Part 1.
RAILROAD COMMISSION OF TEXAS
Chapter 3.
OIL AND GAS DIVISION
16 TAC §3.80
The Commission adopts amendments to §3.80, relating
to Commission Forms, Applications, and Filing Requirements, with one change
to the proposal published in the May 7, 2004, issue of the
Texas Register
(29 TexReg 4375). The amendments add to Table 1, entitled
Railroad Commission Oil and Gas Division Forms, the Security Administrator
Designation (SAD) Form, the Form CF-1 (Commercial Facility Bond Form), and
the revised version of the United States Environmental Protection Agency Form
8700-12 (RCRA Subtitle C Site Identification Form), as well as to correct
the title of Form CF-2 (Commercial Facility Irrevocable Letter of Credit).
The change that is adopted from the proposed version is in the Table, where
an error in the title of Form W-1A is corrected.
Section §3.80 was previously amended effective on April 12, 2004,
to revise language relating to electronic filing in anticipation of changes
and/or new electronic filing opportunities that are developing in association
with the expansion of the Electronic Compliance and Approval Process (ECAP)
and the Commission's Oil and Gas Migration (OGM) Project. The OGM Project
is a major initiative to move the Commission's outdated computer mainframe
technologies to an open systems environment. In addition to improving the
Oil and Gas Division's internal business processes and providing the public
with access to accurate up-to-date information, the OGM Project is providing
the Commission with opportunities to reassess its data reporting requirements
and enhance electronic filing capabilities. The initial step for ECAP, an
electronic commerce system that eliminates paper by capturing, storing, and
transmitting oil or gas well permitting information electronically, converted
the filing, review, and approval of a drilling permit application (Form W-1)
to a completely electronic process. Now that the initial step is completed
and the infrastructure is in place to support the filing, processing, and
storage of drilling permits, ECAP has been incorporated into the Commission's
OGM Project, which eventually will include all compliance permits and performance
reports.
To provide for electronic filing in association with ECAP, several years
ago the Commission developed a required authorization procedure through the
filing and approval of a hard copy Master Electronic Filing Agreement (MEFA)
and a Security Administrator Designation (SAD) Form. Before an operator could
file electronically, both the Commission and operator representatives were
required to sign the MEFA, which established the terms of agreement for electronic
filing. Signing the SAD Form was also a condition of participation in ECAP.
Upon Commission approval of the MEFA, the security administrator is notified
of his or her assigned User ID. The security administrator could then distribute
security by assigning additional User IDs to employees within the company
and designating the forms they are authorized to file electronically through
ECAP.
In the amendments to §3.80 that became effective on April 12, 2004,
the Commission replaced language concerning requirements for electronic filing
under ECAP and language relating to requirements for electronic filing under
the Electronic Data Interchange (EDI) program with broader language to accommodate
changes in the requirements for electronic filing associated with the Commission's
new automated systems, and made the MEFA unnecessary for electronic filing
of oil and gas forms. (The MEFA is still a requirement for other electronic
filings at the Commission.)
In these adopted amendments, the Commission revises the SAD Form to conform
the language to §3.80 and to include the revised form in Table 1 of §3.80(a),
entitled Railroad Commission Oil and Gas Division Forms, which lists all Oil
and Gas Division forms and the date that each was adopted or last revised.
The Commission also revises the instructions for obtaining permission to file
electronically with the Commission. The changes to the SAD Form reflect the
Commission's decision to expand its use to any electronic filing with the
Commission, not just ECAP filing, and to allow third-party filers.
An operator wishing to file electronically with the Commission's Oil and
Gas Division must complete and submit to the Commission a SAD Form. An operator
may designate multiple security administrators. After receiving an operator's
SAD Form, the Commission will issue to each designated security administrator
a User ID that will allow the security administrator to access and update
the Commission's electronic filing security system. The security administrator
will then be responsible for assigning additional User IDs to individuals
within the company and for maintaining that security. The distributed security
design ensures that the control will rest within the operator's organization
through each operator's designated security administrator(s). No MEFA will
be required.
There will be no immediate changes for any operator that already has met
the ECAP filing requirements. The SAD Form the operator previously filed will
remain in effect after the revised SAD Form is adopted; however, there are
12 petroleum consultants/independent contractors or other non-operators who
previously filed a SAD Form with the Commission who would be required to complete
and submit a revised SAD Form once it is adopted if they wish to continue
electronic filing on behalf of operators. In addition, operators who are currently
filing with the Oil and Gas Division electronically and who have never submitted
a SAD Form would be required to do so; however, all electronic filers would
be required to have their software re- certified for any future new technical
requirements that result from movement of programs from the Commission's mainframe
to its new open systems environment. The Commission will provide advance notice
of any future changes in electronic filing requirements.
The Commission also adds to Table 1 Form CF-1, Commercial Facility Bond,
and corrects the title of Form CF-2 to "Commercial Facility Irrevocable Letter
of Credit."
Finally, the Commission adds to Table 1 the revised version of the Form
EPA 8700-12 (RCRA Subtitle C Site Identification Form), which the Environmental
Protection Agency revised effective January 2004, and which is required by §3.98
of this title, relating to Standards for Management of Hazardous Oil and Gas
Waste.
The Commission received one comment from an individual. Commission staff
contacted the individual, who agreed that his concerns were not with the actual
proposed amendments to §3.80, but with an operator's ability to submit
to the Commission required reports and other information in a timely manner.
The individual agreed to submit additional information detailing specific
areas of concern so that the Commission may better focus on possible solutions,
which will be handled in a future rulemaking, if necessary.
The Commission adopts the amendments to §3.80 pursuant to
Texas Natural Resources Code, §§81.051 and 81.052, which give the
Commission jurisdiction over all persons owning or engaged in drilling or
operating oil or gas wells and persons owning or operating pipelines in Texas
and the authority to adopt all necessary rules for governing and regulating
persons and their operations under Commission jurisdiction; and §91.142,
which requires the Commission to obtain specified information from a person,
firm, partnership, joint stock association, corporation, or other domestic
or foreign organization operating wholly or partially in this state and acting
as principal or agent for another for the purpose of performing operations
which are within the jurisdiction of the Commission.
Statutory authority: Texas Natural Resources Code, §§81.051,
81.052, and 91.142.
Cross-reference to statute: Texas Natural Resources Code, §§81.051,
81.052, and 91.142.
Issued in Austin, Texas, on June 22, 2004.
§3.80.Commission Oil and Gas Forms, Applications, and Filing Requirements.
(a)
Forms. Forms required to be filed at the Commission shall
be those prescribed by the Commission as listed in Table 1 of this subsection.
A complete set of all Commission forms listed on Table 1 required to be filed
at the Commission shall be kept by the Commission secretary and posted on
the Commission's web site. Notice of any new or amended forms shall be issued
by the Commission. For any required or discretionary filing, an organization
may either file the prescribed form on paper or use any electronic filing
process in accordance with subsections (e) or (f) of this section, as applicable.
The Commission may at its discretion accept an earlier version of a prescribed
form, provided that it contains all required information and meets the requirements
of subsection (e)(3) of this section.
(b) Definitions. The following words and terms, when used in
this section, shall have the following meanings, unless the context clearly
indicates otherwise.
(1) Commission--The Railroad Commission of Texas.
(2) Electronic filing process--An electronic transmission to
the Commission in a prescribed form and/or format authorized by the Commission
and completed in accordance with Commission instructions.
(3)
Form--A printed or typed paper document or electronic submission,
including any necessary instructions, with blank spaces for insertion of required
or requested specific information.
(4)
Organization--Any person, firm, partnership, joint stock
association, corporation, or other organization, domestic or foreign, operating
wholly or partially within this state, acting as principal or agent for another,
for the purpose of performing operations within the jurisdiction of the Commission.
(5)
Position of ownership or control--A person holds a position
of ownership or control in an organization if the person is:
(A)
an officer or director of the organization;
(B)
a general partner of the organization;
(C)
the owner of an organization which is a sole proprietorship;
(D)
the owner of more than a 25 percent ownership interest
in the organization; or
(E)
the designated trustee of the organization.
(6)
Violation--Non-compliance with a statute, Commission rule,
order, license, permit, or certificate relating to safety or the prevention
or control of pollution.
(c)
Organization eligibility. The Commission may not accept
an organization report or an application for a permit, or approve a certificate
of compliance if:
(1)
the organization that submitted the report, application,
or certificate violated a statute or Commission rule, order, license, certificate,
or permit that relates to safety or the prevention or control of pollution;
or
(2)
any person who holds a position of ownership or control
in the organization has, within the seven years preceding the date on which
the report, application, or certificate is filed, held a position of ownership
or control in another organization, and during that period of ownership or
control the other organization violated a statute or Commission rule, order,
license, permit, or certificate that relates to safety or the prevention or
control of pollution.
(d)
Violations. An organization has committed a violation if
there is either a Commission order against an organization finding that the
organization has committed a violation and all appeals have been exhausted
or an agreed order entered into by the Commission and an organization relating
to an alleged violation, and:
(1)
the conditions that constituted the violation or alleged
violation have not been corrected;
(2)
all administrative, civil and criminal penalties, if any,
relating to the violation or agreed settlement relating to an alleged violation
have not been paid; or
(3)
all reimbursements of costs and expenses, if any, assessed
by the Commission relating to the violation or to the alleged violation have
not been collected.
(e)
Authorization and standards for electronic filing.
(1)
An organization may file electronically any form listed
on Table 1 for which the Commission has provided an electronic version, provided
that the organization pays all required filing fees and complies with all
requirements, including but not limited to security procedures, for electronic
filing.
(2)
The Commission deems an organization that files electronically
or on whose behalf is filed electronically any form, as of the time of filing,
to have knowledge of and to be responsible for the information filed on the
form, pursuant to the statutory requirements, restrictions, and standards
found in and pertaining to:
(A)
Texas Natural Resources Code, Title 3 (oil and gas well
drilling, production, and plugging);
(B)
Texas Natural Resources Code, Title 5 (geothermal resources);
(C)
Texas Natural Resources Code, Title 11 (hazardous liquids
storage);
(D)
Texas Utilities Code, Chapter 121, Subchapter I (sour gas
pipeline facilities);
(E)
Texas Water Code, §26.131 (discharge permits);
(F)
Texas Water Code, Chapter 27 (class II injection and disposal
wells and class III brine mining wells);
(G)
Texas Water Code, Chapter 29 (oil and gas waste haulers);
(H)
Texas Health and Safety Code, §401.415 (oil and gas
naturally occurring radioactive material (NORM) waste); and
(I)
Texas Administrative Code, Title 16, Chapter 3 (Oil and
Gas Division) and Chapter 4 (Environmental Protection).
(3)
All forms that an organization submits or that are submitted
on behalf of an organization shall be transmitted in the manner prescribed
by the Commission that is compatible with its software, equipment, and facilities.
(4)
The Commission may provide notice electronically to an
organization of, and may provide an organization the ability to confirm electronically,
the Commission's receipt of a form submitted electronically by or on behalf
of that organization.
(5)
The Commission deems that the signature of an organization's
authorized representative appears on each form submitted electronically by
or on behalf of the organization, as if this signature actually appears, as
of the time the form is submitted electronically to the Commission.
(6)
The Commission holds each organization responsible, under
the penalties prescribed in Texas Natural Resources Code, §91.143, for
all forms, information, or data that an organization files or that are filed
on its behalf. The Commission charges each organization with the obligation
to review and correct, if necessary, all forms or data that an organization
files or that are filed on its behalf.
(f)
Other electronic transmissions. The Commission may at its
discretion accept other documents or data electronically transmitted.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on June 22, 2004.
TRD-200404144
Mary Ross McDonald
Managing Director
Railroad Commission of Texas
Effective date: July 12, 2004
Proposal publication date: May 7, 2004
For further information, please call: (512) 475-1295
Subchapter B. SPECIAL PROCEDURAL RULES
16 TAC §7.45
The Railroad Commission of Texas adopts amendments to §7.45,
relating to Quality of Service, without changes to the proposal published
in the May 7, 2004, issue of the
Texas Register
(29
TexReg 4377). The adopted amendments add wording in paragraph (5)(C)(i) to
authorize a designee of the Attorney General in the Crime Victims Services
Division of the Office of the Attorney General (CVSD) to certify that a person
is a victim of family violence. Currently, §7.45(5)(C)(i) requires a
gas utility to waive any requirement that an applicant for gas utility service
pay a deposit if the applicant has been determined to be a victim of family
violence, as defined in the Texas Family Code, §71.004, by a family violence
center, by treating medical personnel, or by law enforcement agency personnel.
This determination must be evidenced by the applicant's submission of a certification
letter developed by the Texas Council on Family Violence. The waiver for gas
utility deposits helps victims of family violence to obtain gas utility service
in new and safer surroundings with relative ease. The adopted amendment adds
one more entity--the Attorney General's designee in the CVSD--as authorized
to certify that a person is a victim of family violence, thus allowing a person
being assisted by the CVSD to obtain the certification letter without having
to return to a family violence center, treating medical personnel, or law
enforcement agency personnel for the required signature.
The Commission previously amended §7.45(5)(C)(i), effective November
10, 2003, based on comments by the Texas Council on Family Violence in other
rulemaking proceedings, to require a gas utility to waive any deposit requirement
for residential service for an applicant who has been determined to be a victim
of family violence as defined in Texas Family Code, §71.004, by a family
violence center, by treating medical personnel, or by law enforcement agency
personnel. This determination must be evidenced by the applicant's submission
of a certification letter developed by the Texas Council on Family Violence
and made available on its web site. This provision is similar to the rules
and process for a waiver for electric utility and telephone utility deposits
that are currently adopted by the Public Utility Commission (PUC) and currently
in effect in 16 Tex. Admin. Code §25.478(a)(3)(D), relating to Credit
Requirements and Deposits, for electric service providers, and 16 Tex. Admin.
Code §26.24(a)(1)(B)(iv), also titled Credit Requirements and Deposits,
for telecommunications service providers. The Commission's rule is similar
to the two PUC rules except that the Commission's rule authorizes certification
by law enforcement agency personnel in addition to certification by a family
violence center or by treating medical personnel. This new adopted amendment
extends certification authority to the CVSD.
The Commission received one comment suggesting that the word "adult" be
added before the word "applicant" to ensure that the public is aware that
most gas utilities will not allow service in a minor's name. The Commission
disagrees with the addition of this word because applicants for gas utility
service must comply with the utility's tariff with respect to all other qualifications
for receiving such service; that means the utility may, and should, make its
own determination with respect to whether an applicant is legally of age to
enter into a binding contract. In addition, "adult" is not a defined term
in Chapter 7; it is possible that an emancipated minor could be a legally
responsible person and therefore could be subject to this rule even though
the individual was not technically "an adult." The Commission has not made
a change to the rule language based on this comment.
The Commission adopts the amendment under Texas Utilities Code, §102.001,
which gives the Railroad Commission exclusive original jurisdiction over the
rates and services of a gas utility distributing natural gas or synthetic
natural gas in areas outside a municipality; Texas Utilities Code, §102.151,
which requires gas utilities to file schedules showing all rates for a gas
utility service, product, or commodity offered by the gas utility and each
rule or regulation that relates to or affects a rate of the gas utility or
a gas utility service, product, or commodity furnished by the gas utility;
Texas Utilities Code, §104.001, which vests in the Railroad Commission
all the authority and power of this state to ensure compliance with the obligations
of gas utilities in Texas Utilities Code, Title 3, Subtitle A, and which authorizes
the regulatory authority to adopt rules for determining the classification
of customers and services; Texas Utilities Code, §104.005, which prohibits
a gas utility from directly or indirectly charging, demanding, collecting,
or receiving from a person a greater or lesser compensation for a service
provided or to be provided by the utility than the compensation prescribed
by the applicable schedule of rates filed under Texas Utilities Code, §102.151;
and Texas Utilities Code, §104.251, which requires gas utilities to furnish
service, instrumentalities, and facilities that are safe, adequate, efficient,
and reasonable.
Statutory authority: Texas Utilities Code, §§102.001, 102.151,
104.001, 104.005, and 104.251.
Cross-reference to statute: Texas Utilities Code, Chapters 102 and 104.
Issued in Austin, Texas, on June 22, 2004.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on June 22, 2004.
TRD-200404143
Mary Ross McDonald
Managing Director
Railroad Commission of Texas
Effective date: July 12, 2004
Proposal publication date: May 7, 2004
For further information, please call: (512) 475-1295
Subchapter E. QUARRY AND PIT SAFETY
16 TAC §§11.1001 - 11.1005, 11.1021, 11.1031 - 11.1045, 11.1061 - 11.1065, 11.1081
The Texas Department of Transportation (department) adopts
the repeal of Title 16, Part 1, Chapter 11, Subchapter E, §§11.1001
- 11.1005, 11.1021, 11.1031 - 11.1045, 11.1061 - 11.1065, and 11.1081, concerning
Quarry and Pit Safety. The repeal of Title 16, Part 1, Chapter 11, Subchapter
E, §§11.1001 - 11.1005, 11.1021, 11.1031 - 11.1045, 11.1061 - 11.1065,
and 11.1081 is adopted without changes to the proposal as published in the
April 9, 2004, issue of the
Texas Register
(29
TexReg 3584) and will not be republished.
EXPLANATION OF ADOPTED REPEALS
House Bill 2847, 78th Legislature, Regular Session, 2003, transferred all
powers, duties, functions, and activities performed by the Railroad Commission
of Texas under the Texas Aggregate Quarry and Pit Safety Act, Chapter 133,
Natural Resources Code, to the Texas Department of Transportation.
Due to fundamental differences in structure and operation between the Railroad
Commission and the department, the rules in Title 16 cannot be implemented
by the department in their current form. The department is simultaneously
adopting new Title 43, Chapter 21, Subchapter M, §§21.701 - 21.723,
concerning quarry and pit safety.
COMMENTS
No comments were received on the proposed repeal.
STATUTORY AUTHORITY: The repeal is adopted under Transportation
Code, §201.101, which provides the commission with the authority to establish
rules for the conduct of the work of the department, and more specifically,
Texas Natural Resources Code, §133.011, which provides the commission
with authority to adopt rules regarding the Texas Aggregate Quarry and Pit
Safety Act.
CROSS REFERENCE TO STATUTE: Texas Natural Resources Code, §133.011.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on June 25, 2004.
TRD-200404240
Richard D. Monroe
General Counsel
Texas Department of Transportation
Effective date: July 15, 2004
Proposal publication date: April 9, 2004
For further information, please call: (512) 463-8630
Chapter 64.
TEMPORARY COMMON WORKER EMPLOYERS
16 TAC §64.91
The Texas Department of Licensing and Regulation ("Department")
adopts the repeal of 16 Texas Administrative Code §64.91, regarding the
Temporary Common Worker Employers program as published in the May 14, 2004,
issue of the
Texas Register
(29 TexReg 4637),
without changes and will not be republished.
Section 64.91, relating to sanctions--denial, revocation, or suspension
of a license because of a criminal conviction is no longer necessary because
the Department has issued Criminal Conviction Guidelines pursuant to Texas
Occupations Code, §53.025(a). These guidelines address factors the Department
considers when determining if a criminal conviction causes an applicant to
be an unsuitable candidate for a license, or whether a conviction justifies
the revocation or suspension of a license previously granted.
The Department drafted and distributed the proposed repeal to persons internal
and external to the agency. No comments were received.
The repeal is adopted under Texas Labor Code, Chapter 92 and
Texas Occupations Code, Chapter 51, which authorizes the Department to adopt
rules as necessary to implement the codes and any other law establishing a
program regulated by the Department.
The statutory provisions affected by the adopted repeal are those set forth
in Texas Labor Code, Chapter 92, and Texas Occupations Code, Chapter 51. No
other statutes, articles, or codes are affected by the adopted repeal.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on June 23, 2004.
TRD-200404187
William H. Kuntz, Jr.
Executive Director
Texas Department of Licensing and Regulation
Effective date: July 13, 2004
Proposal publication date: May 14, 2004
For further information, please call: (512) 463-7348
16 TAC §§73.10, 73.51 - 73.53
The Texas Department of Licensing and Regulation ("Department")
adopts amendments to 16 Texas Administrative Code §73.10 and new §§73.51
- 73.53, regarding the electricians program. Sections 73.10, 73.51, and 73.52
are adopted with changes to the proposed text as published in the April 30,
2004, issue of the
Texas Register
(29 TexReg
4049). Section 73.53 is adopted without changes and will not be republished.
The amendments and new sections are needed to clarify the nature of work
individual licensees perform, to define the nature of the supervision required,
and to clarify responsibilities of licensees.
The Department drafted and distributed the proposed amendments and new
sections to persons internal and external to the agency. The rules adopted
by the Department and justified herein have been developed through a lengthy
process beginning with a series of focus group meetings conducted by the department
during the latter part of 2003 and early 2004 to allow all interested persons
an opportunity to discuss with the department their concerns with regulation
of electricians pursuant to House Bill 1487 as passed by the 78th Texas Legislature
in regular session. Although those discussions were not specifically focused
upon rulemaking, the language contained in the rules published for comment
addressed some of the concerns expressed in those meetings. Further, before
the department published the rules for comment, a task group appointed by
the Electrical Safety and Licensing Advisory Board ("Board") developed language
for the advisory board to review, amend as it deemed needed and recommend
to the department for publication in the
Texas Register
. Fifty-nine written comments were received including a request in
one of the comments for a public hearing to allow oral comments concerning
the proposed rules. A public hearing was conducted on June 15, 2004, and ten
commenters made oral presentations. Further, the Board met on June 15, 2004,
and reviewed the comments and recommended to the Texas Commission of Licensing
and Regulation ("Commission") proposed language changes in response to the
comments. Those comments and the commission's response to them are discussed
below.
The first proposed rule addressed in writing by one commenter, and orally
by one commenter is §73.10(6), General Supervision. The writer proposed
deleting the phrase "on behalf of an electrical contractor." The commenter
also proposed deletion of the same phrase in paragraphs (8) - (11) and (13)
- (16). That phrase is used in all the definitions of individual licenses
to make it clear that all of them must perform electrical work or electrical
sign work through an electrical contractor or an electrical sign contractor.
The statute does not address the nature of the relationship between a contractor
and the individual licensees who perform the work. The statute provides that
a person may not perform electrical work unless the person holds an appropriate
license issued or recognized under the statute. Licenses are required for
individuals and for contractors. Thus, all electrical work must be performed
by individuals holding a license, and by a licensed contractor. The phrase
is used to make it clear that individual licensees performing electrical work
must do so through a contractor and that a relationship must exist. The wording
was chosen to impose no limitations on the nature of the relationship. The
oral commenter proposed that the section provide that an engineer may provide
general supervision. To provide that engineers could generally supervise electrical
work would be to establish by rule a category, i.e., not licensed as a master,
of persons who may serve as the required master for contractors. The statute
specifically requires that all contractors either, be licensed as a master
under the statute, or that they hire a master. No change is made.
Section 73.10(7), Direct Supervision. Thirty-three written comments and
one oral comment addressed this section with comments ranging from noting
that the rule is very good as proposed to a recommendation for deletion. Most
of the comments addressed a concern that this section, especially when read
in conjunction with paragraph (11) to be discussed below, requires the continuous
presence of a licensee, other than an apprentice, at every site where electrical
work or electrical sign work is performed. Most of those commenters said that
continuous on-site supervision by a licensee should not be required of persons
performing electrical work on residences. Many of them noted that such a requirement
would have an adverse impact on the home building business in that it would
increase costs and would lead to delays in construction due to the unavailability
of an adequate number of licensees. One commenter stated, "Currently a wireman/journeyman
may supervise multiple crews working in multiple locations that could be located
miles from each other." The commenter included language from the National
Guidelines For Apprenticeship Standards developed by the Independent Electrical
Contractors and approved by the U.S. Department of Labor. Those standards
specifically allow the supervising licensee to leave the job site while an
apprentice remains on site. They also specifically state that the requirement
that an apprentice be supervised at all times does not imply that an apprentice
must always be in sight of the supervising licensee.
Another commenter discussing this section and paragraph (11) noted that
the term, "direct supervision" is not consistent with the definition of apprentice
which requires on-site supervision with no reference to direct supervision.
This definition is changed from "Direct Supervision" to "On-Site Supervision."
The Commission intends to adopt rules as necessary to implement regulation
of electricians pursuant to legislative intent expressed in the statute, making
no unnecessary changes to current industry practice. The language as published
was not intended to require continuous supervision of apprentices since it
is the understanding of the Commission that no such standard has existed in
the industry. The Commission recognizes that some contractors choose to provide
continuous supervision of apprentices, especially in the context of commercial
work. On the other hand, some contractors do not choose to continuously supervise
individuals performing electrical work for them. To impose a requirement that
contractors provide for continuous supervision of apprentices would be an
unnecessary change to industry practice. With no statutory provision nor any
safety issue brought to the Commission's attention that makes such a requirement
necessary, the Commission will not adopt the requirement. The following is
adopted.
(7) On-Site Supervision--Exercise of on-site supervision of electrical
work, or electrical sign work by a licensed individual, other than an electrical
apprentice. Continuous supervision of an electrical apprentice is not required,
though the on-site supervising licensee is responsible for review and inspection
of the electrical apprentice's work to ensure compliance with any applicable
codes or standards.
Section 73.10(8), Electrical Contractor. Two comments were filed by the
same organization concerning this section. One comment proposed to delete
the phrase "licensed as an electrical contractor" and noted that it should
be clarified that the term "person" includes corporations. Chapter 311, Government
Code, which provides construction rules for civil codes, at §311.005(2)
provides that the term "person" includes a corporation. No change is made.
Section 73.10(10), Journeyman Electrician. A comment proposed deleting
the term "general" in this paragraph and in paragraphs (14) - (16). In each
of these definitions describing licensees, other than apprentices and masters,
the term "general supervision" is used to make it clear that on-site supervision
is not required for them although their work, as is all electrical work, is
subject to supervision by the contractor's master. No change is made.
Section 73.10(11) Electrical Apprentice. Thirty-three written comments
were received concerning this rule. Most of them were made as part of the
comments concerning the definition of direct supervision, now on-site supervision.
Those concerns, continuous supervision, were addressed in changes to paragraph
(7).
One commenter suggested that the rule require continuous supervision and
a ratio of one journeyman per four apprentices. The statute does not directly
address the nature of the business relationship between licensees, other than
between the qualifying master and a contractor. Nor does the statute address
the number of persons an individual should be allowed to supervise. Without
guidance from the statute and without any explanations from the commenter
concerning why a ratio was proposed, the Commission finds no basis to adopt
rules requiring ratios.
The Electrical Sign Task Group, organized by the Electrical Safety and
Licensing Advisory Board, proposed changes to this section to address the
fact that the statute does not define electrical sign apprentices. The task
group and one other commenter suggested adding language to recognize that
an apprentice may work under the supervision of a master sign electrician.
The statutory language providing for licensure of apprentices indicates that
an electrical apprentice must be supervised by a master electrician. The proposal,
to by rule, allow an electrical apprentice to also be supervised by a master
sign electrician, would overcome the absence of a statutory reference to electrical
sign apprentices. The Commission however, may not by rule extend the reach
of the statute, and since the language is unambiguous, there is no basis for
clarification by rule. Another commenter noted that the reference to on-site
supervision of apprentices is inconsistent with a definition of direct supervision.
The comment is well taken and has been addressed by changes made to paragraph
(7) of §73.10 in that direct supervision has been changed to on-site
supervision. No other change is made.
Comments concerning Section 73.10(12) - (16) have been noted above.
Section 73.10(17), Electrical Maintenance Work was commented on in writing
by two persons, and by six oral comments. The first noted that maintenance
needed no definition to limit the scope of maintenance work since a master
electrician will provide general supervision just as masters do for all electrical
work. The department has defined "electrical maintenance work" in recognition
of the legislature having included maintenance electrician without defining
the term or their work. If a maintenance electrician were "the same as," a
journeyman in terms of experience and ability there would be no need to recognize
them. The department is charged with the responsibility to define the types
of activities that may be performed by each class of license holder. All the
other classes are defined to perform electrical work or electrical sign work,
including residential wiremen although the statute limits the locations where
they may work. The department does not recommend eliminating the definition
based on the comment received.
The other writer proposed a change to the section being discussed and to
the definition of "employee" apparently for the purpose of expanding the scope
of §1305.003(7) which provides an exemption for manufacturers of electrical
equipment. Electrical equipment is often complicated and specialized to the
extent that persons not having special training--often times such persons
are engineers--are not qualified to install, maintain, or repair the equipment.
The commenter has proposed that the definition of electrical maintenance work
be extended to exempt persons authorized by a manufacturer to inspect, test,
or repair its electrical equipment. Further, four of the six oral comments
on this section addressed the need for specially trained persons to install
service and maintain electrical equipment and that such persons are not electricians
and should not be required to obtain electrician licenses. One of the four
also indicated that testing and calibrating electrical equipment is not electrical
work and that maintenance work should not include those terms. That commenter
also proposed that language be added to allow engineers to perform maintenance
work.
One oral commenter proposed that the rule include in the definition repair
and replacement of conduit and raceways. The other oral commenter urged that
the definition of electrical maintenance work and maintenance electrician
not be expanded to include additional work. The Electrical Safety and Licensing
Advisory Board recommended that the terms, "calibration", "inspection", and
"testing" be deleted from the rule.
The Commission does not find it appropriate to attempt to add defining
terms to a statutory exemption for manufacturing work in the definition of
maintenance work. Aside from a concern, that such an approach may be illogical,
such an amendment would exceed the notice of intent to adopt new rules for
which the proposed rules were published for comment. No language will be added
in response to these comments. On the other hand, the references to testing,
inspection and calibration are not part of electrical work as defined by statute
and they should be removed. Paragraph (17) is adopted as follows:
(17) Electrical Maintenance Work--The replacement or repair of existing
electrical appurtenances, apparatus, equipment, machinery, or controls used
in connection with the use of electrical energy in, on, outside, or attached
to a building, residence, structure, property, or premises. All replacements
or repairs must be of the same rating and type as the existing installation.
No improvements may be made that are necessary to comply with applicable codes
under Texas Occupations Code, Chapter 1305. Electrical maintenance work does
not include the replacement of raceways, conductors, disconnecting means,
or service feeder components. It also does not include the installation of
any new electrical appurtenances, apparatus, equipment, machinery, or controls
beyond the scope of any existing electrical installation. The term does not
include work exempted by Texas Occupations Code, §1305.003.
Section 73.10(18), Electrical Sign Work was commented on twice by the Sign
Task Group and by one other commenter. The first comment proposed adding a
sentence to allow installation of the electrical service for an isolated sign
or an outline lighting installation. The Electrical Safety and Licensing Advisory
Board agreed with this recommendation.
One commenter proposed deleting the reference to manufacture while another
specifically indicated that term should be retained. The reason offered for
deletion of the term is that licenses are required by the Act to perform electrical
work. In contrast, the definition of electrical sign contracting includes
manufacture of an electrical sign. The reason offered for maintaining the
term is, "...the needs of the individual to understand fully the proper methods
and technical skills required to fabricate, assemble, and install safe electrical
signage..." Any assembly containing electrical components presents an added
level of risk to the public. Nonetheless, an individual who paints the metal
structure of a sign in the factory has no greater need of an electrical license
than does an individual who paints a residence. While the legislature has
established a requirement that manufacture of electrical signs in Texas be
performed by an electric sign contractor, it did not require that all work
done to manufacture electric signs must be performed by licensees. The statute
contains in its definition of electrical contracting, terms such as "designing,"
that are not included in the definition of "electrical work." Neither is it
necessary or desirable that the definition of electrical sign work include
all the terms included in the definition of electrical sign contracting. But,
since the term "manufacture" may include assembly of electrical components
the department proposes to leave the term in the rule and express the idea
that electrical sign work requiring a license does not include all elements
of electrical sign manufacture, but only those having to do with the electrical
system. This language is adopted:
(18) Electrical Sign Work--Any labor or material used in manufacturing,
installing, maintaining, extending, connecting or reconnecting an electrical
wiring system and its appurtenances, apparatus or equipment used in connection
with signs, outline lighting, awnings, signals, light emitting diodes, and
the repair of existing outdoor electric discharge lighting. This also includes
the installation of an electrical service integral to an isolated sign and/or
outline lighting installation.
Section 73.51, Electrical Contractor's Responsibilities and §73.52,
Electrical Sign Contractor's Responsibilities are similar rules except for
the types of licensees. The department's responses to the comments are the
same for both rules and the nature of the comments were the same for both
rules. One response will serve for both rules. Two written comments and one
oral comment were received for §73.51(a) and one comment was received
for §73.52(a). The first comment suggested rewording the section to avoid
conflict with §1305.201 of the Act that sets forth the authority of municipalities
to regulate electricians. Both rule sections require contractors licensed
by the state under the Act to display the license number on its vehicles.
It does not apply to persons having only a municipal license. The oral commenter
inquired whether the required signs could be magnetically affixed to vehicles.
The rule does not proscribe any method of attachment; thus, such signs may
be affixed magnetically. No change is made.
One comment was received for §73.51(b) and three comments were received
for §73.52(b). These rules require that all of a contractors non-exempt
electrical or electrical sign work be performed by licensees. The first comment
was that the section is in direct conflict with §1305.003(a)(8) which
establishes an exemption for maintenance work. The rule by its terms does
not include exempt work. No change is proposed. Another comment noted that
electrical apprentices need to work under master sign electricians. The subject
of this comment is addressed in the discussion concerning §73.10(11)
above. The last comment was that the rule should exempt certain manufacturing
facilities and persons. This concern is addressed in proposed changes to §73.10(18).
Thirty-eight written comments and three oral comments were received for §73.51(c)
and seven comments were received regarding §73.52(c). All of the commenters
suggested deleting the language and some asked for clarification of the meaning.
Some commenters felt that the language either prevented or unreasonably limited
the use of subcontractors while others felt subcontracting should be prohibited;
but none liked the rule. The purpose of the rule was to say that a licensed
contractor could arrange its business affairs in a manner other than as employer-employee
with licensees who would perform electrical work or electrical sign work for
them. Since the Act is silent on this issue, no rule to allow what is not
prohibited is necessary and similarly no limitations need be imposed on those
who choose a business arrangement that is not prohibited. If in the future
it appears that abuses in the performance of electrical work or electrical
sign work are occurring the department may propose rules to address the abuses.
The department deletes proposed §73.51(c) and §73.52(c) from the
adoption.
Section 73.53, Individual Licensee Responsibilities. Three comments were
received. The first was to delete the rule. The second was to include a reference
to engineering specifications. Applicable codes require adherence to applicable
engineering specifications. The third was not to include licensee responsibilities
in sections other than §73.70(a), which contains similar requirements.
This comment is well taken but the department cannot amend §73.70(a)
without publication. In the meantime, the provisions of §73.53 are needed.
The two rules can be merged in the future. No change is made.
The amendments and new sections are adopted under Texas Occupations
Code, Chapter 1305 and Chapter 51, which authorizes the Department to adopt
rules as necessary to implement this chapter and any other law establishing
a program regulated by the Department.
The statutory provisions affected by the adoption are those set forth in
Texas Occupations Code, Chapter 1305 and Chapter 51. No other statutes, articles,
or codes are affected by the proposal.
§73.10.Definitions.
The following words and terms, when used in this chapter, have the
following meanings, unless the context clearly indicates otherwise.
(1)
Assumed name--A name used by a business as defined in the
Business and Commerce Code, Title 4, Chapter 36, Subchapter A, §36.02.
(2)
Business affiliation--The business organization to which
a master licensee may assign his or her license.
(3)
Employee--An individual who performs tasks assigned to
him by his employer. The employee is subject to the deduction of social security
and federal income taxes from his pay. An employee may be full time, part
time, or seasonal.
(4)
Employer--One who employs the services of employees, pays
their wages, deducts the required social security and federal income taxes
from the employee's pay, and directs and controls the employee's performance.
(5)
Filed--A document is deemed to have been filed with the
department on the date that the document has been received by the department
or, if the document has been mailed to the department, the date a postmark
is applied to the document by the U.S. Postal Service.
(6)
General Supervision--Exercise of oversight by a master
electrician on behalf of an electrical contractor, or by a master sign electrician
on behalf of an electrical sign contractor of performance by all classes of
electrical licensees of electrical work bearing responsibility for the work's
compliance with applicable codes under Texas Occupations Code, Chapter 1305.
(7)
On-Site Supervision--Exercise of supervision of electrical
work or electrical sign work by a licensed individual other than an electrical
apprentice. Continuous supervision of an electrical apprentice is not required,
though the on-site supervising licensee is responsible for review and inspection
of the electrical apprentice's work to ensure compliance with any applicable
codes or standards.
(8)
Electrical Contractor--A person, licensed as an electrical
contractor, who is in the business of performing "Electrical Contracting"
as defined by Texas Occupations Code, §1305.002(5).
(9)
Master Electrician--An individual, licensed as a master
electrician, who on behalf of an electrical contractor, performs "Electrical
Work" as defined by Texas Occupations Code, §1305.002(11).
(10)
Journeyman Electrician--An individual, licensed as a journeyman
electrician, who works under the general supervision of a master electrician,
on behalf of an electrical contractor, while performing "Electrical Work"
as defined by Texas Occupations Code, §1305.002(11).
(11)
Electrical Apprentice--An individual, licensed as an apprentice
who works under the on-site supervision of a master electrician, a journeyman
electrician, or a residential wireman, on behalf of an electrical contractor
performing "Electrical Work" as defined by Texas Occupations Code, §1305.002(11).
(12)
Electrical Sign Contractor--A person, licensed as an electrical
sign contractor, who is in the business of performing "Electrical Sign Contracting"
as defined by Texas Occupations Code, §1305.002(9).
(13)
Master Sign Electrician--An individual, licensed as a
master sign electrician, who, on behalf of an electrical sign contractor,
performs "Electrical Sign Work" as defined in paragraph (18) of this section.
(14)
Journeyman Sign Electrician--An individual, licensed as
a journeyman sign electrician, who works under the general supervision of
a master sign electrician, on behalf of an electrical sign contractor, while
performing "Electrical Sign Work" as defined in paragraph (18) of this section.
(15)
Residential Wireman--An individual, licensed as a residential
wireman, who works under the general supervision of a master electrician,
on behalf of an electrical contractor, while performing electrical work that
is limited to electrical installations in single family and multifamily dwellings
not exceeding four stories, as defined by Texas Occupations Code, §1305.002(13).
(16)
Maintenance Electrician--An individual, licensed as a
maintenance electrician, who works under the general supervision of a master
electrician, on behalf of an electrical contractor and performs "Electrical
Maintenance Work" as defined in paragraph (17) of this section.
(17)
Electrical Maintenance Work--The replacement, or repair
of existing electrical appurtenances, apparatus, equipment, machinery, or
controls used in connection with the use of electrical energy in, on, outside,
or attached to a building, residence, structure, property, or premises. All
replacements or repairs must be of the same rating and type as the existing
installation. No improvements may be made that are necessary to comply with
applicable codes under Texas Occupations Code, Chapter 1305. Electrical maintenance
work does not include the replacement of any raceways, conductors, disconnecting
means, or service feeder components. It also does not include the installation
of any new electrical appurtenances, apparatus, equipment, machinery, or controls
beyond the scope of any existing electrical installation. The term does not
include work exempted by Texas Occupations Code, §1305.003.
(18)
Electrical Sign Work--Any labor or material used in manufacturing,
installing, maintaining, extending, connecting or reconnecting an electrical
wiring system and its appurtenances, apparatus or equipment used in connection
with signs, outline lighting, awnings, signals, light emitting diodes, and
the repair of existing outdoor electric discharge lighting. This also includes
the installation of an electrical service integral to an isolated sign and/or
outline lighting installation
§73.51.Electrical Contractors' Responsibilities.
(a)
A licensed electrical contractor shall display its name
and license number on both sides of each vehicle owned or operated by the
business and used in the conduct of electrical work. Lettering shall be of
a contrasting color and at least two inches in height. The license number
shall be preceded by the letters "TECL".
(b)
All of a contractor's non-exempt electrical work shall
be performed by licensed individuals. A contractor is responsible for compliance
with applicable codes for all such electrical work it performs.
§73.52.Electrical Sign Contractors' Responsibilities.
(a)
A licensed electrical sign contractor shall display its
name and license number on both sides of each vehicle owned or operated by
the business and used in the conduct of electrical sign work. Lettering shall
be of a contrasting color and at least two inches in height. The license number
shall be preceded by the letters "TSCL".
(b)
All of a contractor's non-exempt electrical sign work shall
be performed by licensed individuals. A contractor is responsible for compliance
with applicable codes for all such electrical sign work it performs.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on June 23, 2004.
TRD-200404185
William H. Kuntz, Jr.
Executive Director
Texas Department of Licensing and Regulation
Effective date: July 13, 2004
Proposal publication date: April 30, 2004
For further information, please call: (512) 463-7348
16 TAC §§79.1, 79.10 - 79.15, 79.17, 79.18, 79.20 - 79.22, 79.32, 79.33, 79.42, 79.51 - 79.54, 79.61, 79.62, 79.80
The Texas Department of Licensing and Regulation ("Department")
adopts amendments to 16 Texas Administrative Code §§79.1, 79.10
- 79.13, 79.15, 79.17, 79.18, 79.20 - 79.22, 79.32, 79.33, 79.42, 79.51 -
79.54, 79.61, and 79.62, and new 16 Texas Administrative Code §79.14
and §79.80, regarding the weather modification program as published in
the May 14, 2004, issue of the
Texas Register
(29
TexReg 4638) without changes and will not be republished.
The adopted amendments give effect to statutory changes made by the 78th
Legislature by removing the word "commissioner" from the rules and updating
statutory references; establish a procedure for issuance of a provisional
license and clarify the documentation that must be included in a permit application;
authorize the issuance of a permit in certain circumstances when a license
application is pending; and clarify that permits may be issued for all or
part of a year or years. The adopted new sections contain all program fees,
and increases the license and license amendment fee from $150 per year to
$650 per year.
The adoption is necessary to update statutory references in existing rules
and to adjust the program fees to a level where the fees cover the costs of
administering the weather modification program.
The Department drafted and distributed the proposed rules to persons internal
and external to the agency. No comments were received.
The amendments and new sections are adopted under Texas Agriculture
Code, Chapter 301 and Chapter 302, and Occupations Code, Chapter 51, which
authorizes the Department to adopt rules as necessary to implement this chapter
and any other law establishing a program regulated by the Department.
The statutory provisions affected by the adoption are those set forth in
Texas Agriculture Code, Chapter 301 and Chapter 302, and Texas Occupations
Code, Chapter 51. No other statutes, articles, or codes are affected by the
adoption.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on June 23, 2004.
TRD-200404186
William H. Kuntz, Jr.
Executive Director
Texas Department of Licensing and Regulation
Effective date: July 13, 2004
Proposal publication date: June 23, 2004
For further information, please call: (512) 463-7348
Chapter 309.
RACETRACK LICENSES AND OPERATIONS
Subchapter B. OPERATIONS OF RACETRACKS
1.
GENERAL PROVISIONS
16 TAC §309.105
The Texas Racing Commission adopts a new rule, §309.105,
relating to the reimbursement of Breeders' Cup Costs. The new rule is adopted
without changes to the proposal published in the April 30, 2004, issue of
the
Texas Register
(29 TexReg 4050) and the
new rule will not be republished.
The new rule sets out the process by which a host racing association for
the Breeders' Cup may receive reimbursement for certain costs authorized by
the Texas Racing Act, §6.094.
The amendment is adopted to foster further development of the horse racing
industry in Texas and provide incentives for job development in the horse
racing industry and economic development in the host racetrack's local community.
No comments were received regarding the adoption of the new rule.
The new rule is adopted under the Texas Civil Statutes, Article
179e, §3.02 which authorizes the Commission to make rules relating exclusively
to horse and greyhound racing; and §6.094 which authorizes the Commission
to make rules to audit or verify Breeders' Cup costs and amounts paid or set
aside by political subdivisions and developmental organizations and for the
disbursement of funds from the Breeders' Cup Developmental Account.
The new rule implements Texas Civil Statutes, Article 179e.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on June 21, 2004.
TRD-200404075
Nicole Galwardi
General Counsel
Texas Racing Commission
Effective date: July 11, 2004
Proposal publication date: April 30, 2004
For further information, please call: (512) 490-4009
4.
OPERATIONS
Chapter 7.
GAS SERVICES DIVISION
Chapter 11.
SURFACE MINING AND RECLAMATION DIVISION
Part 4.
TEXAS DEPARTMENT OF LICENSING AND REGULATION
Chapter 73.
ELECTRICIANS
Chapter 79.
WEATHER MODIFICATION
Part 8.
TEXAS RACING COMMISSION
Subchapter C. HORSE RACETRACKS