Proposed Sections Before an agency may permanently adopt a new or amended section, or repeal an existing section, a proposal detailing the action must be published in the Texas Register at least 30 days before any action may be taken. The 30-day time period gives interested persons an opportunity to review and make oral or written comments on the section. Also, in the case of substantive sections, a public hearing must be granted if requested by at least 25 persons, a governmental subdivision or agency, or an association having at least 25 members. Symbology in proposed amendments. New language added to an existing section is indicated by the use of bold text. [Brackets] indicate deletion of existing material within a section. TITLE 1. ADMINISTRATION Part XIV. Texas National Research Laboratory Commission Chapter 300. Public Information 1 TAC sec.sec.301.1-301.5 The Texas National Research Laboratory Commission proposes new sec.sec.301. 1- 301.5 concerning the open records policy of the commission, the procedures that will be followed in response to requests for public information, the costs of obtaining such information, and the manner in which the commission will react to inquiries from public officials with respect to public information. The Texas National Research Laboratory Commission proposes these rules to provide the public with a formalized statement of commission open records policies and procedures in order to facilitate interaction between the commission and interested parties. Robert P. Carpenter, director of Fiscal Affairs for the Texas National Research Laboratory Commission, has determined that for the first five-year period these sections are in effect, there will be no fiscal implications for state or local government as a result of enforcing or administering these sections. Mr. Carpenter also has determined that for each of the first five years these sections are in effect, the public benefit anticipated as a result of enforcing the sections will be from providing the public with procedures on how to obtain public information from the Texas National Research Laboratory Commission. There will be no effect on small businesses. There are no anticipated economic costs to persons who are required to comply with the sections as proposed, except for the cost of reproducing documents established by statute. Comments on the proposal may be submitted to Kenneth S. Welch, Associate Director for Administration, Texas National Research Laboratory Commission, 1801 North Hampton, Suite 400, DeSoto, Texas 75115. The new sections are proposed under the Texas Government Code, sec.465.012 which require the Commission to adopt rules necessary to carry out its powers and duties. sec.301.1. Open Records Policy. (a) The agency will provide public records in accordance with the Texas Open Records Act (Texas Civil Statutes, Article 6252-17a). (b) All information collected, assembled, and maintained by and for the agency pursuant to law in connection with the transaction of official business is public information. The portion of all documents, writings, letters, memoranda, or other written, printed, typed, copied, or developed materials which contain public information constitutes public records and must be furnished to the public upon request unless specifically excepted from disclosure by the Texas Open Records Act, or unless otherwise excluded by the Texas Open Records Act, as interpreted by the Attorney General of Texas or the courts of the State of Texas. (c) The executive director of the agency or the executive director's designee will be the custodian of public records. On written application for public information, the custodian will produce the information for inspection or duplication, or both, in agency offices during normal business hours as provided by the Texas Open Records Act. If requested information is in active use or in storage and, therefore, not immediately available, the custodian or the appointed agent will verify this fact in writing to the requester and set a date and hour within a reasonable time when the records can be examined or duplicated. (d) If the requested information is deemed confidential, as specifically excepted from disclosure by law or determination of the Office of the Attorney General of Texas or court of competent jurisdiction, the agency will withhold the information and notify the applicant in writing within 10 calendar days of receiving the request of the basis for withholding the information. If a previous determination has not been made or does not apply regarding the requested information, the agency's general counsel will request a determination by the Office of Attorney General of Texas within 10 calendar days after receiving the request for information. The agency will conditionally withhold the information and notify the applicant in writing within 10 calendar days of receiving the request. If the Attorney General of Texas determines that the information requested is not excepted from disclosure, the custodian or appointed agent will notify the applicant in writing and make the information available for inspection or duplication within reasonable time after receiving the Attorney General's decision. (e) The agency is not required by the Texas Open Records Act to prepare new information or create records in response to a request. sec.301.2. Open Records Act Photocopy Charges. (a) Pursuant to Texas Civil Statutes, Article 6252-17a, 9(a) and (b), the General Services Commission periodically determines the actual cost of standard size (up to 8-1/2 inches by 14 inches) reproductions and publishes these cost figures for use by governmental bodies in determining charges for supplying copies of public information. The agency will consult with the General Services Commission to set charges for nonstandard size pages of records and electronic media. The agency will follow the guidelines of the General Services Commission in setting charges, attempting to match the charges with the actual cost of providing the records, unless otherwise determined by the agency's executive director. (b) Except as provided in rules of the General Services Commission, the agency will not charge for personnel time in making records available for public inspection under Texas Civil Statutes, Article 6252-17a. (c) In establishing charges, the agency may add any postal related expenses which may be necessary to transmit the reproduced documents to the requesting party to the charges established pursuant to this subsection. (d) Except as otherwise provided by applicable law, the agency may not extend credit and, accordingly, may not furnish copies of public records until the requester pays the required charges to the agency. sec.301.3. Open Records Act Procedures. (a) All written requests for public information will be logged in and promptly forwarded to the agency's custodian of records, and any appropriate agency staff person. Unless otherwise directed by the agency's executive director, the agency's custodian of records will collect the requested information and draft a letter to the requester stating that the request is being treated under conditions of the Texas Open Records Act. This letter will also inform the applicant of the amount of reproduction charges, and the option to inspect the requested information in the agency's offices during normal business hours or receive copies of that information, or both. (b) Upon receiving remittance, the agency's custodian of records will promptly send the requested information to the requester and will also include a receipt for the remittance. (c) If the requester is inspecting or receiving the requested information at the agency's offices in person, the custodian of records will coordinate the assembly and presentation of the records with the general counsel and any agency staff person who may have been consulted about the request. sec.301.4. Requests For General Information. (a) Members of the public are invited to call the agency to request general information about agency activities and the Superconducting Super Collider Research Laboratory. (b) The agency's office of public affairs will respond to all requests for general information and agency staff persons will promptly send information packets, brochures, and other materials intended for public distribution. When appropriate to expedite a response, the office of public affairs staff will consult with agency staff persons to prepare the general information intended for public distribution. (c) Because general information requests pertain to distribution of public information intended for public distribution, the agency is not required to follow the conditions and procedures applicable to agency records under the Texas Open Records Act. Because general information packets and brochures are created by the agency expressly for public distribution, no photocopy charges will apply unless the agency's executive director otherwise determines. sec.301.5. Inquiries From Public Officials. (a) All inquiries from public officials for public information will be promptly forwarded to the agency's office of public affairs, where staff will prepare a response for review and approval by the agency's executive director and the agency's general counsel. (b) The office of public affairs staff will conduct the necessary research, consult with appropriate agency staff personnel with knowledge relevant to the inquiry or request, and prepare a draft letter. Once the draft letter is approved by the general counsel and appropriate agency personnel, the office of public affairs staff will print a final version on agency stationery to be reviewed, approved and signed by the agency's executive director. Signature by the executive director is required for all responses to inquiries from public officials unless the executive director otherwise determines. (c) Unless requesting specific agency records, inquiries from public officials will not be subject to the conditions and procedures applicable under the Texas Open Records Act. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Dallas, Texas, on September 23, 1991. TRD-9111833 Edward C. Bingler Executive Director Texas National Research Laboratory Commission Earliest possible date of adoption: November 4, 1991 For further information, please call: (214) 709-3800 TITLE 19. EDUCATION Part II. Texas Education Agency Chapter 33. Investment Program of the Permanent School Fund 19 TAC sec.33.25, sec.33.30 The Texas Education Agency (TEA) proposes amendments to s33.25 and sec.33. 30, concerning the approved list of corporations for security purchases and equity transactions. These amendments are necessary as a result of the repeal of the Texas Education Code, sec.15.02, in recent legislation. Walter Arellano, deputy commissioner for the chief investment office, has determined that for the first five-year period the sections are in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the sections. Mr. Arellano and Criss Cloudt, director for planning coordination, have determined that for each year of the first five years the sections are in effect the public benefit anticipated as a result of enforcing the sections will be the implementation of standards designed to provide safety to the principal of the permanent school fund portfolio. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the sections as proposed. Comments on the proposal may be submitted to Criss Cloudt, Planning Coordination, 1701 North Congress Avenue, Austin, Texas 78701, (512) 463-9701. All requests for a public hearing on the proposed section submitted in accordance with the Administrative Procedure and Texas Register must be received by the commissioner of education not more than 15 calendar days after notice of a proposed change in the section has been published in the Texas Register. The amendments are proposed under the Texas Constitution, Article VII, sec.5(d) , which governs the policies relating to the investments of the permanent school fund. sec.33.25. Approved List of Corporations for Security Purchases. The specific corporations to be included in the list of approved corporations or deleted therefrom shall be recommended by the investment officer, acting with the advice of investment counsel and the investment staff, and approved by the Committee on the Permanent School Fund and submitted to the
    State Board of Education for final approval
      . sec.33.30. Equity Transactions. (a) All equity securities must be purchased from the approved list of corporations for security purchases. (b) Specific equities from the approved list to be purchased or sold, including a recommended price, shall be approved by the Committee on the Permanent School Fund. All transactions shall be made within 10% or better of the recommended price unless otherwise specified by the Committee on the Permanent School Fund. (c) Equities eligible for purchases are restricted to common and preferred stocks of United States corporations and American Depository receipts or common stocks of foreign corporations that are listed on a major United States stock exchange and which have paid dividends for five consecutive years or longer immediately prior to the date of purchase. (d) Not more than 1.0% of the permanent school fund on a book value basis may be invested in stock issued by one corporation nor shall more than 5. 0% of the voting stock of any one corporation be owned. (e)
        [(c)] All consummated transactions shall be reported in writing to the Committee on the Permanent School Fund at the first subsequent meeting of the committee. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on September 19, 1991. TRD-9111888 Criss Cloudt Director, Planning Coordination Earliest possible date of adoption: November 4, 1991 For further information, please call: (512) 463-9701 Chapter 63. Student Services 19 TAC sec.63.22 (Editor's Note: The Texas Education Agency proposes for permanent adoption the new section it adopts on an emergency basis in this issue. The text of the new section is in the Emergency Rules section of this issue.) The Texas Education Agency (TEA) proposes new sec.63.22, concerning attendance services. House Bill 628, 72nd Legislature, amended the Texas Education Code, (the Code) sec.21.039(a)(6), regarding the duties of public school attendance officers. The new section implements the requirements that public school attendance officer must refer to juvenile court any truant pupil who has unexcused voluntary absences for the amount of time specified under the Texas Family Code, sec.51.03(b)(2), or file a complaint against any recalcitrant person having parental control as provided in the Code, sec.4.25. The amendment is being adopted on an emergency basis in a separate submission. Dr. Jay Cummings, deputy commissioner for special programs, has determined that for the first five-year period the section is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the section. Dr. Cummings and Criss Cloudt, director for planning coordination, have determined that for each year of the first five years the section are in effect the public benefit anticipated as a result of enforcing the section will be that students experiencing attendance problems will be provided services that will result in immediate attention. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the section as proposed. Comments on the proposal may be submitted to Criss Cloudt, Planning Coordination, 1701 North Congress Avenue, Austin, Texas 78701, (512) 463-9701. All requests for a public hearing on the proposed section submitted in accordance with the Administrative Procedure and Texas Register Act must be received by the commissioner of education not more than 15 calendar days after notice of a proposed change in the section has been published in the Texas Register. The new section is proposed under the Texas Education Code, sec.21.039(a)(6), as amended by House Bill 628, 72nd Legislature, which provides public school attendance officers with the authority to proceed in juvenile court against any incorrigible pupil, or against any recalcitrant person having parental control as provided in the Code, sec.4.25. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on September 19, 1991. TRD-9111895 Criss Cloudt Director, Planning Coordination Texas Education Agency Earliest possible date of adoption: November 4, 1991 For further information, please call: (512) 463-9701 Chapter 67. Instructional Resources Subchapter A. State Textbook Program Textbook Proclamation 19 TAC sec.67.33 The Texas Education Agency (TEA) proposes an amendment to sec.67.33, concerning state textbook proclamation advisory committees. The proposed amendment implements legislative amendments to the Texas Education Code, sec.12. 04(b), by the 72nd Legislature. The amendment limits the appointment of textbook proclamation advisory committees to the subject areas of reading, language arts, mathematics, science, and social studies. Larry Perry, director of programs for textbooks and curriculum development has determined that for the first five-year period the sections are in effect there will be fiscal implications for state government as a result of enforcing or administering the section. The effect on state government for the first five- year period the section is in effect is an estimated reduction in cost of $25,000 in 1992; $35,000 in 1993; $30,000 in 1994; $35,000 in 1995; and $20,000 in 1996. There will be no fiscal implications for local government. Mr. Perry and Criss Cloudt, director for planning coordination have determined that for each year of the first five years the section is in effect the public benefit anticipated as a result of enforcing the section will be the compliance with new statutory requirements. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the section as proposed. Comments on the proposal may be submitted to Criss Cloudt McCuller, Office of Planning Coordination, 1701 North Congress Avenue, Austin, Texas 78701, (512) 463-9701. All requests for a public hearing on the proposed section submitted in accordance with the Administrative Procedure and Texas Register Act must be received by the commissioner of education not more than 15 calendar days after notice of a proposed change in the section has been published in the Texas Register. The amendment is proposed under the Texas Education Code, sec.12.04(b), which provides the State Board of Education with the authority to establish the indirect cost allotment for vocational education. sec.67.33. State Textbook Proclamation Advisory Committees: Appointments, Qualifications, and Duties. (a) The commissioner of education, annually as a meeting of the State Board of Education, shall recommend one person from each State Board of Education district in this state for appointment to a textbook proclamation advisory committee for each of the
          subject [area] areas of reading, language arts, mathematics, science, and social studies
            for which textbooks are to be adopted. In making these recommendations, the commissioner shall be exempt from the requirements of sec.161.3 of this title (relating to Committees Advisory to the Commissioner of Education) concerning consultation with members of the State Board of Education. The commissioner shall notify each board member of the names and shall furnish biographical information for each person being recommended from that member's state board district 30 days prior to the meeting at which the recommendations are presented to the board for review and approval. (b)-(f) (No change.) This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on September 19, 1991. TRD-9111892 Criss Cloudt Director, Planning Coordination Texas Education Agency Earliest possible date of adoption: November 4, 1991 For further information, please call: (512) 463-9701 Chapter 78. Vocational and Applied Technology Education Subchapter A. General Provisions 19 TAC sec.78.2 The Texas Education Agency (TEA) proposes an amendment to sec.78.2, concerning vocational and applied technology education. Senate Bill 1274, which requires consideration of quality and effectiveness of vocational and applied technology education as a part of the accreditation process, amended the Texas Education Code, sec.21.112(b). In addition, because of the Carl D. Perkins Vocational and Applied Technology Education Act, the local advisory councils must include two parents. The amendment implements this requirement. R. D. Bristow, director of vocational education funding and compliance, has determined that for the first five-year period the section is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the section. Mr. Butler and Criss Cloudt, director for planning coordination, have determined that for each year of the first five years the section is in effect the public benefit anticipated as a result of enforcing the section will be greater involvement of parents of students who are members of special populations in the vocational and applied technology education programs of their children. Quality of vocational programs will be ensured through a more uniform assessment that was possible under sunset review. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the section as proposed. Comments on the proposal may be submitted to Criss Cloudt, Planning Coordination, 1701 North Congress Avenue, Austin, Texas 78701, (512) 463-9701. All requests for a public hearing on the proposed section submitted in accordance with the Administrative Procedure and Texas Register Act must be received by the commissioner of education not more than 15 calendar days after notice of a proposed change in the section has been published in the Texas Register. The amendment is proposed under the Texas Education Code, sec.21.112(b), as amended by Senate Bill 1274, 72nd Legislature, which provides the State Board of Education with the authority to set forth the criteria for approval of vocational programs by school districts. sec.78.2. Local Advisory Councils. (a) (No change.) (b) The local advisory council shall
              [should] be composed of representatives of the general public, business, industry, labor, one member knowledgeable of at-risk students, parents
                [at least one parent] of [a] program participants (including at least one parent of a student who is a member of a special population group)
                  [participant], and at least one representative from each vocational program area offered in the school district (agriculture, health occupations, home economics, marketing education, office, and trade and industrial). The council shall have appropriate representation of both sexes and of the racial and ethnic minorities found in the schools, community, or region which the local advisory council services. (c)-(f) (No change.) This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on September 19, 1991. TRD-9111891 Criss Cloudt Director, Planning Coordination Texas Education Agency Earliest possible date of adoption: November 4, 1991 For further information, please call: (512) 463-9701 19 TAC sec.78.3-sec.78.4 (Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Education Agency or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The Texas Education Agency (TEA) proposes the repeal of ssec.78.3-78.4, concerning vocational and applied technology education. Senate Bill 1274, which requires consideration of quality and effectiveness of vocational and applied technology education as a part of the accreditation process, amended the Texas Education Code, sec.21.112(b). The change in the law eliminates not only the requirement for school review of vocational education programs, but also the statutory base for the five-year sunset review process conducted by the agency. Additionally, because of the Carl D. Perkins Vocational and Applied Technology Education Act, the local advisory councils must include two parents. Section 78. 4 is being proposed as new sec.78.3 in a separate submission. R. D. Bristow, director of vocational education funding and compliance, has determined that for the first five-year period the repeals are in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the repeals. Mr. Butler and Criss Cloudt, director for planning coordination, have determined that for each year of the first five years the repeals are in effect the public benefit anticipated as a result of enforcing the repeals will be greater involvement of parents of students who are members of special populations in the vocational and applied technology education programs of their children. Quality of vocational programs will be ensured through a more uniform assessment than was possible under sunset review. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the repeals as proposed. Comments on the proposal may be submitted to Criss Cloudt, Planning Coordination, 1701 North Congress Avenue, Austin, Texas 78701, (512) 463-9701. All requests for a public hearing on the proposed repeals submitted in accordance with the Administrative Procedure and Texas Register Act must be received by the commissioner of education not more than 15 calendar days after notice of a proposed change in the sections has been published in the Texas Register. The repeals are proposed under the Texas Education Code, s21.112(b), as amended by Senate Bill 1274, 72nd Legislature, which provides the State Board of Education with the authority to set forth the criteria for approval of vocational programs by school districts. sec.78.3. Sunset Review. sec.78.4. Vocational Education for Public School Students by Contract. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on September 19, 1991. TRD-9111889 Criss Cloudt Director, Planning Coordination Texas Education Agency Earliest possible date of adoption: November 4, 1991 For further information, please call: (512) 463-9701 19 TAC sec.78.3 The Texas Education Agency (TEA) proposes new sec.78.3, concerning vocational and applied technology education. Senate Bill 1274, which requires consideration of quality and effectiveness of vocational and applied technology education as a part of the accreditation process, amended the Texas Education Code, sec.21.112(b). The change in the law eliminates not only the requirement for school review of vocational education programs, but also the statutory base for the five-year sunset review process conducted by the agency. The new section implements this legislative mandate. The section is being repealed in a separate submission. R. D. Bristow, director of vocational education funding and compliance, has determined that for the first five-year period the section is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the section. Mr. Butler and Criss Cloudt, director for planning coordination, have determined that for each year of the first five years the section is in effect the public benefit anticipated as a result of enforcing the section will be greater involvement of parents of students who are members of special populations in the vocational and applied technology education programs of their children. Quality of vocational programs will be ensured through a more uniform assessment that was possible under sunset review. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the section as proposed. Comments on the proposal may be submitted to Criss Cloudt, Planning Coordination, 1701 North Congress Avenue, Austin, Texas 78701, (512) 463-9701. All requests for a public hearing on the proposed section submitted in accordance with the Administrative Procedure and Texas Register Act must be received by the commissioner of education not more than 15 calendar days after notice of a proposed change in the section has been published in the Texas Register. The new section is proposed under Texas Education Code, s21.112(b), as amended by Senate Bill 1274, 72nd Legislature, which provides the State Board of Education with the authority to set forth the criteria for approval of vocational programs by school districts. sec.78.3. Vocational Education for Public School Students by Contract. Any school district offering contracted instruction in accordance with Texas Education Code, sec.21.1111 shall ensure that the contracted instruction teachers meet the following requirements. (1) Contracted instruction teachers employed by public school districts, private postsecondary institutions, or trade or technical schools shall meet the certification requirements for public secondary teachers in Chapter 141 of this title (relating to Teacher Certification). (2) Contracted instruction teachers employed in public postsecondary institutions shall meet the initial approval requirements for public secondary vocational teachers as prescribed by the Central Education Agency in sec.141.295 of this title (relating to Vocational Education Emergency Teaching Permits: Requirements and Procedures). This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on September 19, 1991. TRD-9111890 Criss Cloudt Director, Planning Coordination Texas Education Agency Earliest possible date of adoption: November 4, 1991 For further information, please call: (512) 463-9701 Subchapter B. Quality Work Force Planning 19 TAC sec.78.11 (Editor's Note: The Texas Education Agency proposes for permanent adoption the new section it adopts on an emergency basis in this issue. The text of the new section is in the Emergency Rules section of this issue.) The Texas Education Agency (TEA) proposes new sec.78.11, concerning fiscal agents for quality work force planning committees. The new section is proposed to allow private industry councils established under the Job Training Partnership Act (Public Law 97-300) to serve as fiscal agents for Quality Work Force Planning Committees. The 72nd Legislature, enacted the Texas Education Code, sec.16.155(h) authorizing funds for the planning committees established under sec.21.115(b). During the first special session, the legislature in Rider 18, General Appropriations Act-1991, approved funding for the staff and operating expenses of the committees. Since the Texas Education Code, sec.31.40(a) , specifies that only institutions and programs approved by the State Board of Education and the Texas Higher Education Coordinating Board will be eligible for the distribution of funds allocated by the legislature, the new section is necessary to allow private industry councils to participate as fiscal agents in quality work force planning. The new section is being adopted on an emergency basis in a separate submission. Mark Butler, Planner II, has determined that for the first five-year period the section is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the section. Mr. Butler and Criss Cloudt, director for planning coordination, have determined that for each year of the first five years the section is in effect the public benefit anticipated as a result of enforcing the section will be the ability of public independent school districts, education service centers, public institutions of higher education, and private industry councils to participate as equal partners in quality work force planning. Each committee will have the flexibility to propose a fiscal agent appropriate for its region, thus enhancing the efficient utilization of funds. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the section as proposed. Comments on the proposal may be submitted to Criss Cloudt, Planning Coordination, 1701 North Congress Avenue, Austin, Texas 78701, (512) 463-9701. All requests for a public hearing on the proposed section submitted in accordance with the Administrative Procedure and Texas Register Act must be received by the commissioner of education not more than 15 calendar days after notice of a proposed change in the section has been published in the Texas Register. The new section is proposed under the Texas Education Code, sec.31.40(a), which provides the State Board of Education with the authority to allocate state and federal funds. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on September 19, 1991. TRD-9111893 Criss Cloudt Director, Planning Coordination Texas Education Agency Earliest possible date of adoption: November 4, 1991 For further information, please call: (512) 463-9701 Chapter 89. Adaptations for Special Populations Subchapter G. Special Education Clarification of Provisions in Federal Regulations and State Law 19 TAC sec.89.211, sec.89.213 (Editor's Note: The Texas Education Agency proposes for permanent adoption the amended sections it adopts on an emergency basis in this issue. The text of the amended sections is in the Emergency Rules section of this issue.) The Texas Education Agency (TEA) proposes amendments to s89.211 and sec.89. 213, concerning eligibility criteria and qualifications of special education personnel. The amendments implement the requirements of House Bill 2277, sec.1, 72nd Legislature, relating to the education of students with visual handicaps. The legislative action, effective September 1, 1991, adds requirements for assessment and instruction in braille reading and writing, and ensures literacy of "functionally blind" students. The legislation directs the agency to determine the criteria for a student to be classified as functionally blind. The amendments restructure existing eligibility requirements for students with visual handicaps to include the definition and criteria for the new category, and extend the requirement that a professional be certified to teach students with visual handicaps to include infants and those who are deaf-blind. The amendments are being adopted on an emergency basis in a separate submission. Madeline Manigold, assistant commissioner for special programs funding and compliance, has determined that for the first five-year period the sections are in effect there will be fiscal implications for state or local government as a result of enforcing or administering the sections. The effect on state government for the first five-year period the sections will be in effect is $37, 670 in 1991-1992; $75,340 in 1992-1993; $105,476 in 1993-1994; $105,476 in 1994- 1995; and $105,476 in 1995-1996. The additional costs result from the fact that the state will need to provide Braille textbooks to students with visual handicaps identified as functionally blind. It is estimated that up to 28 additional students will need Braille textbooks, with an average cost of $3,767. The effect on local government for the first five-year period will be indeterminable. Some services to affected students may need to be changed, but net cost consequences cannot be determined at this time. Ms. Manigold and Criss Cloudt, director for planning coordination, also has determined that for each year of the first five years the sections are in effect the public benefit anticipated as a result of enforcing the sections will be the fact that students with visual handicaps who can benefit from Braille will receive Braille reading and writing instruction that is sufficient to enable the student to communicate at the same level of proficiency as other students of comparable ability. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the sections as proposed. Comments on the proposal may be submitted to Criss Cloudt, Planning Coordination, 1701 North Congress Avenue, Austin, Texas 78701, (512) 463-9701. All requests for a public hearing on the proposed section submitted in accordance with the Administrative Procedure and Texas Register Act must be received by the commissioner of education not more than 15 calendar days after notice of a proposed change in the section has been published in the Texas Register. The amendments are proposed under the Texas Education Code, sec.11.052(b)(1) and (e)(2), as amended by House Bill 2227, sec.1, 72nd Legislature, which provides the State Board of Education with the authority to develop standards and guidelines for all special education services for the visually handicapped. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on September 19, 1991. TRD-9111897 Criss Cloudt Director, Planning Coordination Texas Education Agency Earliest possible date of adoption: November 4, 1991 For further information, please call: (512) 463-9701 Chapter 129. Student Attendance Subchapter AA. Commissioner's Rules 19 TAC sec.129.1021 The Texas Education Agency (TEA) proposes new sec.129.1021, concerning an optional method of calculating average daily attendance in school districts with significant migrant populations. The new section creates an alternative method for calculating average daily attendance for districts with greater than 5.0% migrant enrollment. In qualifying districts, the district could use four of the six-week periods in lieu of full-year average daily attendance. Julian Shaddix, assistant commissioner for school administration, has determined that for the fist five-year period the proposed section will be in effect there will be fiscal implications as a result of enforcing or administering the section. The effect on state government for the first five-year period the section will be in effect is an estimate additional cost of $16.2 million from 1991-1992; $18.2 million from 1992-1993; $20.8 million from 1993-1994; $23.4 million from 1994-1995; and $24.3 million from 1995-1996. Increases in the cost of the Foundation School Program generally result in higher cost to the state. However, appropriation ceilings are currently estimated to be in effect for 1991-1992 and 1992-1993, meaning no additional state expense will result in those years if current projections are accurate. The effect on local government for the first five-year period the section will be in effect will generally result in higher state aid or county revenue for school districts which qualify for the adjustment. However, in 1991-1992 and 1992-1993, no additional state aid is appropriated. This will generally result in a redistribution of state aid as a result of proration, meaning some districts will likely lose state aid while others gain due to qualification for higher assistance. There will be no effect on small businesses. Mr. Shaddix and Criss Cloudt, director for planning coordination, also have determined that for each year of the first five years the section is in effect the public benefit anticipated as a result of enforcing the section will be additional flexibility for school districts with greater than 5.0% migrant enrollment to use an alternative method of calculating average daily attendance. There is no anticipated economic cost to persons who are required to comply with the section as proposed. Comments on the proposal may be submitted to Criss Cloudt, Planning Coordination, 1701 North Congress Avenue, Austin, Texas 78701, (512) 463-9701. All requests for a public hearing on the proposed section submitted in accordance with the Administrative Procedure and Texas Register Act must be received by the commissioner of education not more than 15 calendar days after notice of a proposed change in the section has been published in the Texas Register. The new section is proposed under the Texas Education Code, sec.16.006(3), which provides the commissioner with the authority to establish policies regarding the determination of average daily attendance for school districts. sec.129.1021. Optional Method of Calculating Average Daily Attendance in Districts With Significant Migrant Population.
                    Beginning in the 1991-1992 school year and each year thereafter, districts in which the total district enrollment contains 5.0% or more students who have certificates of eligibility in the Migrant Students Record Transfer System (MSRTS) shall have the district's annual ADA calculated by using the best four of the six-weeks periods. In no case shall the annual ADA calculated by using the best four of the six-weeks periods exceed the sum of the number of students who have certificates of eligibility plus the ADA calculated by using all six six-week periods. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on September 24, 1991. TRD-9111887 Criss Cloudt Director, Planning Coordination Texas Education Agency Earliest possible date of adoption: November 4, 1991 For further information, please call: (512) 463-9701 Chapter 137. Teacher Education Subchapter J. Program Requirements for Preparation of School Personnel: Standard VIII-Graduate Programs Certification Standards for Special Education Supportive Profession Personnel 19 TAC sec.sec.137.426-137.427 (Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Education Agency or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The Texas Education Agency (TEA) proposes the repeal of ssec.137.426-137.427, concerning certification standards for special education supportive professional personnel. The sections are being repealed and reproposed in a separate submission to allow for the completion of an approved program and national certification in accord with the Standards for the Credentialing of School Psychologists and national certification requirements of the National Association of School Psychologists (NASP) for purposes of state certification and assignment in Texas. This would be in addition to the current provisions for state certification and assignment based on the requirements of the Texas `State Board of Examiners of Psychologists. These provisions would provide school districts with more flexibility for reviewing candidates from Texas institutions, but particularly for the candidates from out-of-state who may already possess national certification. Dr. Richard Swain, assistant commissioner for professional development, has determined that for the first five-year period the repeals are in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the repeals. Dr. Swain and Criss Cloudt, director for planning coordination, also have determined that for each year of the first five years the repeals are in effect the public benefit anticipated as a result of enforcing the repeals will be additional flexibility for school districts in reviewing and selecting candidates from Texas institutions or from out-of-state who may already possess certification as a Nationally Certified School Psychologist. There will be no effect on small businesses. Individuals who have met the standards of the National Association of School Psychologists may realize a cost savings if they do not need to meet the standards of the Texas State Board of Examiners of Psychologists. Comments on the proposal may be submitted to Criss Cloudt, Planning Coordination, 1701 North Congress Avenue, Austin, Texas 78701, (512) 463-9701. All requests for a public hearing on the proposed repeals submitted in accordance with the Administrative Procedure and Texas Register Act must be received by the commissioner of education not more than 15 calendar days after notice of a proposed change in the section has been published in the Texas Register. The new sections are proposed under the Texas Education Code, sec.13.032, which provides the State Board of Education with the authority to establish rules and regulations concerning the issuance of certificates and the standards and procedures for the approval or disapproval of colleges and universities offering programs of teacher education. sec.137.426. School Psychologist (Special Education). sec.137.427. Associate School Psychologist (Special Education). This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on September 19, 1991. TRD-9111900 Criss Cloudt Director, Planning Coordination Texas Education Agency Earliest possible date of adoption: November 4, 1991 For further information, please call: (512) 463-9701 The Texas Education Agency (TEA) proposes new sec.137.426 and sec.137.427, concerning certification standards for special education supportive professional personnel. The sections are being repealed in a separate submission and reproposed as new sections to allow for the completion of an approved program and national certification in accord with the Standards for the Credentialing of School Psychologists and national certification requirements of the National Association of School Psychologists (NASP) for purposes of state certification and assignment in Texas. This would be in addition to the current provisions for state certification and assignment based on the requirements of the Texas State Board of Examiners of Psychologists. These provisions would provide school districts with more flexibility for reviewing candidates from Texas institutions, but particularly for the candidates from out-of-state who may already possess national certification. Dr. Richard Swain, assistant commissioner for professional development, have determined that for the first five-year period the proposed section will be in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the section. Dr. Swain and Criss Cloudt, director for planning coordination, has determined that for each year of the first five years the proposed section will be in effect the public benefit anticipated as a result of enforcing the section will be additional flexibility for school districts in reviewing and selecting candidates from Texas institutions or from out-of-state who may already possess certification as a Nationally Certified School Psychologist. There will no effect on small businesses. Individuals who have met the standards of the national Association of School Psychologists may realize a cost savings if they do not need to meet the standards of the Texas State Board of Examiners of Psychologists. Comments on the proposal may be submitted to Criss Cloudt, Planning Coordination, 1701 North Congress Avenue, Austin, Texas, 78701, (512) 463-9701. All requests for a public hearing on the proposed section submitted in accordance with the Administrative Procedure and Texas Register Act must be received by the commissioner of education not more than 15 calendar days after notice of a proposed change in the section has been published in the Texas Register. The new sections are proposed under the Texas Education Code, sec.13.032, which provides the State Board of Education with the authority to establish rules and regulations concerning the issuance of certificates and the standards and procedures for the approval or disapproval of colleges and universities offering programs of teacher education. sec.137.426. School Psychologist (Special Education). The preparation program for the professional school psychologist certificate shall include institutional recommendation based upon one of the following options: (1) completion of an approved doctoral program in School Psychology and licensure as a psychologist by the Texas State Board of Examiners of Psychologists. The approved program is to include, but not be limited to the following: (A) multicultural studies; (B) evaluation and assessment; (C) public school organization (not required of individuals holding a valid Texas Teacher's certificate); (D) curriculum and instruction (not required of individuals holding a valid Texas Teacher's certificate); (E) an internship of at least 1,500 clock hours, to be completed in 24 months or less, with at least 50% in a school-related setting; (F) psychological knowledge and theory, to include research methodology, statistics and data analysis, psychometric theory and method, human learning, human development, social psychology, human motivation, individual and group differences, abnormal psychology/education, and physiology/neuropsychology; (G) special education; or (2) completion of an approved doctorate in school psychology. The approved program is a minimum of 90 graduate hours after a baccalaureate degree, and certification as a Nationally Certified School Psychologist. The approved program must be include but is not limited to the following: (A) psychological foundations, inclusive of biological bases of behavior, cultural diversity, child and adolescent development (normal and abnormal), human exceptionalities, human learning, and social bases of behavior; (B) educational foundations, inclusive of education of exceptional learners, instructional and remedial techniques, organization and operation of schools; (C) assessment; (D) interventions (direct and indirect) inclusive of consultation, counseling, and behavior management; (E) statistics and research design; and (F) supervised internship of a minimum of 1,200 clock hours in school psychology, at least 600 clock hours of which must be in a school setting. sec.137.427. Associate School Psychologist (Special Education). The preparation program for the professional associate school psychologist certificate shall include institutional recommendation based upon one of the following options: (1) completion of an approved program for the Associate School Psychologist and certification as a psychological associate by the Texas State Board of Examiners of Psychologists. The approved program is a minimum of 42 semester hours, to include, but not be limited to the following: (A) multicultural studies; (B) evaluation and assessment; (C) public school organization (not required of individuals holding a valid Texas Teacher's certificate); (D) curriculum and instruction (not required of individuals holding a valid Texas Teacher's certificate); (E) a practicum or internship of at least 450 clock hours; (F) psychological knowledge and theory, to include research methodology, statistics and data analysis, psychometric theory and methods, human learning, human development, social psychology, human motivation, individual and group differences, abnormal psychology/education, and physiology/neuropsychology; (G) special education; and (H) one year of experience in the schools on a special assignment permit or an intermediate certificate as an associate school psychologist rendering psychological services acceptable to the superintendent; or (2) completion of a graduate program in school psychology of at least 60 graduate semester hours, and certification as a Nationally Certified School Psychologist. The approved program must include but is not limited to the following: (A) psychological foundations inclusive of biological bases of behavior, cultural diversity, child and adolescent development (normal and abnormal), human exceptionalities, human learning, and social bases of behavior; (B) educational foundations, inclusive of education of exceptional learners, instructional and remedial techniques, organization and operation of schools; (C) assessment; (D) interventions (direct and indirect) inclusive of consultation, counseling, and behavior management; (E) statistics and research design; and (F) a supervised internship of a minimum of 1,200 clock hours in school psychology, at least 600 clock hours of which must be in a school setting on a special assignment permit or an intermediate certificate. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on September 19, 1991. TRD-9111899 Criss Cloudt Director, Planning Coordination Texas Education Agency Earliest possible date of adoption: November 4, 1991 For further information, please call: (512) 463-9701 Chapter 141. Teacher Certification Subchapter L. Certification for Special Service Positions 19 TAC sec.141.246 The Texas Education Agency (TEA) proposes an amendment to sec.141.246, concerning requirements for professional special education certificates. The amendment expands the state certification assignment requirements for two special service positions, school psychologist, and associate school psychologist, to allow for more district flexibility through the additional option of completion of an approved program and national certification in accord with the Standards for Credentialing of School Psychologists and certification requirements of the National Association of School Psychologists (NASP). Dr. Richard Swain, assistant commissioner for professional development, has determined that for the first five-year period the section is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the section. Dr. Swain and Criss Cloudt, director for planning coordination, have determined that for each year of the first five years the proposed section is in effect the public benefit anticipated as a result of enforcing the section will be additional flexibility for school districts in reviewing and selecting candidates from Texas institutions or from out-of-state who may already possess certification as nationally certified school psychologists. There will be no effect on small businesses. Persons who have met the standards of the National Association of School Psychologists may realize a cost savings if they do not need to meet the standards of the Texas State Board of Examiners of Psychologists. Comments on the proposal may be submitted to Criss Cloudt, Planning Coordination, 1701 North Congress Avenue, Austin, Texas 78701, (512) 463-9701. All requests for a public hearing on the proposed section submitted in accordance with the Administrative Procedure and Texas Register Act must be received by the commissioner of education not more than 15 calendar days after notice of a proposed change in the section has been published in the Texas Register. The amendment is proposed under the Texas Education Code, sec.13.032, which provides the State Board of Education with the authority to establish rules and regulations concerning the issuance of certificates and the standards and procedures for the approval or disapproval of colleges and universities offering programs of teacher education. sec.141.246. Requirements for Professional Special Education Certificates. (a) Professional school psychologist certificate. An applicant for a professional school psychologist certificate must have: (1) licensure as a psychologist by the Texas
                      State Board of Examiners of Psychologists; and (2) one of the following: (A)-(C) (No change.) (D) one year of experience in the schools rendering psychological services acceptable to the superintendent, and 12 semester hours of course work in education, including three semester hours in each of the following areas: (i)-(iii) (No change.) (iv) multicultural education; or
                        [education.] (3) certification as a nationally certified school psychologist with a doctorate in school psychology; and (A) institutional recommendation as having completed an approved program in accord with sec.137.426 of this title (relating to School Psychologist (Special Education); and (B) one year of experience in the schools rendering psychological services acceptable to the superintendent. This year may have been acquired during the internship which is normally a part of a doctoral degree in school psychology. (b) Intermediate school psychologist certificate. Intermediate certification, valid for one year subject to one year renewal, is available to an applicant who has: (1) institutional certification as having completed an institutional major in school psychology; or (2) (No change.) (3) eligibility to take the examination for licensing as a psychologist given by the Texas State Board of Examiners of Psychologists and one of the following: (A)-(B) (No change.) (C) one year of experience in the schools rendering psychological services acceptable to the superintendent, and 12 semester hours of course work in education, including three semester hours in each of the following areas: (i)-(iii) (No change.) (iv) multicultural education; or
                          [education.] (4) institutional recommendations as having completed an approved program in accord with sec.137.426 of this title (relating to School Psychologist (Special Education)); and (5) enrollment in or completion of a one-year internship in the schools. (c) Professional associate school psychologist certificate. An applicant for a professional associate school psychologist certificate must have: (1) certification
                            [licensure] by the Texas
                              State Board of Examiners of Psychologists as a psychological associate; and (2) one of the following: (A)-(C) (No change.) (D) one year of experience in the schools rendering psychological services acceptable to the superintendent, and 12 semester hours of course work in education, including three semester hours in each of the following areas: (i)-(iii) (No change.) (iv) multicultural education; or
                                [education.] (3) certification as a nationally certified school psychologist with a graduate level degree in school psychology; and (A) institutional recommendation as having completed an approved program in accord with sec.137. 427 of this title (relating to Associate School Psychologist (Special Education)) ; and (B) one year of experience in the schools rendering psychological services acceptable to the superintendent; this year may have been acquired during the internship which is normally a part of a graduate level degree in school psychology. (d) Intermediate associate school psychologist certificate. Intermediate certificate, valid for one year subject to one year renewal, is available for applicants who have: (1)-(2) (No change.) (3) one of the following: (A)-(B) (No change.) (C) one year of experience in the schools rendering psychological services acceptable to the superintendent, and 12 semester hours of course work in education, including three semester hours in each of the following areas: (i)-(iii) (No change.) (iv) multicultural education; or
                                  [education.] (D) current enrollment in an institution of higher education with an approved psychology department program and one year internship in the schools, verified by the superintendent. (e) (No change.) This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on September 19, 1991. TRD-9111902 Lionel R. Meno Commissioner of Education Earliest possible date of adoption: November 4, 1991 For further information, please call: (512) 463-9701 19 TAC sec.141.250 The Texas Education Agency (TEA) proposes new sec.141.250, concerning substitution of management training and experience for certification credit for mid-management administrator and superintendent programs. The new section implements statutory requirements which call for the State Board of Education by rule to provide for substitution of management training for part of the qualification for certification as mid-management administrator. Dr. Richard Swain, assistant commissioner, professional development, has determined that for the first five-year period the section is in effect there will be fiscal implications as a result of enforcing or administering the section. The effect on state government for the first five-year period the section will be in effect will be a savings to the state of six graduate school semester credit hours (based on the credit hour formula of the university and particular program) for each administrator participating in the program who would have attended a state-supported university. To the extent that there is a substitution of alternative local training for the university credit hours, the state would not have to appropriate approximately $700 in general revenue expenditures per participant not attending a state-supported university, thus resulting in this amount saved. The effect on local government for the first five-year period the section will be in effect will require the local school district to fund 76 hours of Instructional Leadership (ITL) and Teacher Appraisal (TTAS) training for each participant. An expected $275 cost for each participant is estimated by multiplying the 11 training days at $25 per day. Local school districts will have to fund the required training for administrators participating in the program before the administrator can appraise teaching staff. School districts using the guarantee program save the cost of private bonds insurance and some interest costs, since Permanent School Fund guaranteed bonds generally trade at a better rate than bonds with private bond insurance. Dr. Swain and Criss Cloudt, director for planning coordination, also have determined that for each year of the first five years the section is in effect the public benefit anticipated as a result of enforcing the sections will be the ability of individuals who have previously completed instructional leadership training and teacher appraisal training to substitute those skills for commensurate portions of educational training requirements in the university programs for the Mid-management Administrator certificate. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the section as proposed. Comments on the proposal may be submitted to Criss Cloudt, Planning Coordination, 1701 North Congress Avenue, Austin, Texas 78701, (512) 463-9701. All requests for a public hearing on the proposed section submitted in accordance with the Administrative Procedure and Texas Register Act must be received by the commissioner of education not more than 15 calendar days after notice of a proposed change in the section has been published in the Texas Register. The new section is proposed under the Texas Education Code, sec.13.353(d), which provides the State Board of Education with the authority to adopt rules to provide for substituting management training or experience for part of the qualifications for certification as a principal or superintendent. sec.141.250. Substitution of Professional Training and Experience for Certification Credit for Mid-Management Administrator Programs. Substitution of instructional leadership training and teacher appraisal training for part of the requirements for the Mid-Management Administrator certificate identified in s141.247 of this title (relating to Requirements for Professional Administrator Certificates) may be allowed for a total of up to six semester hours (90 equivalent clock hours) of substitution credit in the common core of courses. An institution of higher education with an approved program for the preparation of administrators shall lower appropriately and equivalently the semester hours requirement in the certification plan for a candidate based on verification of the substitution credit by a school district or sponsor of training. Substitution(s) must meet the following criteria: (1) the certification candidate must show that the substitute training and/or experience provided the opportunity to demonstrate competencies and/or knowledge identified in the recommending institution's program for the certificate; (2) the amount of credit for which training and/or experience is substituted shall be commensurate with the content and the relative amount of emphasis allocated in the total certificated program for that general competency or common core area to which the substitute training is related; and (3) if the training and/or experience related to acquisition of required competencies, the school district in which the certification candidate served must provide written documentation that describes in detail the training and/or experience received by the certification candidate in the specified areas of competency and verifies that the certification candidate was observed by the supervisor to have demonstrated mastery of the specified competency. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on September 19, 1991. TRD-9111903 Criss Cloudt Director, Planning Coordination Texas Education Agency Earliest possible date of adoption: November 4, 1991 For further information, please call: (512) 463-9701 Subchapter N. Emergency Teaching Permits, Special Assignment Permits, and Temporary Classroom Assignment Permits 19 TAC sec.141.292, sec.141.293 The Texas Education Agency (TEA) proposes amendments to s141.292 and sec.141.293, concerning general provisions and certification of teachers in general. The proposed amendment to sec.141.292 would exempt an individual from any increased fee or other penalty for failure to renew a permit in a timely manner, if the individual establishes to the satisfaction of the commissioner of education that the individual failed to renew the permit because of active duty in the United States armed forces in support of foreign military activity. The proposed amendment to sec.141.293 rescinds all references to the citizenship requirement, because the 72nd Legislature repealed the Texas Education Code, sec.13.044, which provided the statutory authority for rules requiring United States citizenship for teacher certification. George Dugger, director of programs for the division of teacher records, has determined that for the first five-year period the sections are in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the sections. Mr. Dugger and Criss Cloudt, director of planning coordination, have determined that for each year of the first five years the sections are in effect the public benefit anticipated as a result of enforcing the sections will be the ability of an individual to be exempt from any increased fee or other penalty for failure to renew a permit in a timely manner, if the individual establishes to the satisfaction of the commissioner of education that the individual establishes to the satisfaction of the commissioner of education that the individual failed to renew the permit because of active duty in the United States armed forces in support of foreign military activity. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the sections as proposed. Comments on the proposal may be submitted to Criss Cloudt, Planning Coordination, 1701 North Congress Avenue, Austin, Texas 78701, (512) 463-9701. All requests for a public hearing on the proposed section submitted in accordance with the Administrative Procedure and Texas Register Act must be received by the commissioner of education not more than 15 calendar days after notice of a proposed change in the section has been published in the Texas Register. The amendments are proposed under the Texas Education Code, sec.13.032(d)(3), which provides the State Board of Education with the authority to establish the requirements for issuance of an initial teaching certificate or renewal of an existing certificate. sec.141.292. General Provisions. (a)-(h) (No change.) (i) The commissioner of education shall grant an extension, not to exceed one school year, to an individual unable to complete requirements for renewal or conversion of any permit authorized under provisions of this section because of active duty in the United States armed forces serving in support of military activity outside the State of Texas. (1) An individual requesting an extension under the provisions of this subsection must present written documentation of active duty in the United States armed forces serving in support of military activity outside the State of Texas during validity of the permit for which the extension is requested. (2) The extension request must be supported in writing by the individual's employing school district. sec.141.293. General Requirements of an Individual for Whom a Permit is Activated. [(a)] The individual for whom a permit is activated must: (1) hold a bachelor's degree from an accredited institution of higher learning; or, for permits authorized on a hardship basis, a minimum of 90 semester hours from an accredited institution of higher learning in lieu of a degree; or for some vocational permits, specified work experience in lieu of a degree (specific requirements for vocational permits sec.141.295 of this title (relating to Vocational Education Emergency Teaching Permits: Requirements and Procedures)); [(2) be a citizen of the United States or be in process of becoming a naturalized citizen as evidence by filing a declaration of intention;] (2)
                                    [(3)] be at least 18 years of age; (3)
                                      [(3)] be of good moral character; and (4)
                                        [(5)] be able to speak and understand the English language sufficiently to use it easily and readily in conversation and teaching. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on September 19, 1991. TRD-9111904 Criss Cloudt Director, Planning Coordination Texas Education Agency Earliest possible date of adoption: November 4, 1991 For further information, please call: (512) 463-9701 Chapter 143. Assignment of Personnel Subchapter B. Assignment Requirements 19 TAC sec.143.11 The Texas Education Agency (TEA) proposes an amendment to sec.143.11, concerning requirements for assignment of school personnel. The amendment expands the state certification assignment requirements for two special service positions, school psychologist and associate school psychologist, to allow for more district flexibility through the additional option of completion of an approved program and national certification in accord with the Standards for Credentialing of School Psychologists and certification requirements of the National Association of School Psychologists (NASP). The amendment is to material which is adopted by reference in this section. Dr. Richard Swain, assistant commissioner for professional development, has determined that for the first five-year period the section is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the section. Dr. Swain and Criss Cloudt, director for planning coordination, also has determined that for each year of the first five years the section is in effect the public benefit anticipated as a result of enforcing the section will be additional flexibility for school districts in reviewing and selecting candidates from Texas institutions or from out-of-state who may already possess certification as nationally certified school psychologists. There will be no effect on small businesses. Persons who have met the standards of the national Association of School Psychologists may realize a cost savings if they do not need to meet the standards of the Texas State Board of Examiners of Psychologists. Comments on the proposal may be submitted to Criss Cloudt, Planning Coordination, 1701 North Congress Avenue, Austin, Texas 78701, (512) 463-9701. All requests for a public hearing on the proposed section submitted in accordance with the Administrative Procedure and Texas Register Act must be received by the commissioner of education not more than 15 calendar days after notice of a proposed change in the section has been published in the Texas Register . The amendment is proposed under the Texas Education Code, sec.13.032, which provides the State Board of Education with the authority to establish rules and regulations concerning the issuance of certificates and the standards and procedures for the approval of disapproval of colleges and universities offering programs of teacher education. sec.143.11. Requirements for Assignment of School Personnel. (a)-(d) (No change.) This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on September 19, 1991. TRD-9111901 Criss Cloudt Director, Planning Coordination Earliest possible date of adoption: November 4, 1991 For further information, please call: (512) 463-9701 TITLE 25. HEALTH SERVICES Part I. Texas Department of Health Chapter 325. Solid Waste Management Subchapter A. General Information The Texas Department of Health (department) proposes amendments to sec.325. 5, sec.sec.325.801-325.802, sec.sec.325.811-325.818, and sec.325.831; the repeal of sec.sec.325.803, 325.832-325.838, 325.851-325.855, 325.871, and 325.919-325.924; and new sec. s325.805-325.809, 325.821-325.828, 325.832-325.840, 325.841- 325.848, 325.851-325.856, 325.861-325.867, 325.871-325.878, and 325.881, concerning management of used and scrap tires. The proposed amendments cover general information on solid waste management; general requirements for the management of used and scrap tires; transporters of used and scrap tires; and storage of used and scrap tires. The sections proposed for repeal cover existing general requirements for the management of used and scrap tires; storage of used and scrap tires; the processing and disposal of used and scrap tires; special conditions for beneficial use of used and scrap tires; and forms and documents. The new sections cover generators of used and scrap tires; mobile processors of used and scrap tires; storage of used and scrap tires; processors of used and scrap tires; disposal of used and scrap tires; the priority enforcement list; the waste tire recycling program; and special conditions for beneficial use of used and scrap tires. The amendments, repeals, and new sections implement the requirements of House Bill 847 and Senate Bill 1340, 72nd Texas Legislature, 1991, which amended the Solid Waste Disposal Act, Health and Safety Code, Chapter 361. The bills require that the department have rules in effect no later than January 1, 1992, establishing a waste tire recycling program. The program's purpose is to establish a priority enforcement list of unauthorized scrap tire storage/disposal sites; and place into operation a waste tire recycling program that will provide incentives to waste tire processors who accept tires from priority enforcement list sites, shred them (along with scrap tires from other sources), and provide for the eventual recycling or energy recovery from the resulting scrap tire derived recyclable material. Generally, the rules will cover: definitions; waste tire recycling fees; enforcement; penalties; disposition of fees and penalties; waste tire recycling fund; the priority enforcement list; payments to waste tire processors; evaluation of recycling and energy recovery activities; certification for payment; evidence of financial responsibility; and prohibition against tire collection fees, out-of- state tires, and disposal of shredded tires in landfills. Stephen Seale, Chief Accountant III, Budget Division, has determined that for the first five-year period that the proposed amendments, repeals, and new sections will be in effect there will be fiscal implications to state government as a result of enforcing or administering the proposed amendments, repeals, and new sections. There will be a cost to state government of $1,582,000 for fiscal year 1992, and a cost to state government of $1,354,000 for each year of fiscal years 1993-1996. There will be a cost to the State Comptroller's Office of $453, 000 for fiscal year 1992, $341,000 for fiscal year 1993, and $297,000 for each of fiscal years 1994-1996. There will be no direct fiscal implications on local government; however, they may see reduced costs as a result of the decrease in illegal dumping that is expected to be quickly evidenced throughout all parts of the state as a result of the proposed waste tire recycling program. Some local governments that operate municipal solid waste landfills may lose an undetermined amount of revenue as a result of not receiving used tires for disposal; however, certain difficulties frequently encountered with tire disposal will be avoided. Businesses most affected by the proposed rules will be those involved in the sale of new tires and the waste tire processors whose capability to collect and shred scrap tires will allow them to receive reimbursement from the waste tire recycling fund. Tire dealers, although required to collect and remit a $2.00 fee for each new tire sold, may retain an amount equal to $0.25 per tire to cover any costs of collection and reporting imposed by the state comptroller. While the $2.00 per tire fee will be passed on to the dealers' customers, dealers are expected to see lower scrap tire disposal costs, which might enable them to reduce slightly prices on new tires. The reimbursement rate for waste tire processors is $0.85 per "weighted tire" (an amount of shredded scrap tires equal to 18.7 pounds), to be paid in return for such processor's accepting, for recycling or energy recovery, a certain minimum number of scrap tires from the department's priority enforcement list sites. It has been estimated that the amount of funds available for the reimbursement of waste tire processors for each year of the first five years that the program is in operation, will be as follows: for fiscal year 1992, $17, 037,000; for fiscal year 1993, $30,081,000; for fiscal year 1994, $30,983,000; for fiscal year 1995, $31,913,000; for fiscal year 1996, $32,870,000. Mr. Seale also has determined that for each year of the first five years the amendments, repeals, and new sections are in effect the public benefit expected as a result of administering the rules as proposed will be the continuing clean- up of unauthorized waste tire dumps and the substantial reduction in the number of scrap tires that are improperly disposed of throughout the state. Reductions in the number of unauthorized tire disposal sites will mean fewer mosquitoes and rodents, fewer fire hazards, and less risk of scrap tires being dumped in flood plains thus threatening washout onto the property of others. There will be no direct costs to persons as a result of the proposed amendments, repeals and new sections; however, all funding for the waste tire recycling program described in the proposed amendments and new sections will come from the $2.00 per tire fee that the state comptroller is required, by law, to collect from tire dealers (the money ultimately coming from tire purchasers). The total amount of fee money expected to be collected per year from all Texas new tire dealers is expected to range from 31.7 to 34.5 million dollars. Local employment will not be measurably affected by the proposed program, since the total number of scrap tires generated annually is not expected to change. Rules already in effect require all tires be processed (split, quartered or shred) prior to disposal in landfills. The proposed rules will primarily serve to shift the method of processing and the end use of the scrap-tire derived recyclable material. Five public hearings to receive comments on the proposed rules have been scheduled and are as follows: Thursday, October 24, 1991, 1 p.m., Community Room, Mahon Public Library, 1306 Ninth Street, Lubbock; Friday, October 25, 1991, 1 p. m., Auditorium, Texas Department of Health, 1100 West 49th Street, Austin; Tuesday, October 29, 1991, 1 p.m., Bear Creek Park Agricultural Service Building, One Abercrombie Drive (2 3/4 miles north of the intersection of IH 10 and Highway 6, at intersection of Patterson Road and Bear Creek Drive), Houston; Wednesday, October 30, 1991, 1 p.m., City Council Chambers, 317 West College, Grand Prairie; and Thursday, October 31, 1991, 1 p.m., Corpus Christi-Nueces County Public Health District, 1702 Horne Road, Corpus Christi. In addition, written comments will be considered if they are received by 5 p.m., Thursday, November 4, 1991. Written comments should be mailed to: T. A. Outlaw, Jr., P.E., Chief; Bureau of Solid Waste Management, Texas Department of Health, 1100 West 49th Street, Austin Texas 78756- 3199. Telephone inquiries may be made by contacting Michael D. Graeber at (512) 458-7271. Comments will be accepted for 30 days following publication of this proposal in the Texas Register. 25 TAC sec.325.5 The amendment is proposed under the Health and Safety Code (Code), sec.361. 011 and sec.361.024 which establishes the department's jurisdiction over municipal solid waste management and provides the Texas Board of Health (board) with authority to adopt rules to manage and control municipal solid waste; s12. 001, which provides the board with authority to adopt rules for the performance of every duty imposed by law on the board, the department, and the commissioner of health; and Senate Bill 1340 and House Bill 847, 72nd Legislature, 1991, which provide the department with the authority to implement a waste tire recycling program. The amendments, repeals, and new sections will affect the Code, Chapter 361 . sec.325.5 Definitions. The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. Other definitions, pertinent to specific sections, are contained within the appropriate sections. Mobile tire shredder
                                          [cutter] -A piece of equipment used to split, shred, or quarter tires which is mounted on wheels or is skid-mounted and is hauled from place to place. Postconsumer waste -A material or product that has served its intended use and has been discarded after passing through the hands of a final user. For the purpose of this subchapter, the term does not include industrial or hazardous waste. Recyclable material -Material that has been recovered or diverted from the solid waste stream for purposes of reuse, recycling, or reclamation, a substan 30>tial portion of which is consistently used in the manufacture of products which may otherwise be produced using raw or virgin materials. Recyclable material is not solid waste. However, recyclable material may become solid waste at such time, if any, as it is abandoned or disposed of rather than recycled, whereupon it will be solid waste with respect only to the party actually abandoning or disposing of the material. Shredded tire piece-A particle of a used or scrap tire shredded, quartered, or split. Waste tire facility -A facility permitted by the Texas Department of Health at which used and scrap tires are collected or deposited and shredded to facilitate the future extraction of useful materials for recycling, reuse, or energy recovery. Waste tire processor -A waste tire facility, or a mobile tire shredder, that splits, shreds, or quarters tires and deposits the split, shredded, or quartered tires for eventual recycling, reuse, or energy recovery at either a waste tire storage facility or a waste tire facility. Waste tire recycling fund (WTRF)-The fund into which tire fees collected on new tires in Texas are deposited. Waste tire storage facility-A facility registered by the Texas Department of Health at which used and scrap tires are collected and stored to facilitate the future extraction of useful materials for recycling, reuse, or energy recovery. Waste tire transporter -A transporter who collects and transports used and scrap tires or shredded tire pieces for storage processing or disposal. Weighed tire-A unit of weight for shredded used or scrap tire that is equal to 18.7 pounds. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on September 30, 1991. TRD-9111961 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Proposed date of adoption: December 7, 1991 For further information, please call: (512) 458-7271 Subchapter R. Management of Used and Scrap Tires General Requirements 25 TAC sec.325.801, sec.325.802 The amendments are proposed under the Health and Safety Code (Code), sec.361.011 and sec.361.024, which establishes the department's jurisdiction over municipal solid waste management and provides the Texas Board of Health (board) with authority to adopt rules to manage and control municipal solid waste; s12.001, which provides the board with authority to adopt rules for the performance of every duty imposed by law on the board, the department, and the commissioner of health; and Senate Bill 1340 and House Bill 847, 72nd Legislature, 1991, which provide the department with the authority to implement a waste tire recycling program. The amendments, repeals, and new sections will affect the Code, Chapter 361. sec.325.801. Purpose. The purpose of the sections in
                                            this subchapter is to: (1) encourage maximum recycling of used and scrap tires (including processing to produce usable energy); (2) establish procedures and requirements for the safe storage, transportation, processing, and disposal of used and scrap tires; [.] (3) provide for clean-up of illegal tire sites; and (4) set forth procedures and mechanisms for administering the waste tire recycling fund
                                              . sec.325.802. Applicability. (a) The sections in this subchapter are applicable to persons who are involved in the storage, transportation, processing, [and] disposal and recycling
                                                of used or scrap tires regulated by the Texas Department of Health
                                                  (department) pursuant to s325.3 of this title (relating to Applicability). (b) A tire becomes a used tire when it is discarded by a person after it has been utilized for any period of time. A used tire that can be salvaged and used for another purpose, retreaded, or sold as a good used vehicle tire is subject to the requirements of this subchapter, except as noted in sec.325.881 of this title (relating to Beneficial Use of Used and Scrap Tires). A used tire that cannot be reused for any other purpose is a scrap tire and is subject to the requirements of this subchapter. (c)
                                                    [(b)] A used tire may include tires which can be reused for another purpose. Used tires that can be salvaged and used for another purpose, retreaded, or sold as a good used vehicle tire are exempted from the requirements to be split, quartered, or shredded at storage sites. All used tires will be subject to manifesting by registered transporters in accordance with the requirements in sec. s325.811-325.818 of this title (relating to Transporters of Used and Scrap Tires). Tire stockpiles being held for adjustment by the manufacturer must be classified for reuse or disposal within 90 days. Used tires being held for resale that are stockpiled shall receive appropriate vector control made at a frequency based upon weather conditions and other applicable local ordinances. (d) A used tire that is reused shall become known as a commodity or product when it has been declared reusable, when it has been sorted, marked, and classified, and when it has arrived at any of the following locations: (1) a used tire dealer; (2) a used tire retread shop; or (3) an authorized used tire storage site. (e) The sections in this subchapter are applicable to persons who are involved in the storage, transportation, processing, disposal, and recycling of pieces of used and scrap tires that have been split, quartered, or shredded pursuant to sec.325.3 of this title (relating to Applicability). (f) The sections in this subchapter are not applicable to green tire scraps. These are still considered as part of the manufacturing process and are subject to disposal requirements as industrial waste. (g) Large used and scrap tires that are 48 inches or more in diameter and 20 inches or more in width, or which weigh a minimum of 500 pounds, are exempted from the requirements to be split, quartered, or shredded at a storage site or a permitted landfill. This exemption is applicable only until technological advances are made to provide a machine that will split, quarter, or shred these tires and it is available for use within a 100 mile radius of the location of such tires. The large used and scrap tires, specified in this subsection, shall not be disposed of and must be either stored or recycled. Adequate vector control shall be maintained at the site storing these tires. (h) A used or scrap tire, attached to a rim, that is received at a waste tire facility, storage site, disposal site, or other solid waste facility shall be removed from the rim and handled accordingly. The rim may be handled as ordinary municipal solid waste or it may be salvaged. (i) A solid used or scrap tire may be disposed of in a municipal solid waste facility provided there is no available means to reduce the tire into recyclable material. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on September 30, 1991. TRD-9111962 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Proposed date of adoption: December 7, 1991 For further information, please call: (512) 458-7271 General Requirements 25 TAC sec.325.803 (Editor's note: The text of the following section proposed for repeal will not be published. The section may be examined in the offices of the Texas Department of Health or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The repeal is proposed under the Health and Safety Code (Code), sec.361.011 and sec.361.024, which establishes the department's jurisdiction over municipal solid waste management and provides the Texas Board of Health (board) with authority to adopt rules to manage and control municipal solid waste; sec.12.001, which provides the board with authority to adopt rules for the performance of every duty imposed by law on the board, the department, and the commissioner of health; and Senate Bill 1340 and House Bill 847, 72nd Legislature, 1991, which provide the department with the authority to implement a waste tire recycling program. The amendments, repeals, and new sections will affect the Code, Chapter 361. sec.325.803. Effective Date. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on September 30, 1991. TRD-9111963 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Proposed date of adoption: December 7, 1991 For further information, please call: (512) 458-7271 Generators of Used and Scrap Tires 25 TAC sec.sec.325. 805-325.809 The new sections are proposed under the Health and Safety Code (Code), sec.361.011 and sec.361.024, which establishes the department's jurisdiction over municipal solid waste management and provides the Texas Board of Health (board) with authority to adopt rules to manage and control municipal solid waste; s12.001, which provides the board with authority to adopt rules for the performance of every duty imposed by law on the board, the department, and the commissioner of health; and Senate Bill 1340 and House Bill 847, 72nd Legislature, 1991, which provide the department with the authority to implement a waste tire recycling program. The amendments, repeals and new sections will affect the Code Chapter 361. sec.325.805. Applicability and Responsibility. (a) Applicability. The regulations contained in these sections establish standards applicable to the generators of used and scrap tires. For the purpose of this subchapter, a generator shall be as a person who accepts used and scrap tires for storage, who is a fleet operator, or who is a new or used tire retailer, wholesaler, manufacturer, or retreader. (b) Responsibility. Each generator shall be responsible for ensuring that used and scrap tires are transported by a registered transporter and are transported to a registered storage site, a waste tire facility, a permitted municipal solid waste landfill accepting tires for storage, or a tire monofill. Generators shall be responsible for initiating the transporter manifest and shall designate the destination of the used and scrap tires that they generate. (c) Generator. A generator may not place a whole used or scrap tire or split, quartered, or shredded tire pieces in a dumpster for pickup by a collection vehicle that has an enclosed packer unit attached or that is used on a routine and/or regular collection route. All used or scrap tires transported from a generator's location shall be transported in a separate, identifiable load by manifest. sec.325.806. Notification and Identification Number. Tire generators who regularly dispose of used or scrap tires shall obtain an identification (I.D.) number from the Texas Department of Health (department). The generator must write to the department, identify himself/herself or his/her business as a used or scrap tire generator, provide the business name, mailing address, street address or location, and the city and/or county in which he/she is located. I.D. numbers will be issued for each separate business location. The recipient of an I.D. number shall promptly notify the department of any changes to any of the information in our records. sec.325.807. Record Keeping. (a) Maintenance of record. Copies of manifests, daily logs, or other documentation used to support activities related to the accumulation, handling, and shipment of used and scrap tires shall be retained for a period of three years. All such records shall be made available to the Texas Department of Health (department) upon request. (b) Manifest. Generators shall initiate and maintain a record of each individual load hauled from their business location. The record shall be in the form of a four-part manifest or other similar documentation approved by the department. The manifest shall include the: (1) name and address of the person who generated the whole or scrap tires or the shredded tire pieces and the type of generator; (2) name and department registration number of transporter; (3) date of the event; (4) generator I.D. number; (5) number of whole used or scrap tires or the weight in pounds of shredded tire pieces collected for transportation; (6) name of responsible person(s) collecting, transporting, and depositing the whole used or scrap tires or the shredded tire pieces; (7) date and place where the whole used or scrap tires or the shredded tire pieces were deposited; (8) identification (permit or registration number, location, and operator) of the facility where the whole used or scrap tires or shredded tire pieces were deposited; (9) name and signature of the representative of the generator, transporter, destination facility acknowledging receipt of the whole used or scrap tires, and the number received or the shredded tire pieces and the weight received; and (10) the location of the generator's site. (c) Local ordinances. Where local ordinances require controls and records substantially equivalent to or more stringent than the requirements of subsection (a) of this section, transporters may use such controls and records to satisfy the department's requirement under this section, with approval by the department. (d) Generator's log. Any used or scrap tire generator shall maintain a log showing the date the used and scrap tires were discarded, the number discarded, and the method of discarding the used or scrap tires. This log shall be retained for the period of three years and made available to the department upon request. sec.325.808. On Site Accumulation. (a) Generators of used and scrap tires may store those same tires at the location at which they are generated. Used and scrap tires accumulated at the site must be removed on a periodic basis of up to 30 days. Tires stored out of doors in an uncontrolled pile shall be monitored for vectors and appropriate vector control measures shall be utilized at least once every two weeks. (b) Used and scrap tires accumulated at a generator's location may be collected in a transportable collection container that is mobile, completely enclosed, and lockable. The entire container shall be hauled from the site by a registered transporter, taken to a permitted or registered tire facility, and be manifested. (c) Retailers and wholesalers who sell used tires as a commodity shall do so only from stock that has been sorted, marked, classified, and arranged in a controlled situation. Used tires that are to be resold as commodities, but are not handled as described in this subsection, shall be considered as stockpiled used or scrap tires and the site shall be subject to registration as a tire storage site, if the number of tires exceeds 500. sec.328.809. Transportation Requirements. (a) A generator shall designate the destination of all used and scrap tires generated at his location and initiate the required manifest for each shipment. (b) A generator may transport his/her own used and scrap tires provided a tire transporter registration has been obtained from the Texas Department of Health (department). Generators who do not transport their own tires shall only use a tire transporter who is registered by the department. (c) A waste tire transporter or a mobile tire shredder shall not charge a fee after April 1, 1992, to the wholesale or retail generator for collecting used or scrap tires for delivery to a waste tire facility or for shredding on site. This prohibition does not apply to the transportation of used tires classified as reusable. This prohibition also does not apply to other generators. (d) Used or defective tires shipped back to the manufacturer or manufacturer's representative for adjustment are not required to be transported by a registered transporter, provided the generator retains for three years, and makes available to the department upon request, records showing the following: (1) the date such tires were shipped; and (2) the number of tires in each shipment. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on September 30, 1991. TRD-9111964 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Proposed date of adoption: December 7, 1991 For further information, please call: (512) 458-7271 Transporters of Used and Scrap Tires 25 TAC sec.sec.325. 811-325.818 The amendments are proposed under the Health and Safety Code (Code), sec.361.011 and sec.361.024, which establishes the department's jurisdiction over municipal solid waste management and provides the Texas Board of Health (board) with authority to adopt rules to manage and control municipal solid waste; s12.001, which provides the board with authority to adopt rules for the performance of every duty imposed by law on the board, the department, and the commissioner of health; and Senate Bill 1340 and House Bill 847, 72nd Legislature, 1991, which provide the department with the authority to implement a waste tire recycling program. The amendments, repeals, and new sections will affect the Code Chapter 361. sec.325.811. Applicability and Responsibility. (a) Applicability. The regulations contained in these sections establish standards applicable to transporters collecting and hauling used or scrap tires. Methods of transportation shall include, but are not limited to, measures utilizing roadway, rail, and water facilities. These sections are applicable to waste tire transporters and other tire transporters who transport used or scrap tires and shredded tire pieces. (b) Responsibility. Transporters shall maintain records using a manifest system as provided in sec.325.815 of this title (relating to Record Keeping). Each transporter shall be responsible for ensuring that used or scrap tires are transported to a waste tire facility, a permitted or registered storage site, a permitted disposal or monofill site, or a manufactur 30>er or retreader
                                                      [storage site that is registered as provided in sec.sec.325.831- 325.838 of this title (relating to Storage of Used and Scrap Tires), or are transported to a permitted solid waste disposal or processing site as provided in Subchapter E of this chapter (relating to Permit Procedures and Design Criteria)]. (c) Prohibition
                                                        [Generator I.D. number]. A transporter may not charge a fee to a retail or wholesale dealer of new or used tires, for collecting used or scrap tires for delivery to a waste tire facility or a waste tire storage site after April 1, 1992
                                                          [Tire generators who regularly dispose of used or scrap tires shall obtain an identification (I.D.) number from the department. This I.D. number will only be used for identification purposes and will be included on a manifest list for information and newsletters. The generator must write to the department, identify himself or his business as a used or scrap tire generator, provide his business name, mailing address, street address or location, and the city and/or county in which he is located. I.D. numbers will be issued for each separate business location]. sec.325.812. Registration. (a) Transporters shall register their operations with the Texas Department of Health (
                                                            department)
                                                              [no later than the effective date of these sections in this subchapter]. A person may not
                                                                [Persons who plan to] transport used or scrap tires [after the effective date of these rules shall register] without registering
                                                                  with the department prior to commencing operations. An application for a registration shall be made on a form which may be obtained from
                                                                    [Registration forms will be provided by] the department upon request. [The form is included in sec.325.919 of this title (relating to Registration Form for Tire Transporters).] The following information must be provided for registration: (1) the name, address, and telephone number of registrant; (2) the name, address, and telephone number of partners, corporate officers, and directors; (3) a description of vehicles to be registered, including: (A) make, model, and year of vehicles; (B) vehicle license plate (tag) number including state and year; (C) name of vehicle owner; (D) capacity of vehicle; and (E) type of vehicle; and (4) the anticipated number of tires to be hauled and/or weight of shredded tire pieces to be hauled per month. (b) (No change.) (c) Registrations shall expire 12 months after the date of issuance. Registrations are required to be renewed annually prior to the expiration date. Applications for renewal must contain the same information as the initial application and
                                                                      shall be submitted at least 60 days prior to the expiration date. An application for renewal may be obtained from the department. (d)-(e) (No change.) (f) Revocation or denial of registration procedures are as follows.
                                                                        [The department may revoke a registration for cause as provided in sec.325. 818 of this title (relating to Penalties). An opportunity for a formal hearing on the revocation may be requested by the registrant within 20 days after a notice of revocation has been sent from the department to the last known address of the registrant. If the registration is revoked, a transporter shall not continue to transport used or scrap tires regulated under this subchapter.] (1) The department may revoke a registration or refuse to issue a registration for: (A) failure to maintain a complete and accurate record of shipments of tires; (B) failure to maintain vehicles in safe working order as evidenced by citations from the Texas Department of Public Safety or local traffic law enforcement agencies; (C) falsification of waste shipping documents or shipment records; (D) delivery of used or scrap tires to a facility not authorized to handle the tires; (E) failure to comply with any rule or order issued by the department pursuant to the requirements of this chapter; (F) failure to submit required annual reports or pay regis tration fees; (G) illegal dumping of used or scrap tires; or (H) collection or transportation of used or scrap tires without registration as required in this section. (2) Appeal of revocation or denial procedures are as follows. (A) An opportunity for a formal hearing on the revocation of registration may be requested in writing by the registrant by certified mail, return receipt requested, provided the request is postmarked within 20 days after a notice of proposed revocation or denial of registration has been sent from the department to the last known address of the registrant. If the registration is revoked, a transporter shall not transport used or scrap tires regulated under this subchapter. The period of revocation shall be not less than one year nor more than five years. (B) An opportunity for a formal hearing on the denial of registration or renewal of registration may be requested in writing by the applicant by certified mail, return receipt requested, provided the request is postmarked within 20 days after a notice of denial has been sent from the department to the address listed on the application. If the registration is denied, a person shall not collect or transport used or scrap tires. (C) The formal hearing under this paragraph shall be in accordance with the department's formal hearing procedures in Chapter 1 of this title (relating to Texas Board of Health). [(g) Transport vehicles operated by municipalities, private businesses, or other entities which are regularly used to transport municipal solid waste picked up on regular collection routes and are in compliance with sec.sec.325.31-325.34 of this title (relating to Municipal Solid Waste Collection and Transportation), shall be exempt from registration under this section.] (g)
                                                                          [(h)] Transport vehicles operated by municipalities, counties, or other governmental entities or agencies which are used to transport used or scrap tires removed
                                                                            [picked up] from public streets, roads or highways, or drainage easements and delivered to a waste tire facility, a
                                                                              storage site,
                                                                                or a
                                                                                  disposal site shall be exempt from registration under this section; however, the requirement to manifest the load hauled is still applicable. To properly manifest these tires, the generator portion of the manifest form should be completed showing the number of tires hauled, the date, and physical location where they were removed
                                                                                    [picked up]. sec.325.813. Delivery Requirement.
                                                                                      Transporters shall deposit used or scrap tires at a waste tire facility, registered or permitted storage site, or at a disposal site as designated by
                                                                                        [an approved facility designated by or acceptable to] the generator [and where the operator of the facility agrees to receive the used or scrap tires. In this regard, "approved facility" means that the department has given its approval by registration or permit that identifies the individual facility or class of facilities to receive used or scrap tires.] Shipments of used or scrap tires may not be commingled with any other type of waste material, except for incidental used or scrap tires picked up in enclosed packer units. sec.325.814. Vehicle and Equipment Sanitation Standards.
                                                                                          All vehicles and equipment used for the collection and transportation of used or scrap tires shall be constructed, operated, and maintained to prevent loss of used or scrap tires during transport and to prevent health nuisances and safety hazards to operating personnel and the public. Collection vehicles and equipment shall be maintained in a sanitary condition to preclude odors and insect breeding. Any vehicle or trailer used to transport used or scrap tires shall be identified. The vehicle shall contain the name and place of business of the transporter and shall display the Texas Department of Health registration number using numbers at least 2 1/2 inches tall. Trailers used to transport used or scrap tires shall be either fully enclosed and lockable, or have sidewalls of sufficient height to contain the load and shall be covered with a tarp during transit. sec.325.815. Record Keeping. (a) Manifest. (1) Transporters shall [initiate and] maintain a record of each individual collection and deposit. Such record shall be in the form of a four-part
                                                                                            manifest or other similar documentation approved by the Texas Department of Health (
                                                                                              department)
                                                                                                . [A sample of the manifest to be used is included in sec.325.920 of this title (relating to Form for Tire Transporter Manifest). Forms will be provided by the department.] The manifest shall include the: (A) (No change.) (B) name and address of the person who generated the whole,
                                                                                                  used,
                                                                                                    or scrap tires, or the shredded tire pieces,
                                                                                                      [and] the date collected, and the type of generator
                                                                                                        ; (C) [a] generator I.D. number [, to be assigned by the department]; (D) number of whole,
                                                                                                          used ,
                                                                                                            or scrap tires , or the weight in pounds of shredded tire pieces
                                                                                                              collected for transportation; (E) name of responsible person(s) collecting, transporting, and depositing the whole,
                                                                                                                used or scrap tires, or the shredded tire pieces
                                                                                                                  ; (F) date and place where the whole,
                                                                                                                    used or scrap tires , or the shredded tire pieces
                                                                                                                      were deposited; (G) identification (permit or registration number, location, and operator) of the facility where the whole,
                                                                                                                        used,
                                                                                                                          or scrap tires, or shredded tire pieces
                                                                                                                            were deposited; [and] (H) name and signature of a
                                                                                                                              [facility] representative of the generator, transporter, and destination facility
                                                                                                                                acknowledging receipt of the whole,
                                                                                                                                  used,
                                                                                                                                    or scrap tires and the number received, or the shredded tire pieces and the weight received; and
                                                                                                                                      [.] (I) the location of the generator's site. (2) Persons who are not classified as transporters may deliver to an approved facility (i.e., storage site, disposal site, waste tire facility,
                                                                                                                                        or other
                                                                                                                                          processing facility) used or scrap tires without a manifest. The storage site, disposal site, waste tire facility,
                                                                                                                                            or other
                                                                                                                                              processing facility is authorized to accept these tires[,] in accordance with the conditions specified in this subchapter without a manifest. The storage site, disposal site, waste tire facility,
                                                                                                                                                or other
                                                                                                                                                  processing facility shall maintain a collection log of unmanifested used or scrap tires and shall report the amount of unmanifested tires on the annual summary report for their facility. This collection log shall be retained for a period of three years and shall be made available to the department upon request. (b) Maintenance of records and reporting. The transporter , the storage site, waste tire facility, disposal site, or other processing facility
                                                                                                                                                    shall mail to
                                                                                                                                                      [provide] the person who generated the used or scrap tires a copy of the manifest that has been completely filled out
                                                                                                                                                        [showing receipt of used or scrap tires and shall provide the]. The
                                                                                                                                                          facility operator of the destination of the used and scrap tires shall retain
                                                                                                                                                            a copy of all manifests of used or scrap tires delivered. The transporter shall retain a copy of all manifests showing the collection and disposition of the used or scrap tires. Manifest copies shall be retained by the generators, trans 30>porters, and facility operators for three years and made available to the department upon request. Transporters shall submit to the bureau an annual summary of their activities up to December 31 of each year showing the number of used or scrap tires collected, disposition of such tires, and the number of used or scrap tires delivered to each facility. The report shall be submitted no later than March 1 of the year following the end of the report period. The report shall be prepared on a [facsimile of the] form provided by the department
                                                                                                                                                              [in sec.325.921 of this title (relating to Annual Summary Report Form for Used and Scrap Tire Transporters).] (c) (No change.) [(d) Generator's log. Any used or scrap tire generator who disposes of 15 or more used or scrap tires per month shall maintain a log showing the date the used and scrap tires were discarded, the number discarded, and the method of discarding the used or scrap tires. This log shall be retained for a period of three years and made available to the department upon request.] sec.325.816. Interstate Transportation.
                                                                                                                                                                Persons who engage in the transportation of used or scrap tires from Texas to other states or countries or from other states or countries to Texas, or persons who collect or transport used or scrap tires in Texas but have their place of business in another state, shall comply with all of the requirements for transporters contained in this undesignated head
                                                                                                                                                                  [sec.sec.325.811-325.818 of this title (relating to Transporters of Used and Scrap Tires)]. If such persons also engage in any activity of managing used or scrap tires in Texas by storage, processing, or disposal, they shall follow the applicable requirements for site operators of such activities. Persons who engage in the transportation of used or scrap tires which does not originate or terminate in Texas, are exempt from these regulations, except for s325.814 of this title (relating to Vehicle and Equipment Sanitation Standards). sec.325.817. Transporter Fees. (a)-(b) (No change.) (c) Fee schedule. The fees shall be calculated based upon the following, using the number of tires transported. The weight of shredded tire pieces shall be converted to number of tires using a conversion factor of 18.7 pounds per tire
                                                                                                                                                                    . (1)-(4) (No change.) (d) (No change.) sec.325.818. Penalties. Failure of a transporter to fully comply with the requirements of this subchapter shall be sufficient cause for the Texas Department of Health to
                                                                                                                                                                      [properly and correctly maintain records, manifests, or other documents; or failure of a transporter to submit to the department correct information on the annual summary report or on an application for registration by the required due date shall be sufficient cause for the department to revoke the transporter's registration and authorization to transport used or scrap tires. The department may also] take any other] action authorized by law to secure compliance, including the assessment of administrative penalties or seeking of civil penalties as prescribed by law. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on September 30, 1991. TRD-9111965 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Proposed date of adoption: December 7, 1991 For further information, please call: (512) 458-7271 Mobil Processors of Used and Scrap Tires 25 TAC sec.sec.325.821-325.828 The new sections are proposed under the Health and Safety Code (Code), sec.361.011 and sec.361.024, which establishes the department's jurisdiction over municipal solid waste management and provides the Texas Board of Health (board) with authority to adopt rules to manage and control municipal solid waste; s12.001 which provides the board with authority to adopt rules for the performance of every duty imposed by law on the board, the department, and the commissioner of health; and Senate Bill 1340 and House Bill 847, 72nd Legislature, 1991, which provide the department with the authority to implement a waste tire recycling program. The amendments, repeals, and new sections will affect the Code, Chapter 361. sec.325.821. Applicability and Responsibility. (a) Applicability. The regulations contained in these sections establish standards applicable to mobile processors collecting and shredding used and scrap tires. A mobile processor of used and scrap tires includes a machine that splits, quarters, or shreds whole tires into two or more pieces. (b) Responsibility. Each mobile tire shredder shall be responsible for ensuring that whole used or scrap tires are split, quartered, or shredded and that the tire pieces are transported to a waste tire processor, or a waste tire storage facility, or a recycling facility that will use the tire pieces. (c) Recycling responsibility. Each mobile tire shredder that participates in the waste tire recycling program and receives reimbursement from the waste tire recycling fund shall be responsible for ensuring that the shredded tire pieces that are generated have been delivered to a recycling, reuse, or energy recovery facility in accordance with applicable sections of this subchapter. (d) Fees. Mobile tire shredders may not charge a fee, to a retail or wholesale dealer of used or new tires, for collecting and shredding used or scrap tires accepted for temporary storage by the dealers, after April 1, 1992. sec.325.822. Registration. (a) Mobile tire shredders shall register their operations with the Texas Department of Health (department), prior to commencing operations. An application for registration shall be made on a form that will be provided by the department upon request. The following information must be provided for registration: (1) the name, address, and telephone number of registrant; (2) the name, address, and telephone number of partners, corporate officers, and directors; (3) a description of vehicles or equipment to be registered, including the: (A) make, model, and year of vehicle or equipment; (B) vehicle license plate (tag) number including state and year, if applicable; (C) name of vehicle, or equipment owner; (D) rated capacity of each piece of equipment or vehicle; (E) type of equipment or vehicle; and (F) area within Texas that shredder will generally operate; and (4) the anticipated number of used or scrap tires to be split, quartered, or shredded per month. (b) Persons who apply to the department for registration and receive the registration shall maintain a copy of the registration form, as annotated by the department with an assigned registration number, at their designated place of business and in each vehicle used to shred used or scrap tires. (c) Registrations shall expire 12 months after the date of issuance. Registrations are required to be renewed prior to the expiration date. Applications for renewal must contain the same information as the initial application and shall be submitted at least 60 days prior to the expiration date. An application for renewal may be obtained from the department. (d) Mobile tire shredders shall notify the department, by letter, within 15 days of any changes to their registration if: (1) the number of used or scrap tires handled or total operation has expanded by 50% over that originally registered; (2) the office or place of business has moved; (3) the registered name has changed; (4) the number of mobile tire shredders has increased; or (5) the area of operation of a shredder has changed. (e) A new registration application is required to be submitted within 10 days of the following, whereupon the old registration number will be voided and the old registration canceled: (1) when the department determines that operations or management methods are no longer adequately described by the existing registration; or (2) when ownership of the registered mobile tire shredder has changed. (f) Revocation or denial of registration procedures are as follows. (1) The department may revoke a registration or refuse to issue a registration for: (A) failure to maintain complete and accurate records; (B) failure to maintain vehicles in safe working order as evidenced by citations from the Texas Department of Public Safety or local traffic law enforcement agencies; (C) falsification of any record maintained or received; (D) delivery of shredded tire pieces to a facility not authorized to handle the material; (E) failure to comply with any rule or order issued by the department pursuant to the requirements of the chapter; (F) failure to submit required reports; (G) failure to maintain insurance or provide proof of insurance as required in this subsection (g) of this section; (H) illegal disposal of shredded tire pieces; (I) collection and/or shredding of used and scrap tires without registration as required in this section; (J) failure to provide delivery of shredded tire pieces to a recycling, reuse, or energy recovery facility as required in this subchapter; (K) falsification of any request for payment from the waste tire recycling fund; (L) failure to complete the work required to completely clean up an illegal tire dump; and (M) failure to account for recycling activities in the required five-year period. (2) Appeal of revocation or denial procedures are as follows. (A) An opportunity for a formal hearing on the revocation of registration may be requested in writing by the registrant by certified mail, return receipt requested, provided the request is postmarked within 20 days after a notice of proposed revocation or denial of registration has been sent from the department to the last known address of the registrant. If the registration is revoked, a transporter shall not collect or shred used and scrap tires regulated under this subchapter. The period of revocation shall be not less than one year nor more than five years. (B) An opportunity for a formal hearing on the denial of registration or renewal of registration may be requested in writing by the applicant by certified mail, return receipt requested, provided the request is postmarked within 20 days after a notice of denial has been sent from the department to the address listed on the application. If the registration is denied, a person shall not collect, transport, or process used or scrap tires regulated under this subchapter. (C) The formal hearing in this paragraph shall be in accordance with the department's formal hearing procedures in Chapter 1 of this title (relating to Texas Board of Health). (g) Each mobile tire shredder shall provide the following evidence of financial responsibility: (1) a general liability policy with $1 million per occurrence and $2 million aggregate limits; (2) a combined, single limit vehicle and equipment liability insurance policy with limits of at least $1 million per accident; and (3) a pollution liability policy with a flat limit of $1 million; or (4) a performance bond, a letter of credit from a recognized financial institution, or a trust fund in the amount of $500, 000. sec.325.823. Delivery Requirements.
                                                                                                                                                                        Mobile tire shredders shall deposit the shredded tire pieces at a waste tire facility, a waste tire storage facility, or at a facility that will recycle, reuse, or recover energy from the shredded tire pieces. The facility accepting delivery must be permitted, registered, or otherwise acknowledged by the department before delivery can be made. sec.325.824. Vehicle and Equipment Requirements. (a) All vehicles and equipment used for the collection and shredding of used or scrap tires shall be constructed, operated, and maintained to prevent public health nuisances and safety hazards to operating personnel and the public. The equipment shall be periodically cleaned to prevent loose materials from being discharged while in transit or in operation. (b) The mobile tire shredder must be equipped with a scale, certified annually by the weights and measures section of the Texas Department of Agriculture, to weigh the shredded tire pieces immediately after shredding. (c) The mobile tire shredder must be mounted on wheels or skids. It may not be permanently anchored in a fixed location. sec.325.825. Record Keeping. (a) Maintenance of records. The mobile tire shredder shall maintain copies of all records required by this section for a period of five years. These records shall be made available to the Texas Department of Health (department) upon request. (b) Required records. A mobile tire shredder shall maintain the following records: (1) manifests of incoming whole tires; (2) manifests of outgoing whole tires or shredded tire pieces; (3) a daily log showing the number of tires by classification that are shredded and the weight of the shredded tire pieces; (4) equipment and vehicle preventive maintenance records; (5) a daily log showing the activity of the equipment or vehicle; (6) a daily log showing the origin of the tires shredded and the number collected from that location; (7) annual and monthly reports required by the department; and (8) a record showing the destination of shredded tire pieces and the amounts hauled to each facility. (c) Annual report. Mobile tire shredders shall submit to the department's Bureau of Solid Waste Management an annual summary of their activities up to December 31 of each year showing the number of used or scrap tires collected, shredded, the disposition of such tires, and the amount of shredded tire pieces delivered to a waste tire facility or a recycler. The report shall be submitted no later than March 1 of the year following the end of the report period. The report shall be prepared on a form provided by the department. sec.325.826. Operational Requirements. (a) The operator of the mobile shredder shall operate the vehicle and equipment so that nuisances and disturbances are prevented. (b) Temporary stockpiles of whole used or scrap tires at the shredder location that are awaiting splitting, quartering, or shredding shall be monitored for vector control and appropriate vector control measures shall be applied at least once every two weeks. (c) Mobile tire shredders may operate at any permitted or registered waste tire storage site, any permitted municipal solid waste landfill at which used or scrap tires are collected, at any department authorized priority enforcement list site, or on property utilized by generators to accumulate or store their own used or scrap tires. Except when operated at a permitted or registered tire storage site, at a municipal solid waste landfill, or at a priority enforcement list site, mobile tire shredders may shred only those tires that are under the direct control of the generator on whose site the tire shredder is temporarily located. sec.325.827. Eligibility for the Waste Tire Recycling Fund (WTRF). (a) A mobile tire processor is eligible for reimbursement from the WTRF if compliance with sec.sec.325.871-325.878 of this title (relating to Waste Tire Recycling Program) is maintained. (b) Compliance shall also include the following items. (1) Used and scrap tires shall be shredded to a particle size not larger than nine square inches. (2) The shredded tires pieces shall be delivered to a facility that will recycle, reuse, or recover energy from the particles, or to a waste tire storage facility. (c) The mobile tire processor must possess a valid registration from the Texas Department of Health. (d) All tires shredded shall have been generated from within the boundaries of Texas. sec.325.828. Penalties. Failure of a mobile tire processor to fully comply with the requirements of this subchapter shall be sufficient cause for the Texas Department of Health to take any action authorized by law to secure compliance, including the assessment of administrative penalties or seeking of civil penalties as prescribed by law. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on September 30, 1991. TRD-9111966 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Proposed date of adoption: December 7, 1991 For further information, please call: (512) 458-7271 Storage of Used and Scrap Tires 25 TAC sec.325.831 The amendment is proposed under the Health and Safety Code (the code), sec.361.011 and sec.361.024 which establish the department's jurisdiction over municipal solid waste management and provide the Texas Board of Health (board) with authority to adopt rules to manage and control municipal solid waste; s12. 001 which provides the board with authority to adopt rules for the performance of every duty imposed by law on the board, the department, and the commissioner of health; and Senate Bill 1340 and House Bill 847, 72nd Legislature, 1991, which provide the department with the authority to implement a waste tire recycling program. The amendments, repeals, and new sections will affect Chapter 361 of the code. sec.325.831. Applicability and Responsibility. (a) Applicability. The regulations contained in these sections establish standards applicable to persons who store whole,
                                                                                                                                                                          [more than 500] used,
                                                                                                                                                                            or scrap tires, or shredded tire pieces
                                                                                                                                                                              [for three years or less] on any public or privately owned property. Storage of used or scrap tires or tire pieces
                                                                                                                                                                                [for more than three years] shall be considered as a temporary means of holding
                                                                                                                                                                                  [disposal of] such tires or pieces
                                                                                                                                                                                    and shall require identification and/or registration
                                                                                                                                                                                      [a permit] in accordance with [sec.325.853 of] this subchapter
                                                                                                                                                                                        [title (relating to Permit Requirements)]. Placement of used and scrap tires underground will be considered as storage or
                                                                                                                                                                                          [is] disposal [and requires a permit in accordance with sec.sec.325.851-325.856 of this title (relating to Processing and Disposal of Used and Scrap Tires)]. These sections do not apply to the use of tires in the storage, protection, or production of agricultural commodities. (b) Responsibility. (1) All persons shall ensure that their property, if used for storage of used or scrap tires, is properly registered with the Texas Department of Health (
                                                                                                                                                                                            department)
                                                                                                                                                                                              as provided in [ s325.832 of] this [title (relating to Registration Requirements)] subchapter. (2) Landowners and/or operators of used or scrap tire storage sites shall ensure that the tire transporters who deposit used or scrap tires or shredded tire pieces
                                                                                                                                                                                                at their site are properly registered with the department as required by sec.325.812 of this title (relating to Registration) and the used or scrap tires or shredded tire pieces
                                                                                                                                                                                                  are properly manifested as required by sec.325.815 of this title (relating to Record Keeping). (3) Landowners and/or operators of used or scrap tire storage sites shall seek and obtain all necessary and appropriate state and local permits, licenses, or registrations required, and operate in compliance with such permits, licenses, or registrations, or other applicable state and local codes. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on September 30, 1991. TRD-9111967 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Proposed date of adoption: December 7, 1991 For further information, please call: (512) 458-7271 25 TAC sec.sec.325.832-325.838 (Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Department of Health or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The repeals are proposed under the Health and Safety Code (Code), sec.361. 011 and sec.361.024, which establishes the department's jurisdiction over municipal solid waste management and provide the Texas Board of Health (board) with authority to adopt rules to manage and control municipal solid waste; s12. 001, which provides the board with authority to adopt rules for the performance of every duty imposed by law on the board, the department, and the commissioner of health; and Senate Bill 1340 and House Bill 847, 72nd Legislature, 1991, which provide the department with the authority to implement a waste tire recycling program. The amendments, repeals, and new sections will affect the code, Chapter 361. sec.325.832. Registration Requirements. sec.325.833. Design Requirements. sec.325.834. Site Operating Plan. sec.325.835. Record Keeping. sec.325.836. Evidence of Financial Responsibility. sec.325.837. Penalties. sec.325.838. Existing Tire Storage Sites. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on September 30, 1991. TRD-9111968 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Proposed date of adoption: December 7, 1991 For further information, please call: (512) 458-7271 25 TAC sec.sec.325.832-325.840 The new sections are proposed under the Health and Safety Code (code), sec.361.011 and sec.361.024 which establish the department's jurisdiction over municipal solid waste management and provide the Texas Board of Health (board) with authority to adopt rules to manage and control municipal solid waste; s12.001 which provides the board with authority to adopt rules for the performance of every duty imposed by law on the board, the department, and the commissioner of health; and Senate Bill 1340 and House Bill 847, 72nd Legislature, 1991, which provide the department with the authority to implement a waste tire recycling program. The amendments, repeals, and new sections will affect Chapter 361 of the code. sec.325.832. Tire Storage Site Classification. (a) Classification of a tire storage site or waste tire site is based upon the number of tires stored, the origination of the shredded tire pieces stored, and the type of storage operation. (b) The Texas Department of Health has classified all tire storage sites and facilities according to the following. (1) Type VIII-WT-A Type VIII-WT site is one in which less than 500 whole used or scrap tires are stored. Storage of used or scrap tires at a Type VIII-WT site shall be temporary. Tires stored at this site must be removed at intervals no greater than 60 days. (2) Type VIII-R-A Type VIII-R site is one in which more than 500 whole used or scrap tires or an equivalent amount of shredded tire pieces are stored. Storage of used or scrap tires shall be temporary. Storage of whole used or scrap tires, that are not designated as reusable whole used tires, is limited to 60 days. Shredded tire pieces may be stored for a period of up to 12 months, unless written authorization for a longer storage period has been granted because the recycling market cannot handle the shredded tire pieces. A Type VIII-R site shall be registered by the department. (3) Type VIII-S-A Type VIII-S site is a tire monofill which contains shredded tire pieces equivalent to greater than 500 whole used or scrap tires that were shredded to a particle site of not larger than nine square inches and the processor was reimbursed from the waste tire recycling fund (WTRF). Storage at a Type VIII-S site will be considered long term and shall require a permit. (4) Type VIII-I-A Type VIII-I is a waste tire site that stores any number of whole used or scrap tires and is considered as an illegal tire dump. These types of sites will be handled through the priority enforcement list and routine surveillance and enforcement activities. (5) Type VIII-L-A Type VIII-L is a designated recycling collection area at a permitted municipal solid waste landfill. Whole used or scrap tires may be stored at a Type VIII-L site for a period of up to 120 days. sec.325.833. Tire Site Identification. (a) Persons who store whole used or scrap tires or shredded tire pieces shall be required to obtain a tire site identification number (Tire Site I.D. Number) from the Texas Department of Health (department). Generators, with the exception of storage sites, who temporarily accumulate used or scrap tires for delivery to a storage site or a waste tire processor, are exempt from obtaining a Tire Site I.D. Number. (b) An application shall be made to the department Bureau of Solid Waste Management for the tire site I.D. Number, on a form provided by the department. The following information must be provided: (1) the name, address, and telephone number of property owner of site; (2) the location of site, including county; (3) the name, address, and telephone number of person making application; (4) the approximate number of tires on site; and (5) the existing land use surrounding the site. (c) The application for a tire site I.D. Number can be made verbally or in writing. A written application must be made on the form provided by the department. A verbal application will be accepted only when the applicant can give all the required information. In either case, a tire site I.D. Number will be issued upon receipt of the required information. Department representatives may initiate the application to secure a tire site I.D. Number for tire sites found during routine surveillance activities. (d) Once a tire site I.D. Number has been assigned, a department representative will investigate the site to obtain a rating factor, on a scale of one to 10 with 10 being lowest, for each of the following conditions: (1) the site location, to determine the potential hazard to the health and the environment based on the location of the site, and site proximity to homes, business, or agricultural land; (2) the area climate, to determine if the climatic conditions of the area will aid the development of potential health and environmental problems at the site; (3) the severity of tire problem, to determine an approximate number of used and scrap tires on the site and how bad the tire problem is; and (4) the property owner/operator, to determine who can be identified as the responsible party for the site and determine how the existence of the site occurred. (e) The rating factor for the site and all other pertinent information gathered during the investigation will be evaluated to determine the classification of the site. The tire storage site will be classified in accordance with sec.325.832 of this title (relating to Tire Storage Site Classification). This classification will be used to determine the eligibility of the site for inclusion in the Waste Tire Recycling Fund (WTRF) Program. (f) Applications for a tire storage site that will be initiated after the effective date of these sections will be classified based upon the information in the application. The eligibility of the site for inclusion in the WTRF Program will be made based upon its classification. The site number assigned applications for new sites will be a tire site I.D. Number. (g) Waste tire storage sites that have received a Tire Site I.D. No. and have been classified shall be subject to the specific requirements of the appropriate sections of this subchapter. sec.325.834. Evidence of Financial Responsibility. (a) The applicant seeking registration for a Type VIII-R site or a permit for a Type VIII-S site shall submit evidence of financial responsibility in an amount adequate to assure the Texas Department of Health (department) that he has sufficient assets to provide proper cleanup and closure of the facility. A firm commitment to provide backup equipment by lease, purchase, or diversion from other activities is part of this responsibility. This assurance may be in the form of a performance bond, a letter of credit from a recognized financial institution, a trust fund, or insurance in the case of privately-owned facilities, or by commissioners' court or city council resolution in the case of publicly-owned facilities. (b) The financial assurance shall be submitted within 30 days prior to the issuance of a registration or a permit. It shall be good for one year beginning with the date of registration or permit issuance. The financial assurance must be renewed annually and shall be submitted at least 60 days prior to the expiration date. (c) The applicant shall submit, with the application for a permit or registration, an estimate of the total amount of shredded tires, measured by weighed tire, that the facility will store or process and an estimated number of whole tires that will be on the site during processing. The applicant shall also estimate the cost, using the total amounts of whole used and scrap tires and shredded tire pieces, of cleaning up and/or closing the facility. The department will evaluate the estimated submitted and by administrative order determine the amount of financial assurance that each facility is required to provide. sec.325.835. Requirements for a Type VIII-R Site. (a) Registration requirements. (1) Persons who store or plan to store more than 500 whole used or scrap tires and/or an equivalent amount of shredded tire pieces shall register these sites with the Texas Department of Health (department). Registration forms will be provided by the department upon request. (2) Persons who apply to the department for registration and receive said registration shall maintain a copy of the registration at their designated place of business and at the designated storage site location. (3) Registrations shall expire 36 months after the date of issuance. Registrations are required to be renewed annually prior to the expiration date. Applications for renewal shall be submitted at least 60 days prior to the expiration date. (4) Storage site owners and/or operators shall notify the department, by letter, within 15 days of any changes to their registration if: (A) there have been changes to any data submitted in support of the application for registration; (B) the office or place of business has moved; or (C) the registered name has changed. (5) A new registration application is required to be submitted, within 10 days, of the following, whereupon the old registration number will be voided and the old registration canceled if: (A) the department determined that operations or management methods are no longer adequately described by the existing registration; (B) the ownership of the registrant has changed; or (C) the operator of a used or scrap tire storage site has changed. (6) The department may revoke a registration for cause as provided in sec.325.840 of this title (relating to Penalties). An opportunity for a formal hearing on the revocation may be requested by the registrant within 20 days after a notice of revocation has been sent from the department to the last known address of the registrant. If the registration is revoked, a storage site shall not continue to store used or scrap tires regulated under this subchapter. The storage site owner or operator at the time of revocation shall remove all used or scrap tires stored on the site within 90 days after the date of revocation. (7) Preparation and submission of an application shall be in accordance with the following procedures. (A) The application for registration shall be prepared and signed by the applicant on a form to be provided by the department. In general, the application shall include information necessary to make an evaluation of the proposed operation to ensure that the facility is located, designed, and operated so that the health, welfare, and physical property of the public as well as the environment and endangered species are protected. Failure to give complete information as required by these sections may constitute grounds for the department's return of the application without further action. Likewise, the submission of false information shall constitute grounds for disapproval of the application or subsequent revocation of the registration. (B) The application for a registration shall be submitted in triplicate to the department with all of the supporting data unless otherwise advised. Following receipt of the application, the department will forward to the applicant a letter of acknowledgment. (C) Data presented in support of an application shall consist of: (i) the legal name and address of the individual, partnership, corporation, city, county, or other governmental entity who is applying for the registration and who will be responsible for site opera 30>tion; (ii) the legal name and address of landowner where site will be located; (iii) the current status of site, i.e. proposed or existing; (iv) the specific location of site by street address if within the city limits or distance and direction from a city corporate limits or road intersection. The site location shall be further described by giving the direction (using compass headings as N, NE, E, etc.) and distance measured perpendicularly (in feet or miles), unless otherwise noted, from each site boundary to a known physical feature (such as a road, highway, canal, creek, etc. ); (v) the location of site by county, or extraterritorial jurisdiction of a city; (vi) the estimated number of used or scrap tires to be received daily; (vii) the size of the site in acres; (viii) the maximum number of tires (including an equivalent amount of shredded tire pieces) to be stored at this site; (ix) the intended purpose of the tires stored at the site; (x) the time period for which tires will be stored; (xi) the storage method (tire pile or inside a building or enclosure); (xii) a topographic map which shall be a United States Geological Survey 7 1/2 minute quadrangle sheet or equivalent, encompassing the area of the site and showing the location of area streams (particularly those entering and leaving the site), and marked to show the site boundaries, and roadway access. These maps may be obtained at a nominal cost from: Branch of Distribution, United States Geological Survey Federal Center, Denver, Colorado 80225; (xiii) a general location map, which shall be all or a portion of a half-scale county map, prepared by the Transportation Planning Division of the State Department of Highways and Public Transportation, annotated as necessary to show the location of the site; prevailing wind direction; residences, cemeteries, and recreational areas within one mile of the site; and location and type of surface of all roads within one mile which will be used for entering or leaving the site. If only a portion of the map sheet is used, the portion shall include scale, date, north arrow, and two or more latitudes and longitudes. These maps may be obtained at a nominal cost from the nearest District Highway Engineer Office or by writing to: State Department of Highways and Public Transportation, Attention: Transportation Planning Division (D-10), P. O. Box 5051, West Austin Station, Austin, Texas 78763-5051; (xiv) a statement from the owner substantially equivalent to sec.325. 905 of this title (relating to Appendix E-Form for Property Owner Affidavit) shall be submitted when the applicant is not a city, county, state agency, federal agency, or other governmental entity and is not the owner of record of the land described in the application, or does not have an option to buy the land. The applicant shall secure and submit with the application, except as provided in this paragraph. The owner-signed statement shall be witnessed and notarized. If the owner does not sign this affidavit, the applicant shall provide the department with reasonable evidence that the property owner has been properly notified and advised of his responsibilities and potential liabilities; (xv) a site layout plan showing location of storage areas, fire lanes, access roads (internal and external), fire control facilities, site security and fencing, maintenance and control buildings, sanitation facilities, location and description of type of tire splitter to be used, and other operational buildings to be located on the site; (xvi) a drainage plan showing drainage throughout the site area; locations of streams; and any other important drainage feature of the site. The surface drainage controls shall be designed by a professional engineer in accordance with sec.325.74(b)(5)(F)(iii) and (v) of this title (relating to Technical Information Required for Landfill Sites Serving 5,000 Persons or More-Site Development Plan). The drainage plan shall be prepared, signed, and sealed by a professional engineer in accordance with sec.325.60 of this title (relating to Preparation of Application); (xvii) a legal description of the site consisting of the official metes and bounds description including the volume and page number of the deed record, or if platted property, the book and page number of the plat record of only that acreage encompassed in the application; (xviii) a site operating plan containing information out lined in subsection (c) of this section; and (xix) an applicant's statement provided by the applicant, or the authorized representative empowered to make commitments for the applicant, that he is familiar with the application and all supporting data and is aware of all commitments represented in the application and that he or she is also familiar with all pertinent requirements in these regulations and he or she agrees to develop and operate the site in accordance with the application, the sections in this subchapter, and any special provisions that may be imposed. (b) Design requirements. (1) Waste tire storage facilities shall be designed or established so that the health, welfare, and safety of site operators, transporters, and others who may utilize the site are maintained. (2) Used or scrap tires or shredded tire pieces may be stored using tire piles, inside storage, or a combination of both methods. (A) Tire piles shall be no greater than 15 feet in height nor shall the pile cover an area greater than 8,000 square feet. (B) Used or scrap tires may be stored in any enclosed building or other type of covered enclosure. Where applicable, local fire prevention codes must be met and appropriate precautions taken. Inside storage piles or bins shall not exceed 12,000 cubic feet with a 10-foot aisle space between piles or bins. Storage trailers will be allowed provided the trailer is completely enclosed and lockable. (3) Used or scrap tire piles stored outdoors and outside of areas with building setback lines shall not be within 50 feet of a property line, building, or other structure; and 25 feet from either boundary of an easement. Outdoor used or scrap tire piles and buildings used to store used or scrap tires in areas with building setback lines shall be maintained no closer than 10 feet to the applicable building setback lines. Where no building set back lines exist, buildings used to store used or scrap tires shall be no closer than 25 feet to a property line. (4) Used or scrap tires shall not be stored for a period longer than 60 days prior to being split, quartered, or shredded. Appropriate vector controls shall be made at a frequency based upon weather conditions and other applicable local ordinances. (5) There shall be a minimum separation of 20 feet between outdoor tire piles. This 20-foot space shall be designated as a fire lane and shall be an all- weather road. The open space between indoor and outdoor tire piles shall be kept open at all times and maintained free of rubbish, equipment, tires, or other materials. (6) The storage site shall be completely enclosed with a security fence at least six feet tall with lockable gates. Storage buildings or enclosures not enclosed with a security fence shall be secured by lockable doors. Storage sites shall be kept locked during all nonoperational hours. (7) The storage site shall have, as a minimum, fire hydrants or a firewater storage pond or tank on the facility and large capacity carbon dioxide or dry chemical fire extinguisher(s) located in strategically-placed enclosures throughout the entire site. In so far as possible, fire extinguishers inside and outside, should be equally spaced within the site to provide quick access from any location within the site. The minimum spacing between fire extinguishers, inside and outside, shall be 100 feet. The minimum number of fire extinguishers or fire hydrants for each storage site shall be one per acre. The capacity of a firewater storage pond or tank shall be of sufficient size for firefighting purposes and shall be in conformance to all local and state fire code requirements. (8) Suitable drainage structures or features shall be provided to divert the flow of rainfall run-off or other surface water away from any storage pile. (9) Each site shall conspicuously display at the entrance a sign at least 1 1/2 feet by 2 1/2 feet with clear, legible letters stating the name of the site using the words "waste tire storage facility," the registration number, and operating hours. (10) A storage site located within a designated floodplain area shall provide adequate protection levees or dikes to prevent washing out any stored material from the site. (11) The storage site shall be designed in accordance with all local building codes, fire codes, or other appropriate local codes. (c) Site operating plan. (1) The site operating plan is to provide specific guidance and instructions to site management and operating personnel in sufficient detail to enable them to conduct day-to-day operations in a manner consistent with the design of the site and the requirements imposed by the sections in this subchapter. (2) The site operating plan shall include guidance or instructions on the following: (A) security, site access control, the hours and days during which tire-hauling vehicles will be accepted, screening of the site, traffic control, and safety; (B) sequence of the development of the site such as utilization of storage areas, drainage features, firewater storage ponds, trenches, and buildings; (C) control of loading and unloading of whole tires or pieces of tires within designated areas so as to minimize the operational problems at the storage site; (D) fire prevention and control plans, and special training requirements for fire-fighting personnel that may be called for assistance; (E) vector control procedures for any type of vector which may be found; (F) a procedure for removal of any waste material that is not a used or scrap tire to an approved disposal facility. This procedure must specify the means to be used for removal of the waste material illegally dumped at the site. In all cases, such wastes shall be removed from the storage area immediately upon discharge and placed in suitable collection bins or be returned to the offending transporter's vehicle and removed from the site. Collection bins must be emptied at least weekly, depending on the amount and type of unauthorized waste. The equipment necessary to meet this objective shall be specified and shall be on site and operable during operating hours; (G) a site attendant to inspect each load that is deposited at the site. The attendant shall have the authority and responsibility to reject unauthorized loads, have unauthorized materials removed by the transporter, assess appropriate disposal fees, and have any unauthorized material removed by on-site personnel; (H) a procedure whereby the transporter manifest required by sec.325.815 of this title (relating to Record Keeping), daily log and other required documents shall be maintained at the site and be available for inspection by the department's representatives and authorized agents or employees of local governments having jurisdiction; (I) dust and mud control measures for access roads, fire lanes, and storage areas; (J) posting of signs and enforcement of site rules; (K) wet-weather operations; (L) preventive maintenance procedures for all storage areas, tire splitter equipment, fire lanes, fire control devices, drainage facilities, access roads, buildings, and other structures on the site during the active life of the site. A schedule shall be established for periodic inspection of all equipment and facilities to determine if unsatisfactory conditions exist; and (M) incorporation of other instructions as necessary to ensure that site personnel comply with all of the operational standards for the site. (d) Record keeping. (1) General. (A) The approved site layout plan, site operating plan, and all supporting data to the application, is an operational requirement, and any significant deviation from any part without prior approval of the department shall be a violation of this subchapter. (B) A copy of the registration with all supporting data, including the approved site layout plan, the approved site operating plan, and the department's current rules shall be on-site and the on-site supervisor shall be knowledgeable of each with respect to the operational requirements of the specific site. (C) All drawings or other sheets prepared for revisions to a site layout plan or other previously-approved documents, which may be required by this subchapter, shall be submitted in triplicate and normally should be 8- 1/2 by 11 inches and shall not exceed 15 by 22 inches so that they can be reproduced by normal office copy machines. However, standard-sized drawings folded to 8 1/2 by 11 inches may be submitted or required if their reduction would render them illegible. (2) Daily log. Persons who store used or scrap tires subject to control under this subchapter shall maintain a record of each individual deposit and removal. Such record shall be in the form of a daily log or other similar documentation approved by the department. The daily log shall include the: (A) name and department registration number of the storage site; (B) physical address of the storage site; (C) number of whole used or scrap tires and an equivalent amount of shredded tire pieces received at the site; (D) number of whole used or scrap tires, or equivalent amount of shredded tire pieces, removed from the site (for disposal, resale, or recycling); (E) specific location on the storage site (i.e., tire pile number, bin number, building number, etc.) of used or scrap tires received and removed; (F) description of specific events or occurrences at the site relating to routine maintenance, fires, theft, spraying for vectors, or other similar events or occurrences; (G) number of whole tires being held for resale, adjustments, or other; and (H) name and signature of facility representative acknowledging truth and accuracy of the daily log. (3) Transporter manifests. The storage site operator shall retain a copy of all manifests received from a tire transporter, whether manifest is for used or scrap tires received at the site or removed from the site. (4) Maintenance of records and reporting. The storage site operator shall retain a copy of all records showing the collection and disposition of the used or scrap tires. Such copies shall be retained for three years and made available to the department upon request. Storage site operators shall submit to the bureau an annual summary of their activities up to December 31 of each year showing numbers of used or scrap tires received, disposition of such tires, and numbers of used or scrap tires removed from the facility. The report shall be submitted no later than March 1 of the year following the end of the report period. The report shall be prepared on a form provided by the department. (5) Local ordinances. Where local ordinances require controls and records substantially equivalent to or more stringent than the requirements of any subsection of this section, storage site operators shall use such controls and records to satisfy the department's requirement under this section. sec.325.836. Requirements for a Type VIII-S Site. (a) Permit requirement. (1) Persons who plan to store shredded tire pieces that were shredded to a partial site no larger than nine square inches and were received from a waste tire processor reimbursed from the waste tire recycling fund (WTRF) in a below ground facility or tire monofill shall permit these sites with the Texas Department of Health (department). The below ground facility permitted to store shredded tire pieces shall only receive and store shredded tire pieces nine square inches and smaller. Permit application forms will be provided by the department. (2) Persons who apply to the department for a permit and receive said permit shall maintain a copy of the permit at their designated place of business and at the designated storage site location. (3) A permit issued for a Type VIII-S shall expire 60 months after the date of issuance. An application for renewal shall be submitted at least 12 months prior to the expiration date. If the market for recycling reuse, or energy recovery has not developed sufficiently to absorb the shredded tire pieces stored in the monofill, the department may reissue the permit for a period of up to 10 years. (4) Preparation and submission of permit application shall be in accordance with the requirement of a Type VIII-D Tire Monofill indicated in sec.325.832 of this title (relating to Tire Storage Site Classification). (b) Design requirements. (1) A tire storage monofill shall be designed or established so that the health, welfare, and safety of the site operators, transporters, and others who may utilize the site are maintained. (2) The site shall be designed in accordance with the requirements of sec.325.853 of this title (relating to Permit Requirements) for a Type VIII-D tire monofill. (c) Site operation. (1) The site operating plan is to provide specific guidance and instructions to site management and operating personnel in sufficient detail to enable them to conduct day-to-day operation in a manner consistent with the design of the site and other requirements imposed by the department. (2) The site operating plan shall be prepared in accordance with the requirements of sec.325. 853 for a Type VIII-D tire monofill. (3) The site operating plan shall also include an operational procedure for the extraction or exhumation of the shredded tire pieces that will be transported for recycling, reuse, or energy recovery. (4) Record keeping and maintenance requirements for a Type VIII-S tire storage monofill shall be the same as required in sec.325.835(d) of this title (related to requirements for a Type VIII-R Site). sec.325.837. Requirements for a Type VIII-L Site. (a) Permitted municipal solid waste landfills that elect to designate a recycle collection area for the collection and storage of whole used or scrap tires may do so. The designated recycling collection area shall be issued a tire site identification number and allowed to accumulate whole used and scrap tires for periods not to exceed 120 days. (b) To receive tire site identification number for the recycling collection area, the permittee shall submit, in triplicate, a change to the approved site development plan designating the collection area. In addition, a meets and pounds description of the designated recycling collection area shall be submitted. (c) The designated recycling collection area shall be a permanent fixed area of the permitted site. Lockable enclosed trailers, open top roll off boxes, or tire piles may be utilized in collecting and storing these tires. The method of operation of this area shall be identified in the changes to the site development plan. sec.325.838. Requirements for a Type VIII-WT Site. (a) Persons who plan to store whole used or scrap tire in quantities less than 500 at any given time may do so without obtaining a permit or registration. The department will assign a tire site identification number to the site. (b) Persons who operate a Type VIII-WT site shall monitor the site for vectors and shall utilize a vector control system to control the presence and occurrence of vectors. (c) Whole used and scrap tires stored a Type VIII-WT site shall be removed at least once every 60 days or when the accumulated amount nears the 500 limit. sec.325.839. Eligibility for the WTRF Program. (a) Any storage site declared eligible for the WTRF shall operate in accordance with any additional requirements in s325.866 of this title (relating to Post Clean-Up Responsibilities). (b) Eligibility of the site for inclusion in the WTRF Program shall be determined as follows. (1) Any waste tire storage site that has not received a tire site identification number and that has not been classified is not eligible for participation in the program. (2) The WTRF Program targets clean up of illegal tire dumps and shredding of used and scrap tires generated on a daily basis from a retail or wholesale dealer. Waste tire storage sites that have received a tire site identification number and have been classified are eligible for participation in the fund under the appropriate category. (3) Waste tire storage sites which are eligible for participation as follows: (A) clean up of illegal tire dumps: (i) Type VIII-I sites; and (ii) Type VIII-WT sites that are above the priority enforcement list threshold limit; and (B) used and scrap tires generated daily; (i) Type VIII-L sites; (ii) Type VIII-WT sites; and (iii) Type VIII-R sites. sec.325.840. Penalties. Failure of a registrant or permittee or site operator to properly and correctly maintain records, manifests or other documents; or failure of a registrant or permittee, to submit to the department correct information on the annual summary report or on an application for renewal of his registration by the required due date shall be sufficient cause for the department to revoke the storage site operator's registration and authorization to store used or scrap tires. The department may also take any other action authorized by law to secure compliance to include the assessment of administrative penalties or seeking of civil penalties as prescribed by law. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on September 30, 1991. TRD-9111969 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Proposed date of adoption: December 7, 1991 For further information, please call: (512) 458-7271 Processors of Used and Scrap Tires 25 TAC sec.sec.325. 841-325.848 The new sections are proposed under the Health and Safety Code (Code), sec.361.011 and sec.361.024 which establish the department's jurisdiction over municipal solid waste management and provide the Texas Board of Health (board) with authority to adopt rules to manage and control municipal solid waste; s12.001 which provides the board with authority to adopt rules for the performance of every duty imposed by law on the board, the department, and the commissioner of health; and Senate Bill 1340 and House Bill 847, 72nd Legislature,1991, which provide the department with the authority to implement a waste tire recycling program. The amendments, repeals and new sections will affect Chapter 361 of the code. sec.325.841. Applicability and Responsibility. (a) Applicability. The regulations contained in these sections establish standards applicable to persons who operate as a waste tire processor at a waste tire facility. A waste tire facility is a fixed and permanent facility. (b) Responsibility. All persons who operate as a waste tire processor at a waste tire facility shall be responsible for obtaining all necessary and appropriate state and local permits, licenses, or registrations required, and operate in compliance with such permits, licenses, or registrations, or other applicable state and local codes. (c) Recycling responsibility. Each waste tire facility that participates in the waste tire recycling program and receives reimbursement from the waste tire recycling fund (WTRF) shall be responsible for ensuring that the shredded tire pieces that are generated have been delivered to a recycling, reuse, or energy recovery facility in accordance with applicable sections of this subchapter. (d) Waste Tire Recycling Fund (WTRF). Waste tire facilities that participate in the WTRF program may not charge a fee, to a retail or wholesale dealer of used or new tires, for collecting and shredding used or scrap tires accepted for temporary storage by the dealers, after April 1, 1992. sec.325.842. Waste Tire Facility Classification and Operation. (a) A waste tire facility shall be classified as a Type VIII-P facility. The facility shall contain equipment that will shred whole tires or reduce the whole tire into crumb rubber. (b) A Type VIII-P site shall be operated in accordance with the provisions in Subchapter G of this chapter (relating to Operational Standards for Solid Waste Processing and Experimental Sites) and the provisions contained in this subchapter. (c) Waste tire shredding or reduction equipment shall be equipped with a scale, certified annually by the weights and measures section of the Texas Department of Agriculture, shall be maintained at the site and all shredded tire pieces or other resultant elements shall be weighed immediately after processing. sec.325.843. Registration Requirements. (a) Persons who process used and scrap tires at a waste tire facility shall obtain a registration for the operation of the waste tire facility. This requirement is only applicable to waste tire facilities that have permanent and fixed equipment that is used to shred or reduce whole tires into recyclable material. Permanent fixed tire splitting or quartering equipment is not required to be permitted. (b) Waste tire facilities shall register their operations with the department, prior to commencing operations. An application for registration shall be made on a form that will be provided by the department upon request. The following information must be provided for registration: (1) the name, address, and telephone number of registrant; (2) the name, address, and telephone number of partners, corporate officers, and directors; (3) a description of equipment to be registered, including the: (A) type of equipment; (B) name of equipment owner; (C) rated capacity of each piece of equipment; and (D) area within Texas that shredder will be located and will generally operate; (4) the anticipated number of used or scrap tires to be split, quartered, or shredded per month; and (5) metes and bounds description of the site location of the facility. (c) Persons who apply to the Texas Department of Health (department) for registration and receive said registration shall maintain a copy of the registration form, as annotated by the department with an assigned registration number, at their designated place of business, and in each vehicle used to shred used or scrap tires. (d) Registrations shall expire 60 months after the date of issuance. Registrations are required to be renewed prior to the expiration date. Applications for renewal must contain the same information as the initial application and shall be submitted at least 60 days prior to the expiration date an application for renewal may be obtained from the department. (e) Waste tire facilities shall notify the department, by letter, within 15 days of any changes to their registration if: (1) the number of used or scrap tires handled or total operation has expanded by 50% over that originally registered; (2) the office or place of business has moved; (3) the registered name has changed; or (4) the area of operation of a shredder has change. (f) A new registration application is required to be submitted, within 10 days, (whereupon the old registration number will be voided and the old registration canceled) if: (1) the department determines that operations or management methods are no longer adequately described by the existing registration; (2) the ownership of the waste tire facility has changed; or (3) the location of the equipment or site has changed. (g) Revocation or denial of registration procedures are as follows. (1) The department may revoke a registration or refuse to issue a registration for: (A) failure to maintain complete and accurate records; (B) failure to maintain vehicles in safe working order as evidenced by citations from the Texas Department of Public Safety or local traffic law enforcement agencies; (C) falsification of any record maintained or received; (D) delivery of shredded tire pieces to a facility not authorized to handle the material; (E) failure to comply with any rule or order issued by the department pursuant to the requirements of the chapter; (F) failure to submit required reports; (G) failure to maintain insurance or provide proof of insurance as required in sec.325.76(b)(1) of this title (relating to Technical Information Required for Registration of Solid Waste Facilities-Part B, Section II); (H) illegal disposal of shredded tire pieces; (I) collection and/or shredding of used and scrap tires without registration as required in this section; (J) failure to provide delivery of shredded tire pieces to a recycling, reuse, or energy recovery facility as required in this subchapter; (K) falsification of any request for payment from the waste tire recycling fund (WTRF); (L) failure to complete the work required to completely clean up an illegal tire dump; and (M) failure to account for recycling activities in the required five year period. (2) Appeal of revocation or denial procedures are as follows. (A) An opportunity for a formal hearing on the revocation of registration may be requested in writing by the registrant by certified mail, return receipt requested, provided the request is postmarked within 20 days after a notice of proposed revocation or denial of registration has been sent from the department to the last known address of the registrant. If the registration is revoked, a transporter shall not collect or shred used and scrap tires regulated under this subchapter. The period of revocation shall be not less than one year nor more than five years. (B) An opportunity for a formal hearing on the denial of registration or renewal of registration may be requested in writing by the applicant by certified mail, return receipt requested, provided the request is postmarked within 20 days after a notice of denial has been sent from the department to the address listed on the application. If the registration is denied, a person shall not collect, transport, or process used or scrap tires regulated under this subchapter. (C) The formal hearing shall be in accordance with the department's formal hearing procedures in Chapter 1 of this title (relating to Board of Health). sec.325.844. Evidence of Financial Responsibility. (a) The applicant for a Type VIII-P registration shall submit evidence of financial responsibility in an amount adequate to assure the department that there is sufficient assets to provide proper cleanup and closure of the facility. A firm commitment to provide backup equipment by lease, purchase, or diversion from other activities is part of this responsibility. This assurance may be in the form of a performance bond, a letter of credit from a recognized financial institutions, a trust fund, or insurance in the case of privately- owned facilities, or by commissioners court or city council resolution in the case of publicly-owned facilities. (b) The financial assurance shall be submitted within 30 days prior to the issuance of a permit. It shall be good for one year beginning with the permit issuance. The financial assurance must be renewed annually and shall be submitted at least 60 days prior to the expiration date. (c) The applicant shall submit with the application for a registration an estimate of the total amount of shredded tires measured by weighed tire that the facility will store or process and an estimated number of whole tires that will be on the site during processing. The applicant shall also estimate the cost, using the total amounts of used and scrap tires and shredded tire places, of cleaning up and/or closing the facility. The department will evaluate the estimated submitted and by administrative order determine the amount of financial assurance that each facility is required to provide. sec.325.845. Record keeping. (a) General. (1) The approved site layout plan, site operating plan, and all supporting data to the application, becomes an operational requirement, and any significant deviation from any part without prior approval of the Texas Department of Health (department) is a violation of this subchapter. (2) A copy of the registration with all supporting data, including the approved site layout plan, the approved site operating plan, and the department's current rules shall be on-site and the on-site supervisor shall be knowledgeable of each with respect to the operational requirements of the specific site. (3) All drawings or other sheets prepared for revisions to a site layout plan or other previously-approved documents, which may be required by this subchapter, shall be submitted in triplicate and normally should be 8-1/2 x 11 inches and shall not exceed 15 x 22 inches so that they can be reproduced by normal office copy machines. However, standard-sized drawings folded to 8- 1/2 x 11 inches may be submitted or required if their reduction would render them illegible. (b) Daily log. Persons who process used or scrap tires subject to control under this subchapter shall maintain a record of each individual deposit, processing, and removal. Such record shall be in the form of a daily log or other similar documentation approved by the department. The daily log shall include: (1) the name and department permit number of the processing facility; (2) the physical address of the processing facility storage site; (3) the number of whole used or scrap tires received at the site from illegal tire sites and other generators, listed separately; (4) the number of used and scrap tires shredded or processed and the amount of shredded tire pieces; (5) the amounts of shredded tire pieces removed from the site; (6) the specific location on the processing site (i.e., tire pile number, bin number, building number, etc.) of used and scrap tires received and where received from: (7) a description of specific events or occurrences at the site relating to routine maintenance, fires, theft, spraying for vectors, or other similar events or occurrences; (8) other pertinent comments and remarks as needed; and (9) the name and signature of facility representative acknowledging truth and accuracy of the daily log. (c) Transporter manifests. The waste tire processor shall retain a copy of all manifests received from a tire transporter, whether manifest is for used or scrap tires received at the site or removed from the site. (d) Maintenance of records and reporting. The waste tire processor shall retain a copy of all records showing the collection, disposition, and processing of the used or scrap tires. Such copies shall be retained for three years and made available to the department upon request. Waste tire processor shall submit to the bureau an annual summary of their activities up to December 31 of each year showing number of used or scrap tires received, disposition of such tires, and numbers of used or scrap tires removed from the facility. The report shall be submitted no later than March 1 of the year following the end of the report period. The report shall be prepared on a form provided by the department. (e) Local ordinances. Where local ordinances require controls and records substantially equivalent to or more stringent than the requirements of any subsection of this section, storage site operators shall use such controls and records to satisfy the department's requirement under this section. sec.325.846. Delivery Requirement.
                                                                                                                                                                                                    The waste tire processor shall be required to deliver or have delivered the shredded tire pieces, that reimbursement from the waste tire recycling fund (WTRF) was received, only at a waste tire storage site permitted or registered with the department, or a facility that will eventually recycle, reuse, or recover energy from the shredded tire pieces. Any shredded tire piece not included in the reimbursement from the WTRF may be disposed of, however, the preferred designation for these shredded tire pieces is a recycling, reuse, or energy recovery facility. sec.325.847. Eligibility for the Waste Tire Recycling Fund (WTRF) Program. Eligibility of the site for inclusion in the WTRF Program shall be determined as follows. (1) Any waste tire processor who operates a waste tire facility that has not received a registration for the facility is not eligible for participation in the program. (2) The WTRF Program targets cleanup of illegal tire dumps and shredding of used and scrap tires generated on a daily basis from a retail or wholesale dealer. Waste tire processors that operate waste tire facilities that have received a registration and that shred the used and scrap tires to a particular size no larger than nine square inches are eligible for participation in the fund. sec.325.848. Penalties. Failure of a registrant or site operator to properly and correctly maintain records, manifests or other documents; or failure of a registrant to submit to the Texas Department of Health (department) correct information on the annual summary report by the required due date; or failure of a registrant to operate in accordance with the operational requirements of the site; or failure of a registrant to operate in accordance with the requirements of the WTRF shall be sufficient cause of the department to revoke the site operator's permit and authorization to process used or scrap tires. The department may also take any other action authorized by law to secure compliance to include the assessment of administrative penalties or seeking of civil penalties as prescribed by law. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on September 30, 1991. TRD-9111970 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Proposed date of adoption: December 7, 1991 For further information, please call: (512) 458-7271 Processing and Disposal of Used and Scrap Tires 25 TAC sec.sec.325.851-325.855 (Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Department of Health or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The repeals are proposed under the Health and Safety Code (Code), sec.361. 011 and sec.361.024, which establishes the department's jurisdiction over municipal solid waste management and provides the Texas Board of Health (board) with authority to adopt rules to manage and control municipal solid waste; s12. 001, which provides the board with authority to adopt rules for the performance of every duty imposed by law on the board, the department, and the commissioner of health; and Senate Bill 1340 and House Bill 847, 72nd Legislature, 1991, which provide the department with the authority to implement a waste tire recycling program. The amendments, repeals, and new sections will affect the Code, Chapter 361. sec.325.851. Applicability and Responsibility. sec.325.852. Sites Authorized for Disposal of Tires. sec.325.853. Permit Requirements. sec.325.854. Existing Tire Disposal and Processing Sites. sec.325.855. Final Cover Requirements. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on September 30, 1991. TRD-9111971 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Proposed date of adoption: December 7, 1991 For further information, please call: (512) 458-7271 Disposal of Used and Scrap Tires 25 TAC sec.sec.325. 851-325.856 The new sections are proposed under the Health and Safety Code (code), sec.sec.361.011 and 361.024 which establish the department's jurisdiction over municipal solid waste management and provide the Texas Board of Health (board) with authority to adopt rules to manage and control municipal solid waste; s12.001 which provides the board with authority to adopt rules for the performance of every duty imposed by law on the board, the department, and the commissioner of health; and Senate Bill 1340 and House Bill 847, 72nd Legislature,1991, which provide the department with the authority to implement a waste tire recycling program. The amendments, repeals, and new sections will affect Chapter 361 of the code. sec.325.851. Applicability and Responsibility. (a) Applicability. (1) The regulations contained in these sections establish standards applicable for the disposal of used and scrap tires. (2) For the purpose of these sections, disposal of used and scrap tires pertain to the disposition of any used or scrap tire in a permitted municipal solid waste landfill, in a permitted tire monofill, or in a tire processing facility designed for disposal of a tire or for resource recovery/recycling. (b) Responsibility. (1) Landowners and/or operators of used or scrap tire disposal sites shall ensure that any used or scrap tires deposited at their site are shredded, split, or quartered prior to disposal of the used or scrap tires as required by sec.325.853 of this title (relating to Permit Requirements). (2) Persons who dispose of used or scrap tires regulated by this subchapter shall do so only at a facility permitted by the department for tire disposal or tire processing for resource recovery/recycling. sec.325.852. Disposal of Tires. (a) Disposal procedures are as follows. (1) Whole used and scrap tires may not be disposed of in any permitted landfill or monofill except for incidental whole tries that are mixed in an enclosed packer unit and that cannot be removed without creating a health and safety hazard to the landfill worker. (2) Used and scrap ties shall be split, quartered, or shredded prior to disposal. Whole tires that are filled with concrete or some other hardened material may be disposed of whole. Whole tires may not be disposed of on wheel rims unless approved by the Texas Department of Health (department). (3) Shredded tire pieces that are nine square inches and smaller may not be disposed of at any facility if the waste tire processor received reimbursement from the waste tire recycling fund (WTRF). (4) Elements of used and scrap tires that remain, after processing, are considered solid waste and not used or scrap tires. (b) Disposal of used and scrap tires will be allowed under the conditions identified in subsection (a) of this section, at any of the following sites: (1) a permitted municipal solid waste landfill; (2) a permitted tire disposal site or monofill; or (3) a permitted tire processing facility designed for incineration of a tire or for resource recovery. (c) The classification for the types of tire disposal sites/facilities listed in subsection (b) of this section shall be as follows: (1) permitted landfill-Type I, II, III, or IV, as provided in sec.325.42(1), (2), (3), and (4) of this title (relating to Types of Municipal Solid Waste Sites); (2) permitted tire disposal site or monofill-Type VIII-D. A Type VIII-D site or operation may be authorized by the department for the disposal of used or scrap tires only. For the purposes of these sections, a tire disposal site shall be considered to be a monofill. Type VIII-D site shall not be operated within 300 yards of a public road without proper screening. The minimum operational standards are prescribed in sec.sec.325.111-325.114, 325.123, and 325.131- 325.154 of this title (relating to Operational Standards for Solid Waste Land Disposal Sites); and (3) permitted tire incinerator-Type V, as provided in sec.325.42. sec.325.853. Permit Requirements. (a) A permit application for a tire disposal site shall be submitted to the department prior to commencing operations. Permit application forms will be provided by the department upon request. The form is included in sec.325.901 of this title (relating to Appendix A-Application for a Permit/Registration to Operate a Municipal Solid Waste Site-Part A (General Data)). (b) Persons who obtain a permit from the department to operate a tire disposal site shall maintain a copy of the permit at their designated place of business and at the designated disposal site location. (c) Municipal solid waste landfills which have been granted a Type I, II, III, or IV permit shall be considered as an approved used or scrap tire disposal facility. (d) A permit for a used or scrap tire disposal site shall be issued in accordance with the procedures, criteria, and requirements indicated Subchapter E of this chapter (relating to Permit Procedures and Design Criteria). Used and scrap tire monofills are exempted from the requirements in sec.325.73 of this title (relating to Technical Information Required for Landfills Serving Less than 5,000 Persons/Permit Application, Part B) and sec.325.74 of this title (relating to Technical Information Required for Landfill Sites Serving 5,000 or More-Site Development Plan) for providing soil liner and groundwater protection systems and for providing subsurface soil investigations and groundwater characterization studies. (e) All used and scrap tire disposal sites or facilities shall shred, split, or quarter all used or scrap tires within 60 days after receipt, provided that vector control by means of spraying or other appropriate methods are used at a frequency based upon the weather conditions and other local ordinances that may apply. An exception to this requirement may be granted by the department if specific circumstances would warrant such an exception. A written request for such an exception must be made and this request must include all reasons for the exception. Used or scrap tires deposited at a disposal or processing site that are delivered in an enclosed compactor vehicle are granted an exemption from being split, quartered or shredded, provided the used or scrap tire is not retrievable by any means other than scavenging. (f) Additional design and operational requirements for all tire monofills or any permitted solid waste landfill which utilizes a separate trench for tire disposal shall be as follows. (1) In pits or trenches larger than 10,000 square feet, a firewall of not less than 10 feet thick shall be constructed to divide the trench into cells of not more than 10,000 square feet. (2) The maximum depth of any trench shall be 50 feet. (3) Final cover thickness on all completed areas shall be at least five feet. A variance may be granted on the five feet of final cover only if the applicant/operator provides an engineering study on the design and operation of a tire monofill using intermediate cover and a minimum of 2 1/2 feet of final cover and the department approves this study. sec.325.854. Existing Tire Disposal Sites. (a) An existing underground tire disposal site may remain in operation pending completion of the processing of an application for a permit, providing the site is otherwise in full compliance with all applicable sections of this subchapter. (b) A permit application for an existing tire disposal site that intends to remain in operation shall be submitted to the department prior to June 1, 1992. (c) Existing tire disposal sites that elect to close shall submit an application for a tire site identification number prior to April 1, 1992, for identification purposes. These sites shall be identified as a Type VIII-ID site. The following documents (which shall require engineering certification) shall be submitted, upon request by the department, to document the intent to close the site: (1) a closure/completion plan for the site which shall portray the proposed final contours, establishing side slopes and top grades, and the proposed drainage features. Protective measures for any area subject to flooding by a 100-year frequency flood shall be described; (2) a closure schedule specifying the dates of the cessation of acceptance of used or scrap tires and of the completion of the closure of the site; and (3) a certified copy of an affidavit to the public for the site, prepared in accordance with sec.325.152(c) of this title (relating to Site Completion and Closure Procedures). (d) Existing tire disposal sites that elect to close will be subject to at least one inspection from the Texas Department of Health's (department) regional office to verify the proper closure of the site. The department's Bureau of Solid Waste Management will then acknowledge the termination of operations and closure of the site. (e) Post closure maintenance must be provided for all closed tire disposal sites in accordance with sec.325.153 of this title (relating to Post- Closure Maintenance). sec.325.855. Final Cover Requirements. (a) Final cover for all tire disposal sites whether in existence prior to the effective date of these sections or whether permitted to operate after the effective date of these sections shall be a minimum of five feet. A variance may be granted on the five feet of final cover only if the applicant/operator provides an engineering study on the design and operation of a tire monofill using intermediate cover and a minimum of 2 1/2 feet of final cover and the department approves this study. (b) The first 4 1/2 feet or more of cover (see subsection (d) of this section) shall be of clayey soil of classification SC or CL, as defined in the "Unified Soils Classification System" developed by the United States Army Corps of Engineers, compacted in layers of no more than six compacted inches to help minimize the water infiltration potential. A classification CH soil may be used; however, this soil may experience excessive cracking and must therefore be covered by at least 12 inches of topsoil to help in retaining moisture. Other types of soil may be used with prior approval. (c) The final six inches of cover shall be of suitable topsoil which will sustain the growth of vegetation, and shall be seeded or sodded during the first growing season following application of final cover to help minimize erosion. (d) Side slopes of all above ground disposal areas (aerial fills) shall not exceed a 25% grade (four feet horizontal to one foot vertical). The final cover for the top portion of a landfill shall have a minimum gradient of 2.0% and shall not exceed 6.0%, but shall possess a sufficient minimum grade to preclude ponding of surface water when total fill height and expected subsidence are taken into consideration. Side slopes in excess of 25% will not be authorized without controlled drainage such as flumes, diversion terraces, spillways, or other acceptable methods. Disposal of used or scrap tires above natural ground level is prohibited unless pursuant to an engineering site development plan approved by the Texas Department of Health. Requests for changes to previously- approved engineering site development plans or new engineering site development plans submitted in support of requests for aerial fills will be processed in accordance with sec.325.111 of this title (relating to General Requirements). sec.325.856. Eligibility for the Waste Tire Recycling Fund (WTRF) Program. (a) Any tire monofill site declared eligible for the WTRF program shall operate in accordance with any additional requirements in sec.325. 866 of this title (relating to Post Clean-Up Responsibilities). (b) Eligibility of the site for inclusion in the WTRF program shall be determined as follows. (1) The WTRF program targets cleanup of illegal tire dumps and shredding of used and scrap tires generated on a daily basis from a retail or wholesale dealer. Tire monofills that have received a tire site identification number or a permit and have been classified is eligible for participation in the fund under the appropriate category. (2) Type VIII-ID monofills that have disposed of whole used and scrap tires are eligible for participation under the used and scrap tires generated daily portion of the WTRF. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on September 30, 1991. TRD-9111972 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Proposed date of adoption: December 7, 1991 For further information, please call: (512) 458-7271 Subchapter R. Management of Used and Scrap Tires Priority Enforcement List 25 TAC sec.sec.325.861-325.867 The new sections are proposed under the Health and Safety Code (Code), sec.361.011 and sec.361.024, which establishes the department's jurisdiction over municipal solid waste management and provides the Texas Board of Health (board) with authority to adopt rules to manage and control municipal solid waste; s12.001, which provides the board with authority to adopt rules for the performance of every duty imposed by law on the board, the department, and the commissioner of health; and Senate Bill 1340 and House Bill 847, 72nd Legislature, 1991, which provide the department with the authority to implement a waste tire recycling program. The amendments, repeals, and new sections will affect the Code, Chapter 361. sec.325.861. Applicability and Responsibility. (a) Applicability. The regulations contained in these sections establish standards applicable to the establishment and maintenance of the priority enforcement list and the responsible party. (b) Responsibility. All persons who operate as waste tire processors or mobile tire shredders who participate in the waste tire recycling fund (WTRF) shall be responsible for operating in compliance with any provision of these sections. sec.325.862. Responsible Party. (a) A waste tire site that is eligible for the priority enforcement list can be cleaned up by waste tire processors and mobile tire shredders and be eligible for the 25% portion of the waste tire recycling fund (WTRF) provided that a responsible party for the site cannot be identified. (b) For the purpose of the waste tire recycling program and these sections, a responsible party shall be defined as the property owner and/or site operator and/or person who deposited the used and scrap tires on the site that has the ability to finance the cleanup and/or operation of the waste tire site. (c) If the Texas Department of Health (department) determines that a responsible party exists for a waste tire site and has exhausted all possible means to force the responsible party to comply with these regulations and the laws of the state, then the department shall notify the responsible party, by certified mail at the last known address of the responsible party, of the intent to enter the property and contract with a waste tire processor or mobile tire shredder to transport the used and scrap tires off the site for shredding or to shred the tires on site and then transport the shredded tire pieces off- site. The department shall then seek reimbursement from the responsible party for the cost incurred in the cleanup operation plus attorney's fees either through a mechanics lien filed against the property or by lawsuit. (d) The responsible party shall be obligated to comply with the sections of this subchapter that are applicable to the waste tire site for which he or she is responsible. Failure to comply with the applicable rules shall constitute a violation and will subject the responsible party to enforcement action and possible administrative penalties or court-ordered civil penalties as prescribed by state law. (e) The responsible party may elect to allow the department to use the WTRF to cleanup the waste tire site provided the following conditions are met. (1) The responsible party signs a release granting the department full authority to place the site on the priority enforcement list. (2) The responsible party signs an agreement to reimburse the WTRF the cost incurred by the department to have the site cleaned up. (3) The responsible party agrees to cleanup the site of any other municipal solid waste, i.e., waste other than used tires, that may have been improperly disposed of on the property. (f) Property owners who have reported to the department concerning unauthorized tire sites on their own land may, if they choose, request from the department a generator identification number, arrange for a waste tire processor to collect and process for recycling or disposal any used and/or scrap tires contained on such property, and upon the removal of all tires from the site request the department to declare their site cleaned up. All used and/or scrap tires which are removed from such site, whether whole or processed, must when shipped off- site be accompanied by a properly completed manifest, in accordance with sec.325.807 of this title (relating to Record Keeping). Unless specifically approved by the department in writing, waste tire processors who shred tires from such sites, for the purpose of receiving payment under sec.sec.325. 871- 325.878 of this title (relating to Waste Tire Recycling Program), may not count those waste tires as part of the 25% requirement set forth in sec.325.872(e) (3) of this title (relating to Waste Tire Recycling Program), but may, rather, include them as part of the total tires shredded that are required to have originated from other sites or sources. sec.325.863. Priority Enforcement List. (a) The priority enforcement list (PEL) shall be a list maintained, by the Texas Department of Health (department), containing waste tire sites classified as Type VIII-WT, or Type VIII-I. This list will be used to determine the sites which processors can obtain the whole used or scrap tires that fall into the 25% category for processing. (b) The PEL shall be published by the department at least once per calendar quarter of each year. The PEL will be published in the Texas Register
                                                                                                                                                                                                      in accordance with established procedures. The list can also be obtained from the bureau or one of the field offices. (c) The PEL shall contain a threshold limit which will be used to determine the number of priority sites available for the processors to obtain their 25% tires. The threshold limit will be set, prior to the publication of the PEL, based upon the locations of the sites ranked on the list, the availability of funds for disbursement from the waste tire recycling fund (WTRF), the sites already scheduled and being cleaned up, and the need to clean up the sites which will have a greater adverse impact on public health and the environment. Any site above the threshold limit quarter that falls below the threshold limit in a subsequent quarter for which cleanup has been initiated shall remain eligible for reimbursement from the WTRF. (d) The PEL may be subdivided on a regional basis. If the number of processors and the number of sites warrant such a division each regional subdivision would have a separate threshold limit. sec.325.864. Ranking of Sites. (a) Waste tire sites that are eligible for the priority enforcement list (PEL) will be ranked in accordance with the numerical ratings determined prior to classification of the site and/or any additional information obtained about the site. Numerical ratings for the location of the site, climate of the area, responsible party, and severity of the problem will be summed to obtain the overall numerical rating. (b) The overall numerical rating of a waste tire site may change over a period of time if any of the individual factors used to determine the overall rating change. A change could be an increase or a decrease in the overall numerical rating. sec.325.865. Release of Priority Enforcement Sites. (a) Once the Texas Department of Health (department) has placed a site on the priority enforcement list, that site's owners shall be encouraged to contact, and make tentative arrangements with, one of the authorized waste tire processors, who has previously notified the department in accordance with sec.325.873 of this title (relating to Announcement of Intent to Participate) to collect, shred, and provide for the eventual recycling of all used and scrap tires located at such site. If the site is ranked sufficiently high on the priority enforcement list to warrant immediate clean-up under the program described in sec.sec.325.871-325. 878 of this title (relating to Waste Tire Recycling Program), the department shall approve a plan and schedule for site clean-up required to be submitted by the waste tire processor, provided all the following conditions are met. (1) The site owner has consented to the planned clean-up operation and agrees, in writing, to hold the department harmless for any damages caused by the waste tire processor or crews employed by the processor. (2) The processor agrees, in writing, to remove all used and scrap tires from the site and to comply with all requirements contained in sec.sec.325.871- 325.877 of this title (relating to Waste Tire Recycling Program). (3) Sufficient funds are available in the waste tire recycling fund to enable payment to the processor. (4) The processor is in compliance, and generally on schedule, with respect to any other waste tire site clean-up plans and/or schedules approved by the department. (5) Funds required to pay for shredding proposed in the submitted plan and schedule are not needed to pay for tire processing that might otherwise be carried out in the same time period by waste tire processors responding to department issued compliance schedules issued for higher ranking priority enforcement list sites. (6) The proposed scheduling is determined to be satisfactory. (b) The department, in order to assure that sites found to present the greatest risk to public health and/or the environment are cleaned up as quickly as possible, may where appropriate, issue compliance schedules in accordance with sec.325.222 of this title (relating to Enforcement Policy). Such compliance schedules may direct a property owner to locate within a specified period of time a waste tire processor who is willing to collect and shred all used and scrap tires contained at the subject site within the time frames set forth in the compliance schedule. Failure on the part of the property owner to locate and contract with such a processor, or within the same time frames to provide other satisfactory means of resolving the site's problems, may result in the property owner foregoing the right to select or pick a waste tire processor. (c) In the event an issued compliance order fails to bring about a satisfactory resolution of the problem, the department shall use other legal or enforcement remedies that may be available and which will enable the department, with or without the property owner's approval, to contract with a waste tire processor for the purpose of removing all used and scrap tires from the site in question. (d) The department may, in the process of ranking and releasing sites contained on the priority enforcement list, group several sites together, provided the grouped sites are all in the same general vicinity. Grouped sites need not all be of the same ranking priority, prior to grouping, provided that at least the largest site in the group has as high or higher ranking than the other sites. (e) If the department determines that a site on the priority enforcement list contains more tires than any single waste tire processor is likely to be able to collect and shred within a reasonable period of time or if proposed schedules received from waste tire shredders call for significantly longer time frames for total clean-up of any site than is acceptable to the department, the department may seek to have more than one waste tire processor involved in collecting and/or processing tires from the site. (f) During scrap tire collection and removal operations at any priority enforcement list site, the department may, at its discretion and with the approval of the waste tire processor, allow local citizens or citizen groups to bring to the collection (or processing) site scrap tires that they have collected from either public or private properties that are determined as having fewer than 100 tires. Persons collecting and delivering such additional tires to the designated priority enforcement list site must certify to the department's on-site representative that they have permission from the property owners, on whose land they collect such additional tires, to enter their property and remove such tires. Any agreement between the waste tire processor and citizens, or citizen groups, concerning payment for the collection and delivery of such additional tires, shall be strictly between the processor and such citizens or citizen groups. Persons collecting and delivering such additional scrap tires, in accordance with this subsection, may be exempted from any requirements contained in this subchapter concerning generator registration, generator identification number, transporter registration, transporter identification number, and use of used/scrap tire manifests. Such exemptions may, for cause, be withdrawn at any time by the department's on-site representative. sec.325.866. Post Clean-Up Responsibilities. (a) In instances where either the inspection by Texas Department of Health (department) personnel or representatives or actual removal operations of tires from a site contained on the priority enforcement list indicates the existence of other improperly disposed of solid waste, the property owner shall be responsible for the proper clean-up and disposal of such waste, and the proper closure of the site. (b) Where the existence of other solid waste, referred to in subsection (a) of this section, significantly interferes with the removal of used and/or scrap tires being conducted by a waste tire processor in accordance with sec.sec.325.871-325.878 of this title (relating to Waste Tire Recycling Program), the property owner shall immediately take steps, in cooperation with the department, to assist the waste tire processor in safely removing the unauthorized tires. (c) Once an unauthorized tire storage/disposal site has been cleaned up under the waste tire recycling program described in sec.sec.325.871-325.878, owners will not be eligible for clean-up assistance as a result of future tire disposition at the site. sec.325.867. Authority of Department's Representative. (a) A Texas Department of Health (department) representative may be assigned to each priority enforcement list site during that period of time in which the selected waste tire processor has authority to carry out activities at the site. The waste tire processor shall report to this department designated representative, in whatever reasonable manner and at whatever reasonable times such representative shall require. (b) The department's on-site representative shall have the authority to determine whether conditions and/or activities at the site, or other circumstances: (1) warrant a particular day to be declared a "working day;" (2) warrant that certain activities to be temporarily curtailed; and (3) warrant the receipt of additional tires from citizens, or citizen groups, under sec.325.865(f) of this title (relating to Release of Priority Enforcement Sites). This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on September 30, 1991. TRD-9111973 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Earliest possible date of adoption: December 7, 1991 For further information, please call: (512) 458-7271 Subchapter R. Management of Used and Scrap Tires Special Conditions for Beneficial Use of Used and Scrap Tires. 25 TAC sec.325.871 (Editor's note: The text of the following section proposed for repeal will not be published. The section may be examined in the offices of the Texas Department of Health or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The repeal is proposed under the Health and Safety Code (Code), sec.361.011 and sec.361.024, which establishes the department's jurisdiction over municipal solid waste management and provides the Texas Board of Health (board) with authority to adopt rules to manage and control municipal solid waste; sec.12.001, which provides the board with authority to adopt rules for the performance of every duty imposed by law on the board, the department, and the commissioner of health; and Senate Bill 1340 and House Bill 847, 72nd Legislature, 1991, which provide the department with the authority to implement a waste tire recycling program. The amendments, repeals, and new sections will affect the code, Chapter 361. sec.325.871. Beneficial Use of Used and Scrap Tires. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on September 30, 1991. TRD-9111974 Robert A. MacLean, M.D. Deputy Commission Texas Department of Health Earliest possible date of adoption: December 7, 1991 For further information, please call: (512) 458-7271 Subchapter R. Management of Used and Scrap Tires Waste Tire Recycling Program 25 TAC sec.sec.325.871-325.878 The new sections are proposed under the Health and Safety Code (Code), sec.361.011 and sec.361.024, which establishes the department's jurisdiction over municipal solid waste management and provides the Texas Board of Health (board) with authority to adopt rules to manage and control municipal solid waste; s12.001, which provides the board with authority to adopt rules for the performance of every duty imposed by law on the board, the department, and the commissioner of health; and Senate Bill 1340 and House Bill 847, 72nd Legislature, 1991, which provide the department with the authority to implement a waste tire recycling program. The amendments, repeals, and new sections will affect the code, Chapter 361. sec.325.871. Applicability and Responsibility. (a) Applicability. The regulations contained in these sections establish standards and procedures for the operation of the waste tire recycling program (program) and the waste tire recycling fund (WTRF). (b) Responsibility. (1) Each person who operates as a waste tire processor on a mobile tire shredder and who participates in the program shall be responsible for operating in compliance with any provision of these sections. (2) Each person who possesses or operates a waste tire site or is a generator of used and scrap tires shall be responsible for complying with any provision of these sections. sec.325.872. Waste Tire Recycling Program. (a) Purpose. The purpose of the waste tire recycling program (program) is to provide a means for shredding up all discarded used and scrap tires so that the shredded tire pieces can be effectively reused, recycled, or used in energy recovery facilities. (b) Objective. The objective of the program is to cleanup illegal dump sites that contain used and scrap tires and to provide a mechanism to shred the used and scrap tires generated on a daily basis before they get dumped. (c) Used and scrap tire category. The used and scrap tires which are handled within this program and for which reimbursement is made for their processing shall be categorized as: (1) storage site tires, which are used and scrap tires from an illegal tire storage site and certain legal tire storage sites contained in the priority enforcement list (PEL); and (2) generator tires, which are used and scrap tires from a generator who accumulated the used and scrap tires on a daily basis. (d) Waste tire recycling fund (WTRF). The WTRF is the vehicle used to drive the program. The tire fees collected on new tires sold in Texas are deposited into the WTRF. The monies in the WTRF are used to reimburse the waste tire processor and the mobile tire shredder, who complies with this subchapter, for shredding the used and scrap tires, derived from eligible storage sites and generators, for eventual reuse, recycling, and energy recovery. (e) Program operation. The operation of the program will be controlled as follows. (1) The mobile tire shredders and waste tire processors who wish to participate and seek reimbursement from the WTRF shall bring their operations into full compliance with this subchapter prior to participation. (2) The processor who plans to shred the used and scrap tires shall shred the tires into a particular size no greater than nine square inches. (3) The processor shall shred at least 25% of the gross monthly weight of shredded tire pieces from storage site tires. (4) The processor shall shred at least 25% of the gross monthly weight of shredded tire pieces from generator tires. (5) The remaining 50% of the gross monthly weight of shredded tire pieces can be obtained from either category in paragraphs (3) and (4) of this subsection. (6) The processor shall submit his or her reimbursement request on a format approved by the Texas Department of Health. (7) The processor shall maintain and retain appropriate records to justify his or her reimbursement request. sec.325.873. Announcement of Intent to Participate. (a) Waste tire processors who are either the owners/operators of a Texas Department of Health (department) permitted waste tire processing facility capable of shredding tires to a particle size not larger than nine square inches, or who hold a department issued registration for a mobile tire shredder capable of shredding tires to a particle size not larger than nine square inches, and who wish to receive payment from the department for shredding used and/or scrap tires so as to facilitate the future extraction of useful materials for recycling, reuse, or energy recovery, shall notify the chief of the department's Bureau of Solid Waste Management of such intent on a form provided by the department. (b) Waste tire processors shall indicate on the announcement of intent form at least the following information: (1) the permit or registration number(s) which corresponds to their current shredder capacity; (2) the name, or names, under which such permits or registrations were issued; (3) the total shredder capacity, in tires per day or pounds of shredded rubber per day, that is currently authorized under such permits or registrations and which is available to be used for processing (shredding) tires under this waste tire recycling program. (Available capacity shall be reported for both fixed and mobile shredder units.); (4) the counties, or other department designated regions or areas of the state, from which the waste tire processor is interested in accepting and collecting for shredding and recycling, scrap tires originating from priority enforcement list sites; and (5) the permit or registration number(s) of any sites, in addi 30>tion to those indicated under paragraph (1) of this subsection, intended for the temporary storage of any whole or shredded tires collected or accepted for the purpose of receiving payment under these sections. sec.325.874. Other Permits or Registrations Required. (a) Waste tire processors who intend to participate in the tire recycling program described in these sections and who intend to ship whole tires from any priority enforcement list site, for temporary storage prior to shredding, or for immediate shredding, must also be the owner/operator of a Texas Department of Health (department) permitted or registered tire processing or storage site at which such whole tires may be held for no longer than 60 days, or the number of days allowed by the named facility's permit (whichever is greater), prior to their being shredded. (b) Waste tire processors who intend to participate in the tire recycling program described in these sections and who, prior to providing the announcement described under subsection (a) of this section, have not made arrangements for the immediate shipment of all shredded tires, for which payment under such program is to be sought, directly to an approved end user who has committed to either recycle the shredded material or burn it for energy recovery, must either: (1) also be the owner/operator of a department permitted or registered tire storage site at which any shredded tires for which payment is to be sought shall be temporarily stored under the direct personal supervision of the person requesting payment; or (2) have made arrangements with other tire storage site operators for the temporary storage of processed material. sec.325.875. Approval to Collect and Process Tires From Priority Enforcement List Sites. (a) Prior to collecting and/or shredding tires from any priority enforcement list site, a waste tire processor must provide to the Texas Department of Health (department) a schedule for completing the clean-up of all used and scrap tires from such site together with a plan explaining how the work is to be carried out. Collection activities shall commence only after the submitted plan and schedule have been accepted by the department. (b) The collection and shredding schedule must indicate: (1) the amount of collection and/or shredding capacity, in either tires or pounds of shredded rubber per day, that the processor is promising to commit to the project; (2) the number of days required to finish the project, with the understanding that if more tires are found to be on site than the number used to calculate, originally, the overall project length, a correction factor may be applied, based on the promised collection and/or shredding capacity; and (3) the date, or range of dates that work on the site could commence. (c) If the department finds that any of the schedule related information described in subsection (b)(1)-(3) of this section to be unacceptable, amended schedules may be negotiated with the waste tire processor. (d) Site clean-up plans submitted by a waste tire processor shall, as a minimum, indicate the following: (1) their waste tire processor identification number; (2) the name under which the waste tire processor identification number was issued; (3) whether they intend to shred all the tires on site, haul all tires to a permitted waste tire facility, or conduct the operation using both methods; (4) the number of weighed tires from other priority enforcement list sites that, as of the date the site clean-up plan was filed, have been collected and/or shredded; (5) the total number of tires from in-state sources other than priority enforcement list sites that, as of the date the site clean-up plan was filed, have been collected and/or shredded; (6) the method of recycling or energy recovery planned for the tires which are proposed to be collected and shredded; (7) the registration number(s) of any and all waste tire transporters who are expected to haul either whole or shredded tires from the priority enforcement list site; and (8) the identification of any temporary storage sites, proposed to be utilized for either whole tires or shredded rubber. (e) Depending on the unique situation at a site, the department may require that only waste tire processors who are willing to transport all tires off-site for shredding at a permitted waste tire facility shall be allowed to collect and process tires from that particular site. (f) The department may require that collection and processing at a particular site be carried out only between certain hours of the day and on certain days of the week. sec.325.876. Waste Tire Processor Eligibility Requirements. (a) In addition to the scheduling and planning requirements contained in sec.325. 875 of this title (relating to Approval to Collect and Process Tires From Priority Enforcement List Sites), waste tire processors desiring to receive, or to continue receiving, tires from any priority enforcement list site must within 90 days from the date tires were first collected from any priority enforcement list site certify to the Texas Department of Health (department) that at least 50% of the tires shredded were from sources other than priority enforcement list sites. (b) After the date on which the 50% limit goes into effect for a particular waste tire processor, the department will withhold payment until such time as the processor is determined to be in compliance with the minimum 50% requirement. (c) Waste tire processors who are not in compliance with the minimum 50% requirement at the time they submit a clean-up plan and schedule described in sec.325.875, or who due to their present available processing capacity and their promised rate of collection and/or shredding, as reflected on various submitted clean-up schedules, are determined by the department to likely be unable to maintain compliance with the 50% requirement shall not receive department authorization to commence clean-up operations at additional priority enforcement list sites. sec.325.877. Shipping, Record Keeping, and Reporting Requirements. (a) In the case of priority enforcement list sites being cleaned up in accordance with the waste tire recycling program described in these sections, all tires shipped off-site, whether whole or processed, shall be accompanied by a special department provided waste tire manifest which will serve to verify that the tires involved are those which may be used by the waste tire processor to meet the 25% requirement set forth in sec.325.872(e)(3) of this title (relating to Waste Tire Recycling Program). The form shown in sec.325.920 of this title (relating to Appendix T-Form for Used and Scrap Tire Transporter Manifest) shall not be acceptable for use in this particular situation. (b) The special manifest referred to in subsection (a) of this section must, prior to the respective transport vehicle leaving the site, be signed by a representative of the Texas Department of Health (department) thus confirming the initial part of the shipment. (c) Waste tire processors collecting and shipping whole tires from a priority enforcement list site may elect to either count each tire placed on the vehicle for shipment and enter that number on the special manifest, or weigh each departing load and by so doing agree that, for purposes of any accounting required under these sections, the number of tires shall be determined by dividing the total pounds of tires by the number 18.7. In those instances where the waste tire processor elects to weigh the loads the following additional requirements shall apply. (1) All required weights must be determined by certified scales. (2) A copy of the scales ticket must be provided to the department's representative and be attached to the department's copy of the special manifest. (3) The department's representative may require that the weight of any load be checked by another scale, if for any reason he or she has reason to question the accuracy of the first scale. (4) The department's representative may, if he or she chooses, follow or accompany the transport vehicle from the site where the tires were collected to the delivery destination and observe all aspects of the weighing and unloading. (d) The transporter, upon delivery of the load at its initial destination, must obtain on the special manifest the signature of the site or facility operator, confirming delivery of the load as described on the manifest. (e) Within five days, following delivery at the initial destination, the transporter must provide the department's representative a copy of the manifest bearing the signature of the operator of the destination site or facility. If the final signed copy of the manifest is not received by the department's representative, the tires that were transported from the site will not be included in the final accounting of tires collected from the priority enforcement list site. (f) Except as may be allowed differently in subsections (a)-(e) of this section, all procedures set forth in sec.325.825 of this title (relating to Record Keeping), sec.325.813 of this title (relating to Delivery Requirement), sec.325.815 of this title (relating to Record Keeping), and sec.325.817 of this title (relating to Transporter Fees) shall apply. (g) All tires shredded by a waste tire processor who has notified the department in accordance with sec.325.871(a) of this title (relating to Announcement of Intent to Participate), shall be weighed and the total recorded, by date. (h) By not later than the 10th day of the month, waste tire proces 30>sors who have shredded used or scrap tires during the preceding month, or months, may submit to the department a request for payment, in the amount of $0. 85 per weighed tire, for any tire shredded to a particle size of nine square inches or less. Requests for payment shall be submitted on forms to be provided by the department. Information required to be included on such forms is as follows: (1) For all waste tire processors, the total pounds of tires shredded during the previous calendar month, and/or during earlier months provided a separate payment request covering that calendar month was not previously filed. Weights reported on the request form must be those determined after the shredding operation has been completed, unless specific approval is granted by the Chief of the department's Bureau of Solid Waste Management allowing the waste tire processor to utilize shipping weights determined during earlier transportation events, or to calculate the shredded weight based on a count of whole tires shredded; (2) in the case of mobile shredders that process scrap tires at locations other than at a permitted or registered waste tire facility which also serves as that shredder's home base, the waste tire processor must, in addition to the total required under paragraph (1) of this subsection, report: (A) the total pounds of tires shredded on-site at priority enforcement list sites during the same period; and (B) the total pounds of tires shredded during the same period at in-state locations other than priority enforcement list sites; (3) in the case of permitted or registered waste tire facilities, that accept tires for subsequent on-site shredding (i.e., shredding at the processor's site) the waste tire processor must, in addition to the total required under paragraph (1) of this subsection, report: (A) the total pounds of whole, split, or quartered tires that were received during the previous calendar month, and/or during earlier months provided a separate payment request covering that calendar month was not previously filed, that were accompanied by special manifests, as described in subsection (a) of this section; (B) the total pounds of whole, split, or quartered tires that were received during the previous calendar month, and/or during earlier months provided a separate payment request covering that calendar month was not previously filed, that were accompanied by regular manifests, as described in sec.325.815 of this title (relating to Record Keeping); (C) the total pounds (or number) of whole tires stored at each of the permitted or registered facilities at the end of the previous calendar month; and (D) the total pounds of shredded tires stored at each of the permitted or registered facilities at the end or the previous calendar month. (i) Waste tire processors shall keep copies of all manifests and other records relating to activities conducted under these sections, including payment request forms, for at least four years, or for as long as may be necessary to support and verify any future payment requests. All records required under this subsection to be kept are subject to examination, upon request, by the department's representatives. sec.325.878. Payment Policies and Procedures. (a) Payments provided by the State of Texas under this subchapter shall be only for the shredding of used and/or scrap tires and shall be in accordance with the reimbursement rate required by law. (b) Waste tire processors, to be eligible to receive payment for shredding, must at their own expense provide: (1) all payments to registered waste tire transporters covering the expenses associated with the shipment of whole, split, or quartered tires from a Texas wholesale or retail tire dealer to any permitted or registered waste tire facility for the purpose of eventual reimbursement under these sections; (2) all payments to registered waste tire transporters covering expenses associated with the shipment of any tire, whether whole, split, quartered, or shredded, from any priority enforcement list site to another authorized location; (3) all payments to laborers, equipment operators, or other employees whose services may be needed, in order to comply with the site clean-up requirements set forth in the announcement described in sec.325.875 of this title (relating to Approval to Collect and Process Tires From Priority Enforcement List Sites); and (4) all acquisition, maintenance, and/or operating costs associated with any equipment or machinery needed, in order to comply with the site clean-up requirements set forth in the announcement described in sec.325.875 and to satisfactorily shred all used/scrap tires, that are removed from such sites, or received from other sources, for the purpose of receiving payment under these sections. (c) Shredded tires for which payment under these sections is sought, must be shown, by the waste tire processor, to meet the following minimum requirements. (1) At least 98%, by weight, of all shredded tires in any single shipment must have a particle size not larger than nine square inches. (2) The percent of foreign substance (dirt, sand, etc.), by weight, of all shredded tire-originated material in any single shipment must be less than 1.0%. (3) All weight measurements shall be made on materials that are either dry or essentially dry. (d) Failure on the part of a waste tire processor to complete the clean-up of all used and/or scrap tires from a priority enforcement list site, within a reasonable time, may cause payment to such processor under these sections to be delayed or withheld pending satisfactory completion. The Texas Department of Health (department) may include, in a written agreement with a waste tire processor authorizing such processor access to a priority enforcement list site for the purpose of receiving used or scrap tires, a penalty clause describing the extent to which payment for shredding of any used or scrap tire, whether from the site in question or not, may be withheld due to noncompliance with the site clean-up agreement. (e) A request for reimbursement from the waste tire recycling fund (WTRF) shall be made to the department no later than the 10th day of the month following the reimbursement period. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on September 30, 1991 TRD-9111975 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Earliest possible date of adoption: December 7, 1991 For further information, please call:(512) 458-7271 Subchapter R. Management of Used and Scrap Tires Special Conditions for Beneficial Use of Used and Scrap Tires. 25 TAC sec.325.881 The new section is proposed under the Health and Safety Code (the code), sec.361.011 and sec.361.024, which establish the department's jurisdiction over municipal solid waste management and provide the Texas Board of Health (board) with authority to adopt rules to manage and control municipal solid waste; s12.001 which provides the board with authority to adopt rules for the performance of every duty imposed by law on the board, the department, and the commissioner of health; and Senate Bill 1340 and House Bill 847, 72nd Legislature, 1991, which provide the department with the authority to implement a waste tire recycling program. The amendments, repeals and new sections will affect Chapter 361 of the code. sec.325.881. Beneficial Use of Used and Scrap Tires. (a) Beneficial use of whole used and scrap tires for erosion control, reefs in coastal waters, decorations, containment walls for composting or commercial operations, traffic control, or bumpers for boat dock and boats shall not require a permit or registration. (b) At no time shall whole used or scrap tires utilized for beneficial use be allowed to migrate from the beneficial use location due to surface water run- off, stream or river flow, or other such occurrence. (c) Whole used or scrap tires utilized for beneficial use shall be staked or tied down to a permanent natural or man-made object. The tires shall be chained or tied together provided at least two of the tires are permanently anchored. A containment barrier such as fencing or other suitable product can also be used to prevent tire migration. A one inch diameter hole shall be drilled into each tire at lowest point to provide drainage and prevent breeding of mosquitoes. (d) All beneficial use of whole used or scrap tires shall be maintained on a regular basis to assure compliance with subsection (b) of this section. (e) Whole used and scrap tires used for erosion control does not mean tires stockpiled in a ravine, ditch, or eroded area. All tires in excess of those actually required for the erosion control project shall be removed from the site. (f) Beneficial use of shredded tire pieces is not regulated by this subchapter except for the following. Shredded tires pieces that were generated and the processing reimbursed from the waste tire recycling fund (WTRF) shall not be used for beneficial use at a permitted municipal or industrial solid waste landfill except as approved by the Texas Department of Health or the Texas Water Commission. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on September 30, 1991. TRD-9111976 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Earliest possible date of adoption: December 7, 1991 For further information, please call: (512) 458-7271 Subchapter X. Forms and Documents. 25 TAC sec.sec.325.919-325.924 (Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Department of Health or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The repeals are proposed under the Health and Safety Code (the Code), sec.361.011 and sec.361.024 which establish the department's jurisdiction over municipal solid waste management and provide the Texas Board of Health (board) with authority to adopt rules to manage and control municipal solid waste; s12. 001 which provides the board with authority to adopt rules for the performance of every duty imposed by law on the board, the department, and the commissioner of health; and Senate Bill 1340 and House Bill 847, 72nd Legislature, 1991, which provide the department with the authority to implement a waste tire recycling program. The amendments, repeals and new sections will affect Chapter 361 of the code. sec.325.919. Appendix S -Registration Form for Transporter of Used and Scrap Tires. sec.325.920. Appendix T -Form for Used and Scrap Tire Transporter Manifest. sec.325.921. Appendix U -Annual Summary Report Form for Used and Scrap Tire Transporter. sec.325.922. Appendix V -Registration Form for Used and Scrap Tire Storage Site. sec.325.923. Appendix W -Used or Scrap Tire Storage Site Daily Log. sec.325.924. Appendix X -Annual Summary Report for Used or Scrap Tire Storage Site. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on September 30, 1991. TRD-9111977 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Earliest possible date of adoption: December 7, 1991 For further information, please call: (512) 458-7271 Subchapter Y. Medical Waste Management 25 TAC sec.325.1005 The Texas Department of Health (department) proposes an amendment to sec.325.1005, concerning transporters of medical waste. The amendment will revise the financial responsibility requirements for transporters of medical waste by removing pollution liability insurance, performance bonds and trust funds from the allowed methods for evidence of financial responsibility. A irrevocable letter of credit from a recognized financial institution will be the only allowed evidence of financial responsibility. The value of the letter of credit will be determined by the number of vehicles registered annually by the transporter. In this way the amount of funding available for corrective action will be proportional to the potential risk due to the volume of waste handled. This amendment is proposed because some potential transporters claimed they were unable to obtain or afford pollution liability insurance, or were unable to supply a performance bond, or letter of credit in the amount of $500,000. A letter of credit will require the transporter to provide collateral to the issuing institution for the value of the letter of credit plus 1.0% of the face value of the letter. The alternative of not requiring financial responsibility for corrective action would place the financial cost of corrective action upon the landowner where the waste was dumped, the generator of the waste, or the taxpayers of the State of Texas. Stephen Seale, Chief Accountant III, Budget Division, has determined that for the first five year period the amendment is in effect there will be no fiscal implications to state government as a result of enforcing or administering the sections. There will be a cost to local governments which collect medical waste for disposal. There will be a 1.0% fee of the face value of the letter of credit plus the collateral which will be provided. However, the cost for the financial responsibility should be less than under the existing rules unless the volume of waste collected is substantial. Mr. Seale also has determined that for each year of the first five years the section is in effect the public benefit anticipated as a result of enforcing the amendment will be to allow smaller transporters to operate and provide services to smaller generators of medical waste. Small businesses or individuals that are required to comply with the amendment will experience a cost which will be the same as that for local government. No impact on local employment is anticipated. A public hearing has been scheduled for 10 a.m., Tuesday, October 22, 1991, in the Auditorium, Texas Department of Health, 1100 West 49th Street, Austin. Written or oral comments will be received at the public hearing. In addition written comments will be considered if they are received by 4 p.m. on November 4, 1991. Written comments should be mailed to: T. A. Outlaw, Jr., P.E., Chief, Bureau of Solid Waste Management, 1100 West 49th Street, Austin, Texas 78756- 3199. Inquires may be made by phoning Mr. Outlaw or L. E. Mohrmann, Ph.D., C.P.C., at (512) 458-7271. The amendments are proposed under Health and Safety Code (the Code), sec.361. 024, which authorizes the Board of Health to adopt rules to manage municipal solid waste, and Health and Safety Code, sec.12.001, which provides the Texas Board of Health with authority to adopt rules for the performance of every duty imposed by law on the Texas Board of Health, the Texas Department of Health, and the Commissioner of Health. The amendments will affect the Code sec.361.011-361. 012. sec.325.1005. Transporters of Medical Waste. (a)-(i) (No change. ) (j) Each transporter shall provide evidence of financial responsibility as [indicated in paragraphs (1)-(3) of this subsection] follows
                                                                                                                                                                                                        : (1) (No change.) (2) a combined, single limit automobile liability insurance policy with limits of at least $1 million per accident; [and] (3) an irrevocable letter of credit as follows. (A) Each transporter shall provide an irrevocable letter of credit from a recognized financial institution payable to the Texas Department of Health (department) in the following amount: (i) if the transporter registers three or less self-contained trucks or transport vehicles (not tractor-trailer units), a letter for $10,000; (ii) if the transporter registers more than three self-contained trucks or transport vehicles (not tractor-trailer units), a letter for $35,000; (iii) if the transporter registers three or less tractor-trailer vehicles, a letter for $25,000; or (iv) if the transporter registers more than three tractor-trailer vehicles, a letter for $50,000. (B) Requests for registration or renewal received after the effective date of this paragraph shall comply with the provisions of this paragraph. Transporters registered with the department prior to the effective date of this paragraph may comply with the requirements of this subsection or comply with the requirements in effect at the time of their registration until their renewal date. [(3) a pollution liability policy with a flat limit of $1 million; or [(4) a performance bond, a letter of credit from a recognized financial institution or a trust fund in the amount of $500,000.] (k)-(r) (No change.) This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on September 30, 1991. TRD-9111960 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Proposed date of adoption: December 7, 1991 For further information, please call: (512) 458-7271 TITLE 31. NATURAL RESOURCES AND CONSERVATION Part II. Texas Parks and Wildlife Department Chapter 57. Fisheries Mitigation of Fish and Wildlife Resources as a Result of Damages Incurred from Water Development and Other Construction Projects 31 TAC sec.57.141 (Editor's note: The text of the following section proposed for repeal will not be published. The section may be examined in the offices of the Texas Parks and Wildlife Department or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The Texas Parks and Wildlife Commission proposes the repeal of sec.57.141, concerning mitigation policy of the Texas Parks and Wildlife Commission. This policy has been revised and a new policy will be submitted for commission approval pending repeal of this section. Robin Reichers, staff economist, has determined that for the first five-year period the repeal is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the repeal. Mr. Reichers also has determined that for each year of the first five years the repeal is in effect the public benefit anticipated as a result of enforcing the repeal there will be minimal change in public benefits anticipated as a result of this repeal because the intent of the regulation will be covered by a commission policy. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the repeal as proposed. The department has not filed a local employment impact statement with the Texas Employment Commission in compliance with the Administrative Procedure and Texas Register Act, sec.4A, as this agency has determined that the rule as proposed will not impact local employment. Comments on the proposal may be submitted to Dr. Larry McKinney, Director, Resource Protection Division, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744, (512) 389-4636, or 1-800-792-1112, extension 4636. The repeal is proposed under the Texas Parks and Wildlife Code, sec.12.001 and sec.12.024, which allows establishment of a revised mitigation policy by the commission in pursuit of department responsibilities. sec.57.141. Policy. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on September 26, 1991. TRD-9111870 Paul M. Shinkawa General Counsel Texas Parks and Wildlife Department Earliest possible date of adoption: November 4, 1991 For further information, please call: (512) 389-4636 Commercially Protected Finfish 31 TAC sec.sec.57.371-57.376 The Texas Parks and Wildlife Commission proposes amendments to sec.sec.57. 371- 57.373 and new sec.57.374 and sec.57.375. The sections concern the packaging and shipping of commercially protected finfish species and are proposed to comply with the provisions of House Bill 2494, Acts, 72nd Legislature. In addition, the Texas finfish import invoice is being replaced with a revised form entitled Commercially Protected Finfish Shipping Invoice." Simultaneous with this action, a proposal is being made to repeal sec.sec.57.374-57.376. Robin Riechers, staff economist, has determined that for the first five-year period the sections are in effect there will be minimal fiscal implications for state or local government or small businesses as a result of enforcing or administering the section. Mr. Riechers also has determined that for each year of the first five years the sections are in effect the public benefit anticipated as a result of enforcing the sections will be indirect benefit accrued through the protection of Texas game fishes and maintenance of high quality finfish for public consumption. The anticipated economic cost to persons who are required to comply with the sections as proposed will be minimal, as the packaging requirements for imported red drum and spotted seatrout have been in effect since 1981. The department has filed a local employment impact statement with the Texas Employment Commission in compliance with the Administrative Procedure and Texas Register Act, sec.4A, and has not received correspondence indicating the local employment impacts. Comments on the proposed rules may be submitted to Ralph Rayburn, Coastal Fisheries Branch Chief, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744, (512) 389-4863 or 1-800-792-1112 extension 4863. The amendments and new sections adopted under the Texas Parks and Wildlife Code, sec.66.020, which provides the Texas Parks and Wildlife Commission with the authority to regulate the importation of commercially protected finfish into Texas. sec.57.371. Commercially Protected Finfish [Finfish Import License]. The following species are commercially protected finfish: [graphic]
                                                                                                                                                                                                          [A Texas finfish import license is required of any person importing for sale, transporting for sale, or selling for resale, dead redfish (also known as red drum) or speckled sea trout (also known as spotted sea trout) taken, caught, or raised in any other state or country.] sec.57.372. Packaging Requirements. (a) All commercially protected finfish
                                                                                                                                                                                                            [redfish (also known as red drum) and speckled sea trout (also known as spotted sea trout) entering] imported into
                                                                                                                                                                                                              this state for sale, exported from this state for sale,
                                                                                                                                                                                                                or being transported intrastate for sale, shall be packaged, one species per package. (b) A package is defined as a container (and such invoices and identifying documents as are required by these rules) whose volume is no greater than six
                                                                                                                                                                                                                  three] cubic feet. Each container must be independent of any other container and of any trailer, vehicle, or other type of conveyance. (c) Each packaged shipment of commercially protected finfish
                                                                                                                                                                                                                    [redfish (also known as red drum) and speckled sea trout (also known as spotted sea trout)] shall be accompanied by an import commercially protected finfish shipping
                                                                                                                                                                                                                      [interstate Texas finfish import] invoice,
                                                                                                                                                                                                                        [or] an intrastate commercially protected finfish shipping
                                                                                                                                                                                                                          [Texas finfish import] invoice, or an export commercially protected finfish shipping invoice (Figure 1). (d) An import commercially protected finfish shipping
                                                                                                                                                                                                                            [interstate Texas finfish import] invoice shall: (1) accompany all shipments of commercially protected finfish
                                                                                                                                                                                                                              [redfish (also known as red drum) and speckled sea trout (also known as spotted sea trout) ] entering the state [for distribution within the state]; (2) contain all of the following information, correctly stated and legibly written: (A) commercially protected finfish shipping
                                                                                                                                                                                                                                [Texas finfish import] invoice number; (B)-(D) (No change.) (E) shipper's
                                                                                                                                                                                                                                  and receiver's Texas finfish import license number when required; (F)-(G) (No change.) (3) be submitted in the following form (Figure 1)
                                                                                                                                                                                                                                    , with an "X" placed in the import [interstate] box for shipments originating outside Texas with a destination within Texas: [graphic] (4) (No change.) (e) An intrastate commercially protected finfish shipping [Texas finfish
                                                                                                                                                                                                                                      import] invoice (Figure 1)
                                                                                                                                                                                                                                        shall: (1) accompany all shipments of commercially protected finfish
                                                                                                                                                                                                                                          [redfish (also known as red drum) and speckled sea trout (also known as spotted sea trout)] shipped from within the state to a destination within the state; (2) contain all of the following information, correctly stated and legibly written: (A) commercially protected finfish shipping
                                                                                                                                                                                                                                            [Texas finfish import] invoice number; (B)-(D) (No change.) (E) shipper's and
                                                                                                                                                                                                                                              receiver's Texas finfish import license number when required; and (F) number and weight of whole fish or fillets, by species, contained in the shipment, and (G) state (or country, if outside the United States) of origin. (3) be submitted in the following form (Figure 1)
                                                                                                                                                                                                                                                , with an "X" placed in the intrastate
                                                                                                                                                                                                                                                  box for shipments originating inside
                                                                                                                                                                                                                                                    [outside] Texas with a destination within Texas: [graphic] (4) (No change.) (f) An export commercially protected finfish shipping invoice (Figure 1) shall: (1) accompany all shipments of commercially protected finfish shipped from within the state to a destination outside Texas; (2) contain all of the following information correctly stated and legibly written: (A) commercially protected finfish shipping invoice number; (B) date of shipment; (C) name and address of shipper; (D) name and address of receiver; (E) shipper's and receiver's Texas Finfish Import license number when required; (F) number and weight of whole fish or fillets, by species contained in the shipment; and (G) state (or country if outside the United States) of origin. (3) be submitted in the following form (Figure 1), with an "X" placed in the export box for shipments originating inside Texas with a destination outside of Texas: (4) be sequentially numbered during the license period. No invoice number may be used twice during any one license period by an individual licensee. (g)
                                                                                                                                                                                                                                                      [(f)] Each commercially protected finfish shipping
                                                                                                                                                                                                                                                        [Texas finfish import] invoice shall be duplicated by the licensee. (1) One copy shall be submitted to the Texas Parks and Wildlife Department Regional Law Enforcement Office
                                                                                                                                                                                                                                                          by the shipper
                                                                                                                                                                                                                                                            [licensee] by the 10th day of the month following the month [of receipt of each interstate shipment or] of shipping of each intrastate or export
                                                                                                                                                                                                                                                              shipment. (2) One copy shall be retained by the licensee for a period of one year from the date of receipt of each imported shipment or from the date of shipping of each intrastate or exported
                                                                                                                                                                                                                                                                shipment. (3) One copy shall be retained by the receiver for a period of one year from the date of receipt of each import, intrastate, or export shipment. (4) One copy shall be submitted to the Texas Parks and Wildlife Department Regional Law Enforcement Office by the receiver of each import, intrastate, or export shipment by the 10th day of the month following the month of receipt. [graphic] sec.57.373. Package 23>Labels [Contents' Identification]. (a) Each package of commercially protected finfish
                                                                                                                                                                                                                                                                  [redfish (also known as red drum) or speckled sea trout (also known as spotted sea trout)] shall be labeled
                                                                                                                                                                                                                                                                    [identified] as to its contents. (b) The package label
                                                                                                                                                                                                                                                                      [contents' identifier] shall be placed on the outside of each package and shall contain all of the following information, correctly stated and legibly written: (1) Commercially protected finfish shipping invoice number of the shipment of which the container is a part
                                                                                                                                                                                                                                                                        [Texas finfish interstate or intrastate invoice number of the shipment of which the package is a part]; and (2) the
                                                                                                                                                                                                                                                                          number , kind,
                                                                                                                                                                                                                                                                            and weight of whole fish or fillets by species contained in each package.
                                                                                                                                                                                                                                                                              [;] [(3) Texas finfish import license number of the shipper and the receiver (if the receiver is required to possess a Texas finfish import license); [(4) name and address of each shipper and identification of each receiver; provided, however, that any code used to identify a receiver must also be placed on the invoice that accompanies the shipment; [(5) date of shipment.] sec.57.374. Delegation of Authority. Authority is hereby delegated to the executive director to change or prescribe the format in which invoice and label [identifier] information are to be submitted to the department and to require additional information. sec.57.375. Exclusive Economic Zone Regulations. A commercially protected finfish lawfully taken or raised for commercial purposes in the exclusive economic zone (EEZ) under the authority of a federal fishery management plan or federal Permit may be transported into this state by the harvesting vessel. These commercially protected finfish maY only be unloaded to the holder of a Texas finfish import license. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on September 30, 1991. TRD-9111947 Paul M. Shinkawa Director, Legal Services Texas Parks and Wildlife Department Earliest possible date of adoption: November 4, 1991 For further information, please call: 1-800-792-1112, ext. 4863 or (512) 389- 4863 Imported Redfish and Speckled Sea Trout 31 TAC sec.sec.57.374-57.376 (Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Parks and Wildlife Department or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The Texas Parks and Wildlife Commission proposes the repeal of sec.sec.57. 374- 57.376, concerning the marking of vehicles transporting red drum and speckled sea trout, the delegation of the authority for prescribing the format for invoices and identifier information to the executive director, and the penalties for violation of the regulations. The repeals are proposed to comply with the provisions of House Bill 2494, Acts, 72nd Legislature, and to simplify and avoid duplication in the regulations. Robin Riechers, staff economist, has determined that for the first five-year period the repeals are in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the repeals. Mr. Reichers also have determined that for each year of the first five years the repeals are in effect the public benefit anticipated as a result of enforcing the repeals will be simplifying regulations and avoiding duplications in regulations while protection Texas game fishes and maintaining a high quality finfish for public consumption. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the repeals as proposed. Comments on the proposed repeal may be submitted to Ralph Rayburn, Coastal Fisheries Branch Chief, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744, (512) 389-4863 or 1-800-792-1112 extension 4863. The repeals are adopted under the Texas Parks and Wildlife Code, sec.66.020, which provides the Texas Parks and Wildlife Commission with the authority to regulate the importation of commercially protected finfish into Texas. sec.57.374. Marking of Vehicles. sec.57.375. Delegation of Authority. sec.57.376. Penalty for Violation. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on September 30, 1991. TRD-9111870 Paul M. Shinkawa Director, Legal Services Texas Parks and Wildlife Department Earliest possible date of adoption: November 4, 1991 For further information, please call: 1-800-792-1112, ext. 4863 or (512) 389- 4636 Chapter 65. Fisheries and Wildlife Subchapter T. Scientific Breeder's Permit 31 TAC sec.65.601 The Texas Parks and Wildlife Commission proposes an amendment to sec.65.601, concerning scientific breeder's permits. The proposed amendment adds mule deer to the list of deer that may be kept under the authority of a scientific breeder's permit. The proposed amendment is in compliance with recent legislation, House Bill 1771, Acts, 72nd Legislature. Robin Riechers, staff economist, has determined that for the first five-year period the section is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the section. Mr. Riechers also has determined that for each year of the first five years the section is in effect the public benefit anticipated as a result of enforcing the section will be to permit the retaining of mule deer for scientific breeding purposes. There will be no effect on small businesses. It is anticipated there will be no fiscal implications to persons who are required to comply with the section as proposed, except for the required permit fees to keep an additional deer species. The department has not filed a local employment impact statement with the Texas Employment Commission in Compliance with the Administrative Procedure and Texas Register Act, sec.4A as this agency has determined that the rules as proposed will not impact local economics. Comments on the rules as proposed may be submitted to Robert L. Cook, Branch Chief, Wildlife Operations, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744, (512) 389-4976 or 1-800-792-1112, extension 4976. The amendment is proposed under the Texas Parks and Wildlife Code, Chapter 43, Subchapter L, which provides the Texas Parks and Wildlife Commission with authority to establish conditions under which scientific breeder's permits shall be issued. sec.65.601. Definitions. The following words and terms, when used in this subchapter, shall have the following meanings unless the context clearly indicates otherwise. Certified wildlife biologist-A person who has been certified as a wildlife biologist by The Wildlife Society, or who: (A) (No change.) (B) has not less than five years of post-graduate experience in research or wildlife management associated with white-tailed deer or mule deer
                                                                                                                                                                                                                                                                                within the past 10 years. Deer-White tailed deer of the species Odocoileus virginianus
                                                                                                                                                                                                                                                                                  or mule deer of the species
                                                                                                                                                                                                                                                                                    Odocoileus hemonius
                                                                                                                                                                                                                                                                                      . Propagation-The holding of captive white-tailed deer or mule deer
                                                                                                                                                                                                                                                                                        for the purpose of increasing their numbers. Purchase permit -A permit required of all persons to purchase of accept a live white-tailed deer or mule deer
                                                                                                                                                                                                                                                                                          in this state. Scientific-The accumulation of knowledge, by systematic methods, about the physiology, nutrition, genetics, reproduction, mortality, and other biological factors affecting white-tailed deer or mule deer
                                                                                                                                                                                                                                                                                            . Transport permit -A permit required for the transport or shipment of a lice white-tailed deer or mule deer
                                                                                                                                                                                                                                                                                              by any person except a scientific breeder or his authorized agent. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on September 26, 1991. TRD-9111869 Paul M. Shinkawa Director, Legal Services Texas Parks and Wildlife Department Earliest possible date of adoption: November 4, 1991 For further information, please call: 1-800-792-1112, ext. 4578 or (512) 389- 4578 Chapter 69. Resource Protection 31 TAC sec.sec.69.41, 69.43, 69.45, 69.47, 69.49, 69.51, 69.53, 69.55, 69.57 The Texas Parks and Wildlife Department proposes new sec. s69.41, 69.43, 69. 45, 69.47, 69.49, 69.51, 69.53, 69.55, and 69.57, concerning the review and issuance of permits for the rehabilitation of sick and injured wild animals. Rulemaking is authorized by the Parks and Wildlife Code, sec.43.027, which was enacted by the 72nd Legislature, Chapter 704. Paul M. Shinkawa, director of legal services has determined that for the first five-year period the sections are in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the sections. Mr. Shinkawa also have determined that for each year of the first five years the sections are in effect the public benefit anticipated as a result of enforcing the sections will be enhanced protection and regulation of public wildlife resources including endangered and threatened species. The public will also benefit from the increased humanitarian protection for injured wildlife. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the sections as proposed. The department has not filed a local employment impact statement with the Texas Employment Commission as required by the Administrative Procedure and Texas Register Act, sec.4A, as this agency has determined that the rules as proposed will not impact local employment. Comments on the proposal may be submitted to Paul M. Shinkawa, Ditrector, Legal Services Division, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744, 1-800-792-1112, extension 4419 or 389-4419. The new sections are proposed under the Texas Parks and Wildlife Code, sec.43. 027, which authorizes the department to make regulations governing the taking and possession of protected wildlife indigenous to the state for rehabilitation purposes. sec.69.41. Purpose of Rules. The purpose of this subchapter is to implement the permit requirements of the Texas Parks and Wildlife Code, Chapter 43, Subchapter C for rehabilitation permits. It is intended to set out the requirements for issuing and renewing rehabilitation permits. sec.69.43. Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise. Captive releases -Release of wildlife to an enclosed area from which the animal is not likely to be able to leave at will. Co-permittee-A person holding all rights and responsibilities under a permit with another person. Department-The Texas Parks and Wildlife Department. Endangered species -Any species listed or described by the department pursuant to the Texas Parks and Wildlife Code, Chapter 68. Holding-Retaining in captivity. Human imprinting or human bonding-An abnormal dependency or fixation upon humans as parent substitutes or as companions resulting from too much association with humans at an early age. Migratory birds -A bird listed under or pursuant to the Migratory Bird Treaty Act (16 United States Code, 703-701). Non-releasable animal -An injured animal, which after rehabilitation is determined by the department to be unlikely to survive in the wild if released. Protected wildlife -A species, the possession or taking of which is regulated, prohibited, or controlled by state law or regulation. Raptor-Birds of the order Falconiformes
                                                                                                                                                                                                                                                                                                and Strigiformes. Rehabilitation-The temporary caring for injured, orphaned, or sick wildlife until such animals can be released to the wild. Release to the wild-Release of wildlife to an area where it is capable of leaving at will. Sub-permittee-A person authorized by a permit to conduct activities only while under the supervisory responsibility of a permit holder or co-permittee. Supervisory responsibility -The responsibility that a permit holder or co- permit holder has to direct the actions of an individual under his or her control, and for which that supervisor accepted legal responsibility. Taking-The act of hooking, netting, snaring, trapping, pursuing, shooting, killing, or capturing by any means or device and includes the attempt to take by the use of any method. Threatened species -Any species listed or described as threatened by the department pursuant to the Texas Parks and Wildlife Code, Chapter 67. Transportation-The transfer of captive protected wildlife from one permit holder to another, from an out-of-state source to an in-state permit holder, from an in-state permit holder to an out-of-state destination, from site of legal capture to holding, or to site of final disposition. sec.69.45. Applications and permits. (a) Applications shall be filed on forms supplied by or approved by the department. (b) Applications shall contain a verified or sworn statement by the applicant attesting to the truth of the facts stated in the application. (c) Applications shall be made in the name of an adult natural person except as provided in this section. (d) Permits shall be issued under the authority of the executive director or his designee. (e) Permits may not be issued until the applicant's facilities have satisfactorily passed an inspection conducted by a department representative. (f) Any person holding a permit which authorizes holding of live protected wildlife shall provide for appropriate humanitarian care meeting at least the minimum standards set out in this subchapter. (g) Permits for the taking or holding of migratory bird species shall not be valid unless the permit holder also obtains and maintains a valid federal permit. (h) Permits may not be for the same species as permits issued to holders of other licenses or permits authorizing the propagation or sale of any protected wildlife other than finfish or aquatic invertebrates. (i) Permits may not be issued without a finding that the permit applicant has the ability and intent to humanely care for and rehabilitate wildlife with the intent to eventually release them to the wild. At a minimum, the applicant must demonstrate formal educational training or actual experience in wildlife rehabilitation of the types of wildlife for which permit authority is sought. (j) All protected wildlife, their offspring, and their parts taken or held under the authority of a permit issued pursuant to this subchapter remain the property of the State of Texas, and the department retains the authority to seize or direct the disposition of such specimens, including wild or captive release, or take any action necessary or convenient to protect the welfare of individual specimens or the species. (k) Protected wildlife held under the authority of a rehabilitation permit may not be sold, bartered, or exchanged for any consideration but may only be disposed of or released as prescribed by permit provision and such disposition or release shall be reported to the department in a manner prescribed by this subchapter or by permit. (1) Permits may be issued for any period of time not exceeding three years from date of issuance. sec.69.47. Permit Renewals. (a) All permits may be renewed in accordance with this subchapter subject to its requirements unless issued as non-renewable permits. (b) Renewal applications shall be filed in writing on an application form provided by the department no later than the expiration date of the permit. (c) All terms of the permit including the filing of complete annual reports must be fully complied with before a renewal can be granted. (d) Applications for rehabilitating migratory birds shall contain a current federal permit number. (e) A renewal may not be granted if the permit holder has been convicted of a state wildlife law violation within the 12 month period immediately preceeding department action on the renewal. (f) Denial of renewal may occur if the permit holder fails to meet any of the requirements for receiving or holding the original permit. (g) Applications for renewal may not be acted upon while unresolved criminal charges are pending for alleged violation of state or federal wildlife laws or animal cruelty laws. sec.69.49. Violations and enforcement. (a) Any violation of the Texas Parks and Wildlife Code, rules and regulations of the commission, a proclamation of the commission, or any provision in the permit, including amendments, may result in suspension, probation, or revocation of a permit in addition to any applicable civil, criminal or administrative penalties. (b) Any misrepresentation of material fact in an application or annual report is a violation of this subchapter. sec.69.51. Hearings. (a) An opportunity for hearing shall be provided to any applicant or permit holder for any denial of a permit, probationary terms of a permit, denial of a permit renewal, or issuance of a permit where the terms of issuance are materially different from those requested by the applicant and adversely affect the applicant's interests. (b) Requests for hearings shall be made in writing before the expiration of 30 calendar days from the date of the adverse action. (c) All hearings shall be conducted in accordance with the rules of practice and procedure of the Texas Parks and Wildlife Department and the Administrative Procedure and Texas Register Act. sec.69.53. Permit requirements. (a) A permit holder shall carry out all rehabilitation in a manner consistent with the goal of returning wildlife to its native habitat. (b) A permit holder shall carry out all rehabilitation in a humane manner and plan activities to return the injured animals to a condition which will allow them to survive in the wild. (c) A permit holder shall conduct rehabilitation in an environment which minimizes human contact and prevents human and domestic animal imprinting. (d) A permit holder shall not display animals under rehabilitation to the public unless specifically authorized by permit provision. (e) A permit holder shall not conduct rehabilitation at the same location as or within 1,000 feet of a location where taxidermy is carried on except that rehabilitation permits may be issued as an incident to zoological parks and aquariums which are permitted under the authority of the Parks and Wildlife Code and which also conduct on-site taxidermy. This restriction may be waived by the department on a case-by-case basis if the department finds that the restriction represents an undue hardship on the permit holder due to circumstances beyond his or her control. (f) Non-releasable protected wildlife may only be retained for approved educational, fostering, or socialization purposes incident to wildlife rehabilitation or transferred to other permitted rehabilitators, zoological permit holders, or educational permit holders in accordance with requirements of this subchapter and only after a written request for such retention or transfer has been made to and approved by the department. (g) All permittee's facilities shall be subject to unannounced inspections by authorized department employees at reasonable times. (h) The department may make such special provisions and limitations in a permit to retain non-releasable protected wildlife as are necessary to protect their welfare. (i) Permit holders possessing non-releasable raptors shall band the raptors with markers supplied by the department. (j) Releases of rehabilitated wildlife. (1) A permit holder shall not release wildlife in such a manner or at such a location so that the released animals are likely to become a nuisance or a depredation threat. (2) Wildlife releases which are made to fenced or enclosed areas without a reasonable expectation that the individuals will be able to leave at will may be considered as captive releases. (3) Captive releases may subject the landowner or person in control of the premises to additional licensing requirements for holding protected wildlife in captivity or stocking protected wildlife. (4) Protected wildlife shall be released only to habitat appropriate for the species. (5) Terrestrial animals shall only be released in the county where they were acquired or found, or in an adjacent county unless specific written permission for release elsewhere is granted by the department. (6) Protected wildlife may not be imported from another state or another country without a specific permit provision allowing such activity. (k) All applications for permits, renewals, and amendments shall provide the following information: (1) personal information which allows the identification of the applicant including full name, date of birth, sex, home address, and facility address; (2) two references to support each new application from acknowledged animal rehabilitation or veterinary authorities who have known the applicant for at least five years and who attest to the applicant's ability to handle and care for protected wildlife in a humane and effective manner; (3) names of co-permittees and sub-permittees; (4) a statement that the applicant has not been convicted of any wildlife law violations in the past 12 months; (5) a verified or sworn statement attesting to the truth of the facts stated in the application; (6) the name and address of at least one veterinarian who will be delivering care to animals in the permit holder's custody; and (7) any other information determined by the department to be necessary to review the application. (l) All new permit applicants' facilities shall be inspected by a representative of the department, and no permit shall be issued until the facilities are determined to satisfy all of the applicable facilities standards of this subchapter. (m) The department may make special conditions in individual permits which are consistent with this subchapter and which are necessary to carry out the intent of this subchapter and the Texas Parks and Wildlife Code, Chapter 43, Subchapter C. sec.69.55. Annual Reports. (a) Permit holders shall file annual reports as required by the permit unless permission is granted for a later filing. (b) Permit holders shall complete and submit an annual report on a form provided by or approved by the department and shall include, as a minimum, the information necessary to ascertain the species identification, injuries, treatment, and disposition of all animals handled during the reporting period. sec.69.57. General Facilities Standards. (a) Rehabilitation permit holders shall comply with the applicable facilities standards of this subchapter in addition to any specific requirements placed in their permits. (b) Rehabilitation permit holders who possess or care for species regulated by the Texas Parks and Wildlife Code, Chapter 12, Subchapter G, sec.sec.12. 601- 12.607, Restricted Wild Animals and the rules adopted pursuant to that subchapter in Chapter 55, Subchapter F of this title (relating to Restricted Wild Animals), are required to conform their facilities to the requirements of those rules as a condition of holding a permit pursuant to this subchapter. (c) Permit holders shall provide confinement areas and cages for rehabilitation purposes appropriately sized, constructed, and maintained so as to provide a humane and safe environment for animals held under the authority of a permit issued pursuant to this subchapter. (d) The department may specify individual caging requirements in each permit on a case-by-case basis depending upon the species, number, size, type and length of care required. In imposing individual standards, the department may be guided by similar requirements imposed by state and federal agencies regulating comparable activities. (e) Clean water shall be available at all times except where medical circumstances require the temporary denial of water. (f) Veterinary care shall be available to all animals. (g) Feces and waste materials shall be removed on a daily basis except for species which normally re-ingest fecal material. (h) Cages shall be cleaned and disinfected using effective and non-irritating methods. (i) A person authorized by permit shall be in attendance at least once daily unless otherwise specified by the permit. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on September 30, 1991. TRD-9111948 Paul M. Shinkawa Director, Legal Services Division Texas Parks and Wildlife Department Earliest possible date of adoption: November 4, 1991 For further information, please call: 1-800-792-1112, ext. 4419 or (512) 389- 4636 Part IX. Texas Water Commission Chapter 305. Consolidated Permits Subchapter M. Waste Treatment Inspection Fee Program The Texas Water Commission proposes amendments to sec. s305.501, 305.502, and 305.504, the repeal of sec.305.503 and new sec.305.503, concerning the waste treatment inspection fee program. The Water Code, sec.26.0291, authorizes the commission to assess an annual fee against each permittee holding a permit for wastewater treatment or discharge issued under Chapter 26 of the Water Code. In determining the revenue to be derived from these assessments, the commission considers the funds available from all authorized sources and the requirements to meet budgeted expenses of the water quality activities to which these fee revenues may be allocated. In determining the amount of the fee, the commission may consider permitting factors such as flow volume, toxic pollutant potential, levels of traditional pollutants and heat load. In addition, the commission may consider the designated uses and the ranking classifications of the waters affected by discharges from the permitted facility. Senate Bill 1525, Acts of the 71st Legislature, 1989, amended the Water Code, sec.26.0291, by adding provisions which will be effective upon delegation of National Pollutant Discharge Elimination System (NPDES) permit authority to the commission. In order to provide the funding necessary to pay the expenses of the commission in administering the NPDES program, Senate Bill 1525 changed the Water Code, sec.26.0291, authorizing the commission to increase the maximum allowable annual wastewater facility fee from $11,000 to $15,000 and to consider the costs of obtaining and administering the NPDES Program, in addition to the other factors, in establishing rates for fee assessments. The commission has previously proposed rules, published December 14, 1990 (15 TexReg 7152), which would have increased all wastewater facility fees and conditionally implemented an incremental fee for designated major permits to fund the NPDES Program under the authority of Senate Bill 1525. Due to uncertainties regarding the anticipated funding that would be required for both existing program activities and potential new functions under the NPDES Program in the 1992-1993 biennium, this proposal was withdrawn and no action taken. The current proposal would incorporate some authority of Senate Bill 1525 to make certain revisions to the fee program, including increasing the maximum fee, but does not contemplate any increase in the maximum fee at this time nor any differential treatment of major and minor permits beyond the provisions that are in the current rule. To meet the requirements for funds anticipated during the 1992-1993 biennium, the commission proposes to modify certain features of the rate schedule for determination of wastewater inspection fees and increase the fee rates. In addition, the commission proposes to adopt a provision which would increase the maximum annual waste treatment facility fee from $11,000 to $15,000. This provision would be effective only upon completion of delegation of NPDES permit authority to the commission by the Environmental Protection Agency. Under the current rate schedule, each permit for which discharge parameters have been established is assigned a variable number of points based on the values of the specific permit parameters. The point values for permits without variable discharge limitations are set as fixed values by rule. The fee is determined by multiplying the total number of points assigned to a permit by the rate of $50 per point, up to a maximum of $11,000. Inactive permits are assessed a uniform fee of $150, regardless of the applicable permit parameters. All evaporation and land disposal permits are assessed a uniform fee of $200, regardless of permit type or application rate. Industrial permits are evaluated and assessed fees based on pollutant potential, which is determined by categorizing permitted facilities in groups by Standard Industrial Classification and by type of operation. Municipal (domestic) permits are not currently evaluated on a similar basis for pollutant potential. Fee assessments for all permits will increase under this proposed rule. The proposal is to increase the rate per point for all permits from $50 to $70. This generally represents an increase of 40%, except for a permit which might exceed the maximum fee, in which case the increase would be less. In addition, other changes are proposed. The most significant change is the deletion of the fixed value of three points for an inactive permit. Under this rule, inactive permits would be evaluated and rated on the basis of the applicable permit parameters and conditions, regardless of the construction or operational status of the facility. All issued permits require some investment of resources by the agency, whether in the form of database maintenance, periodic research or inspection to determine the status of a facility or the owner/operator, and evaluation of cumulative waste loads in specific stream segments and their impacts on permit discharge or water quality standards. Also, all land disposal permits, such as those for evaporation ponds or irrigation systems, which do not authorize discharge to surface waters, currently are assessed on the basis of a set point value of four points, which under the current rate is equivalent to an annual fee of $200. Under the proposed rule, industrial land disposal permits would be assigned a set point value of five points; municipal (domestic) permits would be assigned set point values of four points for facilities authorized up to 0.1 million gallons per day (mgd) and 10 points for facilities authorized at 0.1 mgd or greater. Some permits authorize both process wastewater discharges, to which specific discharge limitations apply, and stormwater discharges, without specific discharge flow limitations. Under current assessment procedures, the authorization for stormwater discharges may not be considered in the determination of the total point values for the permit and the corresponding fee which is to be assessed. This proposed rule would clarify the determination of the assessment in these cases and ensure that all permits are evaluated equitably on the basis of all parameters and conditions applicable. In addition, the date for which permit status and the fee assessment are determined is changed from October 1st of each year to September 1st in order to correspond to the beginning of the state fiscal year. It is the intention of commission, in order to ensure the availability of funds for the beginning of each fiscal year and to provide for the effective management of cash resources, that fee assessments be distributed and payments received at the earliest possible time each fiscal year. Section 305.501, relating to purpose, is amended by the addition of new sec.305.501(b) which specifies the additional (and conditional) authority for use of funds in the Waste Treatment Facility Inspection Fee Fund if NPDES Program authority is delegated to the commission by the Environmental Protection Agency. Section 305.502, relating to definitions and abbreviations, is amended by changing the definition of "annual waste treatment inspection fee". Language which defines the fee as being within $150 and $11,000 is deleted to make it more generally applicable and consistent with the possible increased maximum fee and the restructured rates authorized under Senate Bill 1525. Additional definitions are included for "biomonitoring" and "toxicant numerical limit", which are both permit criteria proposed to be included in the parameters for the assessment of fees. The definition of "parameter" is changed and a new definition of "pollutant potential" is added to fully incorporate the new permit criteria of biomonitoring and toxicant numerical limits and better explain what is represented by the term "pollutant potential". A definition of "major permit" is added to better define which permits are designated as major (and subject to a higher fee). The definition of "permit" is changed to update the statutory reference to the Solid Waste Disposal Act to reflect its recent codification in the Health and Safety Code, Chapter 361. The definition of "no discharge permit" is changed to refer more specifically to a "land application/evaporation permit. " The abbreviations for milligrams per liter (mg/l) and Standard Industrial Classification (SIC) are changed to clarify their definition and a new abbreviation for toxicant numerical limit (TNL) is added. Existing sec.305.503, relating to fee assessment, is repealed. New sec.305.503 is proposed to reflect certain changes in the determination of wastewater facility fees and an increase in the fee rate. Section 305.503(a) provides that an annual fee is assessed each holder of a permit issued under Chapter 26 of the Water Code and provides that such annual fee shall not exceed $11,000 unless the commission has been fully delegated NPDES permit authority, in which case the maximum fee shall be $15,000. Section 305.503(b) describes the parameters which the commission may consider in determining a fee to be assessed for a wastewater permit. Section 305.503(c) describes the procedures for fee assessment. Point values are assigned to permits which have variable discharge limits, such as flow volume, oxygen demand or total suspended solids (TSS). Evaporation or land application permits and some stormwater discharges are assigned a fixed point value. All applicable point values are totaled and multiplied by a rate factor to determine the fee. Section 305.503(d) details the method for conversion of chemical oxygen demand (COD) and total organic carbon (TOC) values to biological oxygen demand (BOD) in order that all permits may be evaluated consistently in terms of the effluent standards for oxygen demand from receiving waters. Section 305.503(e) provides that, for the purpose of fee calculation, a permit which authorizes a secondary treatment system with discharge limits of 30 mg/l BOD and 90 mg/l TSS shall be considered equivalent to and rated as a permit with limits of 20 mg/1 BOD and 20 mg/1 TSS. New sec.305.503(f) details the schedule for determination of the annual fee for permits with variable parameters and discharge limits. Section 305.503(f)(1) describes the point values assigned to permits on the basis of pollutant potential. Industrial permits are divided into one of six groups based on the Standard Industrial Classification of the facility and the type of operation. Domestic permits are rated based on whether a flow of one mgd or greater is authorized and/or whether the permits include requirements for biomonitoring or have toxicant numerical discharge limitations assigned. Section 305.503(f)(2) describes the points assigned for permitted flow volume, both for Type I (contaminated) and Type II (uncontaminated) discharges. The maximum number of points that can be assigned for cumulative flow limitations is 60 points. Section 305.503(f)(3) outlines the points assigned for discharge limits for traditional pollutants-oxygen demand (expressed as BOD), TSS and ammonia. Section 305.503(f)(4) provides that a permit with a limitation on heat loading of receiving waters shall be assigned 10 points in addition to points assigned for other permit parameters. Section 305.503(f)(5) provides that any permit designated by EPA as a "major permit" shall be assigned 10 additional points. New sec.305.503(g) provides that fixed point values are to be set for evaporation/land application permits and certain storm water permits that do not contain specific limitations on the volume of discharge. The total points assigned under sec.305.503(f)-(g) are multiplied by the proposed rate factor to arrive at the assessed fee. Permits having both process wastewater discharges assessable under sec.305.503(f) and stormwater discharges assessable under sec.305. 503(g) shall be liable for a fee which is the sum of the fees determined under each subsection. Section 305.503(h) provides that the fee rate for each point assigned under the proposed schedule is $70 per point. Section 305.504 is amended to delete a reference to the assessment of a fee for an inactive facility under construction, consistent with proposed new sec.305. 503 and the intended method of assessment for inactive permits. Karen P. Phillips, director of Budget and Planning, has determined that for the first five-year period these sections will be in effect there will be fiscal implications as a result of enforcement of or compliance with the sections. The effect on state government will be an increase in revenue of approximately $1.77 million in each of the fiscal years 1991-1995. The effect on holders of municipal or domestic permits, which would include local governments, will be an increase in costs of $996,000 in each of the fiscal years 1991-1995. Fee increases for the current 2,788 municipal and domestic permits will increase an average of $357. The minimum increase is $0 and the maximum $3,000. Costs to industrial permit holders will increase a total of $776,000 in each of the fiscal years 1991-1995. The increased assessments for the 1,584 industrial permits will average $490, with a minimum of $0 and a maximum of $3,000. The most significant fee increases under this proposal will be for inactive permits, which currently are assessed at a flat rate of $150 regardless of the permitted discharge limits. Annual fees for the approximately 490 inactive permits will average $500 for municipal permits and $1,500 for industrial permits. Increases for some individual inactive permits would be substantially higher than the average if the permit parameters are consistent with those of active permits assessed fees at or near the maximum of $11,000. The section as proposed will have fiscal impacts on small businesses. Those businesses with waste treatment permits will be affected in the manner described above. Businesses which discharge to publicly-owned treatment facilities may be collectively affected by increased rates for service if additional permit costs are passed on to customers. It is not anticipated that pass through of these costs will significantly affect individual small businesses. Ms. Phillips also has determined that for each year of the first five years these sections are in effect, the public benefit anticipated as a result of enforcing the sections will be improvements in: the regulation of waste treatment facilities and permitted wastewater discharges, protection of the quality of the state's surface water resources, and compliance with the provisions of the Texas Water Code and the regulations of the Texas Water Commission. The costs anticipated as a result of compliance with these sections for persons who are not affected permit holders would be the same as those costs identified for small businesses which are ratepayers to municipal treatment facilities. On an individual basis, these costs are not anticipated to be significant. Comments on this proposal may be submitted to Stephen Minick, Office of Budget and Planning, P.O. Box 13087, Austin, Texas 78711. The deadline for submission of written comments will be 30 days after the date of publication of this proposal in the Texas Register. A public hearing has been scheduled for the receipt of comments October 29, 1991, 10 a.m., in the Stephen F. Austin State Office Building, Room 1149B, at 1700 North Congress Avenue, Austin. 31 TAC sec.sec.305.501-305.503 The amendments and new section are proposed under the Texas Water Code, 26.0291, as amended by Senate Bill 1525, Acts of the 71st Legislature, 1989, which authorizes the Texas Water Commission to revise fee rates for waste treatment facilities in order to obtain and administer a delegated National Pollutant Discharge Elimination System (NPDES) permit program, and sec.5.102 and sec.5.105, which provide the Texas Water Commission with the authority to adopt any rules necessary to carry out its powers and duties under the Code and other laws of the State of Texas, and to establish and approve all general policy of the commission. sec.305.501. Purpose. (a) It is the purpose of these sections to maintain the Waste Treatment Inspection Fee Program. Under this program, an annual waste treatment inspection fee is imposed on each permittee holding a permit under the Texas Water Code, Chapter 26. All fees shall be deposited in a fund for the purpose of supplementing other funds appropriated by the legislature to pay the expenses of the commission in inspecting waste treatment facilities and enforcing the provisions of the Texas Water Code, Chapter 26, the rules and orders of the commission, and the provisions of commission permits governing waste discharges and waste treatment facilities. (b) Upon the delegation of national pollutant discharge elimination system (NPDES) permit authority to the commission the fees shall be used, in addition to the purposes specified in subsection (a) of this section for obtaining and administering the Texas pollutant discharge elimination system (TPDES) program. sec.305.502. Definitions and Abbreviations. (a) Definitions. The definitions contained in the Texas Water Code, sec.26.001, shall apply herein. The following words and terms, when used in this subchapter, shall have the following meanings unless the context clearly indicates otherwise. (1) Annual waste treatment inspection fee-A fee charged to each permittee holding a permit under the Texas Water Code, Chapter 26[, and assessed once per year, ranging from $150 to $11,000]. (2) Biomonitoring-The determination of total (whole-effluent) toxicity of permitted discharges as required by and consistent with the provisions of sec.307.1(d) of this title (relating to Toxic Materials). (3)
                                                                                                                                                                                                                                                                                                  [(2)] Commission-The Texas Water Commission. (4)
                                                                                                                                                                                                                                                                                                    [(3)] Final flow limit-The maximum amount of wastewater discharge authorized during any term of the permit, expressed as a daily average flow, a daily maximum flow, an annual average or an annual maximum. (5)
                                                                                                                                                                                                                                                                                                      [(4)] Flow-The total by volume of all wastewater discharges authorized under a permit expressed as an average flow per day, a maximum flow per day, an annual average or an annual maximum, exclusive of variable or occasional stormwater discharges. Generally, the flow is based on the sum of the volumes of discharge for all outfalls of a facility, but excludes internal outfalls. However, for those facilities for which permit limitations on the volumes of discharge apply only to internal outfalls, the flow is based on the sum of the volumes of discharge for all internal outfalls of the facility, exclusive of variable or occasional stormwater discharges. (6)
                                                                                                                                                                                                                                                                                                        [(5) ] Flow volume- (A) Type I,
                                                                                                                                                                                                                                                                                                          [-] contaminated-these wastewaters include sanitary wastewater, process wastewater flows or any mixed wastewaters containing more than 10% process wastewaters; (B) Type II,
                                                                                                                                                                                                                                                                                                            [-] uncontaminated-these wastewaters are relatively uncontaminated. They include non-contact cooling water or mixed flows which contain at least 90% non-contact cooling water and not more than one million gallons per day of process wastewater. (7)
                                                                                                                                                                                                                                                                                                              [(6)] Fund-The waste treatment facility inspection fund. (8)
                                                                                                                                                                                                                                                                                                                [(7)] Heat load parameter-The temperature limitation specified in a permit. For purposes of assessing the waste treatment inspection fee, points are assigned according to the existence of a temperature limitation within a waste discharge permit. (9)
                                                                                                                                                                                                                                                                                                                  [(8)] Inactive permit-A permit which authorizes a waste treatment facility, but where the facility itself is not yet operational or where operation has been suspended. (10)
                                                                                                                                                                                                                                                                                                                    [(9)] Land application/evaporation permit
                                                                                                                                                                                                                                                                                                                      [No discharge permit]-A permit which does not authorize the discharge of wastewaters into surface
                                                                                                                                                                                                                                                                                                                        waters in the state, including, but not limited to permits for evaporation ponds and irrigation systems. (11) Major permit-A permit designated as a major permit in conformance with applicable EPA guidance documents, by either EPA or the commission and subject to provisions of NPDES or TPDES permit authority respectively. (12)
                                                                                                                                                                                                                                                                                                                          [(10)] Parameter-A variable which acts as a set of physical properties whose values determine the characteristics of a waste discharge. Those parameters to be considered under the waste treatment facility inspection fee are: (A) pollutant potential, expressed as the
                                                                                                                                                                                                                                                                                                                            Standard Industrial Classification (SIC) [group] for industrial permits and an authorized flow of greater than 1 mgd and/or biomonitoring requirements or toxicant numeric limits for domestic permits; (B) flow volume; (C) biochemical oxygen demand (BOD) /chemical oxygen demand (COD) /total organic carbon value; (D) total suspended solids (TSS) value; (E) ammonia value; (F) heat load; and (G) major/minor designation. (13)
                                                                                                                                                                                                                                                                                                                              [(11)] Payment-Payment is effective upon receipt by the commission of the full amount of the annual waste treatment inspection fee. (14)
                                                                                                                                                                                                                                                                                                                                [(12)] Permit-Any permit issued by the Texas Water Commission under authority of the Texas Water Code, Chapter 26, including those permits issued under the authority of both the Texas Water Code, Chapter 26, and other statutory provisions (such as the Health and Safety Code Chapter 361
                                                                                                                                                                                                                                                                                                                                  [the Texas Solid Waste Disposal Act, Texas Civil Statutes, Article 4477-7]). (15) Pollutant potential-A rating assigned to a permit based on: (A) for industrial permits, the source(s) of wastewater the Standard Industrial Classification of the facility and the specific type of operation; or (B) for domestic permits, an authorized flow of greater than 1.0 MGD and/or the existence of biomonitoring requirements or toxic numerical discharge limits. (16)
                                                                                                                                                                                                                                                                                                                                    [(13)] Report discharge permit-A permit which authorizes the variable or occasional discharge of wastewaters with a requirement that the volume of discharge be reported but without any limitation on the volume of discharge. (17)
                                                                                                                                                                                                                                                                                                                                      [(14)] Stormwater/Report discharge permit-A permit which authorizes the variable or occasional discharge of accumulated stormwater and stormwater runoff, but without any specific limitation on the volume of discharge. (18) Toxicant numerical limit -A permit discharge limit established for any toxicant identified or otherwise defined in accordance with the provisionsof sec.307.6 of this title (relating to Toxic Materials). (19)
                                                                                                                                                                                                                                                                                                                                        [(15)] Traditional pollutants-The wastewater parameters typically found in wastewater discharge permits, specifically BOD/COD/TOC, TSS and ammonia. For purposes of assessing the waste treatment inspection fee, points are assigned to these parameters if they are included
                                                                                                                                                                                                                                                                                                                                          [allowed] in a permit. (b) Abbreviations. The following abbreviations apply to these sections. (1) BOD-Biochemical
                                                                                                                                                                                                                                                                                                                                            [Five-day biochemical] oxygen demand. (2) COD-Chemical oxygen demand. (3) MGD-Million gallons per day. (4) Mg/l-Milligrams per liter-All limits measured in mg/l are converted to pounds per day (lb/day) using the following conversion: mg/l times
                                                                                                                                                                                                                                                                                                                                              [by] flow volume in MGD times
                                                                                                                                                                                                                                                                                                                                                [by] 8.34 equals lb/day. (5) SIC-Standard Industrial Classification assigned to a facility generating wastewater. [waste discharger.] (6) TNL-Toxicant numerical limit. (7)
                                                                                                                                                                                                                                                                                                                                                  [(6)] TOC-Total organic carbon. (8)
                                                                                                                                                                                                                                                                                                                                                    [(7)] TSS-Total suspended solids. sec.305.503. Fee Assessment. (a) An annual waste treatment inspection fee is assessed against each person holding a permit issued under the authority of the Water Code, Chapter 26. The amount of the fee is determined by specific permit parameters for which a facility is authorized as of September of each year. The maximum fee which may be assessed each permit is $11,000, except that upon delegation of NPDES permit authority to the commission, the maximum fee which may be assessed is $15,000. (b) In assessing a fee, the commission may consider the following parameters for each permit: (1) pollutant potential; (2) flow volume; (3) traditional pollutants; (4) heat load; (5) major/minor designation; (6) the designated uses and ranking classification of waters affected by waste discharges; and (7) the costs of obtaining and administering the Texas pollutant discharge elimination system program, upon delegation by the Environmental Protection Agency. (c) Except as provided in subsection (g) of this section, the commission shall assign a point value to each of the permit parameters in subsection (b) of this section. The assigned value(s) shall be weighted according to the specific permit limits and the weighted values summed. Either the sum of the variable point values under subsection (f) of this section or the set point values established under subsection (g) of this section shall be multiplied by the current fee rate under subsection (h) of this section to determine the fee to be assessed. (d) For the purpose of fee calculation, COD, and TOC are converted to BOD values and the higher value is assessed points. The conversion for TOC is: three pounds of TOC is equal to one pound of BOD (3:1). The conversion for COD is eight pounds of COD is equal to one pound of BOD (8:1). (e) For the purpose of fee calculation, a permit which authorizes a secondary treatment system consisting of ponds or lagoons at limits of 30 mg/l BOD and 90 mg/l TSS shall be assumed to be equivalent to 20 mg/l BOD and 20 mg/l TSS. This equivalency is based on treatment provided by different types of secondary treatment systems. (f) Except as provided in subsection (g) of this section, each permit shall be assessed a fee based on the specific parameters assigned to the permit and determined by the following schedule. Each permit shall be reviewed to determine the individual values for the parameters covered by this schedule: (1) Pollutant Potential. (A) Industrial Discharges. [graphic] (B) Domestic Discharges. [graphic] (2) Flow Volume. (A) Type I (Contaminated): [graphic] (B) Type II (Uncontaminated): [graphic] (3) Traditional Pollutants. (A) Oxygen Demand (COD and TOC limits are converted to BOD values and the higher value is used.) [graphic] (B) Total Suspended Solids. [graphic] (C) Ammonia. [graphic] (4) Heat Load. [graphic] (5) Major/Minor Designation. [graphic] (g) Set Point Permits. The following points are assigned for designated permits: (1) Evaporation/Land Application Permits. [graphic] (2) Stormwater/Report Permits = 12 points Stormwater permits for which flow and quality parameters have been established shall be assessed a fee under subsection (f) of this section. [graphic] (h) The annual fee to be assessed is calculated by multiplying the total points determined under subsection (f) of this section and/or subsection (g) of this section by the rate of $70 per point. Permits having both process wastewater discharges assessed under subsection (f) of this section and stormwater discharges assessed under subsection (g) of this section shall be assessed the total of the fees determined under the respective subsections, not to exceed the maximum fee under subsection (a) of this section. sec.305.504. Fee Payment.
                                                                                                                                                                                                                                                                                                                                                      Annual waste treatment inspection fees are payable within 30 days of the billing date each year for all permittees. Fees shall be paid by check, certified check or money order payable to the Texas Water Commission. New permits will require full payment of the appropriate fee within 30 days of the billing date, and thereafter will be assessed an annual waste treatment inspection fee under the schedule set forth herein, beginning with the next regular billing date. All fee assessments are to be based on the permitted parameters (interim or final) specified in the permit, without regard to the actual quality of effluent that the permitted facility is discharging. Where the parameters authorized for a permitted facility change to a higher interim level or to the final level authorized by the permit, the revised fee, if any, will be assessed at the next regular payment date following the change in authorized limits. If a permit is amended to authorize lesser or greater parameters, the revised fee will be assessed at the next regular payment date following the final order of the Texas Water Commission effecting the amendment. [If initial construction of a newly-permitted facility is not complete, the facility will be assessed a fee as an inactive permit.] Fees are payable regardless of whether the permitted facility actually is constructed or in operation. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on September 30, 1991. TRD-9111953 Jim Haley Director, Legal Division Texas Water Commission Earliest possible date of adoption: November 4, 1991 For further information, please call: (512) 463-8069 31 TAC sec.305.503 (Editor's note: The text of the following section proposed for repeal will not be published. The section may be examined in the offices of the Texas Water Commission or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The repeal is proposed under the Texas Water Code, sec.26.0291, as amended by Senate Bill 1525, Acts of the 71st Legislature, 1989, which authorizes the Texas Water Commission to revise fee rates for waste treatment facilities in order to obtain and administer a delegated National Pollutant Discharge Elimination System (NPDES) permit program, and sec.5.102 and sec.5.105, which provide the Texas Water Commission with the authority to adopt any rules necessary to carry out its powers and duties under the Code and other laws of the State of Texas, and to establish and approve all general policy of the commission. sec.305.503. Fee Assessment. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on September 30, 1991. TRD-9111954 Jim Haley Director, Legal Division Texas Water Commission Earliest possible date of adoption: November 4, 1991 For further information, please call: (512) 463-8069 TITLE 34. PUBLIC FINANCE Part I. Comptroller of Public Accounts Chapter 3. Tax Administration Subchapter O. State Sales and Use Tax 34 TAC sec.3.294 The Comptroller of Public Accounts proposes an amendment to sec.3.294, concerning rental and lease of taxable items. The amendment makes the changes to the Tax Code provided by earlier sessions of the legislature to such areas as transportation and installation charges and repair and remodeling labor. The amendment also states comptroller policy on damage waiver fees, assignment of lease payments when legal title to the property is transferred, and other charges related to rental and lease agreements. Tom Plaut, chief revenue estimator, has determined that for the first five-year period the section is in effect there will be no significant revenue impact on the state or local government as a result of enforcing or administering the section. This section is adopted under the Tax Code, Title 2, and does not require a statement of fiscal implications for small businesses. Dr. Plaut also has determined that for each year of the first five years the section is in effect the public benefit anticipated as a result of administering the section will be in providing new information regarding tax responsibilities. There is no anticipated economic cost to persons who are required to comply with the proposed section. Comments on the proposal may be submitted to Lucy Glover, Manager, Tax Administration Division, P.O. Box 13528, Austin, Texas 78711. The amendment is proposed under the Tax Code, sec.111.002, which provides the comptroller with the authority to prescribe, adopt, and enforce rules relating to the administration and enforcement of the provisions of the Tax Code, Title 2. sec.3.294. Rental and Lease of Tangible Personal Property [Taxable Items]. (a) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise. (1) Financing lease. (A) A written
                                                                                                                                                                                                                                                                                                                                                        lease contract containing either of the following provisions or conditions at the inception of the contract: (i) (No change.) (ii) an option to purchase the property
                                                                                                                                                                                                                                                                                                                                                          at a nominal price is available to the lessee at the end of the lease
                                                                                                                                                                                                                                                                                                                                                            (a price is nominal
                                                                                                                                                                                                                                                                                                                                                              which is, at the time the contract is executed, estimated to be [substantially] less than 10% of
                                                                                                                                                                                                                                                                                                                                                                the fair market value of the property at the time the option is to be exercised). (B) A written
                                                                                                                                                                                                                                                                                                                                                                  lease contract containing either of the following provisions or conditions at the inception of the contract will be presumed to be a financing lease: (i) the lease term is equal to 75% or more of the estimated economic life of the property and the contract makes no provisions for the return of the property to the lessor. For used property, this section does not apply if the beginning of the lease term falls within the last 25% of the total estimated economic life of the leased property; or
                                                                                                                                                                                                                                                                                                                                                                    [.] (ii) the residual value of the leased property is less than 10% of the property's fair market value at the inception of the lease and the contract makes no provisions for the return of the property to the lessor. (C) The presumption outlined in subparagraph (B) of this paragraph
                                                                                                                                                                                                                                                                                                                                                                      that the contract is a financing lease may be rebutted by showing that the contract is not merely a security device, that the property will be usable for its intended purpose at the end of the lease term, and that the lessor in good faith intends to reclaim possession of the property at the end of the lease term or to sell the property at the fair market value
                                                                                                                                                                                                                                                                                                                                                                        or to lease
                                                                                                                                                                                                                                                                                                                                                                          [release] it [at that time] for its [fair rental or] fair market rental
                                                                                                                                                                                                                                                                                                                                                                            value. (2) Lease or rental -A transaction, by whatever named called,
                                                                                                                                                                                                                                                                                                                                                                              in which possession but not title to tangible personal property is transferred for a consideration. In this section, the words lease and rental are used interchangeably. (3) Operator-A person who actively guides, drives, pilots, or steers tangible personal property. A person who provides maintenance, repair, or supervision only is not an operator for the purposes of this section. (4)
                                                                                                                                                                                                                                                                                                                                                                                [(3)] Operating lease -A lease contract which gives the lessee use of the leased property for a certain period[, while the lessor retains all or substantially all of the risk and rewards of ownership] . For the purposes of the sales and use taxes, a written
                                                                                                                                                                                                                                                                                                                                                                                  contract in the legal form of a lease will be treated as an operating lease unless it meets the definition of a financing lease. All oral leases will be treated as operating leases. [(4) Taxable item-Tangible personal property and taxable services. [(5) Service contract-An agreement providing both nontaxable services (labor) and taxable items for a lump-sum amount and with the element of nontaxable service being the essence of the transaction. To qualify as a service contract, the services provided must be clearly evident from the terms of the contract and the providing of property maintenance and repair services to a lessee does not convert a lease contract into a service contract.] (b) Leases
                                                                                                                                                                                                                                                                                                                                                                                    [Treatment of leases]. [(1) An operating lease will be treated as a lease for the purposes of the sales and use taxes. [(2) A financing lease will be treated as a sale for the purposes of the sales and use taxes.] [(3)] Operating and financing leases are subject to sales and use taxes. [(4) The lessor may purchase the property provided under the terms of the lease tax free by issuing a resale certificate to the supplier in lieu of the tax.] Tax must be collected from the lessee on all charges contained in the lease unless the charge is separately stated and is nontaxable as provided by this section
                                                                                                                                                                                                                                                                                                                                                                                      [which are subject to tax]. See subsection (f) of this section for imposition of tax and time for reporting. [(c) Service contracts. The charges for services provided under a service contract will not be subject to sales or use tax. The person providing the service is liable for tax on all taxable items used or consumed in providing the service. See sec.3.308 of this title (relating to Computers-Hardware, Software, Services, and Sales), sec.3.344 of this title (relating to Mobile Telephone and Telephone Paging Services) and sec.3.324 of this title (relating to Oil, Gas, and Related Well Service).] (c)
                                                                                                                                                                                                                                                                                                                                                                                        [(d)] Tangible personal property
                                                                                                                                                                                                                                                                                                                                                                                          [Equipment] leased with and without an operator. (1) Receipts from the lease of tangible personal property
                                                                                                                                                                                                                                                                                                                                                                                            [equipment] without an operator are taxable. (2) The furnishing of tangible personal property
                                                                                                                                                                                                                                                                                                                                                                                              [equipment] with an operator for which a single charge is made to the customer shall be presumed to be the performance of a service and no tax may be charged to the customer , unless the service is taxable under other provisions of the Tax Code, Chapter 151. Sales or use taxes
                                                                                                                                                                                                                                                                                                                                                                                                [; however, sales tax] will be due on the original purchase price of the tangible personal property
                                                                                                                                                                                                                                                                                                                                                                                                  [equipment]. [Note: Providing maintenance, repair, or supervision only is not providing an operator.] (A) The presumption set forth in subsection (c)
                                                                                                                                                                                                                                                                                                                                                                                                    [(d)](2) of this section may not be rebutted solely by one party to the transaction. The presumption may be rebutted by the following criteria which establish a lease of tangible personal property
                                                                                                                                                                                                                                                                                                                                                                                                      [equipment]: (i) the customer exercised direct control or supervision over the operator of the tangible personal property
                                                                                                                                                                                                                                                                                                                                                                                                        [equipment]; and (ii) the intent of the agreement was to lease a piece of tangible personal property
                                                                                                                                                                                                                                                                                                                                                                                                          [equipment] and separately furnish an operator. (B) If it is established that a lessor who made a single charge to customers did in fact make a lease of tangible personal property
                                                                                                                                                                                                                                                                                                                                                                                                            [the equipment], the tax will be due on the fair market rental value of the tangible personal property. If this cannot be determined. the tax will be due on the
                                                                                                                                                                                                                                                                                                                                                                                                              total charge reduced by the charge attributable to the operator determined from lessor's records. If the charge for the operator cannot be determined from the lessor's records or if it seems unreasonable
                                                                                                                                                                                                                                                                                                                                                                                                                , the comptroller will make a determination of a reasonable operator charge. [(C) Contractors renting equipment for use in the performance of separated contracts owe tax to the equipment rental company. Contractors may not collect tax from their customers on this reimbursable expense item even though the equipment charges to the customer are separately stated from operator charges. See sec.3.291 of this title (relating to Contractors).] (3) A transaction in which tangible personal property
                                                                                                                                                                                                                                                                                                                                                                                                                  [equipment] is furnished with an operator,
                                                                                                                                                                                                                                                                                                                                                                                                                    and the customer is charged separately for tangible personal property
                                                                                                                                                                                                                                                                                                                                                                                                                      [equipment] and operator,
                                                                                                                                                                                                                                                                                                                                                                                                                        shall be presumed to be the lease of tangible personal property
                                                                                                                                                                                                                                                                                                                                                                                                                          [equipment] and the separate furnishing of an operator; the receipts from the separate charge for the tangible personal property
                                                                                                                                                                                                                                                                                                                                                                                                                            [equipment] are taxable. The separate charge for the operator will not be taxable unless a taxable service is being provided. (A) If a nontaxable service is being provided and
                                                                                                                                                                                                                                                                                                                                                                                                                              it is established that the separate charge for the lease of tangible personal property
                                                                                                                                                                                                                                                                                                                                                                                                                                [equipment] is [substantially] lower than the tangible personal property's
                                                                                                                                                                                                                                                                                                                                                                                                                                  [equipment's] fair market rental value, sales tax will be assessed on the fair market rental value unless the lessor presents convincing evidence to the comptroller as to why the rental charge should be lower than fair market rental value. (B) If it is established that a lessor who separated charges for tangible personal property
                                                                                                                                                                                                                                                                                                                                                                                                                                    [equipment] and operator nevertheless used the tangible personal property
                                                                                                                                                                                                                                                                                                                                                                                                                                      [equipment] to perform a service, sales tax will be assessed on the fair market rental value if the property was purchased under a valid resale certificate. See subsection (i) of this section. (d)
                                                                                                                                                                                                                                                                                                                                                                                                                                        [(e)] Other charges related to
                                                                                                                                                                                                                                                                                                                                                                                                                                          [in a] lease agreements
                                                                                                                                                                                                                                                                                                                                                                                                                                            [agreement]. Operating and financing lease agreements and related billings
                                                                                                                                                                                                                                                                                                                                                                                                                                              may contain a variety of charges in addition to the basic rental/lease charges, including charges that occur subsequent to the rental
                                                                                                                                                                                                                                                                                                                                                                                                                                                [payment]. All charges related to a lease agreement are taxabzle unless excluded from tax by this section. Some of these
                                                                                                                                                                                                                                                                                                                                                                                                                                                  [These] charges and their tax consequences are as follows. (1) Separately stated charges for labor or services rendered in installing, applying,
                                                                                                                                                                                                                                                                                                                                                                                                                                                    remodeling, servicing,
                                                                                                                                                                                                                                                                                                                                                                                                                                                      maintaining, or repairing the item being leased are [included in the lease price and are] subject to tax. (2) Damage waiver fees are subject to tax. A charge after the rental for repair to the damaged rental item is subject to tax as a taxable service. See sec.3.292 of this title (relating to Repair, Remodeling, Maintenance and Restoration of Tangible Personal Property). Charges for items destroyed or lost by a lessee are not taxable.
                                                                                                                                                                                                                                                                                                                                                                                                                                                        [Separately stated charges for labor or services rendered in installing or applying the item being leased are not included in the lease price and are not subject to tax.] (3) All transportation charges billed by the lessor to the lessee related to the leased property are taxable. Charges for transportation billed directly to the lessee by third-party carriers are not taxable. See sec.3.303 of this title (relating to Transportation and Delivery Charges). (4)
                                                                                                                                                                                                                                                                                                                                                                                                                                                          [(3)] Charges in the lease agreement for labor such as set-up, hook-up assembly or disassembly, erection, and dismantling are included in the lease price and are taxable.
                                                                                                                                                                                                                                                                                                                                                                                                                                                            [Separately stated charges by the lessor for the transportation of the leased property from the lessor to the lessee are included in the lease price and are subject to tax. Separately stated charges by the lessor for the transportation of the leased property from the lessee back to the lessor are not included in the lease price and are not taxable. Charges for transportation of the property from a supplier to the lessor are included in the lease price and are taxable. Separately stated charges for transportation of property from the supplier directly to the lessee are not taxable. See sec.3.303 of this title (relating to Transportation and Delivery Charges).] (5)
                                                                                                                                                                                                                                                                                                                                                                                                                                                              [(4)] A charge imposed for the early termination of the lease is included in the lease price and is taxable. (6)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                [5)] Under an operating lease, any interest charges will be taxable whether or not separately stated unless the interest charge is clearly imposed for late payment or other defaults under the lease. (7)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                  [(6)] Under a financing lease, charges for interest by the lessor to the lessee will be taxable unless the rate of interest or the actual interest charged is separately stated in a
                                                                                                                                                                                                                                                                                                                                                                                                                                                                    [the] contract, invoice, billing, sales slip, or ticket
                                                                                                                                                                                                                                                                                                                                                                                                                                                                      to the customer. (e) Tangible personal property rented for use on residential and nonresidential jobs. (1) Persons renting equipment for use in the performance of contracts to construct new nonresidential real property or to construct, repair, or remodel residential real property owe tax to the equipment rental company. Tax may not be collected from their customers on a separately stated charge for this reimbursable expense item even if the equipment charges to the customer are separately stated from operator charges. See sec.3.291 of this title (relating to Contractors). (2) Persons renting equipment for use in the performance of contracts to repair or remodel nonresidential real property owe tax to the equipment rental company. Tax must also be collected from their customers on the total charge for the job including the amount paid for the equipment rental. (3) When both remodeling and new construction are being performed under the same contract, the tax to be collected from customers on the rental charges should be determined as provided by sec.3.357(b)(7) of this title (relating to Real Property Repair and Remodeling). (f) Imposition of taxes; time for filing; credits. (1) Leases subject to sales tax. (A) An operating lease executed while the property is within the state is subject to sales tax. Tax will be due on the total lease amount for the entire term of the lease regardless of where the property is used if the lessee takes delivery in the state
                                                                                                                                                                                                                                                                                                                                                                                                                                                                        [unless the lessor delivers the property to an out-of-state destination]. Any renewal of the contract, extensions, or options exercised while the tangible personal property is outside the state will not be subject to Texas tax unless the property reenters the state. (B) A financing lease executed while the property is within the state is subject to sales tax if the lessee takes delivery in the state
                                                                                                                                                                                                                                                                                                                                                                                                                                                                          [unless the lessor delivers the property to an out-of-state destination]. Tax will be due on the total amount of the contract regardless of where the property received in Texas is used during the lease. (2) Leases subject to use tax. Property brought or shipped into the state for use under the terms of a financing lease or an operating lease will be presumed to be subject to use tax. See sec.3.346 of this title (relating to Use Tax). The use tax will be due on the lease price for the entire term of an operating
                                                                                                                                                                                                                                                                                                                                                                                                                                                                            [the] lease regardless of where the initial contract was executed. Credit will be allowed against any sales or use tax legally imposed and paid to another state. See sec.3.340 of this title (relating to Multistate Tax Credits). (3) Method and time for filing reports. (A) Under an operating lease, a lessor
                                                                                                                                                                                                                                                                                                                                                                                                                                                                              [tax] must report the rental charges
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                [be reported] in the period in which they
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  [the rental receipts] are considered income under the lessor's method of reporting
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    [accounting]. Under the accrual method of accounting, the rental charges are considered income when the lease amount becomes due under the rental agreement. If the lessor does not collect the tax, the lessee must report the tax in the period in which each lease amount becomes due under the rental agreement. (B) Under a financing lease, the lessor must collect all
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      tax due under the lease
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        [must be collected] at the time the lessee
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          [purchaser] takes possession of the property or when first payment is due from the lessee
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            [customer], whichever is earlier. Tax must be reported on or before the 20th day of the month following the reporting period in which the tax is collected. If the lessor does not collect the tax, the lessee must report the tax due when the lessee takes possession of the property or when first payment is due. whichever is earlier. (C) Under an operating lease, the use tax must be reported by the lessee when the lessor is not engaged in business within this state as prescribed by the Tax Code, sec.151.107, or is engaged in business in the state but fails to collect the use tax
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              . The tax must be reported by the lessee based upon the lessee's accounting method used for regular books and records. Under a financing lease, the use tax must be reported by the lessee when the lessee takes possession of the property or when the
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                first payment is due, whichever is earlier. (g) Sales of leased property under operating leases; credit allowed. (1) When a lessee buys the property that the lessee was renting under the terms of an operating lease and
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  the lessor [sells leased property to the lessee and] allows credit against the sales price for all or part of the lease payments previously made by the lessee on the same property
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    , tax is
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      [need] not due
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        [be collected] on the amount allowed as credit if the lessor has collected and remitted tax on the prior rental payments. The lessor must collect the tax on the balance of the sales price based on its method of accounting for sales and use tax purposes. (2) When the lessor sells [the leased] property to a third party who was not
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          [person other than] the lessee of that property
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            and allows the third party
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              [lessee] credit against
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                [for a part of] the sales price for all or part of the
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  [against] lease payments previously made by the former
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    lessee, tax may not be refunded on the amount allowed as credit. The lessor must also collect and report
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      the tax on the sales price of the property to the third party based on its method of reporting for sales and use tax purposes. (h) Assignment of lease payments under operating leases
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        . A lessor may factor or assign to a third party the lessor's right to receive all lease payments due under the agreement with the lessee. At the time the lease agreement is factored or assigned, tax is due on all [remaining] lease amounts not yet reported
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          [payments]. The lessor is responsible for reporting the tax to the comptroller's department in the report period
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            [at the time] the lease agreement is assigned or factored. No deduction in the amount of tax due and payable by the lessor is allowed if a transfer at a discount is made to a third party. No tax liability is incurred by the purchaser of the lease agreement.
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              This section does not apply to the [assignment or] pledge of lease contracts by a lessor to a third party as loan collateral under the terms of a bona fide loan agreement. (i) Assignment of lease payments and property under operating leases. A lessor may assign to a third party the lessor's right to receive all lease payments due under an agreement with the lessee and, in the same transaction, transfer title to the property covered by the lease. At the time the operating lease contract is assigned and title to the property is transferred to the third party, the third party purchaser must begin collecting and remitting tax on the full amount of the taxable rental charges remaining in the lease. The third party purchaser may issue a resale certificate to the lessor as provided by subsection (j) of this section. Tax must be reported by the third party purchaser as provided by subsection (f)(3)(A) of this section. (j)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                [(i)] Sales for resale; resale certificates. (1) The purchaser of property which is to be held for lease within the United States of America, its territories and possessions, may issue a resale certificate in lieu of the sales or use
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  tax at the time of purchase. However, if the lessor subsequently uses the property in any manner other than the leasing of it, or display or demonstration of it, the lessor becomes liable at the time of the use for sales tax based on the fair market rental value for the period of time used. The fair market rental value is the amount that a lessee
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    [purchaser] would pay on the open market to rent the item for use. If the fair market rental value of the property cannot be ascertained, tax is due on the original purchase price of the property. (2) At any time, the lessor using the property purchased under a resale certificate may stop paying tax on the fair market rental value and instead pay sales tax on the original purchase price. When the lessor elects to pay sales tax on the purchase price, credit will not be allowed for taxes previously paid on the fair market rental value. See sec.3.285 of this title (relating to Resale Certificate;
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      Sales for Resale[; Resale Certificate]) . (3) A resale certificate may be issued by a retailer for a repair or replacement part to be placed on a motor vehicle to be rented under the provisions of the Tax Code, Chapter 152. A resale certificate may not be issued for repair or replacement parts for leased vehicles. In this paragraph, the terms "rental and lease" are defined by the Tax Code, Chapter 152, rather than by subsection (a)(2) of this section. (k)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        [(j)] Lease of real property with tangible personal property. (1) If a contract for the lease or rental of real property includes the lease or rental of tangible personal property (such as furniture) as part of the agreement, no sales tax is due on the amount charged the tenant for the lease or rental of the tangible personal
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          property. A
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            [However, a] resale certificate may not be issued and sales or use
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              tax must be paid at the time the tangible personal
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                property is purchased [by the owner or manager of the real estate]. (2) Sales or use
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  tax is due on the separate lease or rental of tangible personal property by a person or entity not owning or managing the real property in which the tangible personal property is or will be situated. A resale certificate may be issued in lieu of paying the [sales] tax at the time of purchase of the tangible personal property for subsequent lease or rental. (l)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    [(k)] Other taxes. For information pertaining to tax on motor vehicle rental receipts,
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      refer to sections promulgated under the Motor Vehicle Sales and Use Tax Act. (m) Local tax. For proper collection and allocation of city and transit sales taxes, see sec.3.374 of this title (relating to Imposition of the Sales Tax; Collection by Retailer; Bracket System Formula; Determining City Tax) and sec.3. 424 of this title (relating to Imposition of Sales Tax). This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on September 27, 1991. TRD-9111922 Martin Cherry Chief, General Law Section Comptroller of Public Accounts Earliest possible date of adoption: November 4, 1991 For further information, please call: (512) 463-4028 Subchapter O. State Sales and Use Tax 34 TAC sec.3.356 The Comptroller of Public Accounts proposes an amendment to sec.3.356, concerning real property service. An amendment is needed to put businesses on notice regarding the comptroller's position on cleaning sidewalks, parking garages, or parking lots, and the comptroller's definition and responsibilities of management companies. In addition, the amendment adds an exemption from the tax for landscaping and yard maintenance charges performed by individuals 65 years old or older who have total receipts for these services of $5,000 or less for the four most recent quarters. Definitions of temporary help services, which have been exempted from the tax, have been added. Language in the resale subsection (c) has been reworded for clarity or to conform to other sections. Subsection (k) has been amended to reflect the change in the application of local sales and use tax to garbage or solid waste removal services. A portion of subsection (i)(3) has also been revised to change the examples of unrelated services which may be excluded from the tax base. Other changes and additions reflect comptroller policy. The additional exemptions took effect October 1, 1989, by action of the 71st Legislature, 1989. Tom Plaut, chief revenue estimator, has determined that for the first five-year period the section is in effect there will be no significant revenue impact on the state or local government. This section is adopted under the Tax Code, Title 2, and does not require a statement of fiscal implications for small businesses. Dr. Plaut also has determined that for each year of the first five years the section is in effect the public benefit anticipated as a result of enforcing the section will be in providing new information regarding tax responsibilities. There is no anticipated economic cost to persons who are required to comply with the proposed section. Comments on the proposal may be submitted to Lucy Glover, Manager, Tax Administration Division, P.O. Box 13528, Austin, Texas 78711. The amendment is proposed under the Tax Code, sec.111.002, which provides the comptroller with the authority to prescribe, adopt, and enforce rules relating to the administration and enforcement of the provisions of the Tax Code, Title 2. sec.3.356. Real Property Service. (a) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise. (1)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        [(2)] Employee -A person providing services for another for consideration where the employer has the right to control and direct the employee in the material details of how the work is to be performed, both under the contract of employment and in fact. The term also includes personnel provided by a temporary help service. as defined in paragraph (10) of this subsection. (2)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          [(3)] Employer-In determining which of several persons is the employer of an individual, factors which will be considered include: (A) who exercises direct control over the details of how the work is performed by the employee; (B) who pays the employee's salary; (C) who withholds applicable federal taxes from the employee's salary; (D) who provides employment-related benefits such as health insurance, eligibility to participate in a retirement plan, sick leave, vacation, etc., to the employee; and (E) who has the right to terminate the employment of the individual employee. (3)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            [(4)] Garbage or other solid waste-Waste;
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              [,] refuse;
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                [,] sludge from a
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  waste treatment plant,
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    a
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      water supply treatment plant,
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        or an
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          air pollution control facility ;
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            [,] and other discarded material, including solid, liquid, semisolid, or contained gaseous material, resulting from residential, industrial, municipal, commercial, mining, and agricultural operations, and resulting
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              from community and institutional activities. The term does not include any of the following: (A) solid or dissolved material in domestic sewage ;
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                [,] or solid or dissolved material in irrigation return flows;
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  [,] or industrial discharges subject to regulation by permit issued pursuant to the Texas Water Code, Chapter 26; (B) waste materials which result from activities associated with the exploration, development, or production of oil, gas ,
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    [or] geothermal resources, or
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      [and] any other substance or material regulated by the Railroad Commission of Texas pursuant to Natural Resources Code, sec.91.101; (C) any waste which requires specific licensing under Texas Civil Statutes, Article 4590f, and the rules adopted by the Texas Board of Health under that law, which for the purposes of this section shall be referred to as radioactive waste; (D) hazardous waste, as identified or listed as a hazardous waste by the administrator of the United States Environmental Protection Agency or by other appropriate federal or state agency; or (E) industrial solid waste, as that term is defined in the
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Texas Solid Waste Disposal Act, Texas Civil Statutes, Article 4477-7, with the exception of industrial solid waste which meets the definition of garbage or municipal solid waste as defined in the Texas Solid Waste Disposal Act. (4)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          [(5)] Landscaping -The activity of arranging and modifying areas of land,
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            [and] natural scenery, and other areas, such as indoor or outdoor patios,
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              for aesthetic effect, considering the use to which the land is to be put. The term includes adding, removing, or arranging natural forms, features, and plantings, including vegetation, and other features to fulfill aesthetic [or functional] requirements. It includes the application of soil, soil additives, and amendments to prepare or maintain the planting area. Some examples are garden planting or maintenance, [lawn care,] arborist services, ornamental bush or shrub planting, tree planting or removal
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                , tree surgery, pruning or spraying, and lawn sodding. The term does not include the addition of sprinkler systems, retaining walls, ponds, pools, or fences, or other construction activities or services provided by landscape designers or landscape architects such as consultation, research, preparation of general or specific design or detail plans, studies, specifications, or supervision, or any other professional services or functions within the definition of the practice of engineering or architecture. Landscaping services performed by landscape designers or landscape architects are taxable. (5)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  [(6)] Lawn and yard
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    maintenance -Mowing, trimming, fertilizing, watering, and any other treatment or service which may be performed on private or commercial yards or lawns. It also includes maintenance of trees and plants whether inside or outside a building. The term does not include clearing land for buildings ,
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      [or] power line rights-of-way, pipeline rights-of-way, or maintenance on land [formally dedicated to or] belonging to a governmental entity when the service is required by the governmental entity. (6) Property management company -A person who, for consideration, operates and manages all the activities at a property held by the owner for purposes of rental, such as: an office building, mall or other retail or office complex, an apartment complex, duplex or home. In the context of this section, the responsibilities of a property management company must include, but are not limited to securing tenants, hiring and supervising employees for operation or upkeep of the property, receiving and applying revenues, and incurring and paying expenses derived from the operation of the property as directed by the owner. The term does not include a person performing taxable services at a manufacturing facility or at a property held by the owner for purposes other than rental. (7)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        [(1)] Residential or nonresidential building
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          [Building] or grounds cleaning, janitorial, or custodial services -The activities of keeping the inside and outside
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            premises of a building clean, orderly, and functional, including performing minor adjustments, maintenance, or repairs. Examples include, but are not limited to:
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              [,] window washing; floor, wall, and ceiling cleaning; collection of waste on the premises, whether from inside a building or on the grounds; chimney or duct cleaning; lighting maintenance, such as bulb and fuse replacement; the cleaning, disinfecting, and restocking of restrooms or lounge areas; cleaning or washing sidewalks, parking garages, or parking lots;
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                and pool cleaning and maintenance. The term does not include activities such as painting;
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  [,] wallpapering;
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    [,] or performing significant repairs;
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      [,] nor domestic services such as those of a baby-sitter,
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        [baby-sitting, or the services of a] maid or
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          [and] cook employed by a private household
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            to provide domestic
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              [those] services for the benefit of the
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                [a private] household. (8)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  [(7)] Structural pest control services-Activities performed for the purpose of identifying, preventing, controlling, or eliminating, by use of chemical or mechanical means, infestation of any of the following: (A) insects, spiders, mites, ticks, ants, bees, and other related pests, wood infesting organisms, rodents, weeds, nuisance birds, or
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    [and] any other obnoxious or undesirable animals which may infest households, railroad cars, ships, docks, trucks, airplanes, or other structures or their contents; (B) pests or diseases of trees, shrubs, or other plantings in a park or adjacent to a residence, business establishment, industrial plant, institutional building, or street; and
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      [.] (C) the
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        [The] term "structural pest control services"
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          includes related activities, such as inspection or
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            [and] evaluation concerning the nature or
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              [and] extent of an infestation;
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                [,] reports;
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  or performance of services to control pest or
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    [and] insect infestation. (9)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      [(8)] Surveying of real property-Activities performed to determine or confirm the boundaries of real property, or to determine or confirm the location of structures or other improvements in relation to the boundaries of the property by the use of relevant elements of law, research, measurement, analysis, computation, mapping, and land description. Examples include, but are not limited to, boundary recovery, residential surveying, lot surveying, title surveying, as-built title surveying, and right-of-way surveying. The term does not include activities performed after taxable surveying as been completed to search the surveyed area for items of archaeological or historic significance. (10) Temporary help service-An individual, company, or corporation covered by Industry Group 7363, Group 736, Major Group 73 of the Standard Industrial Classification Manual, 1989, and includes an individual, company, or corporation that supplies personnel on a temporary basis to supplement a customer's existing work force. In the context of this section, such temporary personnel must perform a service that is normally performed by the customer's own employees; the customer must provide all supplies and equipment necessary; and the temporary personnel must be under the direct or general supervision of the customer to whom the help is furnished. (b) Responsibilities of persons providing real property services on both residential and nonresidential real property. With the exception of terms defined by subsection (a)(6) and (10) of this section, persons
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        [Persons] providing [those] services defined in subsection (a) of this section are performing real property services. Persons performing real property services must obtain a tax permit and collect and remit sales or use taxes
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          [tax] on all charges for real property services. (c) Resale certificates. (1) A properly completed resale certificate may be used to purchase tangible personal property tax free if the care, custody, and control of the property is transferred to the customer as part of the real property service.
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            [Persons providing real property services may issue a resale certificate in lieu of tax to suppliers of tangible personal property only if care, custody, and control of the property is transferred to the client.] For example, a taxpayer purchases paper products to be left at the customer's premises when providing janitorial services, or
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              garbage dumpsters to leave on the customer's premises as a part of the garbage collection service. Taxpayer may purchase the paper products and
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                dumpsters tax free by issuing a resale certificate. Tax is due on the total amount charged the customer, including amounts for the paper products,
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  dumpster,
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    and for the services. (2) A properly completed
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      resale certificate may be issued for a service if the buyer intends to transfer the service as an integral part of a
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        taxable service
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          [services]. A service will be considered an integral part of a taxable service if the service purchased is essential to the performance of the taxable service and without which the taxable service could not be rendered. See sec.3.285 of this title (relating to Resale Certificate; Sales for Resale). (3) A properly completed
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            resale certificate may be issued to purchase a taxable service tax free
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              [for a taxable service] if the buyer intends to incorporate the service into tangible personal property which will be resold. If the entire
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                service is not incorporated into the tangible personal property, it will be presumed the service is subject to tax and the service will only be exempt to the extent the buyer can establish the value of that
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  [the] portion of the service actually incorporated into the tangible personal property. If the buyer does not intend to incorporate the entire service into the tangible personal property, the buyer may not issue a resale certificate but may claim credit
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    [no resale certificate may be issued, but credit may be claimed] at the time of sale of the tangible personal property for the portion of the
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      [to the extent the] service that
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        was actually incorporated into the tangible personal property. (d) Exemption certificates. Persons providing real property services may accept a properly completed
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          [an] exemption certificate in lieu of tax when [performing] the
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            [a] service is purchased by
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              [for] an exempt entity. See sec.3.322 of this title (relating to Exempt Organizations) , sec.3.287 of this title (relating to Exemption Certificates) and sec.3. 288 of this title (relating to Direct Payment Procedures and Qualifications). (e) Landscaping,
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                [and] lawn, and yard
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  maintenance provided by persons under 18 years old or by persons 65 years old or older
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    . Charges for the
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      performance of landscaping,
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        [or] lawn, and
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          yard maintenance services
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            (subsection (a)(4) and (5)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              [(a)(1) and (2)] of this section) are exempt if performed by: (1) a self-employed person under 18 years of age whose total receipts from providing landscaping, lawn,
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                or yard maintenance are $1,000 or less during either
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  the preceding calendar quarter or the same calendar quarter of the preceding year; or
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    [.] (2) an individual 65 years of age or older whose total receipts from providing landscaping or yard maintenance are 5,000 or less for the four most recent quarters. (f) Landfill charges connected with garbage collection services. Persons providing garbage collection services may not separate in the bill to their customers the charge for garbage collection from the charge for use of the landfill for the purpose of reducing the amount upon which tax must be collected. The charge paid by the service provider for access to the landfill , while not taxable to the service provider,
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      is a necessary expense in providing the garbage collection service and is not excludable from the fee to the service provider's customer
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        for garbage collection. (g) Garbage removal facilities. When a city, county, or any other entity provides a facility where garbage may be left and
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          which will, at another time, be moved to a landfill [by the entity providing the location], the fee charged to persons depositing garbage into such a facility is considered to be a charge for garbage collection and is taxable. (h) Garbage
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            [Nontaxable garbage] collection services that may be excluded from tax.
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              Persons providing collection services for customers
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                [businesses] having waste excluded from the definition of "garbage or other solid waste" may accept an exemption certificate
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  [a certification] from the customer in lieu of tax. The exemption certificate must
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    [certification should] state the type of waste being excluded, and
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      that either
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        the [customer has] waste to be collected is totally excludable
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          [collect which is not subject to tax] or
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            [and] that the customer has both taxable and nontaxable waste and the customer
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              will be responsible for accruing tax on that portion of the charge which represents taxable services. The customer may use any reasonable allocation for reporting tax on taxable services which is supportable by books and records. (i) Unrelated services. (1) A service will be considered as unrelated if: (A)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                [(1)] it is not a real property service, nor a service or labor
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  taxable under another provision of the Tax Code, Chapter 151; (B)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    [(2)] it is not provided as a part of the taxable service and
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      is of a type which is commonly provided on a stand-alone basis; and (C)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        [(3)] the performance of the unrelated service is distinct and identifiable. Examples of an unrelated service which may be excluded from the tax base include [consultation, training, expedited filing charges, and] maintenance charges meeting the definition in sec.3.357 of this title (relating to Real Property Repairs and Remodeling), engineering studies, and architectural or landscaping designs.
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          [;] (2)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            [(4)] When
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              [where] nontaxable unrelated services and taxable services are sold or purchased for a single charge and the portion relating to taxable services represents more than 5.0% of the total charge, the total charge is presumed to be taxable. The presumption may be overcome by the service provider at the time the transaction occurs by separately stating to the customer a reasonable charge for the taxable services. A customer may presume that a separately stated charge from a service provider for taxable services is reasonable, in the context of this section.
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                The service provider's books must support the apportionment between exempt and nonexempt activities based on the cost of providing the service or on a comparison to the normal charge for each service if provided alone. If the charge for exempt services is unreasonable when the overall transaction is reviewed. considering the cost of providing the service or a comparable charge made in the industry for each service, the comptroller will adjust the charges and assess the service provider the
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  additional tax, penalty, and interest on the taxable services.
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    [; and] (3)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      [(5)] Charges
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        [charges] for services or expenses directly related to or
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          [and] incurred while providing the taxable service are taxable and may not be separated for the purpose of excluding these charges from the tax base. Examples include
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            [would be] charges for meals, telephone calls, hotel rooms, or airplane tickets. (j) Governmental entities. When garbage collection services are provided by a governmental entity without a specific charge being assessed, such as when this service is provided as a basic part of services funded by a [the] tax or a set
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              fee structure of the governmental entity, sales or use taxes are
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                [tax is] not due. This section does not apply if the fee changes each billing period based on quantity of consumption of tangible personal property or service provided individual service recipients. (k) Local taxes. With the exception of garbage or other solid waste removal services, local
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  [Local] sales and use taxes [(city, county, MTA, and CTD)] apply to services in the same way as they apply to tangible personal property. Generally, service providers must collect local sales taxes if their place of business is within a local taxing jurisdiction, even if the service is actually provided at a location outside that jurisdiction. However, transit
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    [MTA and CTD] sales taxes do not apply to services provided outside the boundaries of the transit area. If the service provider's
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      place of business is outside [such] a local taxing
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        jurisdiction but the service is provided to a customer within a local taxing jurisdiction, local use taxes apply and the service provider is required to collect them
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          [it]. Local taxes for garbage or other solid waste removal services are allocated to the local taxing jurisdiction in which the garbage or other solid waste is located when its collection or removal begins. (l) For general
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            information on the collection and reporting responsibilities of providers and purchasers of taxable services, see sec.sec.3.286, 3.374, 3.375, 3.424, and 3.425 of this title (relating to Seller's and Purchaser's Responsibilities;
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              Imposition of the Sales Tax; Collection by Retailer; Bracket System Formula; Determining City Tax, Administration of Use Tax; Collection by Retailer, Imposition of Sales Tax, and Administration of Use Tax; Imposition and Collection). (m)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                [(l)] Use tax. If a seller of a taxable
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  service is not doing business in Texas or a specific local taxing jurisdiction and is not required to, or does not voluntarily,
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    collect and report the applicable
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      Texas tax, it is the Texas customer's responsibility to report and pay the use tax directly to this office. (n)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        [(m)] Property management companies. (1) Employees permanently assigned to one rental
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          property are considered employees of that property when the property manager is reimbursed by the property owner on a dollar-for-dollar basis. On managed rental properties
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            [Typically], the employees remain assigned to
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              [with] the property while employed by successive
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                [regardless of a change in] owners or management companies. The reimbursement charge for taxable
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  [Taxable] services performed on a managed rental
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    [that] property by management company employees assigned to it
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      [its employees] will not be taxable;
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        [.] [The reimbursement charge will not be taxable.] However, if
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          [If] these same
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            employees provide real property
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              [taxable] services for other properties, the property manager must
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                [should] collect tax on the total charge for
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  those services. The management company owes tax on the purchase price of all taxable items purchased and provided to the employees providing services on managed rental property. (2) Property management companies whose employees provide taxable services as part of their overall management and operation of a rental property
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    [an apartment complex, office building, or other real property for the owner] need not collect tax on those services if their value is insignificant. (A)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      [(3)] Such taxable
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        services will be considered insignificant in any billing period in which their value is [less than] 5.0% or less
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          of the amount charged by the management company for services. The amount charged by the management company for taxable
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            services is to be determined by deducting from the management company's total charge any mortgage payments made by the management company for the property owner and any amounts paid to persons other than employees of the management company for goods and services. (B)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              [(4)] If the value of the taxable
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                services exceeds the 5.0% limit, the entire amount charged by the management company will be considered taxable unless charges for taxable services are separately itemized and taxed. (3)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  [(5) Purchases by the property management company for use by the property owner
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    of taxable goods, labor, or [and] services from third- party suppliers
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      [persons other than employees of the management company] may be handled in either of the following ways: (A) the management company may issue a resale certificate to the supplier and collect tax from the property owner on the itemized charge for the goods, labor,
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        or service; or (B) the management company may pay tax to the supplier and collect from the property owner an amount equal to the total of the amount paid by the management company for the goods , labor,
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          or services and the tax paid. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on September 25, 1991. TRD-9111787 Martin Cherry Chief, General Law Section Comptroller of Public Accounts Earliest possible date of adoption: November 4, 1991 For further information, please call: (512) 463-4028 Part IV. Employees Retirement System of Texas Chapter 73. Benefits 34 TAC sec.73.11, sec.73.21 (Editor's Note: The Employees Retirement System of Texas proposes for permanent adoption the amended sections it adopts on an emergency basis in this issue. The text of the amended sections are in the Emergency Rules section of this issue.) The Employees Retirement System of Texas proposes amendments to sec.73.11 and sec.73.21, concerning Supplemental Retirement Program and reduction factor for age and retirement option. Factors used to calculate an optional annuity's equivalent of the standard annuity and reserves tables used to determine the amount necessary to fund retirement benefits have been revised as a result of new actuarial assumptions and the consideration of the effects of Senate Bill 1331, 72nd Legislature. William S. Nail, general counsel, has determined that for the first five-year period the sections are in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the sections. Mr. Nail also has determined that for each year of the first five years the sections are in effect the public benefit anticipated as a result of enforcing the sections will be that annuities will be based on updated actuarial assumptions. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the sections as proposed. Comments on the proposal may be submitted to William S. Nail, General Counsel, P.O. Box 13207, Austin, Texas 78711-3207. The amendments are proposed under the Texas Government Code, Title 8, sec.815. 105, which provides the Employees Retirement System of Texas with the authority to adopt mortality, service and other tables the board considers necessary for the retirement system. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on September 26, 1991. TRD-9111880 Charles D. Travis Executive Director Employees Retirement System of Texas Earliest possible date of adoption: November 4, 1991 For further information, please call: (512) 867-3366 Chapter 77. Judicial Retirement 34 TAC sec.77.11 (Editor's Note: The Employees Retirement System of Texas proposes for permanent adoption the amended section it adopts on an emergency basis in this issue. The text of the amended section is in the Emergency Rules section of this issue.) The Employees Retirement System of Texas proposes amendment to sec.77.11, concerning Reduction Factors for Age and Retirement Options-Judicial Retirement System of Texas Plan One and Judicial Retirement System of Texas Plan Two. Factors used to calculate an optional annuity's equivalent of the standard annuity and reserves tables used to determine the amount necessary to fund retirement benefits have been revised as a result of new actuarial assumptions and the consideration of the effects of Senate Bill 1331, 72nd Legislature. William S. Nail, general counsel, has determined that for the first five-year period the section is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the section. Mr. Nail also has determined that for each year of the first five years the section is in effect the public benefit anticipated as a result of enforcing the section will be that annuities will be based on updated actuarial assumptions. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the section as proposed. Comments on the proposal may be submitted to William S. Nail, General Counsel, P.O. Box 13207, Austin, Texas 78711-3207. The amendment is proposed under the Texas Government Code, Title 8, sec.835. 002, and sec.840.005, which provides the Employees Retirement System of Texas with the authority to adopt mortality, service and other tables the board considers necessary for the retirement system. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on September 26, 1991. TRD-9111878 Charles D. Travis Executive Director Employees Retirement System of Texas Earliest possible date of adoption: November 4, 1991 For further information, please call: (512) 867-3336 TITLE 40 SOCIAL SERVICES AND ASSISTANCE Part I. Texas Department of Human Services Chapter 48. Community Care for Aged and Disabled Eligibility 40 TAC sec.sec.48.2902-48.2904, 48.2920, 48.2924 The Texas Department of Human Services (DHS) proposes amendments to sec.sec.48.2902-48.2904, 48.2920, and 48.2924, concerning eligibility, in its Community Care for Aged and Disabled (CCAD) chapter. The purpose of the amendments is to streamline CCAD income and resource policies. The changes exempt interest income, exclude livestock and life estates from countable resources, consider all food stamp recipients as financially eligible for CCAD services, and exclude some earned income before computing supervised living copayments. In addition, the department will no longer count any income of a client's minor children and will no longer deduct $200 per child. Burton F. Raiford, interim commissioner, has determined that for the first five- year period the proposed sections will be in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the sections. Mr. Raiford also has determined that for each year of the first five years the sections are in effect the public benefit anticipated as a result of enforcing the sections will be a reduction in the amount of information a client is required to report and in the time caseworkers must spend verifying and documenting financial information. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the proposed sections. Questions about the content of this proposal may be directed to Tom Gibbons at (512) 450-3217 in DHS's Long Term Care Department. Comments on the proposal may be submitted to Nancy Murphy, Policy and Document Support-242, Texas Department of Human Services E-503, P.O. Box 149030, Austin, Texas 78714-9030, within 30 days of publication in the Texas Register . The amendments are proposed under the Human Resources Code, Title 2, Chapters 22 and 32, which authorizes the department to administer public and medical assistance programs. sec.48.2902. Income and Income Eligibles. To be eligible for community care for aged and disabled services the applicant/client must: (1) be categorically eligible by receiving supplemental security income, aid for families with dependent children, AFDC, food stamps, Medicaid, or
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            [receive SSI/AFDC payments, food stamps (as head of household or spouse), Medicaid;] qualified Medicare beneficiary (QMB) benefits; or (2) be income eligible. The applicant/client's and spouse's countable
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              [total gross] income must be equal to or less than the income limit set by the department. For an individual, this amount is the same as the special income limit set for institutional care (medical assistance only) by the Texas Legislature. [It includes the $20 income disregard allowed under rules for the Medical Assistance Only Program.] For a couple, the income limit is twice the special income limit [, plus the $20 disregard]. [For applicants/clients supporting minor children living in the home, the department: [(A) disregards the earned income of minor children who are supported by or dependent upon the applicant/client; [(B) adds to the applicant's/client's and spouse's gross income any child support and other cash payments received in the name of the minor child; [(C) deducts $200 per child per month; and [(D) compares the remaining income with the appropriate monthly income limit]. sec.48.2903. Determination of Monthly Gross Income. The applicant/client's monthly gross income is the total of the following. (1) -(4) (No change.) (5) Dividends [and interest]. Dividends from stocks or membership in associations, [interest on savings or bonds,] and periodic receipts from estates or trust funds. These earnings are averaged for a 12-month period. (6)-(17) (No change.) sec.48.2904. Income Exclusions.
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                The client's countable
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  [monthly gross] income excludes the following: (1)-(13) (No change.) (14) interest income; (15) income of minor children who are supported by or dependent upon the client. sec.48.2920. Supervised Living. (a) (No change.) (b) The client must contribute to the total cost of the care that he receives. (1) (No change.) (2) In addition to the monthly allowance, a client with earned income keeps all of the earned income up to a maximum of $65 per month. (3)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    [(2)] In no case may the client's contribution, when added to the department's payment, exceed the rate established for supervised living. (c)-(d) (No change.) sec.48.2924. Resource Exclusions.
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      In determining eligibility for community care for aged and disabled services, the department does not consider the following to be resources. They are considered to be excluded for eligibility purposes. Any item not listed as an exclusion is considered a resource: (1)-(2) (No change.) (3) property essential to employment. Tools and equipment required for employment or self-employment [, and property such as livestock used for self- support]; (4)-(13) (No change.) (14) life estates and remainder interests. A life estate is the right an individual has to property during the individual's lifetime. A remainder interest is the right of ownership to the property when the life estate holder dies.
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        [Certain rights an individual holds to property for his lifetime, if it qualifies as a homestead or if a contract restriction exists that prevents the holder of a life estate from selling the property.] (15) -(20) (No change.) (21) Livestock. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on September 26, 1991. TRD-9111861 Nancy Murphy Agency liaison, Policy and Document Support Texas Department of Human Services Proposed date of adoption: December 1, 1991 For further information, please call: (512) 450-3765