TITLE 37. PUBLIC SAFETY AND CORRECTIONS

PART 13. TEXAS COMMISSION ON FIRE PROTECTION

CHAPTER 433. MINIMUM STANDARDS FOR DRIVER/OPERATOR-PUMPER

37 TAC §§433.1, 433.3, 433.5, 433.7

The Texas Commission on Fire Protection (the commission) adopts the repeal of Chapter 433, Minimum Standards For Driver/Operator-Pumper, concerning sections, §433.1, Driver/Operator-Pumper Certification, §433.3, Minimum Standards for Driver/Operator-Pumper Certification, §433.5, Examination Requirements, and §433.7, International Fire Service Accreditation Congress (IFSAC) Seal. The repeal is adopted without changes to the proposed repeal as published in the December 9, 2016, Texas Register (41 TexReg 9696) and will not be republished.

The repeal is adopted to establish new Chapter 433 with Subchapter A for Driver/Operator - Pumper consisting of current rule language and Subchapter B that will identify and define requirements for a Driver/Operator - Aerial Apparatus.

No comments were received from the public regarding adoption of the repeal.

The repeal is adopted under Texas Government Code, Chapter 419, §419.008, which provides the commission the authority to propose rules for the administration of its powers and duties; §419.032 which allows the commission to appoint fire protection personnel.

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 April 28, 2017.

TRD-201701718

Tim Rutland

Executive Director

Texas Commission on Fire Protection

Effective date: May 18, 2017

Proposal publication date: December 9, 2016

For further information, please call: (512) 936-3812


CHAPTER 433. DRIVER/OPERATOR

The Texas Commission on Fire Protection (the commission) adopts new Chapter 433, Driver/Operator, concerning Subchapter A, Minimum Standards for Driver/Operator-Pumper, §433.1, Driver/Operator-Pumper Certification; §433.3, Minimum Standards for Driver/Operator-Pumper Certification; §433.5, Examination Requirements; and §433.7, International Fire Service Accreditation Congress (IFSAC) Seal; and, Subchapter B, Minimum Standards for Driver/Operator-Aerial Apparatus, §433.201, Driver/Operator-Aerial Apparatus Certification; §433.203, Minimum Standards for Driver/Operator-Aerial Apparatus Certification; and, §433.205, Examination Requirements. Sections 433.1, 433.3, 433.5, 433.7, 433.203, and 433.205 are adopted without changes to the proposed text as published in the December 9, 2016, Texas Register (41 TexReg 9696) and will not be republished. Section 433.201 is adopted with changes and will be republished. The change adds section (b) defining the requirements for individuals who already hold a commission Driver/Operator-Pumper certification and want to obtain certification as Driver/Operator-Aerial Apparatus within a certain time frame.

The adoption establishes new rule language identifying and defining requirements for both Driver/Operator-Pumper and Driver/Operator-Aerial Apparatus certification.

No comments were received regarding the adoption of the new chapter.

SUBCHAPTER A. MINIMUM STANDARDS FOR DRIVER/OPERATOR-PUMPER

37 TAC §§433.1, 433.3, 433.5, 433.7

The new rules are adopted under Texas Government Code, Chapter 419, §419.008, which provides the commission the authority to adopt rules for the administration of its powers and duties; §419.032 which allows the commission to appoint fire protection personnel.

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 April 28, 2017.

TRD-201701719

Tim Rutland

Executive Director

Texas Commission on Fire Protection

Effective date: May 18, 2017

Proposal publication date: December 9, 2016

For further information, please call: (512) 936-3812


SUBCHAPTER B. MINIMUM STANDARDS FOR DRIVER/OPERATOR-AERIAL APPARATUS

37 TAC §§433.201, 433.203, 433.205

The new rules are adopted under Texas Government Code, Chapter 419, §419.008, which provides the commission the authority to propose rules for the administration of its powers and duties; §419.032 which allows the commission to appoint fire protection personnel.

§433.201.Driver/Operator-Aerial Apparatus Certification.

(a) A Driver/Operator-Aerial Apparatus is defined as an individual who operates an aerial apparatus safely and in accordance with all state and local laws; safely and correctly maneuvers, positions, stabilizes, and operates an aerial apparatus and device; and effectively deploys and operates an elevated master stream from a water source. Other responsibilities include routine apparatus testing, maintenance, inspections, and servicing functions.

(b) Individuals holding Driver/Operator-Pumper certification are eligible to take the commission examination for Driver Operator-Aerial Apparatus upon documentation to the commission that the individual has completed Driver Operator-Aerial Apparatus training that meets the minimum requirements of the National Fire Protection Association Standard 1002 or provide documentation of proficiency in the operation of an aerial apparatus from a department with an in service aerial apparatus. This section will expire on February 28, 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 April 28, 2017.

TRD-201701720

Tim Rutland

Executive Director

Texas Commission on Fire Protection

Effective date: May 18, 2017

Proposal publication date: December 9, 2016

For further information, please call: (512) 936-3812


PART 15. TEXAS FORENSIC SCIENCE COMMISSION

CHAPTER 651. DNA, CODIS, FORENSIC ANALYSIS, AND CRIME LABORATORIES

SUBCHAPTER A. ACCREDITATION

37 TAC §651.7

The Texas Forensic Science Commission ("Commission") adopts an amendment to 37 TAC §651.7 to add the forensic disciplines 1) "forensic odontology for purposes of human identification and age assessment, not to include bite mark comparison related to patterned injuries", and 2) "testing and/or screening conducted for sexually transmitted diseases" to its list of forensic disciplines exempt from Commission accreditation as adopted at its October 5, 2016 meeting; and 3) to remove the forensic discipline "forensic hypnosis" from the list of forensic disciplines exempt from statutory Commission accreditation as adopted at its February 10, 2017, meeting. The Commission adopts §651.7 with changes to the proposed text as published in the March 17, 2017, issue of the Texas Register (42 TexReg 1240). The amendments are necessary to update the rule language in Title 37, Part 1, Chapter 651, Subchapter A, §651.7 to reflect adoptions made by the Commission.

Summary of Comments. The Commission received two comments to its rule proposal. Attorney Jim Johnson submitted one comment. Mr. Johnson commented that the forensic discipline forensic hypnosis should not be removed from the Commission's list of forensic disciplines exempt from statutory Commission accreditation, because the forensic discipline is vulnerable to "junk science" and should be barred from courtroom usage in Texas.

Response. The Commission is removing the term "forensic hypnosis" from the list of forensic disciplines exempt from the statutory accreditation requirement because forensic hypnosis is not a test performed on "physical evidence" subject to the accreditation requirements of the Commission. The Commission is not making any statement about the validity of forensic hypnosis as a forensic method. The Commission's investigative jurisdiction is limited to investigation of "forensic analyses" as defined in the Texas Code of Criminal Procedure article 38.35. Article 38.35 defines "forensic analysis" as a "medical, chemical, toxicologic, ballistic, or other expert examination or test performed on physical evidence... for the purpose of determining" its connection to a criminal case. Forensic hypnosis is a form of forensic psychology, not an analysis performed on physical evidence and is therefore not subject to the Commission's investigative jurisdiction. Under its accreditation jurisdiction, the Commission may grant exemptions from the accreditation requirement for certain forensic disciplines, but limited to those forensic disciplines that meet the definition of "forensic analysis." Again, forensic hypnosis does not meet the definition of "forensic analysis" in Texas because it is not an analysis performed on physical evidence and is therefore not subject to the Commission's accreditation jurisdiction. The Commission became the accrediting authority in September 2015. Before September 2015, the Texas Department of Public Safety ("DPS") managed the State's crime lab accreditation program. Under its rule-making authority, DPS granted an exemption from the accreditation requirement for forensic hypnosis. However, because forensic hypnosis is neither subject to the Commission's accreditation authority nor its investigative authority (because it does not meet the definition of "forensic analysis") the exemption was unnecessary under the statute and thus had to be stricken from the Commission's administrative rules.

The Commission received the second comment from its Bite Mark Review Team related to the addition of the forensic discipline "forensic odontology for purposes of human identification and age determination, not to include bite mark comparison related to patterned injuries." Members of the Team requested the term "determination" be changed to "assessment" as it is used in practice by forensic odontologists. Because the change is so minor and "assessment" is the term used in practice, the Commission changed "determination" to "assessment" in its adopted version of this rule.

The amendment is adopted in accordance with the Commission's accreditation authority to exempt from the crime laboratory accreditation process a type of analysis, examination or test as described in Tex. Code Crim. Proc. art. 38.01§4-d(c).

Cross reference to statute. The adoption affects 37 TAC §651.7.

§651.7.Disciplines, Subdisciplines, and Procedures Exempt from Statutory Commission Accreditation.

(a) This section describes a discipline, subdiscipline, or procedure that is 'forensic analysis' but is not subject to accreditation by one or more recognized accrediting bodies.

(b) Even though a discipline or subdiscipline is forensic analysis, the Commission has determined that no accreditation is appropriate or available from a recognized accrediting body for the following disciplines, subdisciplines, or procedures and a laboratory may not apply for Commission accreditation for:

(1) sexual assault examination of the person;

(2) forensic anthropology, entomology, or botany;

(3) environmental testing;

(4) facial or traffic accident reconstruction;

(5) serial number restoration;

(6) polygraph examination;

(7) voice stress, voiceprint, or similar voice analysis;

(8) statement analysis;

(9) profiling;

(10) forensic odontology for purposes of human identification or age assessment, not to include bite mark comparison related to patterned injuries;

(11) testing and/or screening conducted for sexually transmitted diseases; or

(12) other discipline or subdiscipline so determined by the Commission, including those identified and listed at the Commission's website.

(c) A request for exemption shall be submitted in writing to the Commission.

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 April 27, 2017.

TRD-201701706

Leigh Savage

Associate General Counsel

Texas Forensic Science Commission

Effective date: May 17, 2017

Proposal publication date: March 17, 2017

For further information, please call: (512) 936-0661