated for heating of flammable liquids.

(m) Product extraction processes may use only potable water in compliance with Code of Federal Regulations, Title 40, Part 141.

(n) All regulated premises shall be located at least 1000 feet from any private or public school or day care center that existed prior to the date of initial license application, measured from the closest points on the respective property lines.

(o) All final packaging for patient consumption must be in child-resistant packaging designed or constructed to be significantly difficult for children under five (5) years of age to open and not difficult for normal adults to use properly as defined by the most current version of the Code of Federal Regulations, Title 16, Part 1700 and Title 40, Part 157.2 and American Society for Testing and Materials (ASTM) D3475-15, Standard Classification of Child-Resistant Packages, ASTM International, West Conshohocken, PA, 2015.

(p) All final packaging labels must include:

(1) Physician's name;

(2) Patient's name;

(3) Dispensing organization's name, state license number, telephone number, and mailing address;

(4) Dosage prescribed and means of administration;

(5) Date the dispensing organization packaged the contents;

(6) Batch number, sequential serial number, and bar code when used, to identify the batch associated with manufacturing and processing;

(7) Potency of the low-THC cannabis product contained in the package, including the levels of tetrahydrocannabinol and cannabidiol;

(8) Statement that the product has been tested for contaminants with specific indications of all findings, and the date of testing in accordance with Code of Federal Regulations, Title 16, Part 1107; and

(9) Statement that the product is for medical use only and is intended for the exclusive use of the patient to whom it is prescribed. This statement should be in bold print.

(q) The dispensed product may contain no more than 0.5% by weight of tetrahydrocannabinols and not less than 10% by weight of cannabidiol.

(r) The storage, transfer, and use of LP- Gas shall conform to the regulations of the Texas Railroad Commission, including but not limited to NFPA 58, LP Gas Code (as amended) and the adopted standards of the State Fire Marshal's Office.

(s) The storage, use and handling of liquid carbon dioxide shall be in accordance with Chapter 13 of NFPA 55.

§12.8.Inventory Control System.

(a) A licensed dispensing organization shall use a perpetual inventory control system that identifies and tracks the licensee's stock of low-THC cannabis from the time it is propagated from seed or cutting, to the time it is delivered to either another licensee or patient or legal guardian.

(b) The inventory control system shall be capable of tracking low-THC cannabis from a patient back to the source of the low-THC cannabis in the event of a serious adverse event.

(c) The inventory control system shall be designed to promptly identify a discrepancy and interact with the department's centralized registry system.

(d) Upon receipt of raw material for cultivation, a licensee shall record in the inventory control system:

(1) The date delivered; and

(2) The number of clones or seeds delivered or the weight of the seeds for each variety in the shipment.

(e) For each plant, including any clippings to be used for propagation, a licensee shall:

(1) Create a unique identifier;

(2) Assign a batch number;

(3) Enter appropriate plant identifying information into the inventory control system;

(4) Create an indelible and tamper resistant tag made of temperature and moisture resistance material, with a unique identifier and batch number;

(5) Securely attach the tag to a container in which a plant is grown until a plant is large enough to securely hold a tag;

(f) Upon curing or drying of each batch, a licensee shall weigh the batch and enter the weight into the inventory control system database.

(g) At least monthly, a licensee shall conduct a physical inventory of the stock and compare the physical inventory of stock with inventory control system data.

(h) If a licensee discerns a discrepancy between the inventory of stock and inventory control system data outside of normal weight loss due to moisture loss and handling, a licensee shall begin an audit of the discrepancy.

(i) Within fifteen (15) business days of discovering a discrepancy, the licensee shall:

(1) Complete an audit;

(2) Amend the licensee's standard operating procedures, if necessary; and

(3) Send an audit report to the department.

(j) If a licensee finds evidence of theft or diversion, the licensee shall report the theft or diversion to the department within two (2) days of the discovery of the theft or diversion.

§12.9.Sanitation; Waste Disposal.

(a) Licensees must maintain regulated premises in a clean and sanitary condition, and shall take all reasonable measures to ensure:

(1) Litter and waste are routinely removed and waste disposal systems are routinely inspected in accordance with applicable local, state, or federal law, rule, regulation or ordinance;

(2) Fixtures, floors, walls, ceilings, buildings or other facilities are kept in good repair;

(3) Regulated premises are adequately screened and otherwise protected against the entry of pests;

(4) Refuse disposal is conducted in a manner to minimize the development of odor and the potential for breeding of pests;

(5) Contact surfaces, including utensils and equipment used for the cultivation, drying, trimming, or storage of product, are cleaned and sanitized in a manner to protect against contamination;

(6) Potentially toxic chemicals used within the cultivation facility are identified, stored, and disposed of in a manner to protect against contamination of the product, in compliance with all applicable local, state, or federal laws, rules, regulations or ordinances;

(7) Storage and transportation of product is under conditions that protect against physical, chemical, and microbial contamination;

(8) Safes, vaults, and storage rooms are in good working order, with climate control systems sufficient to prevent spoilage;

(9) Processing site is free of contamination and suitable for the safe and sanitary preparation of the product, including ensuring all equipment, counters and surfaces used for processing are food-grade and nonreactive with any solvent being used, with easily cleanable surface areas constructed in a manner to reduce the potential for development of mold or fungus;

(10) Hand-washing facilities provide effective hand-cleaning and sanitizing materials, with sanitary towel service or hand drying devices, and hot and cold running water;

(11) All persons working in direct contact with product conform to hygienic practices while on duty, including but not limited to:

(A) Maintaining adequate personal cleanliness, including washing hands thoroughly before handling product and as often as necessary to remove soil and contamination and to prevent cross-contamination when changing tasks;

(B) Refraining from direct contact with product if the person has or may have an illness, open lesion, including boils, sores, or infected wounds, or any other abnormal source of microbial contamination, until such condition is corrected;

(C) Keeping fingernails trimmed and filed so that the edges and surfaces are cleanable;

(D) Unless wearing intact gloves in good repair, having no fingernail polish or artificial fingernails on the employee's fingernails;

(E) Wearing clean clothing appropriate to assigned tasks or protective apparel such as coats, aprons, gowns, or gloves to prevent contamination; and

(F) Reporting to the employer's director or manager any health condition experienced by the employee that may adversely affect the safety or quality of product with which the employee may come into contact;

(12) Prohibiting any employee with a health condition that may adversely affect the safety or quality of the product from having direct contact with any product or equipment or materials for processing low-THC cannabis, or from performing any task that reasonably might contaminate or adversely affect any product.

(b) Destruction and disposal of waste materials resulting from the cultivation or processing of low-THC cannabis must be conducted in compliance with applicable state and local laws and regulations, and Code of Federal Regulations, Title 21, Part 1317, Subpart C. Any waste materials containing low-THC cannabis or raw materials used in or by-products created by the production or cultivation of low-THC cannabis must be rendered irretrievable, as defined in Code of Federal Regulations, Title 21, Part 1300. Waste water generated during production and processing must be disposed of in compliance with applicable state and local laws.

(c) Licensees are responsible for determining whether specific waste materials or waste water constitute hazardous waste under applicable federal or state regulations and for ensuring disposal of any such waste complies with applicable disposal regulations.

(d) All waste materials must be stored on the licensee's premises prior to destruction and disposal.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on February 23, 2017.

TRD-201700720

D. Phillip Adkins

General Counsel

Texas Department of Public Safety

Effective date: March 15, 2017

Proposal publication date: January 13, 2017

For further information, please call: (512) 424-5848


SUBCHAPTER B. APPLICATION AND RENEWAL

37 TAC §§12.11, 12.14, 12.15

The Texas Department of Public Safety (the department) adopts amendments to §§12.11, 12.14, and 12.15, concerning Application and Renewal. The department initially published proposed amendments to §§12.11, 12.14, and 12.15 in the October 28, 2016, issue of the Texas Register (41 TexReg 8526). In response to comments received, the department withdrew the October 28th proposal and republished proposed amendments to §§12.11, 12.14, and 12.15 in the January 13, 2017, issue of the Texas Register (42 TexReg 54). This proposal is adopted without changes to the proposed text as published in the January 13, 2017, issue of the Texas Register (42 TexReg 54) and will not be republished.

The amendments to §12.11, concerning Application for License, requires that licensed dispensers of low-THC cannabis obtain commercial liability insurance within certain coverage limits, to ensure licensees can appropriately compensate third parties injured or otherwise harmed by the product or activities of the licensee. The amendments to §12.14, concerning Application and Licensing Fees and Method of Payment, increase application and renewal fees to accurately reflect the costs of administering the program. The amendments to §12.15, concerning Denial of Application for License, amend a cross reference necessitated by the proposed amendments to §12.11, and amend the basis for which the department may deny the application for a license in order to accurately reflect the requirements of Texas Health and Safety Code, §487.104(a)(2).

The department accepted comments on the proposed rules through February 13, 2017. A written comment was submitted by GB Sciences in support of the addition of an initial application fee and the adjustment of the licensing and registration fees downward. Additionally, GB Science welcomes the shift from 24-hour DPS guards to multiple-times a week on-site inspection. As the CUP is implemented, GB Sciences urges a reviewing of the fees and inspection program for additional reductions. Pursuant to the department's agency rule review, the Compassionate-Use rules are scheduled for a review beginning February 1, 2018.

The department has also received numerous items interpreted as requests for information or questions about the meaning of certain items, and not rule comments. These items will be addressed by either direct correspondence or website communications. Additional information pertaining to the Compassionate-Use Program can be found at: http://dps.texas.gov/rsd/CUP/.

The amendments are adopted pursuant to Texas Government Code, §411.004(3), which authorizes the Public Safety Commission to adopt rules considered necessary for carrying out the department's work, and Texas Health and Safety Code, §487.052, which requires the department adopt rules necessary for the administration and enforcement of Texas Health and Safety Code, Chapter 487.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on February 23, 2017.

TRD-201700721

D. Phillip Adkins

General Counsel

Texas Department of Public Safety

Effective date: March 15, 2017

Proposal publication date: January 13, 2017

For further information, please call: (512) 424-5848


SUBCHAPTER C. COMPLIANCE AND ENFORCEMENT

37 TAC §12.21, §12.23

The Texas Department of Public Safety (the department) adopts amendments to §12.21 and §12.23, concerning Compliance and Enforcement. These rules are adopted without changes to the proposed text as published in the October 28, 2016, issue of the Texas Register (41 TexReg 8529) and will not be republished.

The amendments to §12.21, concerning Inspections, are necessary to clarify the authority of certain state and local regulatory agencies to inspect a licensee's premises, and to update a cross reference necessitated by the amendment to another section. The amendments to §12.23, concerning Revocation, are necessary to clarify the process by which a license may be revoked based on a dishonored or reversed payment.

No comments were received regarding the adoption of these rules. Although the department did not receive specific comments regarding provisions in this Subchapter, the department did receive some items interpreted as requests for information or questions about the meaning of certain items, and not rule comments. These items will be addressed by either direct correspondence or website communications. Additional information pertaining to the Compassionate-Use Program can be found at: http://dps.texas.gov/rsd/CUP/.

These amendments are adopted pursuant to Texas Government Code, §411.004(3), which authorizes the Public Safety Commission to adopt rules considered necessary for carrying out the department's work, and Texas Health and Safety Code, §487.052, which requires the department to adopt rules necessary for the administration and enforcement of Texas Health and Safety Code, Chapter 487.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on February 23, 2017.

TRD-201700722

D. Phillip Adkins

General Counsel

Texas Department of Public Safety

Effective date: March 15, 2017

Proposal publication date: October 28, 2016

For further information, please call: (512) 424-5848


SUBCHAPTER D. SECURITY

37 TAC §§12.31 - 12.34

The Texas Department of Public Safety (the department) adopts amendments to §§12.31 - 12.34, concerning Security. These rules are adopted without changes to the proposed text as published in the October 28, 2016, issue of the Texas Register (41 TexReg 8530) and will not be republished.

The amendments to §12.31, concerning Security of Facilities, are necessary to clarify the security requirements relating to access by unauthorized individuals or the general public, to provide specific performance standards for security alarm systems, and to generally clarify the security standards for licensee's facilities. The amendments to §12.32, relating to Security of Vehicles, are necessary to add the requirement of a trip plan reflecting certain required details of the route, product to be transported, and name of responsible registrant. The amendments to §12.33, Response to Security Breach, are necessary to provide an express 24 hour deadline for licensees to notify the department of a security breach. The amendments to §12.34, Reporting of Discrepancy, Loss or Theft, adds "fire on the regulated premises" and "theft or loss of raw materials or by-products" to the events a licensee must report; and adds the requirement to report the circumstances believed to have contributed to the loss, theft, or fire.

The department accepted comment on the proposed rules through November 28, 2016. Written comments were submitted during this period by CannOrganics of Texas; Texas Cannabis; and Fields Ventures. Written comments were also submitted by State Representative Stephanie Klick with an additional 41 state representatives as cosignatories.

Included in the comments received by the department were items interpreted as requests for information or questions about the meaning of certain items, and not rule comments. These items will be addressed by either direct correspondence or website communications. Additional information pertaining to the Compassionate-Use Program can be found at: http://dps.texas.gov/rsd/CUP/

The substantive comments, as well as the department’s responses thereto, are summarized below.

COMMENT: Relating to proposed §12.31, concerning Security of Facilities, CannOrganics of Texas, Texas Cannabis and Representative Klick suggest that the requirement in §12.31(b) that cultivation take place in an enclosed, secured area be modified to allow outdoor cultivation.

RESPONSE: The proposed rule requires the licensee maintain effective controls and procedures in order to prevent unauthorized access, theft, or diversion. The department believes the requirement that cultivation take place in an enclosed, secured area is an effective security control to prevent unauthorized access, theft, or diversion. The department disagrees with the comment and will not be modifying the proposal.

COMMENT: Relating to proposed §12.31, concerning Security of Facilities, Fields Ventures suggested that the limitation on mutual points of access to a facility in §12.31(h) was unnecessary.

RESPONSE: The proposed rule requires the licensee maintain effective controls and procedures in order to prevent unauthorized access, theft, or diversion. The department believes prohibiting mutual points of access to a facility is necessary for the overall security of the facility. The department disagrees with the comment and will not be modifying the proposal.

COMMENT: Relating to proposed §12.32, concerning Security of Vehicles, Fields Ventures suggested that it was unnecessary for a dispensing organization to have a delivery vehicle equipped with a securely attached and locked container as required in §12.32(a).

RESPONSE: The proposed rule requires the licensee maintain effective controls and procedures in order to prevent unauthorized access, theft, or diversion. The department believes a securely attached and locked container within a delivery vehicle is necessary to ensure the security of the licensee's facilities and any transport of products or materials to and from the facility. The department disagrees with the comment and will not be modifying the proposal.

These amendments are adopted pursuant to Texas Government Code, §411.004(3), which authorizes the Public Safety Commission to adopt rules considered necessary for carrying out the department's work, and Texas Health and Safety Code, §487.052, which requires the department adopt rules necessary for the administration and enforcement of Texas Health and Safety Code, Chapter 487.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on February 23, 2017.

TRD-201700723

D. Phillip Adkins

General Counsel

Texas Department of Public Safety

Effective date: March 15, 2017

Proposal publication date: October 28, 2016

For further information, please call: (512) 424-5848


SUBCHAPTER E. COMPASSIONATE-USE REGISTRY

37 TAC §12.41, §12.42

The Texas Department of Public Safety (the department) adopts amendments to §12.41 and §12.42, concerning Compassionate-Use Registry. These rules are adopted without changes to the proposed text as published in the October 28, 2016, issue of the Texas Register (41 TexReg 8533) and will not be republished.

The amendments to §12.41, concerning Access to Compassionate-Use Registry, are intended to clarify the purposes for which dispensing organizations and law enforcement agencies may request access to the Compassionate-Use Registry. The amendments to §12.42, Verification of Patient Registration, are intended to clarify that it is the patient's prescription and not the registration that is to be verified, and to clarify the information to be verified.

The department accepted comment on the proposed rules through November 28, 2016. Written comments were submitted during this period by State Representative Stephanie Klick with an additional 41 state representatives as cosignatories.

Included in the comments received by the department were items interpreted as requests for information or questions about the meaning of certain items, and not rule comments. These items will be addressed by either direct correspondence or website communications. Additional information pertaining to the Compassionate-Use Program can be found at: http://dps.texas.gov/rsd/CUP/

The substantive comments, as well as the department’s responses thereto, are summarized below.

COMMENT: Relating to proposed §12.42, Verification of Patient's Prescription, Representative Klick suggested that it was unnecessary for the dispensing organization to enter into the registry the amount charged for the low-THC cannabis dispensed.

RESPONSE: The proposed rule requires the dispensing organization to enter into the registry various items, including the amount charged for the low-THC cannabis dispensed. The department believes that requiring a dispensing organization to disclose the amount charged for their product will allow the department to monitor the potential for price discrimination in the regulated market and will provide the department with an indication of the degree to which registered patients have reasonable statewide access to low-THC cannabis. The department disagrees with the comment and will not be modifying the proposal.

These amendments are adopted pursuant to Texas Government Code, §411.004(3), which authorizes the Public Safety Commission to adopt rules considered necessary for carrying out the department's work, and Texas Health and Safety Code, §487.052, which requires the department adopt rules necessary for the administration and enforcement of Texas Health and Safety Code, Chapter 487.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on February 23, 2017.

TRD-201700724

D. Phillip Adkins

General Counsel

Texas Department of Public Safety

Effective date: March 15, 2017

Proposal publication date: October 28, 2016

For further information, please call: (512) 424-5848


SUBCHAPTER G. PRODUCTION LIMITS

37 TAC §12.61

The Texas Department of Public Safety (the department) adopts new §12.61, concerning Production Limits. This proposal is adopted with changes to the proposed text as published in the January 13, 2017, issue of the Texas Register (42 TexReg 58) and will be republished. In addition to the changes noted in response to comments received from GB Science and an individual, the department also corrected subsection references contained within subsection (j) and subsection (k).

This section is necessary to establish a statewide production limit to ensure that licensees produce only the amount of product necessary to serve the narrow population of patients living with intractable epilepsy, as defined under Occupations Code, Chapter 169.

The department accepted comments on the proposed rules through February 13, 2017. Written comments were submitted by CannOrganics of Texas; the Epilepsy Foundation of Texas and the Epilepsy Foundation of Central & South Texas; Texas Wellness Investment Group; GB Sciences; and two individuals. Additionally, the department received numerous items interpreted as requests for information or questions about the meaning of certain items, and not rule comments. These items will be addressed by either direct correspondence or website communications. Additional information pertaining to the Compassionate-Use Program can be found at: http://dps.texas.gov/rsd/CUP/

The substantive comments, as well as the department’s responses thereto, are summarized below.

COMMENT: Relating to §12.61(a), an individual suggests limiting the amount of product that is accessible to qualified patients establishes a standard of care and creates a one size fits all dosage to calculate limits.

RESPONSE: The department believes §12.61(a) by its plain language indicates that although §12.61 limits the amount of annual statewide production by licensees to the estimated demand as calculated under the subchapter, the rule shall not be construed as adopting a standard of care for treatment involving the product. The intent of this subchapter reflects legislative intent to serve a narrow population of patients living with intractable epilepsy, as defined under Occupations Code, Chapter 169. The department will not be modifying the proposal.

COMMENT: Relating to §12.61(b)(2), the Epilepsy Foundation of Texas and the Epilepsy Foundation of Central & South Texas and an individual suggest that there is no way to quantify a "baseline" dosage requirement for any patient due to the complexities of patients with intractable epilepsy. GB Sciences suggests that there is no "scientifically accepted" "average dose" of CBD to treat intractable epilepsy.

RESPONSE: The proposed rule is necessary to ensure that licensees produce only the amount of product necessary to serve the narrow population of patients living with intractable epilepsy, as defined under Occupations Code, Chapter 169. Section 12.61(b)(2) provides a mechanism for the Department of State Health Services to report each year on the most current scientifically accepted dosage of product used to treat an average individual living with intractable epilepsy for one (1) year. The department believes the current rule is adequate and appropriate in this regard and will not be modifying the proposal.

COMMENT: Relating to §12.61(d), an individual suggests establishing production limits that will only serve 1/3 of the population is unethical and that estimating dosage establishes a standard of care. Another individual suggests market demand should dictate production capacity for each licensee.

RESPONSE: The production limit in §12.61(d) is necessary to ensure that licensees produce only the amount of product necessary to serve the narrow population of patients living with intractable epilepsy, as defined under Occupations Code, Chapter 169, that are expected to take advantage of this program. If the demand for the product is more than expected, §12.61(a) by its plain language indicates that the department will increase the established production limit if it is necessary to prevent a patient legally prescribed the product under Occupations Code, Chapter 169, from being unable to access his or her full prescription. The department will not be modifying the proposal.

COMMENT: Relating to §12.61(e), several individuals and groups including Texas Wellness Investment Group, CannOrganics and GB Sciences noted that the number of Cannabis sativa plants needed to produce CBD can widely vary based on a number of factors and strict limits should not be imposed. Rather than adopting production limits based on a certain number of plants, several of the comments suggest other types of production limits, including limiting the amount of low-THC cannabis oil produced or limiting the square footage of canopy space at the vegetation stage

RESPONSE: Section 12.61(e) provides the department with flexibility in determining the maximum amount of Cannabis sativa plants needed to produce the amount of product allowed. The department will consider all relevant research and data when determining the maximum amount of plants under §12.61(e). The department believes the current rule is adequate and appropriate in this regard. The department will not be modifying the proposal.

COMMENT: Relating to §12.61(f) and (g), the individual suggests that these two provisions create a government-licensed oligopoly. CannOrganics suggests that §12.61(g) must not be construed to limit flowering and vegetative-state plants as a whole, as the two states of plants are different. CannOrganics suggest a more appropriate distinction would be to determine the amount of flowering Cannabis sativa plants and flowering square footage required, and limit the possession flowering Cannabis sativa plants rather than the total number of plants. GB Sciences suggests that limitations on the number of plants doesn't account for agricultural practices such as the trimming and thinning of plants.

RESPONSE: Section 12.61(e) provides flexibility to the department in determining the maximum amount of Cannabis sativa plants needed to produce the amount of product allowed. The department will consider all relevant research and data when determining the maximum amount of plants under §12.61(e), including research regarding the necessary amount of live Cannabis sativa plants. The department will not be modifying the proposal.

COMMENT: Relating to §12.61(h), GB Sciences suggests that the reporting of a shortage will be an insufficient safeguard for patients.

RESPONSE: The department believes §12.61(a) by its plain language indicates that the department will increase the established production limit if it is necessary to prevent a patient legally prescribed the product under Occupations Code, Chapter 169, from being unable to access his or her full prescription from a licensee. The department will not be modifying the proposal.

COMMENT: Relating to §12.61(i), the individual suggests the word "may" should be changed to "shall" removing the option for DSHS of resending the report in the event of a forecast shortage. Additionally, GB Science notes that Subchapter G consistently refers to DSHS except for §12.61(i) where HHSC is mentioned.

RESPONSE: The department believes §12.61(a) and §12.61(j) indicate the department's intent to increase production limits if necessary to address forecasted demand for product. The department will not be modifying the proposal pursuant to this individual's comment. HHSC was referred to in error in §12.61(i). The rule text has been modified to reflect the revised report will be sent from DSHS.

COMMENT: Relating to §12.61(j), the individual suggests the language be changed to read, "Upon discovery of a potential shortage, the department shall increase the amount allowed under subsection (d) to meet the forecasted demand". The individual argues the department should be required to increase production limits when a potential shortage is identified.

RESPONSE: The department believes §12.61(j) indicates the department's intent to increase production limits if necessary to address forecasted demand for product. However, Section 12.61(k) has been amended to allow the department additional flexibility in addressing an increase in demand for the product.

The new rule is adopted pursuant to Texas Government Code, §411.004(3), which authorizes the Public Safety Commission to adopt rules considered necessary for carrying out the department's work, and Texas Health and Safety Code, §487.052, which requires the department adopt rules necessary for the administration and enforcement of Texas Health and Safety Code, Chapter 487.

§12.61.Production Limits.

(a) This subchapter limits the amount of annual statewide production by licensees to the estimated demand as calculated under this subchapter but shall not be construed as adopting a standard of care for treatment involving the product. The intent of this subchapter reflects legislative intent to serve a narrow population of patients living with intractable epilepsy, as defined under Occupations Code, Chapter 169. The subchapter includes a provision allowing the department to increase the established production limit. This provision shall be executed if ever necessary to prevent the subchapter from ever being the cause of a patient legally prescribed the product under Occupations Code, Chapter 169, from being unable to access his or her full prescription from a licensee.

(b) On the first of every September or in accordance with subsection (i) of this section, the Department of State Health Services shall provide a report to the department with:

(1) a current estimate of people living with intractable epilepsy, as defined by Occupations Code, Chapter 169, in Texas; and

(2) the most current scientifically accepted dosage of product used to treat an average individual living with intractable epilepsy for one (1) year.

(c) Any information reported under subsection (b) of this section:

(1) may be extrapolated from the number of beneficiaries receiving state public assistance treating individuals with intractable epilepsy;

(2) is strictly for the purpose of estimating a limit on production under this chapter; and

(3) shall not be construed as the Department of State Health Services adopting a standard of care for treating intractable epilepsy.

(d) Upon receipt of the report required under subsection (b), the department shall determine the maximum amount of product allowed to be produced statewide, which shall be limited to:

(1) an amount required to treat one third of the population described in subsection (b)(1) of this section with each individual receiving the dosage determined by subsection (b)(2) of this section, if prior to September 1, 2018; or

(2) the amount of product demand from the previous twelve (12) month period grown by a percent equal to the growth over the same previous twelve (12) month period in the population described by subsection (b)(1), if after September 1, 2018.

(e) The department shall determine a maximum amount of cannabis sativa plants needed to produce the amount of product described in subsection (d) and subsection (j) of this section, if applicable.

(f) Except as provided in subsection (j), each licensee shall not annually produce more than an amount of product described by subsection (d) divided by the number of licensees.

(g) In any fiscal year, licensees shall not have more live cannabis sativa plants than an amount authorized by the department in subsection (e) in this section divided by the number of licensees.

(h) Licensees may report a forecasted shortage of product once in any quarter of the fiscal year to the department, which shall forward the report to the Department of State Health Services.

(i) The Department of State Health Services may resend a revised report under subsection (b) at any time upon receipt of reliable information that conflicts with the most recently released report under subsection (b).

(j) The department may increase the amount allowed under subsection (d) upon notice from the Department of State Health Services under subsection (i). An increase under this subsection is limited to meeting the forecasted demand for product in Texas for the remainder of the current twelve (12) month period ending on the last day of August.

(k) After the department makes a determination under subsection (j), each licensee may increase their maximum production allowed under subsection (f) of this section by the amount of the increase divided by the number of licensees or as otherwise determined by the department.

(l) On March 1, 2018, the Department of State Health Services shall release updated population and dosage amounts required under subsection (b) that will determine the maximum amount of product allowed statewide under subsection (d)(1) of this subsection until September 1, 2018.

(m) Subsection (l) expires on September 1, 2018.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on February 23, 2017.

TRD-201700725

D. Phillip Adkins

General Counsel

Texas Department of Public Safety

Effective date: March 15, 2017

Proposal publication date: January 13, 2017

For further information, please call: (512) 424-5848


CHAPTER 15. DRIVER LICENSE RULES

SUBCHAPTER B. APPLICATION REQUIREMENTS--ORIGINAL, RENEWAL, DUPLICATE, IDENTIFICATION CERTIFICATES

37 TAC §15.25

The Texas Department of Public Safety (the department) adopts amendments to §15.25, concerning Address. This rule is adopted without changes to the proposed text as published in the December 30, 2016, issue of the Texas Register (41 TexReg 10527) and will not be republished.

This amendment removes the requirement for a commercial driver license (CDL) holder to provide a mailing address. The 84th Texas Legislature removed this requirement based on changes to Federal Motor Carrier Safety Administration rules.

No comments were received regarding the adoption of this rule.

This amendment is adopted pursuant to Texas Government Code, §411.004(3), which authorizes the Public Safety Commission to adopt rules considered necessary for carrying out the department's work, and Texas Transportation Code, §§521.141, 521.142, and 522.030.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on February 23, 2017.

TRD-201700726

D. Phillip Adkins

General Counsel

Texas Department of Public Safety

Effective date: March 15, 2017

Proposal publication date: December 30, 2016

For further information, please call: (512) 424-5848


SUBCHAPTER C. EXAMINATION REQUIREMENTS

37 TAC §15.55

The Texas Department of Public Safety (the department) adopts amendments to §15.55, concerning Waiver of Knowledge and/or Skills Tests. This rule is adopted without changes to the proposed text as published in the December 30, 2016, issue of the Texas Register (41 TexReg 10528) and will not be republished.

These amendments are intended to clarify a motorcycle course completion certificate will only be valid for 24 months from the date of issuance. The language has been revised and reorganized for easier understanding and clarity.

No comments were received regarding the adoption of this rule.

This amendment is adopted pursuant to Texas Government Code, §411.004(3), which authorizes the Public Safety Commission to adopt rules considered necessary for carrying out the department's work, and Texas Transportation Code, §§521.141, 521.142, and 522.030.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on February 23, 2017.

TRD-201700727

D. Phillip Adkins

General Counsel

Texas Department of Public Safety

Effective date: March 15, 2017

Proposal publication date: December 30, 2016

For further information, please call: (512) 424-5848


37 TAC §15.62

The Texas Department of Public Safety (the department) adopts the repeal of §15.62, concerning Additional Requirements. This repeal is adopted without changes to the proposed text as published in the December 30, 2016, issue of the Texas Register (41 TexReg 10529) and will not be republished.

The repeal of this rule is filed simultaneously with proposed new §15.62 and is necessary to inform the public of changes to the Impact Texas Drivers (ITD) program and the requirements for completion of ITD for issuance of a Texas Driver License.

No comments were received regarding the adoption of this repeal.

This repeal is adopted pursuant to Texas Government Code, §411.004(3), which authorizes the Public Safety Commission to adopt rules considered necessary for carrying out the department's work, and Texas Transportation Code, §§521.142, 521.1601, and 521.165.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on February 23, 2017.

TRD-201700728

D. Phillip Adkins

General Counsel

Texas Department of Public Safety

Effective date: March 15, 2017

Proposal publication date: December 30, 2016

For further information, please call: (512) 424-5848


37 TAC §15.62

The Texas Department of Public Safety (the department) adopts new §15.62, concerning Additional Requirements. This rule is adopted without changes to the proposed text as published in the December 30, 2016, issue of the Texas Register (41 TexReg 10530) and will not be republished.

This rule is necessary to inform the public of changes to the Impact Texas Drivers (ITD) program and the requirements for all applicants to complete an ITD program prior to taking the skills examination for a Texas driver license.

No comments were received regarding the adoption of this rule.

This new rule is adopted pursuant to Texas Government Code, §411.004(3), which authorizes the Public Safety Commission to adopt rules considered necessary for carrying out the department's work, and Texas Transportation Code, §§521.142, 521.1601, and 521.165.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on February 23, 2017.

TRD-201700729

D. Phillip Adkins

General Counsel

Texas Department of Public Safety

Effective date: March 15, 2017

Proposal publication date: December 30, 2016

For further information, please call: (512) 424-5848


CHAPTER 16. COMMERCIAL DRIVER LICENSE

SUBCHAPTER B. APPLICATION REQUIREMENTS AND EXAMINATIONS

37 TAC §16.31

The Texas Department of Public Safety (the department) adopts new §16.31, concerning Third-Party Skills Testing Program. This rule is adopted without changes to the proposed text as published in the December 30, 2016, issue of the Texas Register (41 TexReg 10531) and will not be republished.

The proposed rule is necessary to implement the provisions of Texas Transportation Code, §522.023(d), and to clarify the procedures for conducting commercial driver license skills testing procedures by third party testers.

The department accepted comments on the proposed new rule through January 30, 2017. A written comment was submitted by Texas Trucking Association (TXTA) in support of the rule.

This new rule is adopted pursuant to Texas Government Code, §411.004(3), which authorizes the Public Safety Commission to adopt rules considered necessary for carrying out the department's work, and Texas Transportation Code, §522.023(d).

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on February 23, 2017.

TRD-201700730

D. Phillip Adkins

General Counsel

Texas Department of Public Safety

Effective date: March 15, 2017

Proposal publication date: December 30, 2016

For further information, please call: (512) 424-5848


CHAPTER 35. PRIVATE SECURITY

SUBCHAPTER K. FEES

37 TAC §35.132

The Texas Department of Public Safety (the department) adopts amendments to §35.132, concerning Subscription Fees. This rule is adopted without changes to the proposed text as published in the January 13, 2017, issue of the Texas Register (42 TexReg 59) and will not be republished.

The amendments to §35.132 reduce certain subscription fees imposed on private security registrants under the authority of Texas Government Code §2054.252(g). The reductions arise from an amendment to the vendor contract relating to online licensing services.

No comments were received regarding the adoption of this rule.

This amendment is adopted pursuant to Texas Government Code, §411.004(3), which authorizes the Public Safety Commission to adopt rules considered necessary for carrying out the department’s work, and Texas Occupations Code, §1702.061(b), which authorizes the department to adopt rules to administer Texas Occupations Code, Chapter 1702.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on February 23, 2017.

TRD-201700731

D. Phillip Adkins

General Counsel

Texas Department of Public Safety

Effective date: March 15, 2017

Proposal publication date: January 13, 2017

For further information, please call: (512) 424-5848


PART 11. TEXAS JUVENILE JUSTICE DEPARTMENT

CHAPTER 380. RULES FOR STATE-OPERATED PROGRAMS AND FACILITIES

SUBCHAPTER E. BEHAVIOR MANAGEMENT AND YOUTH DISCIPLINE

DIVISION 1. BEHAVIOR MANAGEMENT

37 TAC §380.9535

The Texas Juvenile Justice Department (TJJD) adopts amendments to §380.9535, concerning the Phoenix Program, without changes to the proposed text as published in the September 9, 2016, issue of the Texas Register (41 TexReg 6965).

JUSTIFICATION FOR CHANGES

The public benefit anticipated as a result of administering the section will be the availability of an up-to-date rule that conforms to current laws and that more accurately reflects TJJD's current operational practices.

SUMMARY OF CHANGES

The amended rule clarifies that youth in the Phoenix Program receive educational instruction each school day in accordance with the master school schedule (rather than a minimum number of hours each day).

The amended rule also removes the word "substantial" from the term "assault causing substantial bodily injury to staff" in order to match the definition in §380.9503.

The amended rule also clarifies that the division responsible for monitoring and inspections conducts an annual comprehensive review of the Phoenix Program files and may also conduct random reviews of program files.

SUMMARY OF PUBLIC COMMENTS

TJJD did not receive any public comments on the proposed rulemaking actions.

STATUTORY AUTHORITY

The amended section is proposed under Texas Human Resources Code §242.003, which authorizes TJJD to adopt rules appropriate to the proper accomplishment of its functions and to adopt rules for governing TJJD schools, facilities, and programs.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on February 23, 2017.

TRD-201700733

Jill Mata

General Counsel

Texas Juvenile Justice Department

Effective date: March 15, 2017

Proposal publication date: September 9, 2016

For further information, please call: (512) 490-7278