Adopted Sections An agency may take final action on a section 30 days after a proposal has been published in the Texas Register. The section becomes effective 20 days after the agency files the correct document with the Texas Register, unless a later date is specified or unless a federal statute or regulation requires implementation of the action on shorter notice. If an agency adopts the section without any changes to the proposed text, only the preamble of the notice and statement of legal authority will be published. If an agency adopts the section with changes to the proposed text, the proposal will be republished with the changes. TITLE 16. ECONOMIC REGULATION Part I. Railroad Commission of Texas Chapter 11. Surface Mining and Reclamation Division Subchapter D. Coal Mining 16 TAC sec.11.221 The Railroad Commission of Texas adopts an amendment to sec.11.221, concerning coal mining, with changes to the proposed text as published in the July 2, 1991, issue of the Texas Register (16 TexReg 3675). The date specified in the proposal has been changed to correspond to the date of the Railroad Commission's adoption of the revised self-bonding regulations. The revised date identifies by reference amendments to the self-bonding requirements for surface coal mining operations. These amendments will allow improved procedures and reduced costs for coal permittees who are authorized to be self-bonded. The comments generally recommended adoption of the rules. One commenter recommended several modifications to provide more specificity in the data that would be used. Commenters in favor of adopting the amendment as proposed were: Texas Utilities Mining Company; and U.S.D.I., Office of Surface Mining Reclamation and Enforcement. The Railroad Commission disagrees with the comment which would attempt to require uniform fiscal years for all electric utilities because this is not within its jurisdiction. The Railroad Commission disagrees with the commenter recommending a separate definition for "data identified by SIC Code" because it is adequately addressed by another term. The amendment is adopted under Texas Civil Statutes, Article 5920-11, which provide the Railroad Commission of Texas with the authority to promulgate rules pertaining to surface coal mining operations. sec.11.221. State Program Regulations. (a)-(b) (No change.) (c) The Railroad Commission of Texas has published the state program regulations, as amended October 7, 1991 in booklet form titled "Coal Mining Regulations." Copies may be obtained from the Surface Mining and Reclamation Division, P.O. Drawer 12967, Austin, Texas 78711-2967. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on October 8, 1991. TRD-9112415 Martha V. Swanger Hearings Examiner, Gas Utilities/LP-Gas Section, Legal Division Railroad Commission of Texas Effective date: October 30, 1991 Proposal publication date: July 2, 1991 For further information, please call: (512) 463-6841 Part IV. Texas Department of Licensing and Regulation Chapter 68. Elimination of Architectural Barriers 16 TAC sec.sec.68.1, 68.10, 68.62, 68.80 The Texas Department of Licensing and Regulation adopts new sec.sec.68.1, 68.10, 68.62, and 68.80, without changes to the proposed text as published in the September 13, 1991, issue of the Texas Register (16 TexReg 5029). The sections were adopted to comply with the transfer of architectural barriers to the Texas Department of Licensing and Regulation as authorized under Texas Civil Statutes, Articles 9102 and 9100. Fees will be set by the department. Architectural barriers will be regulated by the Texas Department of Licensing and Regulation. An advisory board will review and comment on rules that are proposed to implement this statute for the benefit of persons as defined in the Americans With Disabilities Act. No comments were received regarding adoption of the new sections. The new section are adopted under Texas Civil Statutes, Articles 9101 and 9100, which provide the Texas Department of Licensing and Regulation with the authority to adopt rules of requirements for statutes that we regulate. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on October 10, 1991. TRD-9112600 Larry E. Kosta Executive Director Texas Department of Licensing and Regulation Effective date: November 1, 1991 Proposal publication date: September 13, 1991 For further information, please call: (512) 463-3127 TITLE 22. EXAMINING BOARDS Part XXII. Texas State Board of Public Accountancy Chapter 501. Professional Conduct Other Responsibilities and Practices 22 TAC sec.501.44 The Texas State Board of Public Accountancy adopts an amendment to sec.501. 44 and new sec.501.49, concerning other responsibilities and practices, without changes to the proposed text as published in the July 30, 1991, issue of the Texas Register (16 TexReg 4127). The amendment is necessary in order to ensure that the public will be protected from uninvited solicitations from certified public accountants. The new section is required in order to ensure that the public will have information regarding filing complaints as required by the Public Accountancy Act of 1991, sec.5(e). The amendment will clarify the Board's policies regarding uninvited solicitations. The new section will provide information to the public regarding procedures for filing complaints. No comments were received regarding adoption of the amendment and new section. The amendment is adopted under Texas Civil Statutes, Article 41a-1, sec.6(a), which provide the Texas State Board of Public Accountancy with the authority to promulgate rules of professional conduct relating to solicitation. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 26, 1991. TRD-9112418 William Treacy Executive Director Texas State Board of Public Accountancy Effective date: October 30, 1991 Proposal publication date: July 30, 1991 For further information, please call: (512) 450-7066 22 TAC sec.501.49 The new section is adopted under Texas Civil Statutes, Article 41a-1, sec.6(a), which provide the Texas State Board of Public Accountancy with the authority to promulgate rules relating to other responsibilities and practices of licensees and registrants. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 26, 1991. TRD-9112419 William Treacy Executive Director Texas State Board of Public Accountancy Effective date: October 30, 1991 Proposal publication date: July 30, 1991 For further information, please call: (512) 450-7066 The Texas State Board of Public Accountancy adopts amendments to sec.505.2 and sec.505.9, concerning the board, without changes to the proposed text as published in the July 30, 1991, issue of the Texas Register (16 TexReg 4128). The amendments are necessary in order to conform the board's rules regarding the chairman to the requirements of the Public Accountancy Act of 1991 and to ensure that the public has the opportunity to address the board as required by the Public Accountancy Act of 1991, sec.5. The rules will now reflect the fact that the chairman of the board will be appointed by the governor and will provide a procedure for allowing the public to address the board. No comments were received regarding adoption of the amendments. 22 TAC sec.505.2 The amendment is adopted under Texas Civil Statutes, Article 41a-1, sec.6(a), which provide the Texas State Board of Public Accountancy with the authority to promulgate rules concerning organization of the board. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 26, 1991. TRD-9112420 William Treacy Executive Director Texas State Board of Public Accountancy Effective date: October 30, 1991 Proposal publication date: July 30, 1991 For further information, please call: (512) 450-7066 22 TAC sec.505.9 The amendment is adopted under Texas Civil Statutes, Article 41a-1, sec.6(a), which provide the Texas State Board of Public Accountancy with the authority to promulgate rules concerning the order of business of board meetings. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 26, 1991. TRD-9112421 William Treacy Executive Director Texas State Board of Public Accountancy Effective date: October 30, 1991 Proposal publication date: July 30, 1991 For further information, please call: (512) 450-7066 Chapter 507. Employees of the Board 22 TAC sec.507.2 The Texas State Board of Public Accountancy adopts an amendment to sec.507.2, concerning the staff, without changes to the proposed text as published in the July 30, 1991, issue of the Texas Register (16 TexReg 4128). The amendment is necessary in order to ensure that applicants seeking employment shall have equal opportunity as required by the Public Accountancy Act of 1991, sec.5A. The rule provides that hiring decisions will be made on an equal opportunity basis. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 41a-1, sec.6(a), which provide the Texas State Board of Public Accountancy with the authority to promulgate rules relating to employees of the board. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 26, 1991. TRD-9112422 William Treacy Executive Director Texas State Board of Public Accountancy Effective date: October 30, 1991 Proposal publication date: July 30, 1991 For further information, please call: (512) 450-7066 Chapter 511. Certification as CPA Certification by Examination 22 TAC sec.sec.511.21, 511.26-511.28 The Texas State Board of Public Accountancy adopts amendments to sec.sec.511.21 and 511.26-511.28, concerning certification by examination, without changes to the proposed text as published in the July 30, 1991, issue of the Texas Register (16 TexReg 4129). The amendments are necessary in order to ensure that application procedures are simplified and to simplify and clarify the board's procedures for certifying qualified applicants. The amendments change the board's requirements for applicants seeking to become certified public accountants by reducing the number of references required and by increasing the kinds of references that may be submitted, delete references to experience requirements for applicants, and refer to fees established by other rules. No comments were received regarding adoption of the amendments. The amendments are adopted under Texas Civil Statutes, Article 41a-1, sec.6(a), which provide the Texas State Board of Public Accountancy with the authority to promulgate rules: relating to application for certification by examination; application under the 1945 Act; application under the prior 1979 Act; and regarding the examination fee. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 26, 1991. TRD-9112423 William Treacy Executive Director Texas State Board of Public Accountancy Effective date: October 30, 1991 Proposal publication date: July 30, 1991 For further information, please call: (512) 450-7066 Educational Requirements 22 TAC sec.sec.511.51, 511.55, 511.56, 511.58 The Texas State Board of Public Accountancy adopts amendments to sec.sec.511.51, 511.55, and 511.58; and new sec.511.56, concerning educational requirements, without changes to the proposed text as published in the July 30, 1991, issue of the Texas Register (16 TexReg 4130). The amendments and new section are necessary in order to ensure that: all future certified public accountants have met the educational standards established by the board; certified public accountants are well-educated in their field; and examination applicants meet certain standards of educational achievement. The amendments: do not permit individuals to be exempt from educational requirements; establish educational requirements for persons who filed their initial applications between September 1, 1979 and August 31, 1989; and specifically require that course work in business subjects be taken in residence at recognized educational institutions. The new section establishes educational requirements for applicants filing their initial applications under the 1991 act. No comments were received regarding adoption of the amendments and new section. The amendments and new section are adopted under Texas Civil Statutes, Article 41a-1, sec.6(a), which provide the Texas State Board of Public Accountancy with the authority to promulgate rules relating to education and experience requirements. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 26, 1991. TRD-9112427 William Treacy Executive Director Texas State Board of Public Accountancy Effective date: October 30, 1991 Proposal publication date: July 30, 1991 For further information, please call: (512) 450-7066 22 TAC sec.sec.511.60-511.62 The Texas State Board of Public Accountancy adopts the repeal of sec.sec.511. 60-511.62, concerning educational requirements, without changes to the proposed text as published in the July 30, 1991, issue of the Texas Register (16 TexReg 4132). The repeals are necessary in order to simplify and clarify the board's rules regarding the qualifications of examination applicants. No comments were received regarding adoption of the repeals. The repeals are adopted under Texas Civil Statutes, Article 41a-1, sec.6(a), which provide the Texas State Board of Public Accountancy with the authority to promulgate rules relating to educational requirements. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 26, 1991. TRD-9112431 William Treacy Executive Director Texas State Board of Public Accountancy Effective date: October 30, 1991 Proposal publication date: July 30, 1991 For further information, please call: (512) 450-7066 22 TAC sec.511.70 The Texas State Board of Public Accountancy adopts an amendment to sec.511. 70, concerning CPA examination, without changes to the proposed text as published in the July 30, 1991, issue of the Texas Register (16 TexReg 4132). The amendment is required in order to ensure that the rules refer to the statute currently in effect. The amendment updates the citation to the Public Accountancy Act from 1979 to 1991. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 41a-1, sec.6(a), which provide the Texas State Board of Public Accountancy with the authority to promulgate rules regarding the CPA examination. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 26, 1991. TRD-9112434 William Treacy Executive Director Texas State Board of Public Accountancy Effective date: October 30, 1991 Proposal publication date: July 30, 1991 For further information, please call: (512) 450-7066 22 TAC sec.511.73 The Texas State Board of Public Accountancy adopts the repeal of sec.511.73, concerning CPA examination without changes to the proposed text as published in the July 30, 1991, issue of the Texas Register (16 TexReg 4132. The repeal is necessary in order to ensure that attorneys take the business law section of the examination. No comments were received regarding adoption of the repeal. The repeal is adopted under Texas Civil Statutes, Article 41a-1, sec.6(a), which provide the Texas State Board of Public Accountancy with the authority to promulgate rules relating to the CPA examination. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 26, 1991. TRD-9112435 William Treacy Executive Director Texas State Board of Public Accountancy Effective date: October 30, 1991 Proposal publication date: July 30, 1991 For further information, please call: (512) 450-7066 22 TAC sec.511.76 The Texas State Board of Public Accountancy adopts an amendment to sec.511. 76, concerning CPA examination, without changes to the proposed text as published in the July 30, 1991, issue of the Texas Register (16 TexReg 4133). The amendment is necessary in order to ensure that examination applicants actually intend to sit for the examination. The amendment makes filing fees for examination applications nonrefundable. It also establishes that refunds will be one-half per part of the examination instead of $10. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 41a-1, sec.6(a), which provide the Texas State Board of Public Accountancy with the authority to promulgate rules relating to the CPA examination. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 26, 1991. TRD-9112436 William Treacy Executive Director Texas State Board of Public Accountancy Effective date: October 30, 1991 Proposal publication date: July 30, 1991 For further information, please call: (512) 450-7066 22 TAC sec.511.77 The Texas State Board of Public Accountancy adopts an amendment to sec.511. 77, concerning CPA examination, without changes to the proposed text as published in the July 30, 1991, issue of the Texas Register (16 TexReg 4133). The amendment is necessary in order to ensure that the board has the opportunity to adequately review candidates whose credentials may be questionable. The amendment allows the board to withhold grades while board action is pending. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 41a-1, sec.6(a), which provide the Texas State Board of Public Accountancy with the authority to promulgate rules relating to the CPA examination. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 26, 1991. TRD-9112437 William Treacy Executive Director Texas State Board of Public Accountancy Effective date: October 30, 1991 Proposal publication date: July 30, 1991 For further information, please call: (512) 450-7066 22 TAC sec.511.78 The Texas State Board of Public Accountancy adopts an amendment to sec.511. 78, concerning CPA examination, without changes to the proposed text as published in the July 30, 1991, issue of the Texas Register (16 TexReg 4133). The amendment is necessary in order to restrict access to copies of the examination while preserving the candidate's privilege to review the examination. The amendment allows persons who failed the examination to request an analysis of their performance and removes the 100-day deadline for inspection. Further, the rule now requires that inspections be made at board offices, but states that copies of the examination may no longer be obtained. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 41a-1, sec.6(a), which provide the Texas State Board of Public Accountancy with the authority to promulgate rules relating to the CPA examination. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 26, 1991. TRD-9112438 William Treacy Executive Director Texas State Board of Public Accountancy Effective date: October 30, 1991 Proposal publication date: July 30, 1991 For further information, please call: (512) 450-7066 22 TAC sec.511.79 The Texas State Board of Public Accountancy adopts an amendment to sec.511. 79, concerning CPA examination, without changes to the proposed text as published in the July 30, 1991, issue of the Texas Register (16 TexReg 4133). The amendment is necessary in order to protect the integrity of the examination. The rule allows candidates to inspect examinations but does not allow them to obtain copies. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 41a-1, sec.6(a), which provides the Texas State Board of Public Accountancy with the authority to promulgate rules relating to the CPA examination. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 26, 1991. TRD-9112439 William Treacy Executive Director Texas State Board of Public Accountancy Effective date: October 30, 1991 Proposal publication date: July 30, 1991 For further information, please call: (512) 450-7066 CPA Examination 22 TAC sec.511.80 The Texas State Board of Public Accountancy adopts an amendment to sec.511. 80, concerning CPA examination, without changes to the proposed text as published in the July 30, 1991, issue of the Texas Register (16 TexReg 4134). The amendment is necessary in order to protect the integrity of the examination process. The amendment requires that the candidate sit for all portions of the examination that the candidates is eligible for and sets standards for passing the examination. The amendment also provides for transferring credit to other jurisdictions. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 41a-1, sec.6(a), which provide the Texas State Board of Public Accountancy with the authority to promulgate rules relating to the CPA examination. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 26, 1991. TRD-9112440 William Treacy Executive Director Texas State Board of Public Accountancy Effective date: October 30, 1991 Proposal publication date: July 30, 1991 For further information, please call: (512) 450-7066 22 TAC sec.511.81 The Texas State Board of Public Accountancy adopts an amendment to sec.511. 81, concerning CPA examination, without changes to the proposed text as published in the July 30, 1991, issue of the Texas Register (16 TexReg 4134). The amendment is necessary in order to ensure that candidates prepare for the examination. The amendment sets a limit on the number of attempts that each exam candidate may make at passing the examination. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 41a-1, sec.6(a), which provide the Texas State Board of Public Accountancy with the authority to promulgate rules relating to the CPA examination. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 26, 1991. TRD-9112441 William Treacy Executive Director Texas State Board of Public Accountancy Effective date: October 30, 1991 Proposal publication date: July 30, 1991 For further information, please call: (512) 450-7066 22 TAC sec.511.82 The Texas State Board of Public Accountancy adopts an amendment to sec.511. 82, without changes to the proposed text as published in the July 30, 1991, issue of the Texas Register (16 TexReg 4134). The amendment is necessary in order to ensure that persons seeking to transfer credit from other jurisdictions meet certain standards. The amendment strengthens the requirements for persons seeking to transfer credit from other jurisdictions. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 41a-1, sec.6(a), which provide the Texas State Board of Public Accountancy with the authority to promulgate rules to the CPA examination. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 26, 1991. TRD-9112442 William Treacy Executive Director Texas State Board of Public Accountancy Effective date: October 30, 1991 Proposal publication date: July 30, 1991 For further information, please call: (512) 450-7066 22 TAC sec.511.83 The Texas State Board of Public Accountancy adopts an amendment to sec.511.83, concerning CPA examination, without changes to the proposed text as published in the July 30, 1991, issue of the Texas Register (16 TexReg 4134). The amendment is necessary in order to ensure that candidates seeking certification in Texas meet or exceed the standards set for Texans seeking certification. The amendment sets the same standards for granting credit to examination candidates seeking to transfer their credit to Texas as those set for Texas examination candidates. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 41a-1, sec.6(a), which provide the Texas State Board of Public Accountancy with the authority to promulgate rules relating to CPA examination. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 26, 1991. TRD-9112443 William Treacy Executive Director Texas State Board of Public Accountancy Effective date: October 30, 1991 Proposal publication date: July 30, 1991 For further information, please call: (512) 450-7066 22 TAC sec.511.84 The Texas State Board of Public Accountancy adopts an amendment to sec.511. 84, concerning CPA examination, without changes to the proposed text as published in the July 30, 1991, issue of the Texas Register (16 TexReg 4135). The amendment is necessary in order to ensure that the rules cite the current version of the Public Accountancy Act. The amendment deletes the reference to the effective date of the 1989 amendments and replaces it with the more specific reference to August 31, 1989. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 41a-1, sec.6(a), which provides the Texas State Board of Public Accountancy with the authority to promulgate rules relating to the CPA examination. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 26, 1991. TRD-9112444 William Treacy Executive Director Texas State Board of Public Accountancy Effective date: October 30, 1991 Proposal publication date: July 30, 1991 For further information, please call: (512) 450-7066 22 TAC sec.511.85 The Texas State Board of Public Accountancy adopts an amendment to sec.511. 85, concerning CPA examination, without changes to the proposed text as published in the July 30, 1991, issue of the Texas Register (16 TexReg 4135). The amendment is necessary in order to clarify the board's processing fee. The amendment changes the processing fees for the transfer of credits. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 41a-1, sec.6(a), which provide the Texas State Board of Public Accountancy with the authority to promulgate rules relating to the CPA examination. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 26, 1991. TRD-9112445 William Treacy Executive Director Texas State Board of Public Accountancy Effective date: October 30, 1991 Proposal publication date: July 30, 1991 For further information, please call: (512) 450-7066 Experience Requirements 22 TAC sec.511.121 The Texas State Board of Public Accountancy adopts an amendment to sec.511. 121, concerning experience requirements, without changes to the proposed text as published in the July 30, 1991, issue of the Texas Register (16 TexReg 4136). The amendment is necessary in order to clarify the experience requirement for applicants. The amendment will conform the board's rules regarding experience to the Public Accountancy Act of 1991, sec.12. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 41a-1, sec.6(a), which provides the Texas State Board of Public Accountancy with the authority to promulgate rules relating to experience requirements. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 26, 1991. TRD-9112446 William Treacy Executive Director Texas State Board of Public Accountancy Effective date: October 30, 1991 Proposal publication date: July 30, 1991 For further information, please call: (512) 450-7066 Certification 22 TAC sec.511.161 The Texas State Board of Public Accountancy adopts an amendment to sec.511. 161, concerning certification, without changes to the proposed text as published in the July 30, 1991, issue of the Texas Register (16 TexReg 4136). The amendment is necessary in order to ensure that qualified applicants may become certified without unnecessary restrictions. The amendment deletes the age, citizenship, and residency requirements for certification. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 41a-1, sec.6(a), which provides the Texas State Board of Public Accountancy with the authority to promulgate rules relating to certification. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 26, 1991. TRD-9112447 William Treacy Executive Director Texas State Board of Public Accountancy Effective date: October 30, 1991 Proposal publication date: July 30, 1991 For further information, please call: (512) 450-7066 22 TAC sec.511.162 The Texas State Board of Public Accountancy adopts an amendment to sec.511. 162, without changes to the proposed text as published in the July 30, 1991, issue of the Texas Register (16 TexReg 4136). The amendment is necessary in order to clarify the fee requirement. The amendment refers to application fee requirements set forth in another rule. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 41a-1, sec.6(a), which provide the Texas State Board of Public Accountancy with the authority to promulgate rules relating to certification. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 26, 1991. TRD-9112448 William Treacy Executive Director Texas State Board of Public Accountancy Effective date: October 30, 1991 Proposal publication date: July 30, 1991 For further information, please call: (512) 450-7066 Chapter 513. Registration The Texas State Board of Public Accountancy adopts amendments to sec.sec.513.2, 513.41, and 513.47, concerning registration, without changes to the proposed text as published in the July 30, 1991, issue of the Texas Register (16 TexReg 4136). The amendments are necessary in order to ensure: that the requirements for applicants seeking board approval will be simplified; that the rules refer to the statute currently in effect; and that the board will have sufficient information to evaluate litigation. The amendments: delete the age requirement and the requirement that the board adopt rules to ensure that foreign certificate and registration holders continue to hold their certificates and registrations in other jurisdictions; update the citation to the Public Accountancy Act from 1979 to 1991; and delineate the information which may be requested and specifically exclude complaints that are no longer pending before the board. No comments were received regarding adoption of the amendments. Registration of CPAs of Other States and Persons Holding Similar Titles in Foreign Countries 22 TAC sec.513.2 The amendment is adopted under Texas Civil Statutes, Article 41a-1, sec.6(a), which provide the Texas State Board of Public Accountancy with the authority to promulgate rules relating to registration of CPAs. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 26, 1991. TRD-9112449 William Treacy Executive Director Texas State Board of Public Accountancy Effective date: October 30, 1991 Proposal publication date: July 30, 1991 For further information, please call: (512) 450-7066 Registration of Corporations 22 TAC sec.513.41 The amendment is adopted under Texas Civil Statutes, Article 41a-1, sec.6(a), which provide the Texas State Board of Public Accountancy with the authority to promulgate rules relating to registration of corporations. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 26, 1991. TRD-9112450 William Treacy Executive Director Texas State Board of Public Accountancy Effective date: October 30, 1991 Proposal publication date: July 30, 1991 For further information, please call: (512) 450-7066 22 TAC sec.513.47 The amendment is adopted under Texas Civil Statutes, Article 41a-1, sec.6(a), which provide the Texas State Board of Public Accountancy with the authority to promulgate rules relating to registration of corporations. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 26, 1991. TRD-9112451 William Treacy Executive Director Texas State Board of Public Accountancy Effective date: October 30, 1991 Proposal publication date: July 30, 1991 For further information, please call: (512) 450-7066 Chapter 515. Licenses The Texas State Board of Public Accountancy adopts an amendment to sec.sec.515. 1-515.4 and 515.8, concerning licenses. Section 515.1 and sec.515.3 are adopted with changes to the proposed text as published in the July 30, 1991, issue of the Texas Register (16 TexReg 4138). Sections 515.2, 515.4, and 515.8 are adopted without changes and will not be republished. The amendments are necessary to simplify and clarify licensing procedures and to ensure that the rules are consistent with the Public Accountancy Act of 1991, sec.9. The amendments require that licenses be issued biennially instead of annually, establish guidelines for providing licenses on a biennial basis, and set forth biennial licensing procedures for retired and disabled persons. No comments were received regarding adoption of the amendments. 22 TAC sec.515.1 The amendment is adopted under Texas Civil Statutes, Article 41a-1, sec.6(a), which provide the Texas State Board of Public Accountancy with the authority to promulgate rules relating to biennial licenses. sec.515.1. Biennial License. With the exception of an individual who is practicing public accountancy in Texas on a temporary basis incident to his regular practice outside the state, all individuals certified by this board, and all individuals and practice units registered with the board must obtain a license to practice public accountancy and must renew that license biennially on or before December 31 of each calendar year. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 30, 1991. TRD-9112452 William Treacy Executive Director Texas State Board of Public Accountancy Effective date: October 30, 1991 Proposal publication date: July 30, 1991 For further information, please call: (512) 450-7066 22 TAC sec.515.2 The amendment is adopted under Texas Civil Statutes, Article 41a-1, sec.6(a), which provide the Texas State Board of Public Accountancy with the authority to promulgate rules relating to licenses. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 26, 1991. TRD-9112453 William Treacy Executive Director Texas State Board of Public Accountancy Effective date: October 30, 1991 Proposal publication date: July 30, 1991 For further information, please call: (512) 450-7066 22 TAC sec.515.3 The amendment is adopted under Texas Civil Statutes, Article 41a-1, sec.6(a), which provide the Texas State Board of Public Accountancy with the authority to promulgate rules relating to licenses. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 26, 1991. TRD-9112454 William Treacy Executive Director Texas State Board of Public Accountancy Effective date: October 30, 1991 Proposal publication date: July 30, 1991 For further information, please call: (512) 450-7066 22 TAC sec.515.4 The amendment is adopted under Texas Civil Statutes, Article 41a-1, sec.6(a), which provide the Texas State Board of Public Accountancy with the authority to promulgate rules relating to licenses. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 26, 1991. TRD-9112455 William Treacy Executive Director Texas State Board of Public Accountancy Effective date: October 30, 1991 Proposal publication date: July 30, 1991 For further information, please call: (512) 450-7066 22 TAC sec.515.8 The amendment is adopted under Texas Civil Statutes, Article 41a-1, sec.6(a), which provide the Texas State Board of Public Accountancy with the authority to promulgate rules relating to licenses. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 30, 1991. TRD-9112456 William Treacy Executive Director Texas State Board of Public Accountancy Effective date: October 30, 1991 Proposal publication date: July 30, 1991 For further information, please call: (512) 450-7066 TITLE 25. HEALTH SERVICES Part V. Center for Rural Health Initiatives Chapter 500. Executive Committee for the Center for Rural Health Initiatives Subchapter B. Texas Outstanding Rural Scholar Recognition Program 25 TAC sec.sec.500.21-500.42 The Executive Committee of the Center for Rural Health Initiatives adopts new sec.sec.500.21-500.42. Sections 500.21, 500.22, 500.29, 500.30, 500.31, 500.33, and 500.42 are adopted with changes to the proposed text as published in the July 2, 1991, issue of the Texas Register (16 TexReg 3675). Sections 500. 23-500.28, 500.32, and 500.34-500.41, are adopted without changes and will not be republished. The new subchapter concerns the Texas Outstanding Rural Scholar Recognition Program and is necessary to implement the provisions of Senate Bill 445, 72nd Legislature, 1991, which transferred the program to the Center for Rural Health Initiatives from the Texas Higher Education Coordinating Board. The rules define terms, establish program eligibility requirements for students, institutions and communities, set out the duties and terms of the Outstanding Rural Scholar Advisory Committee, clarify the terms and conditions on forgiveness loans and establish repayment provisions for students found in noncompliance with loan conditions. The center received no public comment on the proposed rules; however the Outstanding Rural Scholar Advisory Committee did make some recommendations to the proposed rules which have been incorporated as follows: Consistent with the statutory language in Senate Bill 445, the program is referred to throughout the sections as the "Outstanding Rural Scholar Recognition Program." Section 500.29 regarding the role of the advisory committee has been changed to add four new responsibilities. Three of these responsibilities, in which the committee recommends to the executive committee guidelines for the awarding of forgiveness loans, advises the executive committee on the amount of loans to be awarded, and recommends to the executive committee, as appropriate, cases in which an exception may be made regarding the community in which a rural scholar may fulfill his or her service obligation under the program," are described in Senate Bill 445. The fourth new role under which the committee annually adopts a schedule for administration of the program, including deadlines for submission of nominations, portfolios and loan applications, is established to provide some flexibility from year to year for the program. Specific dates and deadlines are deleted from sec.sec.500.30, 500.31, and 500.33 and replaced by the phrase "the date specified in the annual timetable adopted by the advisory committee." Section 500.42 is expanded to reflect the statutory responsibilities of higher education institutions and community sponsors in monitoring and tracking students. The new sections are adopted under Texas Civil Statutes, Article 4414b-1, sec.4(d), which authorizes the Center for Rural Health Initiatives to administer the Outstanding Rural Scholar Recognition Program and Texas Civil Statutes, Article 4414b-1.1, sec.9, which authorizes the executive committee of the Center for Rural Health Initiatives to adopt rules as necessary to implement the program. sec.500.21. Purpose, Administration, Delegation of Powers and Duties. (a) The purpose of the Texas Outstanding Rural Scholar Recognition Program is to recognize, encourage, and financially support Outstanding Rural Scholars in health professions studies at institutions of higher education and to lead them to provide health care in rural areas and communities of Texas. (b) The Executive Committee of the Center for Rural Health Initiatives, as the governing body of the center, or its successor or successors, shall administer the Texas Outstanding Rural Scholar Recognition Program. (c) The executive committee delegates to the executive director of the center the powers, duties, and functions authorized by Texas Civil Statues, Article 4414b-1 and Article 4414b-1:1, Title 71, Revised Statutes, as provided in this subchapter. sec.500.22. Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise. Advisory committee -The Outstanding Rural Scholar Advisory Committee. Center-The Center for Rural Health Initiatives. Cosigner-A cosigner of a promissory note executed under these rules shall be a person signing a note, other than the loan recipient, who is a citizen or permanent resident of the United States over 21 years of age and who is gainfully employed or otherwise demonstrates financial responsibility. Such a person may be a relative other than the spouse and may not be a student. The community agent may serve as a cosigner. A cosigner is jointly and severally responsible for all promissory notes issued through the program and signed by the rural scholar and him or herself. Executive Committee -The executive committee of the Center for Rural Health Initiatives. Executive director -The executive director of the Center for Rural Health Initiatives. Forgiveness loan(s) -For the purposes of this subchapter, loans made through the Texas Outstanding Rural Scholar Recognition Program, which can be canceled by providing health care services to the community. Full-time student -As defined by the institution of higher education or health professions program in which the Outstanding Rural Scholar is enrolled. Fund-The Texas Outstanding Rural Scholar Loan Fund administered by the executive committee as the governing body of the Center for Rural Health Initiatives from which forgiveness loans are made. Half-time student -As defined by the institution of higher education or health professions program in which the Outstanding Rural Scholar is enrolled. Health care professional-Any provider of health care or health related services in the fields of medicine, dentistry, optometry, pharmacy, chiropractic, psychology, nursing, and allied health. Health professions -The fields of medicine, dentistry, optometry, pharmacy, chiropractic, psychology, nursing, and allied health. Program officer -The Texas Outstanding Rural Scholar Recognition Program officer designated by the institution of higher education to represent the program on that campus. Resident of Texas-A resident of Texas as described in Education Code, Chapter 54, Subchapter B. Nonresidents eligible to pay Texas resident tuition at institutions of higher education are excluded. Rural area-Any nonmetropolitan county as defined by the United States Census Bureau in its most recent census. Rural community -Any incorporated or unincorporated municipality in a rural area. sec.500.29. Outstanding Rural Scholar Advisory Committee. (a) Role. The Outstanding Rural Scholar Advisory Committee serves as an advisory committee to the executive committee and: (1) recommends guidelines to the executive committee for use by community agents in nominating and sponsoring rural scholars; (2) selects and ranks outstanding rural scholars for the executive committee; (3) recommends to the executive committee guidelines for the awarding of forgiveness loans; (4) advises the executive committee on the amount of loans to be awarded; (5) recommends to the executive committee, as appropriate, cases in which an exception may be made regarding the community in which a rural scholar may fulfill his or her service obligation under the program; (6) assists the executive committee in building community support for the Outstanding Rural Scholar Recognition Program; (7) assists the executive committee in dispensing the information prepared by the executive committee on the Outstanding Rural Scholar Recognition Program; and (8) advises the executive committee on the progress of the Outstanding Rural Scholar Recognition Program; (9) annually adopts a schedule for administration of the program, including deadlines for submission of nominations, portfolios, and loan applications. (b) Composition. The composition of the advisory committee is as follows: (1) one rural practicing family practice physician; (2) one rural hospital administrator; (3) one rural practicing registered professional nurse; (4) one rural practicing allied health professional; (5) one dean of a medical school; (6) one dean of a nursing school; (7) one dean of a school of allied health science; (8) one head of a vocational/technical institution; (9) one community college administrator; (10) one individual knowledgeable in student financial assistance programs; (11) one rural public school superintendent; and (12) one rural resident. (c) Appointments. Appointments to the advisory committee by the executive committee shall be made with consideration to geographical areas of the state. (d) Vacancies. Vacancies on the advisory committee shall be filled by the executive committee in the same manner as indicated in subsections (b) and (c) of this section. (e) Terms. The committee members serve terms of six years with the terms of one-third of the members expiring on August 31 of each odd-numbered year. All committee members are eligible for reappointment to consecutive terms. sec.500.30. Outstanding Rural Scholar Recognition Program. (a) The community agent, in cooperation with high schools and post- secondary institutions, is responsible for initiating and developing the local nominee selection process and support mechanism for a rural area or rural community for the Outstanding Rural Scholar Recognition Program. (b) The community agent and high schools and post-secondary institutions are responsible for providing information about the program to interested persons. (c) The community agent is responsible for preparing a portfolio for each rural scholar sponsored by the agent for review by the advisory committee. That portfolio must include: (1) the rural scholars name, birth date, and social security number; (2) evidence that the student is an eligible scholar; (3) evidence that the rural scholar intends to enroll in a post-secondary institution for the purpose of pursuing an education in a health professions field and return to the rural area or rural community to provide health care upon graduation, certification, licensure, and/or registry, as required to practice in the State of Texas. This evidence must consist of the following: (A) the results of an interview with the rural scholar. The interview must include, but is not limited to, responses to questions provided by the advisory committee; (B) a typed essay of no more than 500 words composed by the rural scholar stating the following: (i) the reasons for entering the competition; (ii) the reasons for entering a health professions field; (iii) the reasons for wanting to provide health care services to rural Texans; and (iv) the health profession he or she plans to pursue and the anticipated time required to complete the program of study; (4) results of any standardized tests taken by the rural scholar; (5) evidence of academic honors and awards bestowed upon or received by the rural scholar; (6) evidence of service awards received by the rural scholar; (7) a list of extracurricular activities in which the rural scholar has participated or is participating; (8) no more than three recommendations from the professional staff of the high school, college, or university or from employers, and/or community leaders; (9) a statement from the community agent of why the rural scholar was selected and a statement of the community agent's satisfaction that the rural scholars intentions are genuine; (10) credentials of the community agent including the following: (A) proof that the community agent meets the criteria of a community agent as described in these rules; (B) a brief description of the local selection process; and (C) a statement from the community agent of its commitment to support and encourage the rural scholar in ways other than through financial support including a description of how this support will be provided; (11) a statement from the community agent of the projected need for a health case provider in the rural area or rural community in the health profession for which the nominee will be trained to provide services; and (12) a statement that the community agent is willing to provide funds to the rural scholar, and if the scholar is selected for a forgiveness loan, that it believes it will be able to provide at least 50% of the cost of education at the eligible institution in which the rural scholar enrolls. (d) The advisory committee may request additional information and/or interviews from the community agent and the rural scholar as needed. (e) The portfolio described in subsection (c) of this section must arrive at the center no later than the date adopted annually by the advisory committee under sec.500.29(9) of this title (relating to Outstanding Rural Scholar Advisory Committee). (f) The advisory committee will rank scholars based on the information in the student portfolios. sec.500.31. Designation of Outstanding Rural Scholars. (a) The advisory committee shall select and rank the outstanding rural scholars and inform the executive committee of their selections. The executive committee shall notify the community agents of the outstanding rural scholars selected for each year and provide the community agents with a certificate of award signed by the executive director for each outstanding rural scholar on or before the date specified in the annual timetable adopted by the advisory committee. (b) By the date specified in the annual timetable adopted by the advisory committee, the community agent shall send the center proof of the public recognition provided each outstanding rural scholar. Such recognition must include an announcement in local newspapers of the outstanding rural scholar's selection and may include public recognition of the outstanding rural scholar at civic gatherings and school assemblies. (c) In addition to subsection (b) of this section, the community agent of each top ranked outstanding rural scholar who may be eligible for a forgiveness loan will be asked to provide the executive committee by the date specified in the annual timetable adopted by the advisory committee: (1) the name of the eligible institution the scholar will attend; (2) the one-year cost of education for the scholar; and (3) a certified statement of the community agent's commitment to provide 50% of the cost of education if their nominee receives a forgiveness loan. (d) By the date specified in the annual timetable adopted by the advisory committee, the executive committee shall provide institutions of higher education with lists of Outstanding Rural Scholars. sec.500.33. Priorities for Application Processing. Applications received by the executive committee on or before the date specified in the annual timetable adopted by the advisory committee will be processed in order based upon the rank assigned the outstanding rural scholar by the advisory committee. Applications received after all appropriated funds are committed and/or after the date specified in the annual timetable adopted by the advisory committee shall be processed only if funds from loan cancellations and repayments become available during the period for which the loan is needed. Renewal applications have priority over new applications. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on October 9, 1991. TRD-9112518 Bryan P. Sperry Executive Director Center for Rural Health Initiatives Effective date: November 1, 1991 Proposal publication date: July 2, 1991 For further information, please call: (512) 479-8893 TITLE 31. NATURAL RESOURCES AND CONSERVATION Part III. Texas Air Control Board Chapter 111. Control of Air Pollution from Visible Emissions and Particulate Matter Abrasive Blasting of Water Storage Tanks Performed by Portable Operations 31 TAC sec.sec.111.131, 111.133, 11.135, 111.137, 111.139 The Texas Air Control Board (TACB) adopts amendments to sec.sec.111.131, 111. 133, 111.135, 111.137, and 111.139, with changes to the proposed text as published in the April 16, 1991, issue of the Texas Register (16 TexReg 2214), concerning Abrasive Blasting of Water Storage Tanks Performed by Portable Operations. The adopted new sec.111.131, concerning definitions, defines eight terms as they are used in regard to abrasive blasting. The adopted new sec.111.133, concerning testing requirements, outlines the test methods required before abrasive blasting is performed on any water storage tank. The adopted new sec.111. 135, concerning control requirements for surfaces with coatings containing lead, describes the notification procedures and allowable methods that must be used during abrasive blasting operations if the coating contains 1.0% or more of lead. The adopted new sec.111.137, concerning control requirements for surfaces with coatings containing less than 1.0% lead, lists allowable methods that may be used during abrasive blasting operations on unleaded surfaces. The adopted new sec.111.139, concerning exemptions, lists the abrasive operations that are exempt from testing and control requirements. Public hearings were held in Austin on May 21, 1991, and in Arlington on June 6, 1991. Testimony was received from 41 commenters during the comment period which ended June 7, 1991. The following discussion initially addresses the more general comments, and then addresses the comments which deal with specific provisions of the regulation. Two commenters, Landmark Structures Inc. (Landmark), and Neptune-Wilkinson Associates, Inc. questioned whether the intent of the rules was to limit the exposure to lead or to limit the exposure to nuisance conditions. They noted that a distinction needs to be made between the serious problem of lead exposure and the less serious problem of short-term exposure to dust which should fall under nuisance controls. A private citizen suggested that TACB is overreacting to the Cedar Park incident. The concern about lead contamination resulting from abrasive blasting of water storage tanks was brought to the public's attention when TACB responded to a nuisance complaint, which occurred in Cedar Park, Texas in June of 1990, about an abrasive blasting job being performed on the town's water tank. Samples taken from the base of the tank confirmed that the paint contained lead. Additional samples taken in the vicinity of the tank, including adjacent residences, indicated lead levels from six pounds per million (ppm) to 11,000 ppm. The highest levels were 22 times the alert level used by United States Environmental Protection Agency (EPA) to dictate when cleanup is required. The cost of the clean up of the residential area exceeded $1 million. In addition, lawsuits were filed in the courts due to the potential health risks resulting from lead contamination. TACB has been contacted by several municipalities requesting regulations controlling abrasive blasting. The adopted regulations limit the exposure to lead and inhalable particulate matter produced from abrasive blasting. The Texas Water Commission (TWC) and an individual felt that the cutoff limit of 1.0% (10,000 ppm) was too high. TWC suggested a limit of 200 ppm and the private citizen suggested 0.5%. Exxon was interested in how the limit of 1.0% was derived. Based upon the data received from the Cedar Park incident, the staff performed extensive modeling tests and determined that a limit of 1.0% would produce an average level of soil contamination equal to 420 ppm which is just under the 500 ppm EPA alert level. Additionally, there are very few leaded paints with levels below 1.0%. Since the 1.0% cutoff results in a limit which is below the EPA alert level and since leaded paints seldom contain less than 1.0% lead, the staff did not believe that reducing the cutoff limit further would serve a useful purpose. Several commenters indicated that the TACB staff did not research all aspects of the issue well enough. One commenter, (Tank Sand-blasting & Painting, Inc.), suggested that the TACB staff obtain the advice of personnel who actually perform the blasting before writing any of the regulations. Several commenters (Archaie, Inc., Texas Rural Water Association (TRWA), Allied Tank Services (Allied), and an individual) requested that the Texas Department of Health (TDH) and TWC be contacted and consulted prior to implementing the new regulations. Another commenter, Travis Industrial Painters (Travis), commented that the staff did not show an interest in viewing demonstrations of different techniques, and an individual claimed that arrangements had been made for the staff to view wet blasting and hydroblasting operations, and that the staff did not take the time to observe these demonstrations. The individual stated TACB should spend more time studying the learning experiences of other states before implementing new regulations. Vickers Industrial Coatings (Vickers) suggested that there are other, more reasonable, methods of abrasive blasting being employed by other states, and that the staff should have considered some of those. The TACB staff that were involved in investigating this problem included members from Health Effects, Permits, Modeling, Sampling and Analysis, Legal, and Regulation Development. Because of the complexity of the issue, the staff performed extensive research and discussed in detail a wide range of issues with engineers, contractors, health officials, and other experts from the industry, and relied heavily upon their judgments. TWC also supplied formal comments during the hearing process. As part of the staff's research, they did observe demonstrations of hydro-blasting and dry abrasive blasting. The research of the staff indicates that the adoptions are consistent with most states that have adopted abrasive blasting rules. Particularly noteworthy was the February 1991 issue of Journal of Protective Coatings & Linings (JPCL), which reviewed the abrasive blasting regulations of all 50 states and the District of Columbia. While many states were shown not to have any regulations specifically governing abrasive blasting, existing rules were examined in considerable detail. The methods included in the adopted regulations were chosen from those most commonly used by other states and considered the most environmentally sound. The City of Wichita Falls (Wichita Falls) raised the concern that other types of paint removal had not been considered and, therefore, the cities did not have all of the options available to them to make the most cost-effective decision regarding abrasive blasting. Pentek, Inc. (Pentek) requested that their technology of vacuum assisted power tool cleaning be specifically listed as an approved method. The regulation has been designed to allow alternative methods that are used infrequently or have not yet been developed. The staff is aware of nonabrasive methods of paint removal, but the adopted rules only address abrasive blasting which is more likely to result in particulate air pollution. Pentek's technology is a nonabrasive blasting method that is not excluded by the adopted regulations. Several commenters asserted that the rules should contain additional requirements. TWC and an individual requested that the regulations specify that waste be disposed of in accordance with all applicable regulations or include provisions on how to dispose of the waste generated by the operation. TWC also recommended that the rules include requirements for the use of a ground cover. An individual stated that sec.111.135(c) and sec.111.137(b) should specify that all blasting projects be regulated for nuisance dust. Several commenters, Coating Society of Houston Area (Coating Society), Vickers and an individual, expressed concern over the absence of rule language concerning the need to collect contaminated water which would accumulate as a result of wet blasting or hydroblasting. The individual stated that the regulation should prohibit any blasting that could cause a violation of the federal lead standard at the property line. The Harris County Pollution Control Department and the Galveston County Health Department suggested that the notification requirement in sec.111. 135(b) should include notifying affected local gov- ernments concerning blasting activities. The Galveston County Health Department suggested adding similar language for unleaded surfaces in sec.111.137. The use of ground covers, the disposal of the waste generated during the blasting, and the control of the water resulting from wet blasting or hydroblasting do not fall under the TACB's jurisdiction, and regulating another agency's rules is not possible. Language regarding the control of nuisance dust and the necessity of complying with all other applicable laws, ordinances, and regulations is already contained in sec.111.135(a) and sec.111.137(a). The staff also believes that the adopted rules will prevent the violation of standards because the techniques specified in the regulation are proven methods of minimizing the release of lead and inhalable particulates. The staff believes that the comment regarding notification of affected local authorities concerning blasting activities has merit in cases where lead is involved, and added the appropriate language to sec.111.135(b). However, in cases covered under sec.111.137, where the lead content is less than 1.0%, the staff believes the requirement for local notification should be handled by a local ordinance or similar means. One commenter, (Travis), was not convinced that shrouding could contain the emissions as effectively as many experts claim. As stated earlier the staff has performed extensive research and discussed in detail the complexities of this issue, including the use and effectiveness of a shroud. The staff relies heavily upon the judgements of these experts. Therefore, the staff is convinced that the adopted requirements concerning the use of a shroud provide the best means of protection available and are far more effective than not requiring a shroud at all. An individual requested that the new regulations allow for partial shrouding downwind of the blasting instead of requiring total enclosure. The staff believed that this suggestion would not provide adequate protection of the environment from lead particulate, because it does not account for wind shifts or the swirling effects of wind caused by towers. An individual expressed concern over the economic burden the new regulations would impose if TDH were to require painting of municipal water towers for purely aesthetic reasons. Although the staff thinks it is highly unlikely that TDH would impose such requirements, TACB cannot be responsible for the TDH's actions. Moreover, painting can be done as often as desired as long as no abrasive blasting is performed. A commenter representing Exxon expressed concern that not enough factors were being considered regarding the exposure of the worker. Specifically, he was concerned about the working environment which would be created by the shroud. The safety of the worker falls under the jurisdiction of TDH and Occupational Safety and Health Administration. Furthermore, the language in sec.111.135(a) and sec.111.137(a) will alert the operators to the fact that other regulations exist. The City of Denton (Denton) had several comments concerning alternative ways to minimize, or avoid dealing with, the financial aspects of the adopted regulations. Specifically mentioned were: they are more willing to pay the $5, 000-$10,000 in clean-up costs than the $60,000 estimated for shrouding, they are willing to pay for heating/cooling bills to keep houses closed up during blasting and they are willing to pay for the cleaning of cars in affected communities. They also suggested that most citizens would be more willing to pay for the cost of clean-up than face higher water bills. The city also expressed concern that the use of unleaded paints would require repainting to be done every 7-10 years instead of the once every 20 years, which is now the average with leaded paints. They indicated that this would be difficult to finance with the current capital finance plans. Denton also insisted there are enough controls in place on the local level that the involvement of the state in this issue is not warranted. As mentioned previously, the cost to clean up Cedar Park after the incident was well over $1 million, not including the pending civil lawsuits filed by area residents. The Cedar Park incident demonstrated that clean up of the smaller particles was exceedingly difficult to accomplish. Furthermore, due to the data supporting the adverse health affects of lead, many of the city's ideas were not viable alternatives if protecting the health, safety, and general welfare of the community is a priority. Another problem of these alternatives is the ability of TACB to enforce them. In response to the comment concerning the increased requirement for painting using unleaded paints, in light of the overwhelming evidence concerning the adverse health effects due to the toxicity of lead, it is more environmentally sound and in the best interests of the population of Texas to use unleaded paint. As for the comment regarding the necessity of the state's involvement, TACB is reacting in direct response to requests from municipalities to regulate abrasive blasting to prevent the recurrence of a similar incident. Denton believed that the cost to implement and enforce these regulations will cost TACB an extra $12,000, which could only be recovered through increased taxes or fees. The staff intentionally kept the regulations simple so as to be able to use current TACB resources to implement and enforce them. In concert with that thought, enforcement costs will be considerably lower, if industry complies with the new regulations, because there will be less pollutants released and, therefore, less citizen complaints to investigate. Two commenters, Tank Sandblasting & Painting, Inc. and Travis, raised concerns regarding liability insurance involved with abrasive blasting, where shrouding and the release of pollutants are involved. TACB is charged with protecting air quality and believes that blasting lead in an uncontrolled manner will result in even higher liability rates due to the increased number of lawsuits which would result. So, in actuality, the regulation will reduce the liability by reducing the amount of pollutants released. One commenter, representing the TRWA and Allied, questioned whether or not TACB knew what background levels of lead existed prior to Cedar Park or in other cases, since no testing was done in the area prior to the blasting. And if TACB was able to positively determine that lead levels increased, how would they be able to say it was due to the abrasive blasting and not to some other past event? Reference literature detailing expected background levels and laboratory results from samples taken at Cedar Park gave TACB a very good indication of what lead levels to expect. Furthermore, the high lead levels found at Cedar Park were found in the presence of paint chips and spent abrasive material. The Coating Society commented that the monitoring of emissions outside of a containment would be easier with dry blasting than it would be with wet blasting. The adopted regulations do not require monitoring outside of a containment area. Several commenters (Wichita Falls, Travis, and an individual) expressed concern over the safety factors involved with hanging a shroud. One commenter stated that hanging a shroud on an empty, elevated tank might create a wind load, which could cause the tank to topple. Another mentioned the fact that older tanks may not be designed to withstand the weight of a shroud. There was one general comment expressing concern with the safety hazards of hanging a shroud from a 150-foot water tower. The wind load is a factor of wind speed and of the shroud's area, and contractors should know at what wind speed the shroud be lowered to prevent exceeding the wind load. If the wind load is unknown, an engineering study should be conducted. In general, the concern of the weight of the shroud was slight since the tanks are designed to withstand the weight of the water they hold. An individual expressed concern that requiring a shroud would prevent the contractor from working inside the tank at the same time he is working on the outside, resulting in an extended job time and, therefore, increased costs. The TACB staff observed a demonstration of shrouded blasting at a job site in Lakeway. During the demonstration, they observed that the contractor had adequate access to the inside of the tank while the shroud was up and, in fact, was able to perform work on the inside as work on the outside progressed. Other sources also indicate that shrouding does not hinder access to the tank, outside or inside. Several commenters (Coating Society, Travis, Vickers, and an individual) expressed concern over the technique of vacuum blasting. The comments concerned the efficiency of capturing high velocity particles once they hit the tower, and the concern that a high-efficiency particulate filter should be required for the vacuum blasting device. Once the particles hit the tank's surface, they are no longer high velocity particles and the staff has a great deal of information from marketers and contractors who have used vacuum blasting to ensure the efficiency of capturing these particles. The staff does agree that the vacuum blasting machine should be equipped with a high-efficiency particulate filter and changed the definition of vacuum blasting to accommodate this clarification. Several commenters from both the regulated community and the general public (Neptune-Wilkinson Associates, Inc., Landmark, Vickers, TRWA, Allied, and Denton) expressed a great deal of concern that the adopted amendments do not regulate the abrasive blasting of the exterior of all metal structures. Several stated that singling out the water tank industry is discriminatory and will produce an economical burden on that part of the industry which will not be experienced by other parts. The staff wholeheartedly agrees with the need to regulate other types of abrasive blasting activities. TACB is in the process of obtaining soil samples in residential and industrial areas surrounding facilities where abrasive blasting has occurred. TACB is also soliciting the oil and gas industry for additional data concerning the abrasive blasting of their structures. Depending on the results of the sampling and the additional data which TACB will receive, it is the intention of TACB to return to hearing with more inclusive language in the near future. An individual suggested that the definition of private residence in sec.111. 131 be clarified. The definition used is language that has been used historically in the TACB's standard exemption list. Several commenters (Exxon, OxyChem, Landmark, and an individual) expressed some confusion over the definition of a shroud. One commenter requested that the definition specify that leakage of spent material between the ground and the shroud be prohibited. Another commenter requested the change from "amount of area" to "percent of area..." One commenter requested clarification on how impermeable the shroud should be, what size particles are we shrouding for, and by what test method should impermeability be checked. A commenter requested clarification on how high up the shroud should be, and one commenter stated that, as written, the definition would preclude the use of clear plastic sheeting. The staff feels that the definition, as written, is clear enough concerning the requirements of containing spent material. They did agree that the word "amount" be changed to "percent" to remain consistent with the rest of the definition. The intent of the staff was not to preclude the use of clear plastic sheeting, so the staff changed the words "impermeable to particles and sunlight" to "impermeable to particles or sunlight" To clarify the comment concerning the height of the shroud, the staff added to the language "the shroud shall have overlapping seams to prevent leakage of particles, shall extend a minimum of 15 feet above the area being blasted, and shall have a shade factor of 95% " The staff decided that setting a control factor of 95% of particles of 100 grit or greater would clarify the comments concerning impermeability, size of particles, and test methods since this would standardize the shroud. An individual felt that the definition of public area was vague and needed to read "public would" instead of "public could." His argument was that mere access to an area is insufficient to classify the area as a public area. The staff disagreed with this argument and felt that mere access is sufficient to warrant the controls suggested by the recommended regulation. The staff feels that the definition is sufficiently clear as worded. Several commenters from the regulated community (OxyChem, Texas Chemical Council, Ethyl Corporation, Texas Eastman Company, DuPont, Exxon, and Houston Lighting & Power) commented that the rule language is ambiguous and that the definition of water storage tank should refer to those tanks specifically storing water for public or municipal water supplies. The staff agreed that since the intent of this regulation is to control abrasive blasting of municipal water tanks and has changed the regulation to specify "potable" water tanks is desirable. One commenter (Houston Lighting & Power) suggested the definition of water storage tank should specify a minimum height of 50 feet above the ground. They commented that structures which are not elevated would not likely cause an impact on surrounding areas during abrasive blasting operations. The staff disagreed with this comment and feels the adopted changes to the definition are sufficient to achieve the desired controls. A representative of Exxon questioned the methods used in sec.11.333 to accu- rately determine if 1.0% of lead exists and if this sampling takes into account that some areas of a tank's surface may contain less lead by weight than other areas. The EPA test procedures specified in sec.111.133(a) require that samples be collected in accordance with a detailed sampling plan explained in Chapter 9 of the Environmental Protection Agency SW-846, Test Methods for Evaluating Solid Waste. This testing plan ensures a representative sample and an accurate and precise result. Concerning sec.111.135, Denton believes that there is not enough evidence documented, concerning the adverse health effects of lead, to justify the controls imposed by these regulations. It is well documented, in scientific literature, that lead is a known toxic and is especially hazardous to children (causing learning disabilities) and to pregnant women (causing damage to the central nervous system of the fetus). Furthermore, lead is detrimental to all animals and is very persistent in the environment. Once deposited, it does not break down to harmless components but maintains its toxicity in the soil for decades. An individual commented that other heavy metal-based paints should be controlled as well. The staff agrees that other heavy metals may also need to be controlled, however, lead is by far the largest constituent by weight in paint and the toxic effects of lead are well known and documented. Consequently, lead is the main concern at this time. The staff, nevertheless, does intend to revisit this issue at a later date. Several commenters (Lakeway MUD, Landmark, Archaie, Vickers, Trinity, Coating Society, Houston Lighting & Power, and several individuals) stated that dry abrasive blasting of surfaces containing leaded paints should be allowed. Lakeway MUD submitted evidence of samples taken after shrouded dry blasting was performed, which, they contend, is absolute proof of the effectiveness of a shroud. Another commenter stated that TACB did not have enough evidence to conclusively state that use of a shroud is not safe or effective. The 500-foot distance requirement was chosen for two reasons it is consistent with the distance requirement in TACB's Standard Exemption 102, concerning abrasive blasting from a permanent facility; and modeling of the proposed dry abrasive blasting within a shroud verified this distance to be an accurate estimate. Therefore, based on this data and the sampling results submitted by Lakeway MUD (collected from a dry abrasive blasting job where a shroud was used), the staff has added to the rule that shrouded dry abrasive blasting be allowed, provided there are no private residences or public areas within a distance of 500 feet of the water storage tank. Several commenters (Neptune-Wilkinson Associates, Inc., Coating Society, Archaie, and Travis) commented that wet abrasive blasting would create more problems than dry abrasive blasting. They specifically mentioned the following concerns: wet abrasive blasting leads to a greater risk of water runoff and infiltration into the ground; wet waste is more difficult to control than dry waste; wet blasting would cause the tanks to rust quicker, requiring the use of inhibitors to prevent this which would compromise the adhering capabilities of the tanks' surface; and hydroblasting does not provide a surface adequate for coating adherence. The staff investigation showed that the use of wet abrasive blasting and hydroblasting are being performed effectively throughout the industry. Wet abrasive blasting and hydroblasting minimize airborne particulate matter resulting from paint removal operations and are necessary to control lead contamination of surrounding properties. Because of the added problems inherent in wet blasting methods, the staff recommends that shrouded dry abrasive blasting be allowed, provided there are no private residences or public areas within a distance of 500 feet of the water storage tank. Several commenters (Landmark, Archaie, City of San Antonio Water Board, Vickers, TRWA, Allied, Travis, Exxon, Texas Sandblasting and Painting, Inc., and several individuals) expressed concern over the staff's estimates of cost and questioned the actual economic effects. One commenter stated that the costs would be so high that many tank owners would postpone necessary painting, and another stated that the costs were so high that no one would be able to economically comply with the adopted regulations. Another commenter stated that the requirement for wet blasting or hydroblasting would produce rust, and the staff's cost estimates did not include removal of the rust. One commenter claimed that the cost of the new regulations would result in only the insides of tanks being repainted and not the outside. Another commenter stated that the higher costs would force many companies out of business. The staff believes that by allowing dry abrasive blasting within a shroud many of these arguments are no longer valid. Costs are likely to be higher when using a shroud; however, the use of a shroud should prevent the costs of clean up and litigation brought on by citizen suits. Shrouding is, therefore, believed to be an ultimate cost savings, as well as an environmentally responsible practice. An individual expressed concern that the platform where the workers stand would become unsafe to stand on with the added weight of wet abrasive debris. The adoption to allow dry blasting in a shroud eliminates this point as an issue. Concerning sec.111.137, several commenters (Wichita Falls, Archaie, Neptune-Wilkinson, and Landmark) stated that the requirements for unleaded storage tanks are too stringent. Neptune-Wilkinson felt that tanks having paint which contained no lead should be excluded from the adopted regulations. Landmark felt that if the paint on the tank's surface contained less than 1.0% lead by weight, it should be exempt from regulation. The staff has received a number of complaints regarding blasting in residential areas and concluded that the regulations adopted for paints containing less than 1.0% lead are the best way to minimize nuisance situations which could arise if no controls were imposed. It is also important to note that control of particulate matter as well as control of lead particulate emission is required to protect the health of the citizens in the case of abrasive blasting. Furthermore, staff research indicated that this is a common regulation in many other states. Concerning sec.111.139, two commenters (Harris County Pollution Control Department, and an individual), opposed allowing any exemptions, or, in the case where an exemption is required, that the operator should maintain a daily record of abrasive usage. The adopted exemption is designed for small activities, which experience has shown, would be unlikely to create nuisance conditions or adverse health effects. Research also indicates that most blasting operations propel at least 500 pounds per hour. Thus, relatively few operations would qualify for the exemption. A representative from Vickers stated that there should be an allowance for a waiver if the residents within the area of control are few and have given their consent for the work to continue. Specifically mentioned was a case involving one residence, upwind of the job. The staff has grave concerns over allowing a blanket waiver for such instances. This would not protect future landowners from inheriting the residual lead left on the property. In addition, the scenario does not account for wind shifts or the swirling effect of the wind around the tank. Nevertheless, TACB has a standard procedure for requesting a variance from any of its regulations, through an appeal process directly to TACB. The amendments are adopted under the Texas Clean Air Act (TCAA), sec.382.017, Texas Health and Safety Code, Annotated (Vernon 1990), which provides TACB with the authority to adopt rules consistent with the policy and purpose of the TCAA. sec.111.131. Definitions. The following words and terms, when used in this undesignated head, shall have the following meanings, unless the context indicates otherwise. Abraive blasting -The operation of cleaning or preparing a surface by forcibly propelling a stream of abrasive material against the surface. Hydroblasting-Any abrasive blasting using high pressure liquid as the propelling force or as the active cleaning agent. Private reidence -A residence not occupied or used solely by the owner of the property upon which the water storage tank to be blasted is located. Public area-An outdoor area where it may be reasonably anticipated that the public could congregate for more than short-term periods, including, but not limited to, schools, day care centers, convalescent centers, parks, and recreation areas. Shroud-A device which is designed to enclose or surround the area being blasted to minimize the atmospheric entrainment of fine particulates and direct that material to a confined area for disposal. The shroud shall have overlapping seams to prevent leakage of particulates, shall extend a minimum of 15 feet above the area being blasted, and shall have a shade factor of 95% or a control factor of 95% of particles 100 grit or greater. A shade factor is defined as the percent of area impermeable to particles or sunlight. Vacuum blasting -Any abrasive blasting in which the spent abrasive, surface material, and dust resulting from blasting are immediately collected by a vacuum device, equipped with a high efficiency particulate filter. Water storage tank-Any above-ground vessel designed and constructed for the purpose of storing potable water. Wet brasive blasting-Any abrasive blasting using compressed air as the propelling force, which mixes with water to minimize emissions. sec.111.133. Testing Requirements. (a) Before abrasive blasting is performed on any previously-coated water storage tank, the owner or operator of the tank must determine if lead is present in the existing protective coating by applying the following test methods from the United States Environmental Protection Agency SW-846, Test Methods for Evaluating Solid Waste: (1) Method 3050, Acid Digestion of Sediments, Sludges, and soils; and (2) Method 6010, Inductively Coupled Plasma Atomic Emission Spectroscopy, or Method 7000, Atomic Absorption Methods. Lead concentrations should be reported in micrograms per gram (ug/gm); or (3) An alternate method approved in advance by the Executive Director or a designated representative of the Texas Air Control Board (TACB). (b) Results of the test(s) required in subsection (a) of this section must be available to the TACB staff or staff from governmental entities having jurisdiction at the site for the duration of the abrasive blasting project. The results must include the name of the testing facility and a person responsible for the accuracy of the test results. (c) Successive coatings need not be retested following initial testing, provided the owner or operator of the water storage tank can furnish verifiable documentation that the lead level of the post-testing coatings is less than 1.0% (10,000 ug/gm) lead by weight. sec.111.135. Control Requirements For Surfaces with Coatings Containing Lead. (a) The authority to conduct abrasive blasting activities under this section does not exempt or excuse any person from responsibility for the consequences, damages, or injuries resulting from the abrasive cleaning. The authority to conduct such activities under this regulation also does not exempt or excuse anyone from complying with all other applicable laws or ordi- nances, regulations, and orders of governmental entities having jurisdiction, even though the abrasive blasting is otherwise conducted in compliance with this regulation. The owner or operator of the water storage tank being blasted must control emissions from abrasive blasting in a manner that does not cause nuisance conditions, as defined in sec.101.4 of this title (relating to Nuisance). (b) For water storage tanks with lead concentrations of 1.0% (10,000 ug/gm) or greater in the coating, the owner or operator of the tank shall notify the appropriate TACB regional office and any local authorities having jurisdiction over abrasive blasting activities of the blasting in writing at least 10, but not more than 30, working days prior to the date scheduled for the beginning of blasting operations. The notification must include: (1) the location of the tank; (2) the name of the abrasive blasting company; (3) the weight percent of lead in the coating; (4) the control methods to be used; (5) the expected hours of operation and scheduled start and finish dates. (c) Emissions from abrasive blasting of water storage tanks which have lead in concentrations of 1.0% (10, 000 ug/gm) or greater by weight in the coating must be controlled by one of the following methods: (1) vacuum blasting; (2) shrouded wet abrasive blasting; (3) shrouded dry abrasive blasting, provided there are no private residences or public areas within 500 feet of the water storage tank; (4) shrouded hydroblasting; or (5) equivalent method approved in advance by the executive director or a designated representative of TACB. sec.111.137. Control Requirements For Surfaces with Coatings Containing Less Than One Percent Lead. (a) The authority to conduct abrasive blasting activities under this section does not exempt or excuse any person from responsibility for the consequences, damages, or injuries resulting from the abrasive cleaning. The authority to conduct such activities under this regulation also does not exempt or excuse anyone from complying with all other applicable laws or ordi- nances, regulations, and orders of governmental entities having jurisdiction, even though the abrasive blasting is otherwise conducted in compliance with this regulation. The owner or operator of the water storage tank being blasted must control emissions from abrasive blasting in a manner that does not cause nuisance conditions, as defined in sec.101.4 of this title (relating to Nuisance). (b) When there are private residences or public areas within a distance of 500 feet of the water storage tank or 10 times the height of the tank, whichever is greater, the owner or operator of the tank must control emissions from abrasive blasting by one of the following methods: (1) vacuum blasting; (2) shrouded wet abrasive blasting; (3) shrouded dry blasting; (4) shrouded hydroblasting; or (5) equivalent method approved in advance by the executive director or a designated representative of TACB. (c) When there are no private residences or public areas within a distance of 500 feet of the water storage tank or 10 times the height of the tank, whichever is greater, no additional controls are required beyond those stipulated in subsection (a) of this section. sec.111.139. Exemptions. (a) Interior abrasive blasting of water storage tanks is exempt from sec.111.133 of this title (relating to Testing Requirements); sec.111.135 of this title (relating to Control Requirements For Surfaces with Coatings Con- taining Lead); and sec.111.137 of this title (relating to Control Requirements For Surfaces with Coatings Containing Less Than One Percent Lead), if no visible emissions to the atmosphere result from such cleaning. (b) Any abrasive blasting process which propels abrasives at a rate of less than 500 pounds per day is exempt from sec. sec.111.133, 111.135, and 111.137. (c) Any alternate control method approved in advance by the executive director or a designated representative of the TACB may be exempted from sec.111.135 and sec.111.137. An exemption may be revoked by TACB at any time if the blasting project is causing nuisance conditions or a violation of any air quality standard. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on October 11, 1991. TRD-9112627 Lane Hartsock Deputy Director, Air Quality Planning Texas Air Control Board Effective date: November 1, 1991 Proposal publication date: April 16, 1991 For further information, please call: (512) 908-1451 Chapter 115. Control of Air Pollution from Volatile Organic Compounds Subchapter A. Definitions Definitions 31 TAC sec.115.10 The Texas Air Control Board (TACB) adopts an amendment to sec.115.10, concerning definitions, without changes to the proposed text as published in the July 2, 1991, issue of the Texas Register (16 TexReg 3676). The amendment satisfies a requirement by the United States Environmental Protection Agency (EPA) to correct certain regulation deficiencies and inconsistencies to ensure compliance with applicable requirements for control and collection systems of volatile organic compounds. The amendment to sec.115.10 adds definitions for capture efficiency, capture system, carbon adsorber, carbon adsorption system, control device, and control system. These new definitions will ensure consistency with terminology now used by EPA. A public hearing was held on July 22, 1991, in Austin. No oral testimony was presented. Written testimony was received from two commenters during the comment period which was extended from July 23 until July 30, 1991. EPA approved the proposed definitions and suggested that additional definitions may be needed for clarification. The staff is unable to add definitions at this time without conducting an additional public hearing; however, such definitions do not appear to be critical to understanding the concepts at issue in the proposal. One individual wished to see the definition of capture efficiency changed to read that capture efficiency would be the difference between the percentage of volatile organic compounds entering both the capture system and control device and that leaving the exit vent. Since the proposed definition was made in response to an EPA requirement and contains the exact wording used by EPA, revising the definition could jeopardize EPA approval. The amendments are adopted under the Texas Clean Air Act (TCAA), sec.382.017, Texas Health and Safety Code, Annotated (Vernon 1990), which provides TACB with the authority to adopt rules consistent with the policy and purposes of the TCAA. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on October 10, 1991. TRD-9112621 Lane Hartsock Deputy Director, Air Quality Planning Texas Air Control Board Effective date: November 1, 1991 Proposal publication date: July 2, 1991 For further information, please call: (512) 908-1451 Subchapter B. General Volatile Organic Compound Sources Vent Gas Control 31 TAC sec.115.126, sec.115.129 The Texas Air Control Board (TACB) adopts amendments to sec.115.126, concerning recordkeeping requirements and sec.115.129, concerning counties and compliance schedules, without changes to the proposed text as published in the July 2, 1991, issue of the Texas Register (16 TexReg 3676). The amendments satisfy a requirement by the United States Environmental Protection Agency to correct certain regulation deficiencies and inconsistencies to ensure compliance with applicable requirements for control and collection systems of volatile organic compounds. The amendment to sec.115.126 adds an additional reference to provide consistency in maintaining temperature, maintenance, and testing records for facilities required to comply with sec.115.121(a)(3). The amendment to sec.115.129 identifies a compliance date for the additional recordkeeping requirements. A public hearing was held on July 22, 1991, in Austin. No oral testimony was received. One written comment was received during the comment period which ws extended from July 23 until July 30, 1991. The individual remarked that company records should be available for public review, analysis, and assessment and that the records should be kept at some public place for public inspection. Much of the required recordkeeping may involve confidential company information. TACB rules are developed to prevent the misuse of proprietary information while allowing access to data which can be used to determine actual operating parameters. This individual also commented that sec.115.126(1) could allow a company to use fraudulent data instead of actual inspection data to determine whether control equipment was functioning properly. The staff can not discount that a possibility exists for fraudulent or incorrect data being recorded. However, the staff believes the majority of recordkeeping to be accurate because it is in the facility's best interest to ensure proper operation of control devices for numerous safety, economic, and environmental reasons. TACB also conducts periodic unannounced inspections as well as scheduled formal inspections to ensure company compliance with applicable rules and regulations. The amendments are adopted under the Texas Clean Air Act (TCAA), sec.382.017, Texas Health and Safety Code, Annotated (Vernon 1990), which provides TACB with the authority to adopt rules consistent with the policy and purposes of the TCAA. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on October 10, 1991. TRD-9112600 Lane Hartsock Deputy Director, Air Quality Planning Texas Air Control Board Effective date: November 1, 1991 Proposal publication date: July 2, 1991 For further information, please call: (512) 908-1451 Water Separation 31 TAC sec.115.136, sec.115.139 The Texas Air Control Board (TACB) adopts amendments to sec.115.136, concerning recordkeeping requirements and sec.115.139, concerning counties and compliance schedules, without changes to the proposed text as published in the July 2, 1991, issue of the Texas Register (16 TexReg 3676). The amendments satisfy a requirement by the United States Environmental Protection Agency to correct certain regulation deficiencies and inconsistencies to ensure compliance with applicable requirements for control and collection systems of volatile organic compounds. The amendment to sec.115.136 adds a requirement to continuously monitor the exhaust gas temperature immediately downstream of a direct-flame incinerator. The amendment to sec.115.139 identifies a compliance date for the additional monitoring requirement. A public hearing was held on July 22, 1991, in Austin. No oral or written testimony was received on this undesignated head during the comment period which was extended from July 23 until July 30, 1991. The amendments are adopted under the Texas Clean Air Act (TCAA), sec.382.017, Texas Health and Safety Code, Annotated (Vernon 1990), which provides TACB with the authority to adopt rules consistent with the policy and purposes of the TCAA. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on October 10, 1991. TRD-9112623 Lane Hartsock Deputy Director, Air Quality Planning Texas Air Control Board Effective date: November 1, 1991 Proposal publication date: July 2, 1991 For further information, please call: (512) 908-1451 Subchapter C. Volatile Organic Compound Marketing Operations Filling of Gasoline Storage Vessels (State I) For Motor Vehicle Fuel Dispensing Facilities 31 TAC sec.115.224, sec.115.229 The Texas Air Control Board (TACB) adopts amendments to sec.115.224, concerning inspection requirements and sec.115.229, concerning counties and compliance schedules, without changes to the proposed text as published in the July 2, 1991, issue of the Texas Register (16 TexReg 3676). The amendments satisfy a requirement by the United States Environmental Protection Agency to correct certain regulation deficiencies and inconsistencies to ensure compliance with applicable requirements for control and collection systems of volatile organic compounds. The amendment to sec.115.224 adds Brazoria and Galveston Counties to the requirement that gasoline tank-trucks be annually inspected for leaks as evidenced by a prominently displayed certification. The amendment to sec.115.229 identifies a compliance date for the additional inspection requirement. A public hearing was held on July 22, 1991, in Austin. No oral or written testimony was received on this undesignated head during the comment period which was extended from July 23 until July 30, 1991. The amendments are adopted under the Texas Clean Air Act (TCAA), sec.382.017, Texas Health and Safety Code, Annotated (Vernon 1990), which provides TACB with the authority to adopt rules consistent with the policy and purposes of the TCAA. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on October 10, 1991. TRD-9112624 Lane Hartsock Deputy Director, Air Quality Planning Texas Air Control Board Effective date: November 1, 1991 Proposal publication date: July 2, 1991 For further information, please call: (512) 908-1451 Subchapter E. Solvent-Using Processes Surface Coating Processes 31 TAC sec.sec.115.422, 115.423, 115.425, 115.426, 115.429 The Texas Air Control Board (TACB) adopts amendments to sec.115.422, concerning control requirements; sec.115.423, concerning alternate control requirements; sec.115.425, concerning testing requirements; sec.115.426, concerning recordkeeping requirements; and sec.115.429, concerning counties and compliance schedules. Sections 115.422, 115.425, and 115.426 are adopted with changes to the proposed text as published in the July 2, 1991, issue of the Texas Register (16 TexReg 3676). Section 115.423 and sec.115.429 are adopted without changes and will not be republished. The amendments satisfy a requirement by the United States Environmental Protection Agency (EPA) to correct certain regulation deficiencies and inconsistencies to ensure compliance with applicable requirements for control and collection systems of volatile organic compounds. The amendment to sec.115.422 changes the wording to clarify the intent of the "once in, always in" philosophy adopted during the last change and clarify the reference to counties and compliance schedules. The amendment to sec.115.423 changes the reference paragraph for capture efficiency testing protocol. The amendment to sec.115.425 adds additional requirements for capture efficiency compliance testing to be consistent with EPA guidance. The amendment to sec.115. 426 adds a paragraph to explain the additional recordkeeping required by new capture efficiency testing. The amendment to sec.115.429 adds a new compliance date for new requirements. A public hearing was held on July 22, 1991, in Austin. No oral testimony was received. Only EPA submitted written testimony during the comment period which was extended from July 23 until July 30, 1991. In general, EPA stated that additional provisions were necessary for consistency with EPA's model capture efficiency rule. EPA's interpretation of the proposed rules is that they are more stringent than EPA requirements and need additional clarification to determine capture efficiency testing. Specifically, the following three comments were submitted: Section 115.422 references counties listed in sec.115.429(2)(A), but no counties are listed in this section. The staff agreed with EPA and changed the reference to reflect sec.115.429 only. Section 115.425 does not include any exemptions which are available for sources which install an EPA-approved permanent total enclosure and for sources which use a carbon absorber provided certain restrictions are met. Additionally, the four protocols used to measure capture efficiency should be specifically identified. The staff agreed with EPA and revised this section to reflect these comments. Section 115.426(3) does not clearly give a deadline for submittal of capture efficiency test results required by sec.115.425(4). The staff concurred and added a sentence to clarify that the test results shall be submitted within 60 days after the actual test date. Another sentence was added to clarify that capture efficiency operating parameter records shall be maintained at the facility for a minimum of one year. The amendments are adopted under the Texas Clean Air Act (TCAA), sec.382.017, Texas Health and Safety Code, Annotated (Vernon 1990), which provides TACB with the authority to adopt rules consistent with the policy and purposes of the TCAA. sec.115.422. Control Requirements. For the counties referenced in sec.115.429 of this title (relating to Counties and Compliance Schedules). (1) (No change.) (2) Any surface coating operation that becomes subject to the provisions of sec.115.421 of this title (relating to Emission Specifications) by exceeding the provisions of sec.115.427 of this title (relating to Exemptions) shall remain subject to the provisions in sec.115.421, even if throughput or emissions later fall below exemption limits. sec.115.425. Testing Requirements. For the counties referenced in sec.115.429 of this title (relating to Counties and Compliance Schedules), the following testing requirements shall apply. (1)-(3) (No change.) (4) The capture efficiency shall be measured using applicable procedures outlined in 40 Code of Federal Regulations (CFR), Part 52.741, Subpart O, Appendix B. These procedures are: [graphic] (A) The following are exemptions to capture efficiency testing requirements. (i) If a source installs a permanent total enclosure (PTE) which meets the specifications of Procedure T and which directs all VOC to a control device, then the capture efficiency is assumed to be 100%, and the source is exempted from capture efficiency testing requirements. This does not exempt the source from performance of any control device efficiency testing that may be required. In addition, a source must demonstrate all criteria for a PTE are met during testing for control efficiency. (ii) If a source uses a control device designed to collect and recover VOC (e.g., carbon absorber), an explicit measurement of capture efficiency is not necessary if the following conditions are met. The overall control of the system can be determined by directly comparing the input liquid VOC to the recovered liquid VOC. The general procedure for use in this situation is given in 40 CFR, sec.60.433 with the following additional restrictions. (I) The source must be able to equate solvent usage with solvent recovery on a 24-hour (daily) basis, rather than a 30-day weighted average. This must be done within 72 hours following each 24-hour period. (II) The solvent recovery system (i.e., capture and control system) must be dedicated to a single process line (e.g., one process line venting to a carbon absorber system); or if the solvent recovery system controls multiple process lines, the source must be able to demonstrate that the overall control (i.e., the total recovered solvent VOC divided by the sum of liquid VOC input to all process lines venting to the control system) meets or exceeds the most stringent standard applicable for any process line venting to the control system. (B) The capture efficiency shall be calculated using one of the following four protocols referenced. Any affected source must use one of these protocols, unless a suitable alternative protocol is approved by the executive director and the United States Environmental Protection Agency (EPA). (i) Gas/gas method using Temporary Total Enclosure (TTE). EPA specifications to determine whether a temporary enclosure is considered a TTE are given in Procedure T. The capture efficiency equation to be used for this protocol is: [graphic] (ii) Liquid/gas method using TTE. EPA specifications to determine whether a temporary enclosure is considered a TTE are given in Procedure T. The capture efficiency equation to be used for this protocol is: [graphic] (iii) Gas/gas method using the building or room in which the affected source is located as the enclosure (BE) and in which G and F are measured while operating only the affected facility. All fans and blowers in the BE must be operating as they would under normal production. The capture efficiency equation to be used for this protocol is: [graphic] (iv) Liquid/gas method using a BE in which L and F are measured while operating only the affected facility. All fans and blowers in the building or room must be operated as they would under normal production. The capture efficiency equation to be used for this protocol is: [graphic] (C) The following conditions must be met in measuring capture efficiency. (i) Any error margin associated with a test protocol may not be incorporated into the results of a capture efficiency test. (ii) All affected facilities shall accomplish the initial capture efficiency testing by the schedule in sec.115.429. (iii) During an initial pretest meeting, the Texas Air Control Board (TACB) and the source owner or operator shall identify those operating parameters which shall be monitored to ensure that capture efficiency does not change significantly over time. These parameters shall be monitored and recorded initially during the capture efficiency testing and thereafter during facility operation. TACB may require a new capture efficiency test if the operating parameter values change significantly from those recorded during the initial capture efficiency test. sec.115.426. Recordkeeping Requirements. For the counties referenced in sec.115.429 of this title (relating to Counties and Compliance Schedules), the following recordkeeping requirements shall apply. (1)-(2) (No change.) (3) The owner or operator shall maintain, on file, the capture efficiency protocol submitted under sec.115.425(4) of this title (relating to Testing Requirements). The owner or operator shall submit all results of the test methods and capture efficiency protocols to TACB within 60 days of the actual test date. The source owner or operator shall maintain records of the capture efficiency operating parameter values on site for a minimum of one year. If any changes are made to capture or control equipment, the owner or operator is required to notify the executive director in writing within 30 days of these changes and a new capture efficiency and/or control device destruction or removal efficiency test may be required. (4) In accordance with the schedule referenced in sec.115.429(1), records shall be maintained sufficient to document the applicability of the conditions for exemptions referenced in sec.115.427 of this title (relating to Exemptions). This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on October 10, 1991. TRD-9112626 Lane Hartsock Deputy Director, Air Quality Planning Texas Air Control Boar Effective date: November 1, 1991 Proposal publication date: July 2, 1991 For further information, please call: (512) 908-1451 Subchapter E. Solvent-Using Processes Graphic Arts (Printing) By Rotogravure and Flexographic Processes 31 TAC sec.sec.115.435, 115.436, 115.439 The Texas Air Control Board (TACB) adopts amendments to sec.115.435, concerning testing requirements; sec.115.436, concerning recordkeeping requirements; and sec.115.439, concerning counties and compliance schedules. Sections 115.435 and 115.436 are adopted with changes to the proposed text as published in the July 2, 1991, issue of the Texas Register (16 TexReg 3676). Section 115.439 is adopted without changes and will not be republished. The amendment satisfies a requirement by the United States Environmental Protection Agency (EPA) to correct certain regulation deficiencies and inconsistencies to ensure compliance with applicable requirements for control and collection systems of volatile organic compounds. The amendment to sec.115.435 adds additional requirements for capture efficiency compliance testing to be consistent with EPA guidance. The amendment to sec.115.436 adds a paragraph to explain the additional recordkeeping requirements required by new capture efficiency testing. The amendment to sec.115. 439 adds a new compliance date for new requirements. A public hearing was held on July 22, 1991, in Austin. No oral testimony was presented. Written testimony was received from two commenters during the comment period which was extended from July 23 until July 30, 1991. EPA comments concerning clarification, exemptions, and alternative protocols (covered in detail under sec.115.425) were also incorporated into the final rule language of sec.115.435. Flexible Packaging Association (FPA) was concerned with the lack of demonstrable improvement in accuracy, cost effectiveness, length of test, and lack of universal applicability of the capture efficiency testing in sec.115.435. EPA has determined that a liquid/gas mass balance can not normally be used to satisfy the capture efficiency testing requirements, because of the high probability error associated with the procedure. The staff can appreciate the investments of FPA members to develop alternative ink and coating formulations, enhancements in application techniques, and the installation of add-on collection devices, and additional volatile organic compounds (VOC) destruction devices in order to reduce emissions. Even though improvements have been made, the overall process efficiency can only be determined by testing both capture (collection) efficiency and control device efficiency. The cost of performing capture efficiency testing could possibly be high; however, if a permanent total enclosure or a building or room enclosure exists, then the facility may meet an exemption or need only to perform a one-time capture efficiency test, thereby minimizing expenses. The staff incor- porated certain exemptions and alternative method approval procedures in the final rule language which will provide for a determination on a case-by-case basis. The staff adopted EPA's comment that test results required by sec.115.436 should be submitted within 60 days of the actual test date and that capture efficiency operating parameter records shall be maintained at the facility for a minimum of one year. The amendments are adopted under the Texas Clean Air Act (TCAA), sec.382.017, Texas Health and Safety Code, Annotated (Vernon 1990), which provides TACB with the authority to adopt rules consistent with the policy and purposes of the TCAA. sec.115.435. Testing Requirements. For the counties referenced in sec.115.439 of this title (relating to Counties and Compliance Schedules), compliance shall be determined by applying the following test methods, as appropriate: (1)-(6) (No change.) (7) the capture efficiency which shall be measured using applicable procedures outlined in 40 Code of Federal Regulations (CFR), Part 52.741, Subpart 0, Appendix B. These procedures are: [graphic] (A) The following are exemptions to capture efficiency testing requirements. (i) If a source installs a permanent total enclosure (PTE) which meets the specifications of Procedure T and which directs all VOC to a control device, then the capture efficiency is assumed to be 100%, and the source is exempted from capture efficiency testing requirements. This does not exempt the source from performance of any control device efficiency testing that may be required. In addition, a source must demonstrate all criteria for a PTE are met during testing for control efficiency. (ii) If a source uses a control device designed to collect and recover VOC (e.g., carbon absorber) , an explicit measurement of capture efficiency is not necessary if the following conditions are met. The overall control of the system can be determined by directly comparing the input liquid VOC to the recovered liquid VOC. The general procedure for use in this situation is given in 40 Code of Federal Regulation (CFR), sec.60.433 with the following additional restrictions. (I) The source must be able to equate solvent usage with solvent recovery on a 24-hour (daily) basis, rather than a 30-day weighted average. This must be done within 72 hours following each 24-hour period. (II) The solvent recovery system (i.e., capture and control system) must be dedicated to a single process line (e.g., one process line venting to a carbon absorber system); or if the solvent recovery system controls multiple process lines, the source must be able to demonstrate that the overall control (i.e., the total recovered solvent VOC divided by the sum of liquid VOC input to all process lines venting to the control system) meets or exceeds the most stringent standard applicable for any process line venting to the control system. (B) The capture efficiency shall be calculated using one of the following four protocols referenced. Any affected source must use one of these protocols, unless a suitable alternative protocol is approved by the executive director and EPA. (i) Gas/gas method using temporary total enclosure (TTE). EPA specifications to determine whether a temporary enclosure is considered a TTE are given in Procedure T. The capture efficiency equation to be used for this protocol is: [graphic] (ii) Liquid/gas method using TTE. EPA specifications to determine whether a temporary enclosure is considered a TTE are given in Procedure T. The capture efficiency equation to be used for this protocol is: [graphic] (iii) Gas/gas method using the building or room in which the affected source is located as the enclosure (BE) and in which G and F are measured while operating only the affected facility. All fans and blowers in the BE must be operating as they would under normal production. The capture efficiency equation to be used for this protocol is: [graphic] (iv) Liquid/gas method using a BE in which L and F are measured while operating only the affected facility. All fans and blowers in the building or room must be operated as they would under normal production. The capture efficiency equation to be used for this protocol is: [graphic] (C) The following conditions must be met in measuring capture efficiency. (i) Any error margin associated with a test protocol may not be incorporated into the results of a capture efficiency test. (ii) All affected facilities shall accomplish the initial capture efficiency testing by the schedule in sec.115.439 of this title (relating to Counties and Compliance Schedules). (iii) During an initial pretest meeting, the Texas Air Control Board (TACB), and the source owner or operator shall identify those operating parameters which shall be monitored to ensure that capture efficiency does not change significantly over time. These parameters shall be monitored and recorded initially during the capture efficiency testing and thereafter during facility operation. TACB may require a new capture efficiency test if the operating parameter values change significantly from these recorded during the initial capture efficiency test. (8) minor modifications to these test methods and procedures approved by the executive director. sec.115.436. Recordkeeping Requirements. For the counties referenced in sec.115.439 of this title (relating to Counties and Compliance Schedules), the owner or operator of any graphic arts facility subject to the control requirements of sec.115.432 of this title (relating to Control Requirements) shall: (1)-(5) (No change.) (6) maintain on file the capture efficiency protocol submitted under sec.115.435(7) of this title (relating to Testing Requirements). The owner or operator shall submit all results of the test methods and capture efficiency protocols to the Texas Air Control Board (TACB) within 60 days of the actual test date. The source owner or operator shall maintain records of the cap- ture efficiency operating parameter values on-site for a minimum of one year. If any changes are made to capture or control equipment, the owner or operator is required to notify the executive director in writing within 30 days of these changes and a new capture efficiency and/or control device destruction or removal efficiency test may be required. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on October 10, 1991. TRD-9112625 Lane Hartsock, Deputy Director Air Quality Planning Texas Air Control Board Effective date: November 1, 1991 Proposal publication date: July 2, 1991 For further information, please call: (512) 908-1451 TITLE 34. PUBLIC FINANCE Part IV. Employees Retirement System of Texas 34 TAC sec.71.9 The Employees Retirement System of Texas adopts the repeal of sec.71.9, concerning military service credit-eligible periods, without changes to the proposed text as published in the August 13, 1991, issue of the Texas Register (16 TexReg 60). The rule is being repealed to comply with legislation adopted by the 72nd Legislature. State employees will be able to purchase service credit for any active duty military service without regard to whether it was during a time of war or armed conflict. No comments were received regarding adoption of the repeal. The repeal is adopted under the Texas Government Code, sec.815.102, which provides the Employees Retirement System of Texas with the authority to adopt rules for the administration of the funds of the retirement system. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on October 8, 1991. TRD-9112341 Charles D. Travis Executive Director Employees Retirement System of Texas Effective date: October 29, 1991 Proposal publication date: August 13, 1991 For further information, please call: (512) 867-3336 34 TAC sec.71.17 The Employees Retirement System of Texas adopts an amendment to sec.71.17, concerning credit for unused accumulated sick leave, without changes to the proposed text as published in the August 13, 1991, issue of the Texas Register (16 TexReg 60). The rule is being amended to correspond with legislation passed by the 72nd Legislative Session. The rule is amended so as to comply with legislation passed by the 72nd Legislature, and members with over 40 years' service will be entitled to additional credit for retirement purposes. No comments were received regarding adoption of the amendment. The amendment is adopted under sec.815.102, Texas Government Code, which provides Employees Retirement System of Texas with the authority to adopt rules for the administration of the funds of the retirement system. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on October 8, 1991. TRD-9112338 Charles D. Travis Executive Director Employees Retirement System of Texas Effective date: October 29, 1991 Proposal publication date: August 13, 1991 For further information, please call: (512) 867-3336 Chapter 73. Benefits. 34 TAC sec.73.19 The Employees Retirement System of Texas adopts the repeal of sec.73.19, concerning disability retiree-continuation of benefits, without changes to the proposed text as published in the August 13, 1991, issue of the Texas Register (16 TexReg 60). The rule is being repealed to comply with legislation adopted by the 72nd Legislature. The repeal will allow disability retirees to earn additional income without their disability annuity being reduced. No comments were received regarding adoption of the repeal. The repeal is adopted under the Texas Government Code, sec.815.102, which provide the Employees Retirement System of Texas with the authority to adopt rules for the administration of the funds of the retirement system. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on October 8, 1991. TRD-9112340 Charles D. Travis Executive Director Employees Retirement System of Texas Effective date: October 29, 1991 Proposal publication date: August 13, 1991 For further information, please call: (512) 867-3336 Chapter 77. Judicial Retirement 34 TAC sec.77.5 The Employees Retirement System of Texas adopts the repeal of sec.77.5, concerning military service credit-eligible periods, without changes to the proposed text as published in the August 13, 1991, issue of the Texas Register (16 TexReg 60). The rule is being repealed to comply with legislation adopted by the 72nd Legislature. Members of Judicial Retirement Systems I and II will be able to purchase service credit for any active duty military service without regard to whether it was during a time of war or conflict. No comments were received regarding adoption of the repeal. The repeal is adopted under the Texas Government Code, sec.835.002 and sec.840. 002, which provides the Employees Retirement System of Texas with the authority to adopt rules for the administration of the funds of the retirement system. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on October 8, 1991. TRD-9112339 Charles D. Travis Executive Director Employees Retirement System of Texas Effective date: October 29, 1991 Proposal publication date: August 13, 1991 For further information, please call: (512) 867-3336 Chapter 81. Insurance 34 TAC sec.81.7 The Employees Retirement System of Texas adopts an amendment to sec.81.7, concerning enrollment and participation, with changes to the proposed text as published in the August 13, 1991, issue of the Texas Register (16 TexReg 60). Trustee rules are modified in compliance with legislation to allow state employees and retirees who do not reside in any HMO service area an annual opportunity to enroll eligible dependents without evidence of insurability. Rules will also be modified to clarify the effective date of coverage changes and to allow a state employee to reinstate canceled coverage without evidence of insurability when he/she returns to work from leave without pay due to a certified work-related injury. The amendment will clarify and make consistent with other sections of the trustee rules the effective date of a decrease or cancelation of coverage; clarify the effective date of coverage for a state employee who terminates employment and returns to work within the same contract year; and correct an inequity in benefits pertaining to a state employee whose coverages are canceled while on leave without pay due to a certified work-related disability. No comments were received regarding adoption of the amendment. The amendment is adopted under the Texas Insurance Code, sec.Article 3.50-2, sec.4, which provides the Employees Retirement System of Texas with the authority to promulgate all rules, regulations, plans, procedures, and orders reasonably necessary to implement and carry out the purposes and provisions of the Texas Employees Group Insurance Benefits Act. sec.81.7. Enrollment and Participation. (a)-(e) (No change.) (f) Changes in coverages beyond the first 31 days of eligibility. (1) (No change.) (2) The evidence of insurability provision applies only to those employees, retirees, or eligible dependents who: (A) -(B) (No change.) (C) enrolled in any coverage under the insured plan and later dropped or were canceled from such coverage, except as provided in Subsection (h)(2) and (3) of this section. (3)-(7) (No change.) (8) Participants who do not reside in any HMO service area will be provided an annual opportunity to enroll eligible dependents in dependent coverages without evidence of insurability. Such opportunity will be scheduled at times to be announced by the Employees Retirement System. Coverages applied for during this period will be effective on a date determined by the Trustees. (9) An employee or retiree who wishes to decrease or cancel coverage may do so at any time. Coverage will continue through the last day of the month following the date of application. (10) An eligible dependent spouse or child who is insured as an employee for health coverage under the Uniform Group Insurance Program becomes eligible for coverage as a dependent on the day following termination of State employment. Eligible dependent children who are insured as dependents for health coverage under the Uniform Group Insurance Program by an employee who terminates State employment also become eligible for coverage on the day following termination of employment. In order to be eligible for coverage, dependents must meet the definition of dependent contained in sec.81.1 of this title (relating to Definitions) and be enrolled for coverage by the State employee of whom they are the eligible dependent and who is enrolled for health coverage under the program. The effective date of coverage will be the first day of the month following termination of employment if an application is submitted on or within 30 days following the date the dependent(s) become eligible under this rule. (11) Notwithstanding the effective dates of coverages, as defined in sec.81.7(f)(1)-(9) of this title (relating to Enrollment) , an employee, retiree, or other eligible participant in the Uniform Group Insurance Program may complete an application or applications during the annual limited enrollment period to make coverage changes, as determined by the Trustee, to be effective September 1. (g) (No change.) (h) Reinstatement in the program. (1) Unless specifically prohibited by these sections or contractual provisions, an employee who terminates employment and returns to active duty within the same contract year may reinstate health coverage for himself and his dependents identical to, and optional coverages no greater than, those that were in effect when the employee terminated by submitting an application for the coverages. The application must be submitted on the first day the employee returns to active duty, and, unless the employee completes the application indicating coverages are to be effective on the first day of the month following the date the employee returns to active duty, the coverages will be effective on the day the employee returns to active duty. Dependents acquired during the break in employment may be added on the application. A returning employee who has selected coverages less than those for which the employee is eligible may reinstate any waived coverages by submitting the appropriate application during the 30 days following the date the employee returns to active duty. The change in coverage will become effective on the first day of the month following the date of application except that an application completed on the first day of the month shall be effective on the first day of the month. (2) (No change.) (3) Employees whose coverages were canceled during a period of leave without pay due to a certified work-related disability may, upon return to active duty status, reinstate all coverages that were in effect on the day immediately prior to entering the leave without pay status, except as provided in sec.81.11(c)(4) of this title (relating to Termination of Coverage), and provided application to reinstate such coverages is made within 30 days of the return to active duty. Evidence of insurability shall not apply. Coverages applied for on the first day of return to active duty will be effective on that day unless the employee completes the application indicating coverages are to be effective on the first day of the month following the date the employee returns to active duty. Coverages applied for after the first day of return to active duty and within 30 days after that day will be effective on the first day of the month following the date of application; however, coverages applied for on the first day of the month will be effective on that day. (i) (No change.) This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on October 8, 1991. TRD-9112337 Charles D. Travis Executive Director Employees Retirement System of Texas Effective date: October 29, 1991 Proposal publication date: August 13, 1991 For further information, please call: (512) 867-3336 TITLE 40. SOCIAL SERVICES AND ASSISTANCE Part I. Texas Department of Human Services Chapter 29. Purchased Health Services Subchapter G. Hospital Services 40 TAC sec.29.609 The Texas Department of Human Services (DHS) adopts an amendment to sec.29. 609, concerning hospital services, without changes to the proposed text as published in the September 3, 1991, issue of the Texas Register (16 TexReg 4829). The justification for amending sec.29.609 is to establish a third disproportionate share program, which will provide additional reimbursement to significant disproportionate share providers. This program is being established to comply with Senate Bill 82 which was passed during this last special legislative session. Qualifying hospitals are limited to hospitals and hospital districts, not including state-owned teaching hospitals, with Medicaid patient days greater than one standard deviation above the mean number of Medicaid days for all hospitals participating in the state, and with Medicaid patient days greater than or equal to 12% of all patient census days of the hospital. The section as amended will function by providing significant disproportionate share providers with additional reimbursement. No comments were received regarding adoption of the amendment. However, implementation is contingent upon approval of the Title XIX State Plan amendment by the Health Care Financing Administration. The amendment is adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on October 8, 1991. TRD-9112363 Nancy Murphy Agency liaison, Policy and Document Support Texas Department of Human Services Effective date: November 1, 1991 Proposal publication date: September 3, 1991 For further information, please call: (512) 450-3765 40 TAC sec.29.610 The Texas Department of Human Services (DHS) adopts new sec.29.610, concerning hospital services, without changes to the proposed text as published in the July 26, 1991, issue of the Texas Register (16 TexReg 4070). The new rule is justified because certain hospitals will now be eligible to receive outlier payment adjustments for extended or expensive stays of hospitalization, therefore providing additional revenues to those facilities. The new rule will function by defining certain hospitals to be dispro- portionate share hospitals for the purpose of receiving outlier payment adjustments. Hospitals currently affected are those hospitals that would have qualified for disproportionate share payments during state fiscal year 1990 if more recent data had been available from the Texas Department of Health regarding the total annual number of patient days in each hospital. No comments were received regarding adoption of the new section. However, implementation is contingent upon approval of the Title XIX State Plan amendment by the Health Care Financing Administration. The new section is adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on October 8, 1991. TRD-9112364 Nancy Murphy Agency liaison, Policy and Document Support Texas Department of Human Services Effective date: October 29, 1991 Proposal publication date: July 26, 1991 For further information, please call: (512) 450-3765