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 1. ADMINISTRATION Part IV. Office of the Secretary of State Chapter 71. Office of the Secretary of State Practice and Procedure 1 TAC sec.sec.71.4, 71.6-71.10, 71.12 The Office of the Secretary of State adopts amendments to sec.sec.71.4, 71.6-71. 10, and new sec.71.12, concerning faxed filings and the credit card payment option for documents filed with the secretary of state, without changes to the proposed text as published in the November 1, 1991, issue of the Texas Register (16 TexReg 6163). The amendments and new section were necessary to implement legislative changes included in House Bill 278, which took effect on August 26, 1991, and House Bill 11, which took effect on September 1, 1991. Section 71.8(c)(3) has been changed to include credit cards in the list of payment mechanisms to the secretary of state. A minor grammatical change has been made to sec.71.12(e)(1)(4) . House Bill 278 eliminated the requirement for original signatures on documents filed by corporations and other entities by authorizing the secretary of state to accept document filings with facsimile signatures. In addition, as authorized by House Bill 278, the secretary of state will accept document filings electronically submitted by transmission over a facsimile (FAX) machine to the Office of the Secretary of State. In addition, House Bill 11 authorized the secretary of state to accept credit card payment of filing fees and to charge a reasonable fee for the use of such credit card by members of the public. The amendments and new section will establish rules for the implementation of FAX filings and credit card payment of filing fees. In addition, the amendments will clarify the expedited handling of document procedures to allow sufficient time to review documents received late in the business day. No comments were received regarding adoption of the amendments and new section. The amendments and new section are adopted under the Administrative Procedure and Texas Register Act, sec.6252-13a(4)(a)(1), authorizing the secretary of state to adopt rules of practice setting forth the nature and requirements of all formal and informal procedures available; the Government Code, sec.405.031(e), authorizing the secretary of state to assess a reasonable fee to reimburse the secretary of state for the costs involved in the use of a credit card; the Texas Business Corporation Act, Article 9.03, the Texas Limited Liability Company Act, Article 8.03, and the Texas Non-Profit Corporation Act, Article 1396-9.04, all of which give the secretary of state the power and authority reasonably necessary to enable the secretary of state to administer each of the respective Acts efficiently and to perform the duties therein imposed upon the secretary of state. 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 December 11, 1991. TRD-9115747 Lorna Wassdorf Special Assistant, Statutory Filings Division Office of the Secretary of State Effective date: January 2, 1992 Proposal publication date: November 1, 1991 For further information, please call: (512) 463-5701 Chapter 79. Corporations General Information and Correspondence The Office of the Secretary of State adopts amendments to sec.sec.79.1-79.3, 79. 8, 79.11, 79.17, 79.30-79.34, 79.36-79.50, and 79.54, and new sec.sec.79.13- 79.15 and 79.52, concerning the Corporations Section. Sections 79.8, 79.14, 79.30, 79. 34, 79.36, 79.41, 79.43, and 79.48 are adopted with changes to the proposed text as published in the November 1, 1991, issue of the Texas Register (16 TexReg 6165). Section 79.1-79.3, 79.11, 79.13, 79.15, 79.17, 79.31-79.33, 79.42, 79.44-79.47, 79.49, 79.50, 79.52, and 79.54 are adopted without changes and will not be republished. The amendments and new sections are necessary to implement legislative changes generated by House Bill 278, which took effect on August 26, 1991. Minor changes to the following sections have been made for grammatical and stylistic reasons: 79.8, 79.14, 79.30, 79.43 (the heading), 79.43(2), and 79.48. In addition, sec.sec.79.34, 79.36-79.41, and 79.43 have been changed to delete the quotation marks around the categories of name similarity and sec.sec.79.34(a) and (b) have been changed to include periods in the abbreviations of the corporate endings. Both of these changes make the presentation of these terms consistent with provisions of the Texas Business Corporation Act, the Texas Limited Liability Company Act, and the Texas Revised Limited Partnership Act. Section 79. 34(a) has been changed to delete the word "unlimited." Finally, by way of reorganization, new sec.79.34(d) has been added to incorporate the last sentences of sec.79.34(a), (b), (c). The amendments and new sections will function to include limited liability companies in the existing name availability rules. They also address procedures concerning the delayed effectiveness of certain filings with the secretary of state. The amendments and new sections also address electronically transmitted filings to the secretary of state and provide for the identification of applicants for name reservations and name registrations. No comments were received regarding adoption of the amendments and new sections. 278>1 TAC sec.sec.79.1-79.3, 79.8, 79.11, 79.13, 79.15, 79.17 The amendments and new sections are adopted under the Administrative Procedure and Texas Register Act, sec.6252-13a(4)(a)(1), authorizing the secretary of state to adopt rules of practice setting forth the nature and requirements of all formal and informal procedures available; the Texas Business Corporation Act, Article 9.03, the Texas Limited Liability Company Act, Article 8.03, and the Texas Non-Profit Corporation Act, Article 1396-9.04 all of which give the secretary of state the power and authority reasonably necessary to enable the secretary of state to administer each of the respective Acts efficiently and to perform the duties therein imposed upon the secretary of state. sec.79.8. Date of Receipt. The date of receipt of a letter or document is the date stamped or written on the letter, document, or envelope by an employee of the secretary of state. A postmark, a date generated on a letter or document solely as a result of its electronic transmission, or a date placed on a letter, document, or envelope by some person other than an employee of the secretary of state cannot be considered as the date of receipt. sec.79.14. Statement Regarding Delayed Effective Condition. (a) Contents. Pursuant to the Texas Business Corporation Act, Article 10.03 and the Texas Revised Limited Partnership Act, Article 2.12, when a condition triggering the effectiveness of a document filing has been satisfied or waived, a statement regarding the delayed effective condition must be submitted to the secretary of state. Such statement must contain the following information: (1) the name of the business entity; (2) the charter or file number of the entity; (3) the document to which the statement applies; (4) the date of filing of the document to which the statement applies; (5) the date on which the condition was satisfied or waived; (6) the signatures required by the Texas Business Corporation Act, Article 10.03 and the Texas Revised Limited Partnership Act, Article 2.12. (b) Timeliness. Pursuant to the Texas Business Corporation Act, Article 10.03, the statement regarding the delayed effective condition should be filed in the Office of the Secretary of State by the date of the 90th day from the date of filing as defined in sec.79.13 of this title (relating to Determining the Date of the 90th Day After the Date of Filing). Statements regarding the delayed effective condition received after the date of the 90th day from the date of filing will be filed for record, however, the secretary of state will not determine substantial compliance with the provisions of the Texas Business Corporation Act, Article 10.03. 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 December 11, 1991. TRD-9115749 Lorna Wassdorf Special Assistant, Statutory Filing Division Office of the Secretary of State Effective date: January 2, 1992 Proposal publication date: November 1, 1991 For further information, please call: (512) 463-5701 Entity Name Availability 1 TAC sec.sec.79.30-79.34, 79.36-79.50, 79.52, 79.54 The amendments and new sections are adopted under the Administrative Procedure and Texas Register Act, sec.6252-13a(4)(a)(1), authorizing the secretary of state to adopt rules of practice setting forth the nature and requirements of all formal and informal procedures available; the Texas Business Corporation Act, Article 9.03 the Texas Limited Liability Company Act, Article 8. 03, and the Texas Non-Profit Corporation Act, Article 1396-9.04, all of which give the secretary of state the power and authority reasonably necessary to enable the secretary of state to administer each of the respective Acts efficiently and to perform the duties therein imposed upon the secretary of state. sec.79.30. Applicability. Pursuant to the Texas Business Corporation Act, Article 2.05, the Texas Revised Limited Partnership Act, sec.1. 03, and the Texas Limited Liability Company Act, Article 2.03, a proposed entity name may not be the same as, or deceptively similar to, the name of a Texas or qualified foreign corporation, limited partnership, or limited liability company. In accordance therewith, these sections shall apply to all name availability determinations made for either a corporation, limited partnership, or limited liability company name. Such names may be set forth in an entity's organizational document, reserved or registered name, or application for a foreign entity to transact business in Texas. Wherever the terms "entity" or "entities" appears in this entity name availability section, they may be replaced with the following terms: "domestic or foreign corporation;" "domestic or foreign limited partnership;" or "domestic or foreign limited liability company" or the plural of such terms. sec.79.34. Words of Incorporation or Organization. (a) Words of incorporation include "company," "corporation," "incorporated," and, in the case of a foreign corporation, "limited," and their acceptable abbreviations. The acceptable abbreviations are, respectively: "Co.," "Corp.," "Inc.," and "Ltd." The words "companies," "corporations," and "incorporation" when used alone do not satisfy the statutory requirements for words of incorporation. (b) Words of organization of a domestic or foreign limited partnership include "limited partnership," "limited," and their acceptable abbreviations. The acceptable abbreviations are, respectively: "L.P.," or "Ltd." The words "limited partnerships," or other variations of the statutory terms when used alone are not acceptable. (c) The word of organization of a domestic or foreign limited liability company is "Limited." The acceptable abbreviations are: "Ltd." and "L.C." The abbreviation "L.L.C" or the word "Company" or other variations of the statutory terms when used alone are not acceptable. (d) Neither the words nor the abbreviations listed in subsections (a), (b) , or (c) of this section or other variations of permissible statutory terms may be used as a sufficient basis to distinguish two otherwise deceptively similar or same names. sec.79.36. Same Defined. Entity names are the same if a comparison of the names reveals no difference. sec.79.37. Deceptively Similar Defined. Entity names are deceptively similar if on comparison of the names by the secretary of state there is an apparent difference, but the difference is such that the names are likely to be confused. sec.79.38. Deceptively Similar Name Not Acceptable. A proposed entity name which is deemed to be deceptively similar to an entity name on file with the secretary of state cannot be filed even though the existing entity may grant a letter of consent. sec.79.39. Deceptively Similar Name. A proposed entity name is deemed to be deceptively similar to an entity name on file if any of the following conditions exist. (1) The difference in the names consists in the use of different words of incorporation or organization. Example: Sampson, Inc. is deceptively similar to Sampson Corporation. (2) The difference in names consists in the use of different particles of speech. Example: The Slaughter Co. is deceptively similar to Slaughter Co. (3) The difference consists in the use of periods, spaces, and symbols. (A) Example: The following names are deceptively similar: (i) AGX Corp.; (ii) A G X Corp; (iii) A.G.X. Corp; (iv) AG*X* Corp; (v) AG&X Corp; (vi) A&GX Corp; (vii) AG-X Corp. (B) Example: Fair View Rest Home, Inc. is, deceptively similar to Fairview Rest Home, Inc. (4) The difference consists in the presence or absence of letters which do not alter the names sufficiently to make them readily distinguishable. This applies to names that are spelled differently, but sound alike when spoken thus making the names difficult to distinguish upon hearing. (A) Example: Exon, Exxonn, or Exxons are deceptively similar to Exxon; (B) Example: Centennial Alarm Systems Corp. is deceptively similar to Sentennial Alarm Systems, Inc.; (C) Example: Chemtech Corporation is deceptively similar to Kemtek Incorporated. (D) Example: AA Trucking is deceptively similar to Double A Trucking. (E) Example: Four Winds, Inc. is deceptively similar to 4 Winds Corp. and IV Winds Inc. sec.79.40. Similar Requiring Letter of Consent Defined. Entity names are similar requiring letter of consent if a comparison of the names by the secretary of state reveals similarities which may tend to be misleading as to the identity or affiliation of the entity, but not to the extent that the names are the same or deceptively similar. sec.79.41. Similar Requiring Letter of Consent Acceptable with Letter. A proposed name which is deemed to be similar requiring letter of consent cannot be filed without a letter of consent. No waiver of a required letter of consent will be allowed even though it may appear that the existing entity is not actively engaged in business, is about to change its name, be dissolved, forfeited, or merged out of existence. sec.79.43. Similar Requiring Letter of Consent. A proposed entity name is similar requiring letter of consent if any of the following conditions exist. (1) The proposed entity name is the same as, or deceptively similar to, an entity name on file except for a geographical designation at the end of the name. (A)-(B) (No change.) (2) The first two or more words of a proposed entity name are the same as, or deceptively similar to, the first two words of an entity name on file, and are not frequently used in combination. (A)-(D) (No change.) (E) Example: Acme Electric Corporation would need a letter of consent from Acme Electrical Inc. (3) The proposed entity name is the same as, or deceptively similar to, an entity name on file except for a numerical expression which implies that the proposed entity is an affiliate of or in a series with the existing entity. Example: A letter of consent from an existing entity named United Company would be required in order to file any of the following: (A)-(C) (No change.) (4) If the entity name on file has only one significant word and the proposed entity name consists of the same word followed by some other significant word, the proposed entity name is not similar requiring letter of consent. Example: A letter of consent from an existing entity named United Company would not be required in order to file any of the following: (A)-(I) (No change.) (5) The proposed entity name contains the same words as an existing entity name but the words are inverted. (A)-(B) (No change.) sec.79.48. Matters Not Considered. Only the proposed entity name, the names of active (not dead, dissolved, or forfeited) entities, name reservations, and name registrations for entities on file are considered in determining name availability. Among matters not considered are the following: (1) whether the purpose of a proposed entity is the same as or similar to the purpose of an existing entity; (2) whether the entities will be carrying out activities in the same or nearby locations; (3) whether an analogous situation has previously been acted upon by the Corporations Section; (4) (No change.) (5) whether an existing entity is actively engaged in business, or has a telephone listing, or a location of a place of business; (6) whether an existing entity is about to change its name, or be dissolved, or merged out of existence; (7) whether a response to an inquiry can be obtained from an existing entity; (8) (No change.) (9) whether the applicant is more or less important, extensive, widely known, or influential than an existing entity; (10) whether the applicant has a prior or superior right to the use of a name apart from what might be shown on inspection of the names of active entities on file in the entity records of the secretary of state; (11) whether infringement or unfair trade practice has occurred or might occur; or (12) whether an existing entity has filed for or intends to file for bankruptcy. 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 December 11, 1991. TRD-9115748 Lorna Wassdorf Special Assistant, Statutory Filings Division Office of the Secretary of State Effective date: January 2, 1992 Proposal publication date: November 1, 1991 For further information, please call: (512) 463-5701 Chapter 80. Unincorporated Business Entities 1 TAC sec.sec.80.1-80.4 The Office of the Secretary of State adopts new sec.sec.80.1-80.4, concerning unincorporated business entities. Sections 80.1 and 80.4 are adopted with changes to the proposed text as published in the November 1, 1991, issue of the Texas Register (16 TexReg 6168). Sections 80.2 and 80.3 are adopted without changes and will not be republished. The new sections were necessary to adopt procedures to file registered limited liability partnerships, created by House Bill 278, effective August 26, 1991. Section 80.1 contains a minor grammatical change. Section 80.4 has been changed to replace the term, "articles of correction" with the term, "notice of correction." This change has been made to distinguish the corrective filing for registered limited liability partnerships from the similar procedure for correcting an inaccurate or defective instrument for other entities as set forth in the Texas Miscellaneous Corporation Act, Article 1302-7.01. Since the Texas Miscellaneous Corporation Act refers to its corrective filing as "articles of correction," the term "notice of correction" will be used in these sections to describe the corrective filing for registered limited liability partnerships. The secretary of state also deleted reference to the filing fee of $15 because the secretary of state lacks statutory authority to establish such fee. The sections function to set forth the items required in an application for registration as a registered limited liability partnership. The sections also address procedures for withdrawal of an application for registration and typographical errors appearing in registered limited liability partnership applications. No comments were received regarding adoption of the new sections. The new sections are adopted under the Administrative Procedure and Texas Register Act, sec.6252-13a(4)(a)(1), authorizing the secretary of state to adopt rules of practice setting forth the nature and requirements of all formal and informal procedures available. sec.80.1. Application for Registration as a Registered Limited Liability Partnership. (a) Initial application. To become a registered limited liability partnership, a partnership must comply with the Texas Uniform Partnership Act, Article 6132b, sec.45-A to sec.45-C. The secretary of state has promulgated a form for this purpose, however, use of such form is not mandatory. Applications submitted for filing with the secretary of state must contain the following information: (1) the name of the partnership; (2) the federal tax identification number of the partnership; (3) the street address of its principal office in this state and outside this state, as applicable; (4) the number of partners at the date of application; (5) a brief statement of the business in which the partnership engages. (b) Name of the partnership. The name of the registered limited liability partnership shall contain the words "registered limited liability partnership" or the abbreviation "L.L.P." as the last words or letters of its name. (c) Copies. Two copies of the application shall be filed with the secretary of state along with the appropriate filing fee. The secretary of state will endorse the word "filed," and the month, day, and year of the filing on each copy of the application. The secretary of state will then return one copy of the filed application and a letter of acknowledgment to the registered limited liability partnership. (d) Registration. A partnership is registered on filing a completed initial or renewal application executed as specified in the Texas Uniform Partnership Act, Article 6132b, sec.45-A to sec.45-C in duplicate with the required fee. (e) Date of filing. The date of filing of any document specified in these sections which conforms to law and for which the filing fee has been paid will be the same date as the date of receipt. If a document does not conform to law, it will be returned to the sender. When the document is corrected and resubmitted, the date of filing of the document will be the same date as the date of the last receipt. The date of filing may not be a date prior to the date on which the document is found to conform to law. (f) Expiration. An initial or renewal application filed under this section and registered by the secretary of state shall be effective for a period of one year from the date on which the application for registration is filed. (g) Renewal. A registered limited liability partnership may renew its registration from year to year by filing annually an application for renewal in the manner prescribed for the filing of an original application. Such renewal application shall be filed during the 90 days preceding the expiration date of the then current registration. The renewal application must be accompanied by a fee of $100 for each person who is a partner on the date of renewal. (h) Revocation of registration. The secretary of state may revoke the registration of a partnership that pays a fee by an instrument that is dishonored when presented by the secretary of state for payment and the partnership fails to pay the fee within 30 days after the secretary of state mails notice of dishonor of the instrument to the partnership at its principal office in this state or outside this state as applicable. A revocation is effective as of the date of filing of the application but does not affect any prior registration. sec.80.4. Typographical Corrections. If a document filed under the Texas Uniform Partnership Act, Article 6132b, sec.45-A to sec.45-C contains a typographical error, the error may be corrected by filing a notice of correction executed by a majority in interest of the partners or by one or more partners authorized by a majority in interest of the partners. The notice of correction must contain the following information: the name of the partnership; the federal tax identification number of the partnership; the identity of the document being corrected; the date on which the document being corrected was filed; the typographical error being corrected; and the correction of the error. Two copies of the notice of correction must be filed. 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 December 11, 1991. TRD-9115750 Lorna Wassdorf Special Assistant, Statutory Filings Division Office of the Secretary of State Effective date: January 2, 1992 Proposal publication date: November 1, 1991 For further information, please call: (512) 463-5701 TITLE 10. COMMUNITY DEVELOPMENT Part I. Texas Department of Housing and Community Affairs Chapter 9. Texas Community Development Program Subchapter A. Allocation of Program Funds 10 TAC sec.sec.9.1, 9.3, 9.7 The Texas Department of Housing and Community Affairs adopts new sec.sec.9.1, 9. 3, and 9.7, concerning allocation of program funds. Section 9.1 is adopted with changes to the proposed text as published in the November 12, 1991, issue of the Texas Register (16 TexReg 6524). Section 9.3 and sec.9.7 are adopted without changes and will not be republished. The new sections establish general provisions for the Texas Community Development Program and the application requirements and selection procedures for 1991 community development block grant funds under the Texas capital fund and the governor's special assistance fund for small and minority businesses. Senate Bill Number 41, as passed by the 72nd Legislature, Second Called Session, transferred the community development block grant program from the Texas Department of Commerce to the Texas Department of Housing and Community Affairs on September 1, 1991. Previous community development block grant program rules were Part V of this title sec.sec.178.10, 178.13, and 178.19. The new sections include the 1991 application requirements and selection procedures governing the Texas capital fund and the governor's special assistance fund for small and minority businesses. The new sections also include general provisions, citizen participation requirements, appeals, and performance threshold requirements for the Texas Community Development Program. No comments were received regarding adoption of the new sections. Section 9. 1(f)(4) has been changed, however, to update a citation to the complaint procedures. The new sections are adopted under Texas Civil Statutes, Article 4413(501), sec.2.07, which provide the Texas Department of Housing and Community Affairs with the authority to allocate community development block grant nonentitlement area funds to eligible counties and municipalities according to department rules. sec.9.1. General Provisions. (a) Definitions and abbreviations. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise. (1) Applicant-A unit of general local government which is preparing to submit or has submitted an application for Texas community development funds to the department. (2) Application-A written request for Texas Community Development Program funds in the format required by the department. (3) Community development block grant nonentitlement area funds-The funds awarded State of Texas pursuant to the Housing and Community Development Act of 1974, Title I, as amended, (42 United States Code, sec.5301 et seq) and the regulations promulgated thereunder in 24 Code of Federal Regulations, Part 570. (4) Community-A unit of general local government. (5) Contract-A written agreement, including all amendments thereto, executed by the department and contractor which is funded with community development block grant nonentitlement area funds. (6) Contractor-A unit of general local government with which the department has executed a contract. (7) Department-The Texas Department of Housing and Community Affairs. (8) Local government-A unit of general local government. (9) Low-and moderate-income person-A member of a family which earns less than 80% of the area median family income, as defined under the United States Department of Housing and Urban Development sec.8 Assisted Housing Program. (10) Nonentitlement area-An area which is not a metropolitan city or part of an urban county as defined in 42 United States Code, sec.5302. (11) Permanent job-A job for which continuation of employment is not dependent on funds provided through the Texas Community Development Program. (12) Poverty-The current official poverty line established by the director of the Federal Office of Management and Budget. (13) Primary beneficiary-A low-or moderate-income person. (14) Regional review committee-A regional community development review committee, one of which is established in each of the 24 state planning regions established by the governor pursuant to the Texas Local Government Code, sec.391.003. (15) State review committee-The State Community Development Review Committee established pursuant to Texas Civil Statutes, Article 4413(501), sec.2.10. (16) Underemployed person-A person who works less than 40 hours per week not by choice, at a salary that is not commensurate with his skills and experience. (17) Unemployed person-A person between the ages of 16 and 64, inclusive, who is not presently working but is seeking employment. (18) Unit of general local government-An entity defined as a unit of general local government in 42 United States Code, sec.5302(a)(1), as amended. (b) Overview. Community development block grant nonentitlement area funds are distributed by the Texas Community Development Program to eligible units of general local government in the following program areas: (1) community development fund; (2) Texas capital fund; (3) planning/capacity building fund; (4) emergency fund; (5) urgent need fund; (6) governor's special assistance fund for small and minority businesses; (7) colonia fund. (c) Types of applications. (1) Single jurisdiction applications. An applicant may submit one application per Texas Community Development Program fund, as outlined in subsection (b) of this section, on its own behalf per funding cycle (except as specified for the Texas capital fund, the governor's special assistance fund for small and minority businesses, and the governor's small business special assistance fund). A city may include beneficiaries who reside in the extraterritorial jurisdiction of the city provided that at least 30% of the beneficiaries of the project reside within the corporate limits of the jurisdiction and, if funded, the city will be required to annex the area in its extraterritorial jurisdiction prior to receiving any contract construction funds. If the city is unwilling to annex the area, the city and county in which the area is located must submit the project as a joint application. (2) Joint applications. Subject to approval by the United States Department of Housing and Urban Development and subject to each participating community satisfying the application requirements of the Texas Community Development Program fund under which the application is submitted and this paragraph, an application will be accepted from two or more units of general local government if the application clearly demonstrates that the proposed activities will mutually benefit the residents of the communities applying for funds. A joint application solely for administrative convenience will not be accepted. Any community participating in a joint application may not submit a single jurisdiction application under the project fund for which the joint application was submitted. One of the participating communities must be primarily accountable to the department for financial compliance and program performance. Only one unit of general local government may be the official applicant and this applicant must enter into a legally binding cooperation agreement with each participant that incorporates Texas Community Development Program requirements. A proposed project which is located in more than one jurisdiction or in which beneficiaries from more than one jurisdiction will be counted must be submitted as a joint application (except as specified for the Texas capital fund, the governor's special assistance fund for small and minority businesses, and the governor's small business special assistance fund). (d) Eligible location. Only projects or activities which are located in the nonentitlement areas of the state are eligible for funding under the Texas Community Development Program. The only exception is Hidalgo County, an entitlement county, which is eligible for the Colonia fund. (e) Ineligible activities. Any type of activity not described or referred to in the federal Housing and Community Development Act of 1974, sec.5305(a) (42 United States Code, sec.5301 et seq) is ineligible for funding under the Texas Community Development Program. Specific ineligible activities include, but are not limited to, construction of buildings and facilities used for the general conduct of government (e.g., city halls and courthouses); new housing construction, except as described as eligible under the current Texas Community Development Program application guides; the financing of political activities; purchases of construction equipment; income payments, such as housing allowances; most operation and maintenance expenses; pre-contract costs, such as application preparation fees paid prior to submittal of the application; prisons; and racetracks. (f) Citizen participation. (1) Public hearing requirements. For each public hearing scheduled and conducted by an applicant or contractor, the following public hearing requirements shall be followed. (A) Notice of each hearing must be published in the non-legal section of a newspaper having general circulation in the city or county at least 72 hours prior to each scheduled hearing. The published notice must include the date, time, and location of each hearing and the topics to be considered at each hearing. The published notice must be printed in both English and Spanish, if appropriate. Articles published in such newspapers which satisfy the content and timing requirements of this subparagraph will be accepted by the department in lieu of publication of notices. Notices must also be prominently posted in public buildings. (B) Each public hearing shall be held after 5 p.m. on a weekday or on a Saturday and at a location convenient to potential or actual beneficiaries, with accommodation for the handicapped. (C) When a significant number of non-English speaking residents can reasonably be expected to participate in a public hearing, an applicant or contractor shall provide an interpreter to accommodate the needs of the non-English speaking residents. (2) Application requirements. Prior to submitting an application, an applicant for Texas Community Development Program funding shall satisfy the following requirements. (A) At least one public hearing shall be held prior to preparing its application and at least one additional public hearing prior to submitting its completed application to the department. (B) The public hearings must be held at least seven days apart. (C) At least one of the public hearings must be held in the proposed project area. (D) An applicant shall retain documentation of the hearing notices, a list of attendees at each hearing, minutes of the hearings, and any other records concerning the proposed use of funds for a period of one year or until the project, if funded, is closed out. Such records must be made available to the public in accordance with Texas Civil Statutes, Article 6252-17a. (E) The first public hearing must include a discussion with citizens on the development of housing and community development needs, the amount of funding available, all eligible activities under the Texas Community Development Program, and the use of past Texas Community Development Program contract funds, if applicable. Citizens, with particular emphasis on persons of low- and moderate-income who are residents of slum and blight areas, shall be encouraged to submit their views and proposals regarding community development and housing needs. Citizens shall be made aware of the location where they may submit their views and proposals should they be unable to attend the public hearing. (F) The second public hearing must include a discussion of the proposed project, the amount of funds being requested, the estimated amount of funds proposed for activities that will benefit low- and moderate-income persons, and the plans of the applicant to minimize displacement of persons and to assist persons actually displaced as a result of activities assisted with Texas Community Development Program funds, if applicable. The notice must include the location and hours when the application is available for review. (3) Contractor requirements. (A) A contractor must hold a public hearing concerning any substantial change, as determined by the department, proposed to be made in the use of Texas Community Development Program funds from one eligible activity to another. (B) Upon completion of its contract, the contractor shall hold a public hearing to review its program performance, including the actual use of the funds provided under the contract. (C) A contractor shall retain documentation of the hearing notices, a list of attendees at each hearing, minutes of the hearings, and any other records concerning the actual use of funds for a period of three years after the contract is closed out. Such records must be made available to the public in accordance with Texas Civil Statutes, Article 6252-17a. (4) Complaint procedures. Applicants and contractors must maintain written citizen complaint procedures that provide a timely written response to complaints and grievances. The complaint procedures for contractors must comply with the requirements of the Texas Community Development Program Complaint System, Part I of this title, sec.sec.1.11, 1.12, and 1.13. Citizens must be made aware of the location and hours at which they may obtain a copy of the written procedures. (5) Technical assistance. An applicant shall provide technical assistance to groups representative of persons of low- and moderate-income that request such assistance in developing proposals for the use of Texas Community Development Program funds. The level and type of assistance shall be determined by the applicant based upon the specific needs of its residents. (g) Appeals. An applicant for funding under the Texas Community Development Program may appeal the disposition of its application in accordance with this subsection. (1) The appeal may only be based on one or more of the following grounds. (A) Misplacement of an application. All or a portion of an application is lost, misfiled, or otherwise misplaced by department staff, resulting in unequal consideration of the applicant's proposal. (B) Mathematical error. In rating the application, the score on any selection criteria is incorrectly computed by the department due to human or computer error. (C) Other procedural error. The application is not processed by the department in accordance with the application and selection procedures set forth in this subchapter. Procedural errors alleged to have been committed by a regional review committee may only be appealed in accordance with the provisions of sec.9.8 of this title (relating to Regional Review Committees). (2) The appeal must be submitted in writing to the Texas Community Development Program of the department no later than 30 days after the date the announcement of contract awards is published in the Texas Register. In addition, timely appeals not submitted in writing at least five working days prior to the next regularly scheduled meeting of the State Review Committee will be heard at the subsequent meeting of the State Review Committee. The department staff will evaluate the appeal and may either concur with the appeal and make an appropriate adjustment to the applicant's scores, or disagree with the appeal and prepare an appeal file for consideration by the State Review Committee at its next regularly scheduled meeting. The State Review Committee will make a final recommendation to the executive director of the department. The decision of the executive director of the department is final. If the appeal concerns a Texas capital fund application, a governor's special assistance fund for small and minority businesses application, or a governor's small business special assistance fund application, the appeal must be submitted in writing to the department no later than 30 days following the date of the notification letter of the denial. The staff evaluates the appeal and may either concur with the appeal or disagree with the appeal and prepare an appeal file for consideration by the executive director. The executive director then considers the appeal within 30 days and makes the final decision. (3) In the event the appeal is sustained and the corrected scores would have resulted in project funding, the application is approved and funded. If the appeal is rejected, the department notifies the applicant of its decision, including the basis for rejection after the meeting of the State Review Committee at which the appeal was considered. If the appeal concerns a Texas capital fund application, a governor's special assistance fund for small and minority businesses application, or a governor's small business special assistance fund application, the applicant will be notified of the decision made by the executive director within 10 days after the final determination by the executive director. (4) Appeals not submitted in accordance with this subsection are dismissed and may not be refiled. (h) Threshold requirements. An applicant must satisfy each of the following requirements in order to be eligible to apply for or to receive funding under the Texas Community Development Program: (1) demonstrate the ability to manage and administer the proposed project, including meeting all proposed benefits outlined in its application; (2) demonstrate the financial management capacity to operate and maintain any improvement made in conjunction with the proposed project; (3) levy a local property tax or local sales tax option; (4) demonstrate satisfactory performance on existing and prior Texas Community Development Program contracts; and (5) resolve all outstanding compliance and audit findings related to existing and prior Texas Community Development Program and Texas Rental Rehabilitation Program contracts. (i) Unmet benefits. Actions that may be taken against a contractor by the department where the department finds that the contractor did not provide the level of benefits specified in its contract include, but are not limited to: (1) holding the contractor ineligible to apply for Texas Community Development Program funds for a period of two program years or until any issue of restitution is resolved, whichever is longer; (2) requiring the contractor to reimburse the department for the difference between the amount of funds provided for the level of benefits specified in the contract and the amount of funds actually expended in providing such level of benefits; and (3) rescoring the contractor's application, and if the level of benefits actually provided by the contractor would have changed the funding recommendation, terminating the local government's contract. (j) False information. If an applicant provides false information in its application which has the effect of increasing the applicant's competitive advantage, the department refers the matter to the State Review Committee for disciplinary action. If the applicant provides false information in a Texas capital fund application, a governor's special assistance fund for small and minority businesses application, or a governor's small business special assistance fund application, the department staff in conjunction with the staff of the Texas Department of Commerce shall make a recommendation for action to the executive director of the department. The State Review Committee makes a recommendation for action to the executive director of the department at its next regularly scheduled meeting. Recommendations that the State Review Committee may make include, but are not limited to: (1) holding the applicant or contractor ineligible to apply for Texas Community Development Program funds for a period of two program years or until any issue of restitution is resolved, whichever is longer; and (2) terminating the local government's contract if the correct information would have changed the scores and resulted in a change in the rankings for purposes of funding. (k) Substitution of standardized data. Any applicant that chooses to substitute locally generated data for standardized information available to all applicants must use the survey instrument provided by the department and must follow the procedures prescribed in the instructions to the survey instrument. (1) Only door-to-door surveys are allowed, unless an alternate method is approved in writing by the department. (2) Surveys, including signed tabulation sheets, all responses, and all non- responses must be submitted to the department at least 14 days prior to the application deadline, for verification and spot-checking. (3) A survey instrument that lacks any information is considered as a non- response for that family. (4) The applicant must demonstrate a 100% effort in contacting households to be surveyed and obtain at least an 80% response rate for surveys which include 150 or fewer beneficiary households or obtain at least a 70% response rate for surveys which include 151 or more beneficiary households. (5) A survey that was completed after the 1984 program year for a previous Texas Community Development Program application may be accepted by the department for a new application to the extent specified in the most recent application guide for the proposed project. (l) Unobligated and recaptured funds. Any additional funds resulting from the recapture of dollars from a prior year's allocation, recapture of program income, unobligated funds from a program area specified in subsection (b) of this section, or reallocated funds which the United States Department of Housing and Urban Development has recaptured from small cities grantees are redistributed to eligible communities on a priority basis with eligible emergency and urgent need projects and projects benefiting public housing as the highest priorities. Any additional remaining funds may be redistributed to eligible communities at the discretion of the executive director of the department within such program areas. A governor's small business special assistance fund was established for economic development projects proposed by communities impacted by base closings/cutbacks or defense related layoffs (i.e., Fort Hood area). This program was funded through $500,000 of 1988 and 1989 program years' allocations by an amendment to the 1990 final statement. This fund does not involve 1991 funds. (m) Waivers. The department may waive any provision of this subchapter upon its own motion, or upon an applicant's or contractor written request for such a waiver if the department finds that compelling circumstances exist outside the control of the applicant or contractor which justify the approval of such a waiver. (n) Performance threshold requirements. In addition to the requirements of subsection (h) of this section, an applicant must satisfy the following performance requirements in order to be eligible to apply for program year 1991 funds. A contract is considered executed for the purposes of this subsection on the date stated in sec.2 of such contract: (1) obligate at least 50% of the total funds awarded under a contract (except for Texas capital fund contracts) executed at least 12 months prior to the program year 1991 application deadline; (2) expend all but the audit funds awarded under a contract (except for Texas capital fund contracts) executed at least 24 months prior to the program year 1991 application deadline and submit to the department the close-out documents required by the most recent edition of the Texas Community Development Program Project Implementation Manual. 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 December 16, 1991. TRD-9115902 Anne O. Paddock Interim Assistant Attorney General Texas Department of Housing and Community Affairs Effective date: January 6, 1992 Proposal publication date: November 12, 1991 For further information, please call: (512) 320-9526 TITLE 16. ECONOMIC REGULATION Part IV. Texas Department of Licensing and Regulation Chapter 65. Boiler Division 16 TAC sec.sec.65.20, 65.50, 65.100 The Texas Department of Licensing and Regulation adopts amendments to sec.sec.65.20, 65.50, and 65.100, without changes to the proposed text as published in the November 12, 1991, issue of the Texas Register (16 TexReg 6528). The amended sections are adopted in order to incorporate recommendations by the Board of Boiler Rules. Section 65.20(h) invokes the repair, setting, testing, and sealing of safety valves and safety relief valves by the valve manufacturer or repair firms holding certification by the National Board of Boiler and Pressure Vessel Inspectors for the valve repair "VR" symbol. Section 65.50(f) requires reporting of repairs and alternations to boilers within 90 days following completion of work. Section 65.100(j) requires welded repairs and alterations to boilers be accomplished by manufacturers holding certification from The American Society of Mechanical Engineers or The National Board of Boiler and Pressure Vessel Inspectors for use of the repair "R" symbol. No comments were received regarding adoption of the amendment. The amendments are adopted under the Health and Safety Code, Chapter 755, which provides the Texas Department of Licensing and Regulation with the authority to promulgate and enforce a code of rules in keeping with standard usage for the construction, inspection, installation, use, maintenance, repair, alteration, and operation of boilers. 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 December 13, 1991. TRD-9115828 Larry E. Kosta Executive Director Texas Department of Licensing and Regulation Effective date: January 3, 1992 Proposal publication date: November 12, 1991 For further information, please call: (512) 463-3127 Chapter 70. Industrialized Housing and Buildings 16 TAC sec.70.70 The Texas Department of Licensing and Regulation adopts an amendment to sec.70.70, concerning industrialized housing and buildings, with changes to the proposed text as published in the September 13, 1991, issue of the Texas Register (16 TexReg 5031). The amendment assures that the industrialized housing and buildings are built to the current edition of the model codes. Industrialized housing and buildings constructed after adoption of new codes must meet or exceed the requirement and standards of the new editions of model code. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 5221f-1 and Article 9100, which provide the commissioner of the Texas Department of Licensing and Regulation with the authority to promulgate rules necessary to effectuate the purpose of the Act. sec.70.70. Responsibilities of the Registrants-Manufacturer's Design Package. (a) Review and approval. The manufacturer's design package must be reviewed and approved in accordance with the following. (1)-(4) (No change.) (5) Upon adoption of a new edition of the Uniform Building Code and the Standard Building Code in sec.70.100 of this title (relating to Mandatory State Codes), approvals dated before the effective date of the adoption are no longer valid for industrialized housing, buildings, modules, and modular components constructed after the effective date of adoption. Manufacturers will be notified of the change in code editions 180 days before the effective date of the change. Manufacturers who wish to continue building to previously approved documents must resubmit these documents to their DRA for review and approval to the new code editions. Approval of these documents will be evidenced by application of a new approval date and the council's stamp of approval to each document. The manufacturer may make the transition from current code edition to new code edition in any of the following ways. (A) The approval date on all documents in the manufacturer's design package will be on or after the effective date of adoption of the new edition of the Uniform Building Code and the Standard Building Code. (B) The manufacturer may transition approval of documents in his design package 180 days prior to the effective date of adoption of the new edition of the Uniform Building Code and the Standard Building Code. The manufacturer must notify the department of his intent to do so. All documents approved within the 180 day transition period must be approved to both the current and the new edition of the Uniform Building Code group or the Standard Building Code group or both. (C) The manufacturer may submit a written description of any other method of transition to the department for approval. (6) The department (when acting as a DRA) or a DRA may withdraw the approval of any document whenever the approval is later found to be in violation of code requirements or the rules and regulations in this chapter. Notice of the withdrawal of the approval shall be in writing and shall set forth the reasons for the withdrawal. Any withdrawal of approval shall have prospective effect only, except for life safety items. (7) The DRA shall reimburse the department an hourly monitoring fee for expenses incurred outside headquarters in monitoring the performance of the DRA. (8) DRAs or the department acting as a DRA may make red ink corrections to documents provided the corrections meet all of the following criteria: (A) limited to corrections of minor deviations; (B) the corrected items can be verified by reference to prescriptive code requirements; (C) the change does not involve any change of design or require design; (D) the red ink correction is valid for 10 working days and may not be extended; and (E) the corrections must be numbered and initialed by the DRA and the statement, "As noted with __________ (number) corrections" shall appear near the stamp of the council with the number of corrections entered. (b)-(f) (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 December 11, 1991. TRD-9115606 Larry Kosta Executive Director Texas Department of Licensing and Regulation Effective date: January 1, 1992 Proposal publication date: September 13, 1991 For further information, please call: (512) 463-3127 16 TAC sec.70.100 The Commissioner of the Texas Department of Licensing and Regulation adopts an amendment to sec.70.100, without changes to the proposed text as published in the September 13, 1991, issue of the Texas Register (16 TexReg 5031). Please note that sec.70.70 and sec.70.100 were proposed on one submission but because of different effective dates they are being submitted for adoption on different submissions. Texas Civil Statutes, Article 5221f-1 requires that after council determination that if the revision of the model code is in public interest, then the latest revised codes be adopted. Industrialized Housing and Buildings constructed after May 19, 1992, must be constructed to meet or exceed the requirements and standards of the 1991 edition of the model codes. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 5221f-1 and Article 9100 which provides the Commissioner of the Texas Department of Licensing and Regulation with the authority to promulgate rules necessary to effectuate the purpose of the Act. 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 December 11, 1991. TRD-9115607 Larry E. Kosta Executive Director Texas Department of Licensing and Regulation Effective date: May 19, 1992 Proposal publication date: September 13, 1991 For further information, please call: (512) 463-3127 Part VIII. Texas Racing Commission Chapter 303. General Provisions Subchapter A. Organization of the Commission 16 TAC sec.303.9 The Texas Racing Commission adopts an amendment to sec.303.9, concerning records, without changes to the proposed text as published in the November 8, 1991, issue of the Texas Register (16 TexReg 6337). The amendment is adopted to ensure that the commission's records are maintained in accordance with state law. The amendment requires all applications for a license under the Texas Racing Act to be maintained and made available for public inspection. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 179e, sec.3.02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; and sec.2.15, which states the requirements regarding the commission's investigatory files and criminal history information. 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 December 9, 1991. TRD-9115744 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: January 2, 1992 Proposal publication date: November 8, 1991 For further information, please call: (512) 794-8461 16 TAC sec.303.10 The Texas Racing Commission adopts an amendment to sec.303.10, concerning investigatory files, without changes to the proposed text as published in the November 8, 1991, issue of the Texas Register (16 TexReg 6337). The amendment is adopted to ensure that the commission's records are maintained in accordance with state law. The amendment clarifies whether the commission's investigatory files are subject to public disclosure. The commission received comments from one individual regarding the adoption of the amendment. The commenter objected to the proposed amendment, stating that the amendment violates the Texas Open Records Act, Texas Civil Statutes, Article 6252-17a. The commission disagrees with the comments because the proposed amendment does not attempt to restrict access to information based on its form. Rather, the amendment guarantees access of information that is maintained by the commission in a certain form. Further, the proposed amendment mirrors language contained in the Texas Racing Act, Texas Civil Statutes, Article 179e. The amendment is adopted under Texas Civil Statutes, Article 179e, sec.3.02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; and sec.sec.2.15, 2.16, and 5. 04 which state the requirements regarding the commission's investigatory files and criminal history information. 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 December 9, 1991. TRD-9115743 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: January 2, 1992 Proposal publication date: November 8, 1991 For further information, please call: (512) 794-8461 Subchapter B. Powers and Duties of the Commission 16 TAC sec.303.32 The Texas Racing Commission adopts an amendment to sec.303.32, concerning power of entry, without changes to the proposed text as published in the November 8, 1991, issue of the Texas Register (16 TexReg 6337). The amendment is adopted to ensure that the laws related to pari-mutuel racing are enforced. The amendment authorizes a commission investigator to have power of entry into a racetrack's place of business. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 179e, sec.3.02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; and sec.3.03, which states the persons who have power of entry into a racetrack's place of business. 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 December 9, 1991. TRD-9115742 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: January 2, 1992 Proposal publication date: November 8, 1991 For further information, please call: (512) 794-8461 16 TAC sec.303.33 The Texas Racing Commission adopts an amendment to sec.303.33, concerning subpoenas, without changes to the proposed text as published in the November 8, 1991, issue of the Texas Register (16 TexReg 6338). The amendment is adopted to ensure that the administrative proceedings of the commission are conducted efficiently and effectively. The amendment permits the executive secretary and examiners to issue subpoenas. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 179e, sec.3.02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; and sec.3.05, which grants subpoena power to the commission. 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 December 9, 1991. TRD-9115741 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: January 2, 1992 Proposal publication date: November 8, 1991 For further information, please call: (512) 794-8461 16 TAC sec.303.35 The Texas Racing Commission adopts the repeal of sec.303.35, concerning appointment of racetrack officials, without changes to the proposed text as published in the November 8, 1991, issue of the Texas Register (16 TexReg 6338). The section is repealed to ensure that the rules of the commission are consistent with the applicable state laws. The section is repealed because of recent legislative action which changed the method for appointing racetrack officials. No comments were received regarding adoption of the repeal. The repeal is adopted under Texas Civil Statutes, Article 179e, sec.3.02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act. 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 December 9, 1991. TRD-9115740 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: January 2, 1992 Proposal publication date: November 8, 1991 For further information, please call: (512) 794-8461 16 TAC sec.303.41 The Texas Racing Commission adopts an amendment to sec.303.41, concerning allocation of race dates, without changes to the proposed text as published in the November 8, 1991, issue of the Texas Register (16 TexReg 6338). The amendment is adopted to ensure that pari-mutuel racing is conducted with utmost integrity. The amendment clarifies the procedure for applying for and granting race dates to pari-mutuel racetracks. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 179e, sec.3.02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; and sec.8.01 and sec.10.01, which authorize the commission to grant race dates. 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 December 9, 1991. TRD-9115739 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: January 2, 1992 Proposal publication date: November 8, 1991 For further information, please call: (512) 794-8461 16 TAC sec.303.42 The Texas Racing Commission adopts an amendment to sec.303.42, concerning approval of charity race days, without changes to the proposed text as published in the November 8, 1991, issue of the Texas Register (16 TexReg 6339). The amendment is adopted to ensure that pari-mutuel racing is conducted with utmost integrity and ultimate benefit to the public. The amendment clarifies the procedures for applying for and conducting charity race dates. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 179e, sec.3.02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; and sec.8.02 and sec.10.01, which authorize the commission to grant charity race dates. 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 December 9, 1991. TRD-9115738 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: January 2, 1992 Proposal publication date: November 8, 1991 For further information, please call: (512) 794-8461 Subchapter C. Powers and Duties of the Comptroller of Public Accounts 16 TAC sec.303.64 The Texas Racing Commission adopts the repeal of sec.303.64, concerning compliance, without changes to the proposed text as published in the November 8, 1991, issue of the Texas Register (16 TexReg 6339). The section is repealed to ensure that the rules of the commission are consistent with the applicable state laws. The section is repealed because of recent legislative action which changed the responsibilities of the Comptroller of Public Accounts regarding notification of the Texas Racing Commission on compliance issues. No comments were received regarding adoption of the repeal. The repeal is adopted under Texas Civil Statutes, Article 179e, sec.3.02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act. 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 December 9, 1991. TRD-9115737 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: January 2, 1992 Proposal publication date: November 8, 1991 For further information, please call: (512) 794-8461 Subchapter D. Texas Bred Incentive Programs General Provisions 16 TAC sec.303.81 The Texas Racing Commission adopts an amendment to sec.303.81, concerning Texas Bred Incentive Programs, without changes to the proposed text as published in the November 8, 1991, issue of the Texas Register (16 TexReg 6340). The amendment is adopted to ensure that the Texas Bred incentive programs are administered with the utmost integrity and pari-mutuel racing will benefit the horse and greyhound breeding industries. The amendment requires the official state breed registries to develop programs to distribute money made available to the breed registries under the Texas Racing Act. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 179e, sec.3.02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; and sec.6.08 and sec.6.09, which authorize the commission to adopt rules relating to the Texas Bred incentive 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 December 9, 1991. TRD-9115736 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: January 2, 1992 Proposal publication date: November 8, 1991 For further information, please call: (512) 794-8461 16 TAC sec.303.83 The Texas Racing Commission adopts an amendment to sec.303.83, concerning audits and financial reports, without changes to the proposed text as published in the November 8, 1991, issue of the Texas Register (16 TexReg 6340). The amendment is adopted to ensure that the Texas Bred incentive programs are administered with the utmost integrity and pari-mutuel racing will benefit the horse and greyhound breeding industries. The amendment clarifies the duties of the official state breed registries regarding the payment of funds made available under the Texas Racing Act. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 179e, sec.3.02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; and sec.6.08 and sec.6.09, which authorize the commission to adopt rules relating to the Texas Bred incentive 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 December 9, 1991. TRD-9115735 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: January 2, 1992 Proposal publication date: November 8, 1991 For further information, please call: (512) 794-8461 16 TAC sec.303.85 The Texas Racing Commission adopts an amendment to sec.303.85, concerning background investigations, without changes to the proposed text as published in the November 8, 1991, issue of the Texas Register (16 TexReg 6340). The amendment is adopted to ensure that the Texas Bred incentive programs are administered with the utmost integrity and pari-mutuel racing will benefit the horse and greyhound breeding industries. The amendment authorizes the commission to require a background investigation for any person administering a Texas Bred incentive program. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 179e, sec.3.02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; and sec.6.08 and sec.6.09, which authorize the commission to adopt rules relating to the Texas Bred incentive 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 December 9, 1991. TRD-9115734 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: January 2, 1992 Proposal publication date: November 8, 1991 For further information, please call: (512) 794-8461 Programs for Horses 16 TAC sec.303.91 The Texas Racing Commission adopts an amendment to sec.303.91, concerning horse breed registries, without changes to the proposed text as published in the November 8, 1991, issue of the Texas Register (16 TexReg 6341). The amendment is adopted to ensure that the rules of the commission are consistent with the Texas Racing Act. The amendment designates the official breed registries for Appaloosa, Arabian, and paint horses. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 179e, sec.3.02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; and sec.6.08 and sec.9.02, which designate the official state horse breed registries. 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 December 9, 1991. TRD-9115733 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: January 2, 1992 Proposal publication date: November 8, 1991 For further information, please call: (512) 794-8461 16 TAC sec.303.94 The Texas Racing Commission adopts new sec.303.94, concerning arabian horse rules, without changes to the proposed text as published in the November 8, 1991, issue of the Texas Register (16 TexReg 6341). The new section is adopted to ensure that pari-mutuel racing will result in a benefit to the horse breeding industry. The new section adopts by reference the rules of the Texas Arabian Breeders Association regarding the Texas Bred Incentive program. No comments were received regarding adoption of the new section. The new section is adopted under Texas Civil Statutes, Article 179e, sec.3.02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; and sec.9.01, which requires rules of the official breed registries to be approved by the Texas Racing Commission. 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 December 9, 1991. TRD-9115732 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: January 2, 1992 Proposal publication date: November 8, 1991 For further information, please call: (512) 794-8461 16 TAC sec.303.95 The Texas Racing Commission adopts an amendment to sec.303.95, concerning sufficient competition, without changes to the proposed text as published in the November 8, 1991, issue of the Texas Register (16 TexReg 6341). The amendment is adopted to ensure that pari-mutuel racing will result in a benefit to the horse breeding industry. The amendment clarifies the requirements of a pari-mutuel racetrack regarding the running of races limited to accredited Texas-bred horses. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 179e, sec.3.02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; and sec.9.03, which states the requirements of pari-mutuel racetracks regarding the running of races limited to accredited Texas-bred horses. 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 December 9, 1991. TRD-9115731 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: January 2, 1992 Proposal publication date: November 8, 1991 For further information, please call: (512) 794-8461 16 TAC sec.303.96 The Texas Racing Commission adopts the repeal of sec.303.96, concerning participation in certain organizations, without changes to the proposed text as published in the November 8, 1991, issue of the Texas Register (16 TexReg 6342). The section is repealed to ensure that the rules of the commission are consistent with the applicable state laws. The section is repealed because of recent legislative action which deleted language relating to the use of certain funds for participation in horse racing organizations. No comments were received regarding adoption of the repeal. The repeal is adopted under Texas Civil Statutes, Article 179e, sec.3.02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act. 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 December 9, 1991. TRD-9115730 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: January 2, 1992 Proposal publication date: November 8, 1991 For further information, please call: (512) 794-8461 Chapter 305. Licenses for Pari-mutuel Racing Subchapter A. General Provisions 16 TAC sec.305.5 The Texas Racing Commission adopts an amendment to sec.305.5, concerning fingerprints, without changes to the proposed text as published in the November 8, 1991, issue of the Texas Register (16 TexReg 6342). The amendment is adopted to ensure that pari-mutuel racing is conducted with the utmost integrity and that the licensing program of the commission is operated efficiently and effectively. The amendment clarifies the procedure for giving new fingerprints when renewing a license. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 179e, sec.3.02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; and sec.5.03, which authorizes the commission to obtain fingerprints from license applicants. 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 December 9, 1991. TRD-9115729 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: January 2, 1992 Proposal publication date: November 8, 1991 For further information, please call: (512) 794-8461 16 TAC sec.305.13 The Texas Racing Commission adopts an amendment to sec.305.13, concerning effect of acceptance, without changes to the proposed text as published in the November 8, 1991, issue of the Texas Register (16 TexReg 6342). The amendment is adopted to ensure that pari-mutuel racing is conducted safely and with the utmost integrity. The amendment clarifies that by accepting a license issued by the commission, a licensee consents to testing for alcohol. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 179e, sec.3.02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; and sec.14.03, which states the acceptance of a license from the commission constitutes consent to a search for drugs, chemicals, or other substances. 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 December 9, 1991. TRD-9115728 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: January 2, 1992 Proposal publication date: November 8, 1991 For further information, please call: (512) 794-8461 Subchapter B. Individual Licenses General Provisions 16 TAC sec.305.35 The Texas Racing Commission adopts an amendment to sec.305.35, concerning license fees, without changes to the proposed text as published in the November 8, 1991, issue of the Texas Register (16 TexReg 6343). The amendment is adopted to ensure that the licensing program of the commission is funded as required by state law. The amendment establishes the fees for occupational licenses issued in 1992. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 179e, sec.3.02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; and sec.7.02, which requires the commission to specify qualifications for the various categories of 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 December 9, 1991. TRD-9115727 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: January 2., 1992 Proposal publication date: November 8, 1991 For further information, please call: (512) 794-8461 Specific Licensees 16 TAC sec.305.42 The Texas Racing Commission adopts an amendment to sec.305.42, concerning owners, without changes to the proposed text as published in the November 8, 1991, issue of the Texas Register (16 TexReg 6347). The amendment is adopted to ensure that the licensing program of the commission is conducted efficiently and effectively and pari-mutuel racing is conducted with the utmost integrity. The amendment clarifies the requirements for being licensed as the owner of a race animal. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 179e, sec.3.02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; and sec.7.02, which requires the commission to specify qualifications for the various categories of 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 December 9, 1991. TRD-9115726 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: January 2, 1992 Proposal publication date: November 8, 1991 For further information, please call: (512) 794-8461 16 TAC sec.305.43 The Texas Racing Commission adopts an amendment to sec.305.43, concerning lessee, without changes to the proposed text as published in the November 8, 1991, issue of the Texas Register (16 TexReg 6347). The amendment is adopted to ensure that the licensing program of the commission is conducted with efficiently and effectively and pari-mutuel racing is conducted with the utmost integrity. The amendment clarifies the requirements for being licensed as the lessor of a race animal. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 179e, sec.3.02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; and sec.7.02, which requires the commission to specify qualifications for the various categories of 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 December 9, 1991. TRD-9115725 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: January 2, 1992 Proposal publication date: November 8, 1991 For further information, please call: (512) 794-8461 Subchapter C. Racetrack Licenses General Provisions 16 TAC sec.305.68 The Texas Racing Commission adopts an amendment to sec.305.68, concerning greyhound racetrack fees, without changes to the proposed text as published in the November 8, 1991, issue of the Texas Register (16 TexReg 6347). The amendment is adopted to ensure that the licensing program of the commission is operated efficiently and effectively and is funded in accordance with state law. The amendment clarifies the procedure for the payment of an annual fee for a greyhound racetrack license. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 179e, sec.3.02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; and sec.5.01 and sec.6.03, which authorize the commission to impose annual fees on racetrack licensees. 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 December 9, 1991. TRD-9115724 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: January 2, 1992 Proposal publication date: November 8, 1991 For further information, please call: (512) 794-8461 16 TAC sec.305.69 The Texas Racing Commission adopts an amendment to sec.305.69, concerning horse racetrack application and initial license fees, without changes to the proposed text as published in the November 8, 1991, issue of the Texas Register (16 TexReg 6348). The amendment is adopted to ensure that the licensing program of the Texas Racing Commission is funded in accordance with state law. The amendment clarifies the requirements for filing application fees for horse racetrack licenses and adds application and initial license fees for a Class 4 racetrack. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 179e, sec.3.02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; and sec.5.01 and sec.6.03 which authorize the commission to impose application and license fees. 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 December 9, 1991. TRD-9115723 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: January 2, 1992 Proposal publication date: November 8, 1991 For further information, please call: (512) 794-8461 16 TAC sec.305.70 The Texas Racing Commission adopts new sec.305.70, concerning officials' fee without changes to the proposed text as published in the November 8, 1991, issue of the Texas Register (16 TexReg 6349). The section is adopted to ensure that pari-mutuel racing is conducted with the utmost integrity and the commission is funded as required by law. The section establishes the amount of fees licensed racetracks must pay to reimburse the commission for the costs of compensating certain officials. No comments were received regarding adoption of the new section. The new section is adopted under Texas Civil Statutes, Article 179e, sec.3.02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; and sec.3.07, which authorizes the commission to charge a fee to offset the costs of compensating certain officials. 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 December 9, 1991. TRD-9115722 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: January 2, 1992 Proposal publication date: November 8, 1991 For further information, please call: (512) 794-8461 16 TAC sec.305.71 The Texas Racing Commission adopts an amendment to sec.305.71, concerning horse racetrack fees, without changes to the proposed text as published in the November 8, 1991, issue of the Texas Register (16 TexReg 6349). The amendment is adopted to ensure that the licensing program of the Texas Racing Commission is funded in accordance with state law. The amendment clarifies the procedure for paying an annual fee for a horse racetrack and adds an annual fee for a Class 4 racetrack. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 179e, sec.3.02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; and sec.5.01 and sec.6.18 which authorize the commission to impose annual fees on racetrack 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 December 9, 1991. TRD-9115721 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: January 2, 1992 Proposal publication date: November 8, 1991 For further information, please call: (512) 794-8461 Chapter 309. Operation of Racetracks Subchapter A. General Provisions Facilities and Equipment 16 TAC sec.309.18 The Texas Racing Commission adopts an amendment to sec.309.18, concerning first aid, without changes to the proposed text as published in the November 8, 1991, issue of the Texas Register (16 TexReg 6349). The amendment is adopted to ensure that pari-mutuel racing is safe for licensees and patrons. The amendment clarifies the requirements for a pari-mutuel racetrack regarding emergency vehicles and personnel. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 179e, sec.3.02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act, and sec.6.06, which authorize the commission to adopt rules relating to the operation of racetracks. 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 December 9, 1992. TRD-9115720 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: January 2, 1992 Proposal publication date: November 8, 1991 For further information, please call: (512) 794-8461 Operations 16 TAC sec.309.51 The Texas Racing Commission adopts an amendment to sec.309.51, concerning contracts, without changes to the proposed text as published in the November 8, 1991, issue of the Texas Register (16 TexReg 6350). The amendment is adopted to ensure that pari-mutuel racing is conducted with utmost integrity and the commission is advised of all participants in the operation of pari-mutuel racetracks. The amendment clarifies the procedure for obtaining the approval of the commission for contracts relating to the operation of a pari-mutuel racetrack. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 179e, sec.3.02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act, and sec.6.06, which authorize the commission to adopt rules relating to the operation of racetracks. 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 December 9, 1992. TRD-9115719 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: January 2, 1992 Proposal publication date: November 8, 1991 For further information, please call: (512) 794-8461 16 TAC sec.309.52 The Texas Racing Commission adopts an amendment to sec.309.52, concerning transfer of ownership, without changes to the proposed text as published in the November 8, 1991, issue of the Texas Register (16 TexReg 6350). The amendment is adopted to ensure that pari-mutuel racing is conducted with utmost integrity and the commission is advised of all participants in the operation of pari-mutuel racetracks. The amendment clarifies the procedure for obtaining commission approval of changes in ownership, directors, or managers of a pari-mutuel racetrack. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 179e, sec.3.02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act, and sec.6.06, which authorize the commission to adopt rules relating to the operation of racetracks; and sec.6.13, which requires all transfers of a pecuniary interest in a pari- mutuel racetrack to be approved by the commission. 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 December 9, 1992. TRD-9115718 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: January 2, 1992 Proposal publication date: November 8, 1991 For further information, please call: (512) 794-8461 16 TAC sec.309.54 The Texas Racing Commission adopts an amendment to sec.309.54, concerning general security, without changes to the proposed text as published in the November 8, 1991, issue of the Texas Register (16 TexReg 6351). The amendment is adopted to ensure that pari-mutuel racing is safe for the licensees and patrons. The amendment clarifies the requirements of a pari-mutuel racetrack regarding security personnel. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 179e, sec.3.02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act, and sec.6.06, which authorize the commission to adopt rules relating to the operation of racetracks. 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 December 9, 1992. TRD-9115717 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: January 2, 1991 Proposal publication date: November 8, 1991 For further information, please call: (512) 794-8461 Subchapter B. Horse Racetracks Facilities for Horses 16 TAC sec.309.151 The Texas Racing Commission adopts an amendment to sec.309.151, concerning test barn, without changes to the proposed text as published in the November 8, 1991, issue of the Texas Register (16 TexReg 6351). The amendment is adopted to ensure that pari-mutuel racing is conducted safely and with utmost integrity. The amendment reduces the number of stalls required in a test barn at a horse racetrack. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 179e, sec.3.02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act, and sec.6.06, which authorize the commission to adopt rules relating to the operation of racetracks. 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 December 9, 1992. TRD-9115716 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: January 2, 1992 Proposal publication date: November 8, 1991 For further information, please call: (512) 794-8461 Operations 16 TAC sec.309.199 The Texas Racing Commission adopts an amendment to sec.309.199, concerning horsemen's bookkeeper, without changes to the proposed text as published in the November 8, 1991, issue of the Texas Register (16 TexReg 6352). The amendment is adopted to ensure that pari-mutuel racing is conducted with utmost integrity and fairness to all licensees. The amendment clarifies the requirements of the horsemen's bookkeeper relating to deductions from the horsemen's account. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 179e, sec.3.02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act, and sec.6.08, which states a limitation on deductions from horsemen's accounts. 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 December 9, 1991. TRD-9115715 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: January 2, 1992 Proposal publication date: November 8, 1991 For further information, please call: (512) 794-8461 16 TAC sec.309.201 The Texas Racing Commission adopts an amendment to sec.309.201, concerning equitable stabling, without changes to the proposed text as published in the November 8, 1991, issue of the Texas Register (16 TexReg 6352). The amendment is adopted to ensure that the rules of the commission are consistent with the Texas Racing Act. The amendment clarifies the requirements of a pari-mutuel racetrack relating to on-track stabling. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 179e, sec.3.02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act, and sec.9.06, which states the requirements of a pari-mutuel horse racetrack relating to on-track stabling of various breeds. 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 December 9, 1992. TRD-9115714 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: January 2, 1992 Proposal publication date: November 8, 1991 For further information, please call: (512) 794-8461 Chapter 311. Conduct and Duties of Individual Licensees Subchapter C. Alcohol and Drug Testing Drugs 16 TAC sec.311.201 The Texas Racing Commission adopts an amendment to sec.311.201, concerning use prohibited, with changes to the proposed text as published in the November 8, 1991, issue of the Texas Register (16 TexReg 6352). The amendment is adopted to ensure that pari-mutuel racing is safe for the licensees and conducted with the utmost integrity. The amendment prohibits a licensee other than a veterinarian from possessing a dangerous drug or controlled substance while on the grounds of a pari-mutuel racetrack. The change from the proposed text clarifies the authority of veterinarians to possess dangerous drugs on the grounds of a pari-mutuel racetrack. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 179e, sec.3.02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act, and sec.14.03, which authorize the commission to adopt rules prohibiting the illegal influencing of a race. sec.311.201. Possession and Use Prohibited. (a) (No change.) (b) Except as otherwise provided by this section, an individual licensee may not possess, while on association grounds, a dangerous drug as defined by the Texas Dangerous Drugs Act, Texas Civil Statutes, Article 4476-14, or a controlled substance as defined by the Texas Controlled Substances Act, Texas Civil Statutes, Article 4476-15. This subsection does not apply to a veterinarian licensed by the commission who has obtained permission to possess a controlled substance or dangerous drug under sec.319.14 of this title (relating to Possession of Controlled Substances). (c) This section does not apply to the possession or use of a prohibited substance obtained with a valid prescription by an individual licensee under orders of a licensed physician acting in the course of the physician's professional practice. 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 December 9, 1991. TRD-9115713 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: January 2, 1992 Proposal publication date: November 8, 1991 For further information, please call: (512) 794-8461 16 TAC sec.311.208 The Texas Racing Commission adopts an amendment to sec.311.208, concerning penalties, without changes to the proposed text as published in the November 8, 1991, issue of the Texas Register (16 TexReg 6352). The amendment is adopted to ensure that pari-mutuel racing is safe for the licensees and conducted with the utmost integrity. The amendment clarifies the responsibility for payment of charges for drug testing on occupational licensees. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 179e, sec.3.02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act, and sec.3.07, which authorize the commission to adopt rules regarding the approval and payment of laboratory charges for human alcohol testing. 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 December 9, 1991. TRD-9115712 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: January 2, 1992 Proposal publication date: November 8, 1991 For further information, please call: (512) 794-8461 Alcohol 16 TAC sec.311.223 The Texas Racing Commission adopts an amendment to sec.311.223, concerning penalties, without changes to the proposes text as published in the November 8, 1991, issue of the Texas Register (16 TexReg 6353). The amendment is adopted to ensure that pari-mutuel racing is safe for the licensees and conduct with the utmost integrity. The amendment clarifies the responsibility for payment of charges for alcohol testing on occupational licensees. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 179e, sec.3.02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act, and sec.3.07, which authorize the commission to adopt rules regarding the approval and payment of laboratory charges for human alcohol testing. 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 December 9, 1991. TRD-9115711 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: January 2, 1992 Proposal publication date: November 8, 1991 For further information, please call: (512) 794-8461 Chapter 313. Officials and Rules of Horse Racing Subchapter A. Officials General Provisions 16 TAC sec.313.6 The Texas Racing Commission adopts the repeal of sec.313.6, concerning approval of compensation, without changes to the proposed text as published in the November 8, 1991, issue of the Texas Register (16 TexReg 6354). The section is repealed to ensure that the rules of the commission are consistent with the applicable state laws. The section is repealed because of recent legislative action which changed the method for compensating officials. No comments were received regarding adoption of the repeal. The repeal is adopted under Texas Civil Statutes, Article 179e, sec.3.02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act. 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 December 9, 1992. TRD-9115710 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: January 2, 1992 Proposal publication date: November 8, 1991 For further information, please call: (512) 794-8461 Subchapter C. Claiming Races 16 TAC sec.313.302 The Texas Racing Commission adopts an amendment to sec.313.302, concerning claim procedure, without changes to the proposed text as published in the November 8, 1991, issue of the Texas Register (16 TexReg 6354). The amendment is adopted to ensure that pari-mutuel racing is conducted with utmost integrity and fairness to all licensees. The amendment changes the deadline for depositing a claim in the claim box before a race. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 179e, sec.3.02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act, and sec.6.06, which authorize the commission to adopt rules relating to the operation of racetracks. 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 December 9, 1992. TRD-9115709 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: January 2, 1992 Proposal publication date: November 8, 1991 For further information, please call: (512) 794-8461 Chapter 321. Pari-mutuel Wagering Subchapter A. Regulation and Totalisator Operations Mutuel Tickets 16 TAC sec.321.32 The Texas Racing Commission adopts an amendment to sec.321.32, concerning expiration date, without changes to the proposed text as published in the November 8, 1991, issue of the Texas Register (16 TexReg 6354). The amendment is adopted to ensure that pari-mutuel racing is conducted with the utmost integrity. The amendment clarifies the date pari-mutuel tickets expire. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 179e, sec.3.02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act, and sec.11.01, which authorize the commission to adopt rules to regulate pari-mutuel wagering; and sec.6.09, and sec.11.07, which state the expiration date for mutuel tickets. 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 December 9, 1991. TRD-9115708 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: January 2, 1992 Proposal publication date: November 8, 1991 For further information, please call: (512) 794-8461 Chapter 323. Disciplinary Action and Enforcement Subchapter A. General Provisions 16 TAC sec.323.2 The Texas Racing Commission adopts an amendment to sec.323.2, concerning complaints, without changes to the proposed text as published in the November 8, 1991, issue of the Texas Register (16 TexReg 6355). The amendment is adopted to ensure that commission's enforcement program is operated efficiently and effectively. The amendment clarifies the requirements for filing a compliant with the commission. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 179e, sec.3.02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act, and sec.3.12, which relates to the reporting of violations of the Texas Racing Act or Commission rules. 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 December 9, 1991. TRD-9115707 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: January 2, 1992 Proposal publication date: November 8, 1991 For further information, please call: (512) 794-8461 16 TAC sec.323.4 The Texas Racing Commission adopts an amendment to sec.323.4, concerning action on complaints, without changes to the proposed text as published in the November 8, 1991, issue of the Texas Register (16 TexReg 6355). The amendment is adopted to ensure that the commission's enforcement program is operated efficiently and effectively. The amendment clarifies the procedure for taking enforcement action on a complaint. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 179e, sec.3.02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act, and sec.15.04, which relates to the institution of complaints. 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 December 9, 1991. TRD-9115706 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: January 2, 1992 Proposal publication date: November 8, 1991 For further information, please call: (512) 794-8461 16 TAC sec.323.5 The Texas Racing Commission adopts the repeal of sec.323.5, concerning commission action, without changes to the proposed text as published in the November 8, 1991, issue of the Texas Register (16 TexReg 6355). The section is repealed to ensure that pari-mutuel racing of the commission are consistent with the applicable state laws. The section is repealed because of recent legislative action which added procedures for imposing administrative penalties on licensees. No comments were received regarding adoption of the repeal. The repeal is adopted under Texas Civil Statutes, Article 179e, sec.3.02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act. 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 December 9, 1991. TRD-9115704 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: January 2, 1992 Proposal publication date: November 8, 1991 For further information, please call: (512) 794-8461 Subchapter B. Civil Remedies 16 TAC sec.323.101 The Texas Racing Commission adopts an amendment to sec.323.101, concerning civil penalties, without changes to the proposed text as published in the November 8, 1991, issue of the Texas Register (16 TexReg 6355). The amendment is adopted to ensure that the commission's enforcement program is operated efficiently and effectively. The amendment clarifies the procedure for imposition and adjudication of administrative penalties. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 179e, sec.3.02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act, and sec.15.03, which authorize the commission to impose administrative penalties. 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 December 9, 1991. TRD-9115705 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: January 2, 1992 Proposal publication date: November 8, 1991 For further information, please call: (512) 794-8461 TITLE 19. EDUCATION. Part I. Texas Higher Education Coordinating Board Chapter 9. Public Junior Colleges Subchapter D. Basic Standards 19 TAC sec.9.77 The Texas Higher Education Coordinating Board adopts an amendment to sec.9. 77, without changes to the proposed text as published in the September 13, 1991, issue of the Texas Register (16 TexReg 5043). The amendment was made after consultation with the Texas Public Community/Junior College Association. The rule required every public community college to adopt a policy for trustee training to include new member orientation and continuing education for current members. The rule will be modified from a requirement to a recommendation for training new trustees. No comments were received regarding adoption of the amendment. The amendment is adopted under the Texas Education Code, sec.sec.61.027, 61.051, and 130.001, which provides the Coordinating Board with the authority to adopt rules regarding trustee professional development. 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 December 12, 1991. TRD-9115866 James McWhorter Assistant Commissioner for Administration Texas Higher Education Coordinating Board Effective date: January 3, 1992 Proposal publication date: September 13, 1991 For further information, please call: (512) 483-6160 Chapter 12. Proprietary Schools Subchapter A. Purpose of Authority 19 TAC sec.12.22 The Texas Higher Education Coordinating Board adopts an amendment to sec.12. 22, without changes to the proposed text as published in the September 13, 1991, issue of the Texas Register (16 TexReg 5043). The proposed amendment authorizes the Commissioner of Higher Education to establish fees for initial program application review, program revision review, and program evaluation of proprietary school associate degree programs consistent with the board's authority. Fees will be charged for initial application, revision, and evaluation of proprietary school applied associate degree programs and the amounts will not exceed the cost of initial program application review, program revision review, and program evaluation or proprietary school associate degree programs including the cost of necessary consultants. One comment was received stating that the Coordinating Board and Texas Education Agency should agree to share the fees (based upon tasks performed) collected by Texas Education Agency. The name of a group or association making comments against the section was the Court Reporting Institute of Dallas. The Coordinating Board has adopted its rule in accordance with statute and has no authority to require Texas Education Agency to "share" fees that it is legislatively authorized to levy. However, the Coordinating Board Commissioner of Higher Education has instructed the staff to contact Texas Education Agency staff to discuss the issue. The amendment is adopted under the Texas Education Code, sec.32.401 and sec.61. 305, which provides the Coordinating Board with the authority to adopt rules regarding Proprietary Schools. 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 December 12, 1991. TRD-9115865 James McWhorter Assistant Commissioner for Administration Texas Higher Education Coordinating Board Effective date: January 3, 1992 Proposal publication date: September 13, 1991 For further information, please call: (512) 463-6160 Chapter 13. Financial Planning Subchapter A. General Provisions 19 TAC sec.13.2 The Texas Higher Education Coordinating Board adopts an amendment to sec.13. 2, concerning financial reporting system for public junior colleges, without changes to the proposed text as published in the September 13, 1991, issue of the Texas Register (16 TexReg 5043). The rule is a result of the state auditor's report "Study of Junior College Financial Administration," August 1990. Reviews were made on the financial administration of all public community and junior colleges in Texas after a management study of American Education Complex was completed in the spring of 1989. Reporting requirements for financial statements and note disclosures will be promulgated and these requirements will be used by the public community and junior colleges. No comments were received regarding adoption of the amendment. The amendment is adopted under the Texas Education Code, sec.61.027 and sec.61. 061, which provides the Coordinating Board with the authority to adopt rules regarding financial reporting system for public junior colleges. 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 December 12, 1991. TRD-9115871 James McWhorter Assistant Commissioner for Administration Texas Higher Education Coordinating Board Effective date: January 3, 1992 Proposal publication date: September 13, 1991 For further information, please call: (512) 463-6160 Chapter 21. Student Services Subchapter A. General Provisions 19 TAC sec.21.3 The Texas Higher Education Coordinating Board adopts new sec.21.3, concerning loan repayment deferral and loan forgiveness for emergency tuition loans made under the Texas Education Code, sec.56.051, with changes to the proposed text as published in the September 13, 1991, issue of the Texas Register (16 TexReg 5044). The institutions will have the guidance they need to administer emergency tuition loans. The amendment will allow institutions to extend the time for repayment of undergraduate loans made to students who later enroll in a graduate or professional program at an institution of higher education. The Coordinating Board shall adopt guidelines for determinations of extreme financial hardship and other instances in which the public interest is served if a loan is forgiven. Each institution shall forgive loans in accordance with those guidelines. A comment was received and it is summarized as follows. The proposed rule should be flexible so that institutions could alter them to meet their local needs. Financial aid administrators should be allowed to use professional judgment to defer or forgive a loan; up to a 120-day forbearance should be allowed on defaulted loans. Loan forgiveness should be provided to persons rendering community services to low-income persons. Sam Houston State University commented against adoption of the amendment. The agency did not disagree with the comments and the rules was modified as much as possible, but yet remain consistent with the intention of the Texas Education Code, sec.56.051. The amendment is adopted under the Texas Education Code, sec.56.051 and sec.56. 055, Texas Civil Statutes, which provides the Coordinating Board with the authority to adopt rules regarding loan repayment deferral and loan forgiveness for emergency tuition loans made under the Texas Education Code, sec.56.051. sec.21.3. Loan Repayment Deferral and Loan Forgiveness for Emergency Tuition Loans Made Under the Texas Education Code, sec.56.051. (a) An institution may defer the repayment of loans made under the provisions of the Texas Education Code, sec.56.051, in accordance with guidelines adopted by the governing board of the institution. An institution may extend the time for repayment of loans for students who enroll in graduate or professional degree programs for up to three years, but not longer than one year beyond the time when the student fails to be enrolled in the institution on at least a half-time basis. (b) An institution may forgive an emergency loan made under provisions of sec.56.051 to an individual who has been certified by a physician as being physically or mentally incapable of employment which would make repayment feasible. The physician's certification would need to indicate that the individual's extreme financial hardship condition is expected to continue and would likely make repayment infeasible for the succeeding five years. 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 December 12, 1991. TRD-9115867 James McWhorter Assistant Commissioner for Administration Texas Higher Education Coordinating Board Effective date: January 3, 1992 Proposal publication date: September 13, 1991 For further information, please call: (512) 483-6160 Subchapter C. Hinson-Hazlewood College Student Loan Program 19 TAC sec.21.53 The Texas Higher Education Coordinating Board adopts an amendment to sec.21. 53, without changes to the proposed text as published in the September 13, 1991, issue of the Texas Register (16 TexReg 5044). There will be further clarification to the rules of the definition of a parent campus. The amendment will extend the definition of a parent campus to include the corporate office or corporate headquarters of a school or institution. No comments were received regarding adoption of the amendment. The amendment is adopted under the Texas Education Code, sec.52.54 which provides the Coordinating Board with the authority to adopt rules regarding the Hinson-Hazlewood College Student Loan Program. 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 December 12, 1991. TRD-9115868 James McWhorter Assistant Commissioner for Administration Texas Higher Education Coordinating Board Effective date: January 3, 1992 Proposal publication date: September 13, 1991 For further information, please call: (512) 483-6160 Subchapter AA. Student Exchange Program for Students from Mexico 19 TAC sec.sec.21.901-21.909 The Texas Higher Education Coordinating Board adopts new sec.sec.21.901-21.909, concerning the Student Exchange Program for students from Mexico. Section 21.906 and sec.21.907 are adopted with changes to the proposed text as published in the September 13, 1991, issue of the Texas Register (16 TexReg 5045). Sections 21.901-21.905, 21.909 are adopted without changes and will not be republished. The new rules are intended to implement amendments to the Texas Education Code, 54.060(b), (c), and (d), as passed in House Bill 1879 of the recent Regular Session of the Legislature. The new sections will establish a student exchange program with Mexico and a pilot program to encourage some Mexican students to enroll in Texas institutions of higher education. Comments were received which resulted in changes to sec.21.906(a) and sec.21. 907. It was felt that the changes to sec.21.906(a) would help insure that Texas students would not pay more than what Mexican nationals pay and would allow for Texas institutions to negotiate even lower rates at Mexican institutions that charge high tuition rates. The changes should be made to sec.21.907 since the most likely exchange programs will involve larger numbers of Texas students in Mexico for short duration programs in return for smaller numbers of Mexican students in Texas for longer stays. The University of Texas at El Paso commented against adoption of the new sections. This agency did not disagree with the comments received and changes were made to the rules accordingly. The new sections are adopted under the Texas Education Code, sec.54.060 which provides the Coordinating Board with the authority to adopt rules regarding the Student Exchange Program for Students from Mexico. sec.21.906. Tuition Rate To Be Paid. (a) Mexican students participating in the exchange program will be eligible to enroll at the receiving Texas institution by paying a tuition rate equal to the resident rate. Texas students participating in the exchange program must be allowed to pay a tuition rate no greater than the tuition rate normally charged Mexican nationals at the receiving Mexican institution. (b) A student no longer participating in the exchange program, but continuing to enroll in the receiving institution will be expected to pay the rate charged other nonresident students beginning with the first enrollment period after the student discontinues his/her participation in the exchange program. sec.21.907. Reciprocity. The number of units of instruction exchanged would ideally be equal in any given year. If balance is not attained in any one year, parity is to be established within a five-year period. 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 December 12, 1991. TRD-9115869 James McWhorter Assistant Commissioner for Administration Texas Higher Education Coordinating Board Effective date: January 3, 1992 Proposal publication date: September 13, 1991 For further information, please call: (512) 483-6160 Subchapter BB. Pilot Program for Enrolling Students From Mexico 19 TAC sec.sec.21.931-21.939 The Texas Higher Education Coordinating Board adopts new sec.sec.21.931-21.939, without changes to the proposed text as published in the September 13, 1991, issue of the Texas Register (16 TexReg 5045). The new sections are intended to implement amendments to sec.54.060(b), (c), and (d) of the Texas Education Code as passed in House Bill 1879 of the recent Regular Session of the Legislature. The new sections will establish a student exchange program with Mexico and a pilot program to encourage some Mexican students to enroll in Texas institutions of higher education. No comments were received regarding adoption of the new sections. The new sections are adopted under the Texas Education Code, sec.54.060, which provides the Coordinating Board with the authority to adopt rules regarding the Pilot Program for Enrolling Students from Mexico. 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 December 12, 1991. TRD-9115870 James McWhorter Assistant Commissioner for Administration Texas Higher Education Coordinating Board Effective date: January 3, 1992 Proposal publication date: September 13, 1991 For further information, please call: (512) 483-6160 TITLE 22. EXAMINING BOARDS Part XIV. Texas Optometry Board Chapter 271. Examinations 22 TAC sec.sec.271.3-271.6 The Texas Optometry Board adopts the amendments to sec. sec.271.3-271.6, concerning board examinations for licensure, without changes to the proposed text as published in the October 18, 1991, issue of the Texas Register (16 TexReg 5810). The rule will provide current information regarding licensure examination requirements to candidates seeking to practice optometry in Texas. The amendments are housekeeping changes as a result of the phase-out of the board's state written examination. The sections will provide candidates with current examination information. No comments were received regarding adoption of the amendments. The amendments are adopted under Texas Civil Statutes, Article 4552, sec.2.14, which provide the Texas Optometry Board with the authority to promulgate procedural and substantive rules. 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 December 11, 1991. TRD-9115635 Lois Ewald Executive Director Texas Optometry Board Effective date: January 1, 1992 Proposal publication date: October 18, 1991 For further information, please call: (512) 835-1938 Chapter 273. General Rules 22 TAC sec.273.4 The Texas Optometry Board adopts an amendment to sec.273.4, concerning the license renewal fee for optometrists, without changes to the proposed text as published in the October 18, 1991, issue of the Texas Register (16 TexReg 5744). A correction to this section was published in the October 25, 1991, issue of the Texas Register (16 TexReg 6090). The rule was adopted as an emergency in order that the board might assess proper fees for annual renewal and certification as a therapeutic optometrist, in accordance with appropriation rider and Senate Bill 774, respectively. Fees generated from the rule is the source of funding for the agency, with all fees being placed in Special Fund 034. Fees generated by increased amounts will provide the needed revenue to meet the appropriations of the agency, as established by the 72nd Legislature, 1991. No comments were received regarding adoption of the amendment. The amendment is adopted under the Texas Optometry Act, sec.2.14, Texas Civil Statutes, Article 4552, which provides the Texas Optometry Board with the authority to promulgate procedural and substantive rules. 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 December 11, 1991. TRD-9115634 Lois Ewald Executive Director Texas Optometry Board Effective date: January 1, 1992 Proposal publication date: October 18, 1991 For further information, please call: (512) 835-1938 Chapter 279. Interpretations 22 TAC sec.279.8 The Texas Optometry Board adopts the repeal of sec.279.8, concerning the interpretation of sec.1.02 as it relates to the definition of diagnosing within the scope of optometry, without changes to the proposed text as published in the October 18, 1991, issue of the Texas Register (16 TexReg 5812). The rule is no longer required since Senate Bill 774 has redefined the practice of optometry and scope to include diagnosis, which was previously defined by board interpretation as sec.279.8. Removal or repeal of the rule is necessary as it serves no purpose and is no longer required; repeal allows for housekeeping of board rules. No comments were received regarding adoption of the repeal. The repeal is adopted under Texas Civil Statutes, Article 4552, sec.2.14, which provide the Texas Optometry Board with the authority to promulgate substantive and procedural rules. 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 December 11, 1991. TRD-9115633 Lois Ewald Executive Director Texas Optometry Board Effective date: January 1, 1992 Proposal publication date: October 18, 1991 For further information, please call: (512) 835-1938 Part XXIII. Texas Real Estate Commission Chapter 535. Provisions of the Real Estate License Act Requirements for Licensure 22 TAC sec.535.51 The Texas Real Estate Commission adopts an amendment to sec.535.51, concerning general requirements for licensure, without changes to the proposed text as published in the November 5, 1991, issue of the Texas Register (16 TexReg 6257). The amendment adopts by reference a series of six application forms which applicants use to obtain real estate licenses. The amendment is necessary to revise and standardize the application forms used by the commission. On final adoption, statements in the forms relating to the applicant's proposed business address were reworded to indicate where the address should be inserted by the applicant. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 6573a, sec.5(h), which provide the Texas Real Estate Commission with the authority to make and enforce all rules and regulations necessary for the performance of its duties. 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 December 10, 1991. TRD-9115658 Mark A. Moseley General Counsel Texas Real Estate Commission Effective date: January 1, 1992 Proposal publication date: November 5, 1991 For further information, please call: (512) 465-3900 Licenses 22 TAC sec.535.92 The Texas Real Estate Commission adopts an amendment to sec.535.92, concerning the time for filing license renewal applications, without changes to the proposed text as published in the November 5, 1991, issue of the Texas Register (16 TexReg 6258). The amendment permits Texas real estate brokers and salesmen to file license renewal applications during a 90-day period which ends when the existing license expires. The amendment is necessary to provide a longer time for licensees to file renewal applications, thereby reducing administrative processing work caused by late renewals. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 6573a, sec.5(h), which provide the Texas Real Estate Commission with the authority to make and enforce all rules and regulations necessary for the performance of its duties. 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 December 10, 1991. TRD-9115660 Mark A. Moseley General Counsel Texas Real Estate Commission Effective date: January 1, 1992 Proposal publication date: November 5, 1991 For further information, please call: (512) 465-3900 Licensed Real Estate Inspectors The Texas Real Estate Commission adopts the repeal of sec. sec.535.202-535.204 and new sec.sec.535.206, 535.208, 535.210, 535.214, 535.224, and 535.226. New sec.535. 214 is adopted with changes to the proposed text as published in the November 5, 1991, issue of the Texas Register (16 TexReg 6258). The repeal of sec.sec.535. 202-535.204 and new sec. sec.535.206, 535.208, 535.210, 535.224, and 535.226 are adopted without changes and will not be republished. Section 535.212 may be adopted at a later date. These actions are necessary to implement a new licensing program for real estate inspectors provided by Senate Bill 432, enacted by the 72nd Legislature. The new sections adopt application forms by reference, set fees and examination passing scores, establish procedures for processing, issuing, or denying inspector registrations or licenses, and detail the quorum and procedures for the Texas Real Estate Inspector Committee concerning minutes, reports, and hearings. New sec.535.226 clarifies the sponsorship of apprentice inspectors and inspectors- in-training by licensed inspectors. Repeal of sec.sec.535.202-535.204 is necessary to replace those sections adopted under the prior law repealed by Senate Bill 432. Upon the recommendation of the Texas Real Estate Inspector Committee, sec.535. 214 was revised to clarify that the examination for an inspector license will measure a higher degree of competence than the examination for an inspector-in- training license. No comments were received regarding adoption of the repeals and new sections. 22 TAC sec.sec.535.202-535.204 The repeals are adopted under Texas Civil Statutes, Article 6573a, sec.5(h), which provide the Texas Real Estate Commission with the authority to make and enforce all rules and regulations necessary for the performance of its duties. 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 December 10, 1991. TRD-9115656 Mark A. Moseley General Counsel Texas Real Estate Commission Effective date: January 1, 1992 Proposal publication date: November 5, 1991 For further information, please call: (512) 465-3900 Licensed Real Estate Inspectors 22 TAC sec.sec.535.206, 535.208, 535.210, 535.214, 535.224, 535.226 The new sections are adopted under Texas Civil Statutes, Article 6573a, sec.5(h), which provide the Texas Real Estate Commission with the authority to make and enforce all rules and regulations necessary for the performance of its duties. sec.535.214. Examinations. There shall be an examination for an inspector-in- training license and for an inspector license. Questions shall be used which will measure competency in the subject areas required for licensure by Texas Civil Statutes, Article 6573a, sec.23, (the Act) and which will demonstrate an awareness of its provisions relating to inspectors. Each applicant must achieve a score of at least 75% on the examination. The examination for an inspector license shall measure a higher level of competency than that required of an inspector-in-training. 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 December 10, 1991. TRD-9115657 Mark A. Moseley General Counsel Texas Real Estate Commission Effective date: January 1, 1992 Proposal publication date: November 5, 1991 For further information, please call: (512) 465-3900 TITLE 25. HEALTH SERVICES Part I. Texas Department of Health Chapter 141. Massage Therapists The Texas Department of Health (department) adopts amendments to sec.sec.141. 1- 141.3, 141.5, 141.7, 141.8, 141.10, 141.14-141.18, and 141.21; the repeal of existing sec.sec.141.11-141.13; and new sec.sec.141.11-141.13, and 141.22. Sections 141.3, 141.10, 141.11, 141.13, 141.15, and 141.18 are adopted with changes to the proposed text as published in the September 3, 1991, issue of the Texas Register (16 TexReg 4808). Sections 141.1, 141.2, 141.5, 141.7, 141.8, 141.12, 141.14, 141.16, 141.17, 141.21, and 141.22 are adopted without changes and will not be republished. The amendments and new sections update and replace existing sections and implement the provision of Acts 1991, 72d Legislature, Chapter 507 (House Bill 2420), relating to the regulation of massage therapy. Generally, the changes include the registration and regulation of massage schools, massage therapy instructors, and massage establishments; hourly course requirements; extension of the period for renewal; and the addition of renewal procedures for active military duty. The repeal of existing sec.sec.141.11-141.13 removes obsolete language. At a public hearing held on the proposal, one commenter presented oral and written testimony. Written testimony was also received from two commenters during the comment period. The comments and the department's responses are as follows. Concerning sec.141.3(a)(3)(B)(i) and (ii), a commenter asked for justification of the fees based on gross tuition revenues. The department's response is that State law requires the department to set fees to cover the costs of administering the program. Schools with gross tuition revenue of more the $50, 000 reflect a larger enrollment, staff, and program variety that will require additional staff time to survey. Concerning sec.141.3(a)(3)(D), a commenter asked that the fee for a certificate changing a school name and massage therapy instructor name be equal. The department agrees and has changed the school name change fee since a school name change does not involve a change of ownership, location, or control. Concerning sec.141.3(a)(3)(F) and (4)(F), two commenters requested clarification of seminars and workshops. The department's response is that seminars and workshops are defined as additional programs in sec.141.1. Seminars and workshops by definition are continuing education programs of 55 clock hours or less. Additional programs include seminars and workshops as well as programs exceeding 55 clock hours (i.e., a course above the course of study required for registration). Concerning sec.141.5(b)(1), a commenter stated the five-year limitation would be unfair to a M.D., D.C., licensed physical therapist, or licensed athletic trainer. The department disagrees. The law regulating massage therapists and massage establishments (Texas Civil Statutes, Article 4512k) exempts individuals for which a license to practice medicine, chiropractic, physical therapy, or podiatry is required by law. The department does not consider it unreasonable to require recent course work of individuals who choose to apply for registration as a massage therapist. Concerning sec.141.10, the department added subsection (g) to comply with the Texas Education Code, sec.57.491, prohibiting renewal of registration if an individual defaults on a guaranteed student loan. Concerning sec.141.11(c), a commenter asked if the department intended to raise expenses for the small operator. The commenter also suggested that purchasers of existing schools receive a reduced registration application fee. In response, the department realizes there are costs associated with providing the financial statements. These are normal costs of doing business. The costs to the department for processing school applications are the same for each category of applicant. Therefore, the department did not make changes based on these comments. Concerning sec.141.11(c)(1)-(6), two commenters requested an exemption for schools and instructors not participating in the Guaranteed Student Loan Program or which are non-profit organizations under of the Internal Revenue Code, sec.501(c). The department disagrees because the department knows of no non- profit massage schools. Because massage schools are private "for-profit" entities with a need for rapid turnaround in programs and student clientele, the potential for financial instability is increased. Financial stability is essential to the quality and integrity of massage schools. The intent of the subsection is to provide students and taxpayers with the level of protection accorded by the law. Testimony during the 72nd Legislature, 1991, indicated the cost of instruction in massage therapy greatly exceeded the cost per hour of instruction in all other trade schools. This subsection applies to applications for school registration or non-school based massage therapy instructor registration. Section 141.13(b)(10) sets out financial stability requirements for on-going programs. The department made no change to this subsection based on these comments; however, the department changed the wording in sec.141.11(c)(1) -(3) to allow financial statements that have been reviewed by or compiled by a public accountant. The department also changed the wording in (c) to clarify the information required of new schools and instructors. Concerning sec.141.11(c)(3)(A), a commenter objected to listing individual instructor salaries. The department agrees and has deleted the requirement for salaries and expenses by position. Concerning sec.141.11(e)(2), a commenter suggested language to clarify the purpose of additional programs. The department agrees and has incorporated the suggested language into the paragraph. A student is any person who enrolls for a course, seminar, or workshop. The term "student" is used at all levels of education and has been retained in this paragraph. Concerning sec.141.11(e)(3)(A), a commenter requested the first sentence be deleted. The department agrees and has deleted the sentence. Concerning sec.141.11(e)(3)(B), a commenter requested the paragraph be worded to clarify that additional programs are designed to enhance a student's career as opposed to the course offered to develop basic skills and knowledge for entry in the profession. The department agrees and has changed the wording. Concerning sec.141.11(e)(3)(B)(i)-(iv), a commenter objected to some of the criteria used to approve additional programs. The department disagrees. The standards are necessary to allow consideration of issues affecting consumer rights and institutional responsibility. The department must exercise its oversight responsibilities to the public. Concerning sec.141.11(e)(3)(B)(v), a commenter asked for clarification of meaning. The department's response is that the school or massage therapy instructor must set prerequisites for admission to the additional programs offered by the school or instructor. It is one criteria for program approval. The department has made no change in the language. Concerning sec.141.11(e)(5), a commenter requested that registered schools be exempt from the advertising prohibition on programs not approved by the department. The department disagrees. The standard is necessary to assure consumers that the program meets the requirements and has been approved by the department. Programs do not have to be reapproved every time they are offered unless substantial changes are made in the content. Concerning sec.141.11(j)(1), a commenter requested extension of the rules to the exempted schools. The department disagrees. The massage therapy law expressly exempts from the entire Act all schools approved by the Central Education Agency. The department has no authority to regulate such schools. Concerning sec.141.11(k)(1) and (2), a commenter objected to the prohibition on transferring school registrations. The department disagrees. The proposed purchaser of a school may begin the application process while the school continues to operate under the registered owner. Under state law the registration is the property of the department and cannot be sold or transferred when a school is sold. Concerning sec.141.11(k)(1) and (2), a commenter objected to the prohibition on transferring school registration. The department disagrees. The purchaser of a school may begin the application process while the school continues to operate; however, the department has changed the wording in subsection (k)(4) to allow the owner to turn in the school registration at the time the new school registration is approved. Concerning sec.141.11(k)(4), two commenters suggested new language to clarify when the former owner must surrender the school registration certificate. In response, the department has reworded the paragraph. Concerning sec.141.13(b)(1)(B), a commenter suggested adding language to specify instructors credentials be submitted at the time of renewal. In response, the department has added a new paragraph at sec.141.13(b)(19)(B) to clarify these requirements. Since the amendments to Texas Civil Statutes, Article 4512k, by House Bill 2420 were effective June 13, 1991, the bill and the proposed rules have given sufficient notice of the requirements the department intended to impose. Concerning sec.141.13(b)(2)(C)(ii), a commenter requested that schools and instructors be allowed to test students over previous education and training. The department disagrees. The massage therapy law allows applicants to use a combination of education and training to meet any portion of the course of instruction required for registration. The department cannot impose an additional test requirement on these individuals, other than the examination given by the department. Concerning sec.141.13(b)(2)(D)(vi), a commenter requested deletion of the paragraph because break time varies depending on the subject and class type. The department disagrees. The paragraph does not prescribe break times. It requires the school or instructor to provide information to students concerning break and meal times which may be flexible. Instruction is more effective when regularly scheduled breaks are a part of class training. The department has revised the language for clarification. Concerning sec.141.13(b)(2)(D)(x), a commenter requested the paragraph be deleted requiring the provision of information on placement of graduates. The department disagrees. It is the obligation of schools to prepare students for real jobs. While the school cannot promise a job, getting the student work-ready in a field where jobs are available to the student is a primary accountability factor for the school. It is important for prospective students to be appraised of reasonable expectations of employment upon completion of the program. The department recognizes that many massage therapists are self-employed. Prospective students should receive information on local market supply and demand. The department has received complaints that massage therapists do not readily find employment in some geographical areas of the State. The department has revised the language for clarification. A commenter requested that "completion rate" be defined. The department disagrees; however, the department has changed the wording in the receipt format in sec.141.13(b)(2)(E) to clarify the information that prospective students should receive. Concerning sec.141.13(b)(2)(E)-(F), a commenter stated the paragraphs seems to overlap. The commenter felt all the documents would make the file too thick. The department's response is that it intended that the prospective student sign the receipt acknowledging receipt of the required documents. The department has revised the language for clarification. Concerning sec.141.13(b)(2)(G), a commenter requested that enrollment agreements be required only of schools with Guaranteed Student Loan programs. The department disagrees. Based on the number of complaints received by the department regarding items to be covered in the agreement, the agreement is an essential element of consumer protection provisions. Concerning sec.141.13(b)(5)(A), a commenter stated that schools and instructors should be able to keep $200 if a student cancels a contract for any reason. The department disagrees. Soliciting business is a standard cost of doing business. The two cancellation provisions in (i) and (ii) are standard consumer protections. Concerning sec.141.13(b)(5)(A), a commenter requested that no cancellation provision call for full refund of student fees. The department disagrees. A 72- hour cancellation clause is a standard consumer protection. Soliciting students is a standard cost of doing business whether the person decides to attend school or not. Concerning sec.141.13(b)(5)(B), a commenter stated that a school must cease operation during the sale process, causing the school to refund tuition. The department disagrees. The sections do not require a school to cease operation during the sale and registration approval process. The school must operate under the registered owner until the application of the new owner is approved. Concerning sec.141.13(b)(5)(B)(v), a commenter asked what it meant. In response, the department has deleted the clause as it was not applicable to this section. The remaining clauses were renumbered. Concerning sec.141.13 (b)(5)(B)(vi), a commenter requested that "unused" be added before tuition each time it is used in this clause. The department disagrees with this request but agrees that students who receive transcripts for work completed prior to relocation of a school may not be eligible for a full refund. Accordingly, the department has reworded the clause to provide procedures for schools to provide transcripts before full refunds are required. Concerning sec.141.13(b)(5)(B)(vii), a commenter requested that the change of location be extended from 10 miles to 25 miles. The department disagrees. Ten miles is a reasonable distance. Concerning sec.141.13(b)(5)(B)(viii), a commenter requested the paragraph be deleted because schools do not enroll students who are not qualified. The department disagrees because of complaints received from individuals who were enrolled by schools and or instructors, paid tuition, and were later found to be ineligible for registration. Concerning sec.141.13(b)(5)(F), a commenter requested a grievance procedure rather than an audit. The department response is that grievance procedures by students are addressed in subsection (b)(15). The audit is required for the department to determine if proper refunds were made by a school or instructor. The department has modified the paragraph to allow the school to make refunds before an audit is required. Concerning sec.141.13 (b)(8)(B)(vi), a commenter requested a longer period to start students after classes begin. The department disagrees. The department has received numerous complaints about schools repeating material for students who enrolled late, thereby delaying the students who started on the first day. The quality of instruction is affected for those making timely application for school. Concerning sec.141.13 (b)(8)(B)(ix), a commenter asked if this means each student file must contain an attendance record. The department's response is that the paragraph states a roll book may be used. Concerning sec.141.13(b)(8)(A)(iii), a commenter requested the deletion of the last sentence because it is redundant. The department agrees and has deleted the language. Concerning sec.141.13(b)(8)(A)(iv), a commenter requested changes to the grading period requirements. The department disagrees with this request, but agrees more flexibility is allowable in this area. The clause defines a grading period and calls for evaluation of a student's progress. It does not prescribe testing. Evaluation may be conducted by a variety of methods. The department has modified the language. Concerning sec.141.13(b)(8)(B)(vii), two commenters requested deletion of the limit on make-up work allowed for missed classes. The department disagrees. A reasonable amount of make-up time is allowed under clause (vi). Based on past complaints, the department has determined that students who regularly attend class are penalized while instructors bring other students "up to speed." The requirement affects students who accumulate absences of more that 10 consecutive days or more that 15% of the total clock hours in a program. The department does not feel this requirement is excessive. Concerning sec.141.13(b)(10), two commenters requested that the financial stability provision be modified. The department disagrees. Financial integrity is crucial for determining financial stability, adequate facilities, equipment, functions, instructional materials, etc.; however, the department has changed sec.141.13(b)(10)(C)(ii) to allow operating schools to submit financial statements that were reviewed or compiled by CPAs. Concerning sec.141.13(b)(10)(C)(i)-(ii), the department changed the wording to allow submission of financial statements that were reviewed by or compiled by a certified public accountant or independent public accountant. Concerning sec.141.13(b)(10)(H), a commenter requested that the phrase for "generally accepted accounting principals" be defined. The department disagrees. This is a term of art and has a commonly understood meaning. Concerning sec.141.13(b)(16)(B), a commenter requested a definition of "serious" and asked if 30 days was a standard time frame for correction of deficiencies. In response, the department has determined that a reasonable person could identify a serious deficiency and a definition is not required. Thirty days is a standard in most rules for correction of a deficiency. The department made no change. Concerning sec.141.13(b)(17)-(18), a commenter requested that "disciplinary action" be defined. The department's response is that disciplinary action is described in sec.141.20 (relating to Violation, Complaints, and Disciplinary Action). The department made no change. Concerning sec.141.15(c)(8), a commenter requested a five year limitation to misdemeanor offenses. The department's response is that sec.11(d) of the massage therapy law limits certain convictions to five years. Offenses involving prostitution or similar offenses or other felonies or misdemeanors have no time limitations in the law. The department made no change. Concerning sec.141.15(j), a commenter stated the reports requested should be restricted to convictions. The department disagrees because civil suits and criminal actions may reflect code of ethics violations. The department may propose to take disciplinary action before the civil or criminal action is resolved. Concerning sec.141.15(n)(4), the department changed the wording changed to clarify that massage establishment registration certificates must be returned to the department when the application of the new owner is approved. Concerning sec.141.18(d), a commenter asked if all health care providers must post consumer information regarding complaints. The department's response is that, based on the complaints received by the department, it is critical that clients know where to report violations of the massage therapy act and rules. The department made no change. Concerning sec.141.21(a)(1)(D), a commenter asked the department to change the number of days. The department's response is that the time frames involve average processing time from the receipt of the application until deficiency or approval notices are sent. The time frames are established in accordance to Texas Civil Statutes, Article 6252-13b.1. The department made no change. In addition to the changes made as a result of comments received, the department made some editorial changes to clarify language and intent in sec.sec.141.3, 141.10, 141.11, 141.13, 141.15 and 141.18. Comments were received from the Texas Coalition of Massage Therapy Schools and Instructors; and from two individuals. The commenters were neither for or against the sections in their entirety; however, they raised questions and concerns and offered suggestions regarding changes. 25 TAC sec.sec.141.1-141.3, 141.5, 141.7, 141.8, 141.10-141.18, 141.21, 141.22 The amendments and new sections are adopted under Texas Civil Statutes, Article 4512k, sec.7-7D, which provide the Texas Board of Health with the authority to adopt rules concerning the regulation and registration of massage therapists, massage instructors, massage schools, and massage establishments and Health and Safety Code, sec.12.001, which provides the Texas Board of Health with the authority to adopt rules for the performance of every duty imposed by law on the Texas Board of Health, the Texas Department of Health, and the commissioner of health. sec.141.3. Fees. (a) The schedule of fees is as follows. (1) Massage therapists: (A) (No change.) (B) examination fee: (i) (No change.) (ii) to be determined by the agency approved by the department to administer the examination plus an administrative fee determined by the department at the time the applicant is scheduled for an examination; (C) re-examination fee: (i) department administered: (I)-(II) (No change.) (III) written translation fee-the actual costs to the department of translating or having the examination translated into a foreign language, including salaries, travel expenses, and out of pocket expenses plus an administrative fee determined by the department; or (ii) to be determined by the agency approved by the department to administer the examination plus an administrative fee determined by the department at the time the applicant is to be rescheduled for an examination; (D) (No change.) (E) late penalty fee (includes renewal fee)-$48; (2) (No change.) (3) Massage therapy schools: (A) initial registration and inspection fee (initial program)-$1,400; (B) each annual renewal fee is dependent on the gross amount (income from student tuition and fees); (i) if income from student tuition and fees is not more than $50,000, the fee is $825; (ii) if income from student tuition and fees is more than $50,000, the fee is $1,125; (C) late penalty fee-all unpaid renewal fees and a fee that is one-half of the renewal fee for the registration; (D) registration fee for a change of name-$20; (E) registration fee for a change of instructional address (includes inspection) -$375; (F) application fee for an additional program-$225; except for seminars and workshops for which the fee is-$35; (G) application and registration fee for an inspection of any facilities that are separate from the main campus-$375; (4) Massage therapy instructors: (A) (No change.) (B) renewal fee for a school based massage therapy instructor -$100; (C) renewal fee for independent MTI (includes inspection) -$475; (D) late penalty fee-an unpaid renewal fee and a fee that is one half of the renewal fee for the registration; (E) application and registration fee for independent MTI (this fee is in addition to the registration fee of $100) -$375; (F) application fee for an additional program-$225; except for seminars and workshops for which the fee is-$35; (G) registration fee for a change of instructional address (includes inspection)-$375; (H) registration fee for a change of name-$20; (I) application and registration fee for an inspection of a change of instructional address-$375; (5) General: registration certificate and identification card replacement fee- $20. (b)-(c) (No change.) sec.141.10. Massage Therapist Registration Renewal. (a)-(d) (No change.) (e) Late renewal. (1) (No change.) (2) A person whose registration has expired for not more than one year may renew the registration by submitting to the department the registration renewal form and the late renewal penalty fee. The renewal is effective if it is mailed to the department not more than one year after the expiration date of registration. The postmark date shall be considered as the date of mailing. (3) A person whose registration has been expired for more than one year may not renew. The person may obtain a new registration by submitting to re-examination and complying with the then current requirements and procedures for obtaining a registration. (f) Expiration of registration. (1)-(2) (No change.) (3) A person who fails to renew a registration is required to surrender the registration certificate and identification card to the department after expiration of the registration or upon demand. (g) Loan default. The department shall deny renewal of the license of a registrant if renewal is prohibited by the Education Code, sec.57.491. sec.141.11. General Requirements for Massage Schools and Massage Therapy Instructors. (a) Registration generally. The Texas Department of Health (department) may approve a massage school or massage therapy instructor and issue a registration if the applicant is found upon investigation to satisfactorily meet the minimum standards set forth in sec.141.13 of this title (relating to Minimum Standards for Operation of Massage Therapy Schools and Massage Therapy Instructors). (b) Application generally. An application shall be submitted to the department prior to the proposed starting date of the Massage Therapy Program (program). An application must be signed by the owner or authorized representative of the owner of a school or by the massage therapy instructor (MTI) applicant. (1) All official application forms must be completed and notarized. (2) An original of the entire application and supporting documentation must be submitted with all pages clearly legible. (3) Applications which are received incomplete may cause postponement of the program's starting date. (4) If the application is revised or supplemented during the review process, the applicant shall submit a transmittal letter plus the revision or supplement specified. If a page is to be revised, the complete new page must be submitted with the changed item or information clearly marked. (5) Additional information deemed important in consideration of the application may be requested by the department. (6) All tuition, fees, and other charges shall be stated in the application for registration. (7) The department may conduct an inspection of the instructional site. (8) The department shall follow the requirements in sec.141.16 of this title (relating to Determination of Eligibility of Massage Therapy Instructors, Massage Schools, and Massage Establishments). (9) No school shall be operated or instruction given and no student shall be solicited or enrolled until the department has approved the application. (10) The certificate must be displayed in an appropriate and public manner at the primary school site. (c) Financial stability. (1) The applicant shall furnish the department with a balance sheet that has been reviewed by or audited by an independent public accountant or certified public accountant properly registered with the appropriate state board of accountancy. (2) The balance sheet shall disclose the amount of payments for the five year to meet debt agreements. (3) The balance sheet must be accompanied by the owner's statement outlining the expected expenses for the first three months of operation. These expenses may include, but are not limited to, the following: (A) total salaries, including withholding, unemployment taxes, and any other related expenses; (B) lease or purchase payments for equipment listed by the name of the equipment; (C) lease or purchase payments for facilities; (D) accounting, legal, and professional fees; and (E) an estimate of other expenses such as advertising, travel, textbooks, office supplies, classroom supplies, printing, telephone, utilities, and taxes. (4) The balance sheet must reflect sufficient cash to pay all expenses for the first three months of operation. (5) The applicant shall also furnish such other evidence as may be deemed appropriate by the administrator to establish financial stability. (6) All financial statements must identify the name of the independent public accountant or certified public accountant who prepared the statements and be in accordance with generally accepted accounting principles. Reviews and compilations must be accompanied by the owner's or MTI's affidavit that the statements are true and correct. (d) Franchise tax. A corporate applicant must file a statement that its franchise taxes are current, that the corporation is exempt from payment of the franchise tax, or that it is an out-of-state corporation that is not subject to the franchise tax. (e) Additional programs. (1) A massage school making application for approval of additional programs beyond the required course of instruction shall submit the necessary documents as designated by the department with the appropriate fee. Programs must be approved prior to solicitation of students, advertising, or conducting classes. An approval for an additional program will be denied if the registrant is not in compliance with the Act or this chapter. (2) No additional programs shall be approved unless the applicant demonstrates that the program offered is of such quality, content, and length as to reasonably and adequately advance the practical skill and knowledge of the student to practice as a massage therapist. (3) In determining whether an application for approval of an additional program shall be approved, the department shall consider the following. (A) Each subject that collectively constitutes the program shall advance the practical skill and knowledge required for practice as a massage therapist. (B) Each program submitted for approval shall identify the clock hours allocated to each subject which comprises the program. The total number of clock hours allocated to each subject shall bear a direct and reasonable relationship to the practice of massage therapy. Subjects or a combination of subjects constituting a program which, when considered separately or collectively, are not reasonable to enhance a student's career shall not be approved. In determining whether a particular subject or the program as a whole conforms to the standards in this chapter, the department shall consider: (i) the structure, content, and length of programs offered by other educational providers which prepare the student for the practice of massage therapy; (ii) any statutory requirements applicable to massage therapy; (iii) the opinion of individuals whose expertise in massage therapy is acknowledged in education or the industry; (iv) whether the employability or advancement potential of a student who successfully completes the program under review would be significantly greater than the employability of a student who successfully completes a program with fewer clock hours which prepares the student for the practice of massage therapy; (v) the education and experience level set forth in the entrance requirements as prerequisite; and (vi) any other relevant information. (C) Each subject and program submitted for approval shall be identified by a title. False, misleading, or deceptive program or subject titles shall not be approved. (4) Applications for program approval shall be submitted on forms provided by the department. (5) A school or independent MTI shall not advertise or publish in any pre- enrollment information a program which has not been approved by the department. (f) MTI. An MTI desiring to teach an initial or additional program independent of a massage school shall meet the same requirements of this chapter as required of massage schools. An MTI may teach all subjects within the initial program at a registered massage school or independently. (g) Location. A registration shall be issued only for a specifically approved instructional location(s). (1) A massage school or independent massage therapy instructor shall obtain approval for an additional location where a program will be offered if the location has not previously been approved by the department as part of the school's or instructor's registration. Upon approval of an additional location, further programs may be offered at the previously approved location or the additional location. (2) A request for a change of instructional location of a massage school or an independent MTI must be filed and approved by the department before the changed location is used. Upon approval of a change of instructional location, further programs shall only be offered at that location. (3) A request under this subsection shall include all documents designated by the department as being necessary to evaluate the request and the appropriate fee. (4) The approval shall be issued if the new location complies with the Act and this chapter as demonstrated in the application and by an inspection of the additional or changed location(s). (5) Refunds due under the cancellation and refund policy must be made before the department will approve the location. (h) Notification of issuance or denial of registration. The department, upon review and consideration of an application for a registration or other approval, shall approve or disapprove the application. The department shall set forth in writing the approval or the reasons for denial of approval. (i) Effective date of registration. The effective date of the registration shall be the date the certificate of registration is issued. (j) Exemption. (1) A school approved by the central education agency (agency) or that is otherwise approved by the state is not required to be registered as a massage school. (2) A person who is otherwise approved by the state to teach massage therapy or holds a teaching certificate in massage therapy from the agency is not required to be registered as a massage therapy instructor. (k) Transfer or change of ownership. No massage school or massage therapy instructor registration shall be transferred or sold to another person or owner. (1) The new owner of a massage school must apply for registration as a new applicant. (2) A massage school may not operate under a new owner until a massage school registration is issued by the department to the new owner. (3) The new owner may provide a copy of the sales contract, bill of sale, deed, or other instruments necessary to transfer ownership of the school if the instruments will provide the department with part of the information usually required from an applicant. (4) The former owner of a massage school must surrender the registration certificate of the school at the time the application of the new owner is approved by the department. (l) Change of control. A massage school must notify the department in writing and within 10 days of any change concerning: (1) the person who: (A) has an ownership interest in the stock of the corporate owner of 35 percentum or more; or (B) is an officer or director of the corporate owner; and (2) the persons, other than owners, who are: (A) officers, directors, or registered agents of the owner; (B) employees who exercise operational or managerial control over the school or who directly or indirectly conduct the day-to-day operations of the school; or (C) responsible for the management of the school. (m) Suspension of enrollments. If a massage school or independent MTI suspends enrollments or closes, the school or MTI may not advertise, solicit, or in any way advise prospective students, either directly or indirectly, of the program offerings. If a school or MTI suspends or closes, they must give written notice to the department within 10 days of the suspension or closure. The department shall be furnished with the names and addresses of any students who were prevented from completion by reason of the discontinuance of the program. The school or MTI shall request reinstatement when they are ready to open. Reenrollments may not be made until the department issues a reinstatement notice. (n) Notification of legal action. All massage schools and massage therapy instructors shall notify the department in writing of any legal action (civil or criminal) which may concern the operation of the massage school or the instruction of the MTI and be filed against the registrants, its officers, directors, or any employee within 10 working days after the registrant, its officers, directors, or any employee has commenced the legal action or been served with legal process. The registrant shall submit a file-marked copy of the petition or complaint that has been filed with the court with the written notice. (o) Renewal. A complete application for renewal of a registration shall consist of: (1) the annual renewal fee; (2) the completed application for renewal; (3) the complete annual financial statements for the most recent fiscal year, demonstrating the massage school or independent MTI is financially stable and capable of fulfilling its commitments for instruction; and (4) any other information deemed necessary by the department to determine compliance with the Act and this chapter. (p) New programs. A program must get reapproval from the department as a new program if it is a program: (1) which has not been offered previously or has been offered and then discontinued; or (2) in which the total hours, content, or lessons of the approved program change 25% or more within a 12-month period (examples: from 1,000 hours to 750; 20 lessons to 30; 600 hours to 900). (q) Memorandum of understanding (MOU). An MOU concerning proprietary schools and regulation by the agency and this department is adopted by reference. A copy is available from the Texas Department of Health, Massage Therapy Registration Program, 1100 West 49th Street, Austin, Texas, 78756-3183. Under the MOU, the following schools and instructors do not meet the definitions of "massage school" or "massage therapy instructor" in the Act and sec.141.1 of this title (relating to Definitions) and are not subject to regulation by this department but may be subject to regulation by the agency under the Texas Proprietary School Act: (1) an organization or entity with at least two instructors that does not teach the course of instruction required for registration as a massage therapist. Even if the organization teaches courses related to massage therapy, its failure to teach the required course of instruction removes the organization from the definition of "massage school" and from regulation by the department. If the organization begins to teach the required course of instruction, the organization must obtain registration as a massage school from the department and meet the department's rules in this chapter. The newly registered massage school would not be required to continue its licensure as a proprietary school under agency rules unless the organization teaches subjects which are not related to massage therapy and, therefore, outside the department's rules on this chapter. Only schools which teach at least the required course of instruction may be registered as massage schools under the Act and this chapter; (2) an individual who is a registered MTI, teaches massage therapy independently of a massage school, and independently teaches subjects not related to massage therapy. The department will regulate an instructor's hours related to massage therapy, but hours not related to massage therapy are outside the definition of "massage therapy instructor" and may place the individual under the definition of "proprietary school" and central education agency rules; and (3) an individual who is a registered MTI,and who does not teach massage therapy but teaches subjects other than massage therapy. The hours not related to massage therapy are outside the definition of "massage therapy instructor" as stated in paragraph (2) of this subsection. sec.141.13. Minimum Standards for Operation of Massage Schools and Massage Therapy Instructors. (a) Minimum standards of operation must be maintained by all massage schools and massage therapy instructors to ensure educational programs of high quality which will be of benefit to the student, the school, the instructor, and the public. The observance and maintenance of these standards is the responsibility of each massage school and massage therapy instructor (MTI). (b) Each massage school and MTI shall comply with the following standards. (Each MTI shall comply with the standards as applicable to the MTI's type of instruction, i.e., within a massage school or independent of a school). (1) Personnel. (A) School director. (i) Each school shall designate one individual as the director of the school. The school director, as agent for the school's owner, is responsible for the school program, the organization of classes, the maintenance of the school plant, and the maintenance of proper administrative records and all other procedures related to the administration of the school. (ii) The school director shall be: (I) a graduate of an accredited institution of higher learning (college or university) with one year of experience in administration or institutional management; or (II) an individual with two total years of administrative, supervisory, or management experience or higher education. (iii) The school director shall serve as a liaison during any inspection by the department or may designate a member of the staff to serve as the liaison. (iv) The school director shall designate an individual to perform all the functions of, and succeed to, the authority of the named school director when the school director is unavailable or absent from the school. (B) Instructors. (i) An MTI shall instruct the Swedish massage therapy technique course of study, shall be a registered massage therapist, and shall have: (I) a high school diploma or a general equivalence diploma; (II) a minimum of two years of practice as a massage therapist. Completion of 100 hours beyond the initial program at a proprietary school approved by the central education agency, a state approved educational institution, or in an additional program approved by the Texas Department of Health (department) may be substituted for six months' experience with a maximum substitution of 200 hours for one year; and (III) attended a course on teaching adult learners or have demonstrated competency in teaching adult learners. Courses attended may include an instructional certification program, a college level course in teaching adult learners, a continuing education course in teaching adult learners, or an additional program approved by the department in teaching the course of instruction. Demonstrated competency in teaching adult learners may be verified by a letter of reference. Teaching experience may include formal or informal teaching of varied subjects to adult learners. (ii) Qualified personnel may participate as instructors. The instructor shall have attended a course on teaching adult learners, or have demonstrated competency in teaching adult learners. Instructors other than an MTI shall have one of the following specific qualifications. (I) An instructor must hold a baccalaureate or higher degree from an accredited college or university, and: (-a-) the baccalaureate or higher degree or other coursework must include satisfactory completion of nine semester hours or 12 quarter hours in subjects related to the subject area to be taught; or (-b-) the instructor must have a minimum of one year of practical experience within the last 10 years in the subject area to be taught. (II) An instructor must hold an associate degree from an accredited college, university, or recognized postsecondary institution and: (-a-) the instructor must have a minimum of one year of practical experience within the last 10 years in the subject area to be taught and the associate degree must include satisfactory completion of nine semester hours or 12 quarter credit hours in subjects related to the subject area to be taught; or (-b-) the instructor must have a minimum of two years of practical experience within the last 10 years in the subject area to be taught. (III) An instructor must hold a high school diploma, general equivalency degree (GED), or proof of satisfactory completion of relevant subject(s) from a recognized postsecondary institution or practical experience of a minimum of two years within the last 10 years in the subject area to be taught. (iii) Each instructor shall be evaluated by the school annually. The report of the evaluation shall be available for review by the department. (iv) The school shall ensure continuity of instruction through the reasonable retention of qualified instructors. (2) Admission requirements. (A) General. Each massage school and independent massage therapy instructor shall submit its entrance requirements for each program for approval or disapproval by the department. Justification shall be submitted for the entrance requirements stated. (B) Entrance requirements. Evidence shall be maintained in each student's file to show that the entrance requirements have been met. (C) Previous education and training. Each massage school and independent MTI must maintain a written record of the previous education and training of a student which meets any portion of the course of instruction required for registration. (i) Official transcripts from all postsecondary institutions attended by the student must be placed in the student's file with a written evaluation initialed by the school director or the independent MTI. (ii) A school or independent MTI may not require a student to retake subjects which the student has already completed and which meet the requirements of the Act, sec.2(b)(1) and sec.141.5(b)(1) of this title (relating to Massage Therapists). The department shall verify in writing whether the previously taken subjects meet the requirements of the Act. (D) Pre-enrollment information. Prior to enrollment each school or independent MTI shall furnish the following to each prospective student and allow the prospective student a reasonable time to review the following prior to execution of an enrollment agreement: (i) a program outline; (ii) the admission requirements; (iii) a schedule of tuition, fees, and other charges; (iv) a cancellation and refund policy; (v) the length of time for completion of program; (vi) a class schedule including estimated break and meal times; (vii) the attendance, progress, and grievance policies; (viii) the pupil-teacher ratio; (ix) the rules of conduct; (x) the information, if available, showing the number and types of job opportunities in massage therapy in the geographical area of the school within the last 12 months with the name of the source; (xi) the rules pertaining to incomplete grades; (xii) the written and verbal explanations of the difference between a loan and a grant, if the school participates in a loan or grant program; (xiii) a copy of the enrollment agreement; (xiv) a notice that clearly states the number of course hours which must be successfully completed before a student can register as a massage therapist under this chapter; (xv) a list of instructors, their qualifications, and the subject area taught by each; and (xvi) the information that the person may be ineligible for registration if he or she has been: (I) convicted of, entered a plea of nolo contendere or guilty to, or received deferred adjudication to crimes or offenses involving prostitution or sexual offenses; or (II) convicted of a violation of the Act within the past five years. (E) Receipt form. Each massage school or independent MTI shall use a form approved by the department to verify the prospective student's receipt of the information required in subparagraph (D) of this paragraph. At the discretion of the department, the form shall include the following or similar statements: [graphic] (F) Acknowledgment. Acknowledgment of the receipt of each required piece of information or documentation set forth in subparagraph (D) of this paragraph shall be indicated by the signature of the prospective student on the receipt form. A copy shall be given to the student. (G) Enrollment agreement. Each massage school and independent MTI shall develop an enrollment agreement which shall be used to enroll each student. The agreement shall include, but is not limited to: (i) the full and correct name and location of the massage school or independent MTI, the school director, and owners of the massage school; (ii) the program title, tuition, fees, reasonable estimated cost of books and supplies, any other expenses, total cost of the program, items subject to cost change, method of payment and payment schedule, disclosure statement (if interest is charged on more than three payments), student's right to cancel; (iii) the date the program is to begin and the course length; (iv) the name and address of the student; (v) a statement that the student has received a copy of the information in subparagraph (D) of this paragraph; and (vi) a cancellation and refund policy. (H) Tour. Each prospective student shall be allowed to tour the instructional facilities and inspect the equipment prior to signing an enrollment agreement. A student may decline to take a tour. (I) Copy of agreement. Each student shall be given a copy of his or her executed enrollment agreement and a copy shall be kept in the student's file maintained by the school along with a copy of the acknowledgment required by subparagraph (E) of this paragraph. (3) Conduct policy. (A) General. A school and independent MTI shall develop and implement a written policy pertaining to conduct of students. (B) Elements. The policy shall include: (i) conditions for dismissal; and (ii) conditions for re-entrance of those students dismissed for violating the conduct policy. (4) Tuition and fees. (A) General. A school and independent MTI shall develop and implement a written policy relating to method(s) of payment that are available to enrolling students. If student financing is available through any form of arrangement or agreement between the school or independent MTI and a lending institution, the complete terms of the arrangement or agreement must be disclosed in the policy. In addition, if any form of financing is available at the school or with the independent MTI, all charges and the true annual percentage rate and the name(s) and address(es) of the lending institution(s) shall be disclosed in the policy. (B) Student's liability. A student shall not be held liable for any tuition, fees, or other charges not previously disclosed in the policy. (C) Scholarships. Scholarships may be offered, provided that the terms of the scholarships are published and disclosed in the policy. (D) Receipts. Any funds received from, or on behalf of, a student shall be recorded in a format that is current and readily accessible to department representatives. Receipts shall be issued to the student. The funding source and the reason for the charges shall be clearly identified on both documents. (5) Cancellation and refund policy. (A) General. Each school and independent MTI shall develop and implement a cancellation and refund policy as described in this paragraph. Except for seminars and workshops (see subparagraph (C) of this paragraph), the policy must provide a full refund of all monies paid by a student if: (i) the student cancels the enrollment agreement within 72 hours (until midnight of the third day excluding Saturdays, Sundays, and legal holidays) after the enrollment contract is signed by the prospective student; or (ii) the enrollment of the student was procured as the result of any misrepresentation in advertising, in promotional materials of the school or independent MTI, or by the owner, the school, or MTI. (B) Refunds. Except for seminars and workshops, the policy must provide for the refund of the unused portion of tuition, fees, and other charges in the event the student, after expiration of the 72-hour cancellation privilege, fails to enter, withdraws from, or is terminated from the program at any time prior to completion. The policy must provide that: (i) refunds for each program will be based on the program time expressed in clock hours; (ii) refunds must be consummated within 30 days after the earliest of: (I) the effective date of termination if the student is terminated; (II) the date of receipt of written notice from the student of withdrawal; or (III) 10 instructional days following the first day of the program if the student fails to enter; (iii) if tuition is collected in advance of the first day of the program, and if, after expiration of the 72-hour cancellation privilege, the student does not enter the program, not more than $200 shall be retained by the school or independent MTI; (iv) if a student enters a program not more than 12 months in length and is terminated or withdraws, the school or independent MTI may retain $200 of tuition and the minimum refund of the remaining tuition will be: (I) during the first week or one-tenth of the program, whichever is less, 90% of the remaining tuition; (II) after the first week or one-tenth of the program, whichever is less, but within the first three weeks of the program, 80% of the remaining tuition; (III) after the first three weeks of the program, but within the first quarter of the program, 75% of the remaining tuition; (IV) during the second quarter of the program, 50% of the remaining tuition; (V) during the third quarter of the program, 10% of the remaining tuition; and (VI) during the last quarter of the program, the student may be considered obligated for the full tuition; (v) refunds of items of extra expense to the student, such as instructional supplies, books, student activities, laboratory fees, service charges, rentals, deposits, and all other such ancillary miscellaneous charges, where these items are separately stated and shown in the pre-enrollment information, will be made in a reasonable manner; (vi) if a program is discontinued by the school or independent MTI and this prevents the student from completing the program: (I) All tuition and fees paid shall be refunded if the student is not provided with a transcript of all successfully completed hours within 30 days of discontinuance of the program; or (II) All unearned tuition and fees shall be refunded if a transcript of all successfully completed hours is provided within 30 days of discontinuance of the program. (vii) if an additional or changed location is 10 miles or more from the previously approved location of instruction and an enrolled student is unable to complete the program at the additional or changed location as determined by the department: (I) All tuition and fees paid shall be refunded if the student is not provided with a transcript of all successfully completed hours within 30 days of the change of location; or (II) All unearned tuition and fees shall be refunded if a transcript of all successfully completed hours is provided within 30 days of the change of location. (viii) if a student did not meet the admission requirements of a program and the student does not complete the program for any reason, all tuition and fees shall be refunded; (C) Seminars and workshops. The cancellation and refund policy for seminars and workshops shall provide for a 100% refund of all tuition and fees paid if the student cancels at least four weeks before the first day of the seminar or workshop. Refunds for cancellations made in less than four weeks shall be determined by the school or independent MTI and addressed in the policy. (D) Computations. In all refund computations, leaves of absence, suspensions, school holidays, days when classes are not offered, and summer vacations shall not be counted as part of the elapsed time for purposes of calculating a student's refund. (E) Evidence of refund attempts. A massage school or independent MTI is considered to have made a good faith effort to consummate a refund if the student's file contains evidence of the following attempts: (i) certified mail to student's last known address; (ii) certified mail to the student's permanent address; and (iii) certified mail to the address of the student's parent, if different from the permanent address and if known. (F) Audit. If the department determines that the method used by the massage school or MTI to calculate refunds is not in compliance with this section and if the massage school or MTI does not provide the correct refund promptly, the massage school or MTI shall submit a report of an audit conducted by a certified public accountant or public accountant registered with the State Board of Public Accountancy of the refunds due former students. The audit opinion letter shall be accompanied by a schedule of student refunds due which shall disclose the following information for the previous four years for each former student: (i) the name, address(es), and social security number; (ii) the last date of attendance and date of termination; (iii) the amount of refund with principal and interest separately stated, date and check number of payment if payment has been made, and any balance due; and (iv) the reason for refund. (G) Disciplinary action. The department may revoke or suspend a massage school or an MTI's registration for a violation of this subsection; however, the department has no authority to recover a refund on behalf of a student. (6) Miscellaneous program requirements. (A) Qualified faculty. Once a school begins to teach a program and unless enrollment is suspended or the school closes, the school shall maintain sufficient and qualified instructors to teach all subjects for completing the program during the length of time stipulated in the preenrollment information regardless of the size of the class. (B) Scheduling of classes. Each massage school or independent MTI shall schedule classes so that the students will be able to complete the program during the length of time stipulated in the preenrollment information. (C) Evening school. No evening school class schedule shall extend beyond a reasonable time. (7) Advertising. (A) Statements. A massage school or independent MTI shall not make deceptive, false, or misleading statements concerning another school's or instructor's activities or programs. (B) Prospective students. Every advertisement seeking prospective students must clearly indicate that training is being offered, and shall not, either by actual statement, omission, or intimation, imply that prospective employees are being sought. (C) Name of school. All advertisements seeking prospective students must include the full and correct name of the school or independent instructor and the address of instruction. (D) Employment guarantees. No statement or representation shall be made to prospective or enrolled students that employment will be guaranteed upon completion of any program or that falsely represents opportunities for employment. (E) Accreditation. No statement shall be made that the school, the MTI, or the programs have been accredited unless the accreditation is that of an appropriate nationally recognized accrediting agency listed by the United State Office of Education. (F) Employment agencies. No massage school or MTI shall advertise as an employment agency under the same name or a confusingly similar name or at the same location as the school or MTI. No representative shall solicit students for a program through an employment agency. (G) Proof of claims. The department at any time may require that a school or MTI furnish proof to the department of any advertising claims. If proof acceptable to the department cannot be furnished, a retraction of such advertising claims published in the same manner as the claims themselves, must be published by the school or MTI and continuation of such advertising shall constitute cause for suspension or revocation of the registration. (H) Federal requirements. Nothing in this chapter shall prohibit release of information to students as required by a federal agency. (8) Minimum progress and attendance standards. (A) Progress. Appropriate standards must be implemented to ascertain the progress of the students enrolled. Progress standards must meet the following requirements. (i) Each massage school and independent MTI must have a progress evaluation system based on a maximum of 25% completion of coursework. (ii) The progress evaluation records must be of a type and nature to reflect whether the student is making satisfactory progress to to complete all subjects within the allotted time provided in the preenrollment information. (iii) Seminars and workshop programs do not need to maintain a progress evaluation system as described in this paragraph. (iv) A massage school or MTI shall develop and implement a written policy relating to grading period. A grading period will not cover more than 25% of the required program hours. (v) A student who is making unsatisfactory progress at the end of a grading period shall be placed on probation for the next grading period. If the student on probation achieves satisfactory progress for the subsequent grading period but has not achieved the required grades to achieve overall satisfactory progress for the program, the student may be continued on probation for one more grading period. (vi) When a student is placed on probation, that student will be counseled prior to returning to class, and the date, action taken, and terms of the probation shall be clearly indicated on the appropriate permanent records. (vii) If the student on probation fails to achieve satisfactory progress for the first probationary grading period, the student's enrollment may be terminated. (viii) The enrollment of a student who fails to achieve overall satisfactory progress for the program at the end of two successive probationary grading periods shall be terminated. (ix) A student whose enrollment was terminated for unsatisfactory progress may reenter after a minimum of one grading period. (x) The cancellation and refund policy required by this section shall apply to a student terminated under this paragraph. The effective date of termination for purposes of refunds shall be the last day of the last probationary grading period. (xi) A student who returns after the enrollment was terminated for unsatisfactory progress shall be placed on probation for the next grading period. The student shall be advised of this action and the student's file documented accordingly. If the student does not maintain satisfactory progress during or at the end of this probationary period, that student will be terminated. (B) Attendance. (i) Each school and independent MTI shall develop and implement a written policy relating to attendance. Seminar and workshop programs do not need to maintain an attendance policy. (ii) Absence shall be charged for a full day when the student attends none of the scheduled classes on that day. A partial day of absence shall be charged for any period of absence during the day. (iii) School holidays shall not be considered as days of absence. (iv) The attendance policy shall require termination of students who accumulate absences of: (I) more than 10 consecutive school days; or (II) more than 15% of the total clock hours in a program. (v) The cancellation and refund policy shall apply to a student terminated under this paragraph. The effective date of termination for purposes of refunds shall be the last date of absence under clause (iv) of this subparagraph. A student whose enrollment is terminated for violation of the attendance policy may not reenter before the start of the next grading period. (vi) A school or independent MTI may not start students after 10% of the program has been taught except in those cases where appropriate credit for previous education has been given which meets the requirements of the Act, sec.2(b)(1). (vii) Make-up work shall not be authorized for the purpose of removing an absence under clause (iv) of this subparagraph. (viii) Leaves of absence. (I) A leave of absence for reasonable purposes acceptable to the school director shall not exceed the lesser of 30 school days or 60 calendar days. (II) A student shall be granted only one leave of absence for each 12-month period. (III) Attendance records shall clearly show the dates for which the leave of absence was granted. A written statement as to why the leave of absence was granted, signed by both the student and the school director or independent MTI indicating approval, shall be placed in the individual student's file. (IV) If the student fails to return from leave, the student will be automatically terminated and a refund made under the cancellation and refund policy. The effective date of termination shall be the last date of the leave of absence. (ix) Each school or independent MTI must maintain a master record of attendance for all students which clearly indicates the number of scheduled hours each day and the hours of absence. The record must indicate whether or not a student was in attendance. Permanent entries in the roll books shall be made. (9) Equipment requirements. (A) Adequate equipment. Each school or independent MTI shall provide adequate equipment in good working order. The equipment required for instruction shall be determined by the program objective. The equipment shall be comparable to that commonly found in the practice of massage therapy. (B) Quality. The equipment shall be of sufficient quality to meet the maximum use requirements of the current students, as demanded by the activity patterns of the program. (C) Non-working equipment. Equipment not in working order shall be removed from the instructional area, marked as out-of-order, or properly identified as awaiting repair. (10) Financial stability. (A) Fiscal year. Each school and independent MTI shall establish a fiscal year. The financial statements and balance sheets required by this chapter shall cover the period of time through the most recently completed fiscal year. (B) General requirements for financial statements. Each school and independent MTI shall furnish annually two copies of acceptable financial statements in association with an independent public accountant or certified public accountant not later than 120 days after the close of the fiscal year. These statements must include: (i) the calculation of unearned student tuition shown on the balance sheet based upon at least a quarterly pro rata basis or refund policy basis for the program, whichever would most accurately reflect recognition of income; (ii) a statement of results of operation (statement of income and retained earnings) which includes the gross amount of tuition and fees earned minus refunds during the fiscal year for all approved programs; (iii) a statement of cash flows; and (iv) the gross amount of annual school student tuition and fees minus refunds unless the school chooses to pay the maximum annual renewal fee. (C) Specific types of statements required. Each school and independent MTI shall meet the following requirements. (i) Each school and independent MTI shall submit financial statements which have been reviewed by or audited by an independent public accountant or certified public accountant at the end of their first year of operation. (ii) At the end of the second year of operation and thereafter, each school and independent MTI shall submit annual financial statements as set forth in subparagraph (B) of this paragraph which may be reviewed by or compiled by a certified public accountant or independent public accountant. The compiled financial statements shall contain at least one note which discloses the current and long term liabilities similar to those required by generally accepted accounting principles for reviewed and audited statements. (iii) If a question arises as to the validity of the compiled or reviewed financial statements submitted or to the adequacy of the financial statements submitted or to the adequacy of the financial structure, the department may require an audit of a school or independent MTI, at the school's or instructor's expense, that has been certified by an independent public accountant or certified public accountant. (D) Interim financial statements. If a school or independent MTI chooses to submit interim financial statements in addition to the annual statements to establish financial stability, those interim statements must meet the minimum requirements in subparagraphs (B) and (C) of this paragraph. (E) Financial stability required. Each school and independent MTI shall have sufficient finances to establish and carry out a satisfactory program as approved by the department. (F) Content. The applicant's balance sheet shall reflect: (i) positive equity or net worth balance; (ii) unearned tuition as a current liability; and (iii) a current ratio of at least one-to-one. To determine this ratio, staff will deduct any unearned tuition from both the asset and liability sections and deduct from the asset section and the equity section of the balance sheet any subscription receivables, or related party receivables in connection with loans to stockholders if the loan has been included in current assets for more than one year. (G) Equity. The balance sheet shall reflect that equity or net worth exceeds the amount shown for goodwill under assets in the balance sheet. (H) Accountant. All financial statements must identify the name of the independent public accountant or certified public accountant who prepared the statements and be in accordance with generally accepted accounting principles. Compilations must be accompanied by the owner's or independent MTI's affidavit that the statements are true and correct. (11) Federal audits. A school or independent MTI which participates in federal financial aid programs must submit a copy to the department of each audit done in accordance with reporting requirements of "Government Auditing Standards," the most current edition, issued by the comptroller general of the United States, at the same time the audit report is submitted to the United States Department of Education. (12) Adequate space for classroom instruction and laboratory experiences. (A) General. The amount of classroom and laboratory space shall meet the use requirements of the maximum number of current students in class with appropriate seating facilities or work stations, as necessitated by the activity patterns of the program. (B) Workstations. Enrollment shall not exceed the design characteristics of the student workstations. (C) State and local requirements. The facilities shall meet any state and local ordinances or requirements governing building and safety for the designated use. (13) Maximum ratios. These ratios may be varied at the discretion of the school director or independent MTI to conform to conditions. If adequate facilities and equipment are available, the following maximum ratios are recommended for an initial program: (A) laboratory-12 tables to one instructor and three students to one table; and (B) classroom-72 pupils to one instructor. (14) Records. (A) General. All schools shall make available for inspection by the department the records and necessary data required for approval and to show compliance with the Act and this chapter. A copy of the accreditation authorization and the letter of eligibility from the United States Department of Education shall be available for review, if applicable. (B) Retention. Each school and independent MTI shall retain all student records for at least three years. Financial records must be retained as required by federal retention requirements, if applicable. (C) Transcripts. Each school and independent MTI must maintain student transcripts which record academic records permanently. Original or certified copies of transcripts (official transcripts) shall be available to students and prospective employers at a reasonable charge if the student has fulfilled the financial obligation to the school. The transcript of a student shall include only the subjects actually taught by the school or the independent MTI. (D) Registration list. Each school and independent MTI shall maintain a master student registration list consisting of at least the information in this paragraph. An entry shall be made on this list of any individual who signs an enrollment agreement, makes a down payment to attend the class, or attends a class. The entry shall be made on the date the first of these events occurs and the list shall contain information concerning: (i) the date of the entry; (ii) the name of student; (iii) the address of the student including city, state, and zip code; (iv) the telephone number of the student with area code; (v) the social security number of the student; (vi) the date of birth of the student; and (vii) the name of program. (15) Student grievances. (A) Grievance procedure. Each school and independent MTI shall have a written grievance procedure that is disclosed to all students. The procedure shall attempt to resolve disputes between students, including drops and graduates, and the school or instructor. Adequate records shall be maintained of grievances and resolutions. (B) Resolving grievances. Each school or independent MTI shall make every effort to resolve complaints. (16) Inspections by the department. There will be at least one unannounced inspection at each school or independent massage therapy instructor's primary instructional location(s) each year. (A) Other inspections may be performed or announced at the discretion of the department. (B) If deficiencies are found, the school or independent MTI shall be notified at the end of the inspection of the deficiencies. If the deficiency is not serious or does not raise a health and safety concern, the department shall give the school or independent MTI 30 days to correct the deficiency. (17) Fire safety. (A) General. Each school and independent MTI shall maintain each instructional location in accordance with applicable state and local fire code(s) and regulations. (B) Convictions. The conviction of an owner or operator of a massage school or an MTI for a violation of a state or local fire code(s) provision shall constitute a ground for disciplinary action under this chapter. (18) Sanitation. (A) General. Each school and independent MTI shall maintain each instructional location in accordance with applicable state and local sanitary or health code(s) and regulations. (B) Convictions. The conviction of an owner or operator of a massage school or an MTI for a violation of a state or local sanitary or health code provision shall constitute a ground for disciplinary action under this chapter. (C) Clean site. Each school and independent MTI must keep the instructional site clean and in good repair at all times. (D) Linens and laundry. Clean and dirty linens and laundry must be kept separate and covered. (E) Soap and water. Each instructional site must have a soap dispenser, paper towels or air dryer, and hot and cold running water. (F) Ventilation. Each instructional site must have adequate ventilation. (G) Oil. Oil must be kept in closed containers. (19) Effective date of rules. (A) Program approval. Programs commencing on or after January 1, 1992, shall be governed by new sec.sec.141. 11-141.13 of this title (relating to General Requirements for Massage Schools and Massage Therapy Instructors, Curriculum, and Minimum Standards for Operation of Massage Therapy Schools and Massage Therapy Instructors). Programs commencing prior to January 1, 1992, shall be governed by sec.sec.141.11-141.13 of this title (relating to Massage School Application and Approval; Massage School Requirements; and Massage Therapy Instructor Application and Approval), as those sections existed on August 1, 1991. (B) School and MTI compliance. All registered MTIs and schools existing on January 1, 1992, must come into compliance with the requirements of this chapter (relating to Massage Therapists) on or before February 1, 1992. Verification of compliance will be through onsite inspection. sec.141.15. Massage Establishment Registration and Renewal. (a)-(b) (No change.) (c) An applicant must file a registration statement with the department. The registration statement shall contain: (1)-(6) (No change.) (7) the type of available or proposed facilities and services as follows: (A) a floor plan of the proposed massage establishment that includes a sketch of the following items: (i) entrance and exits; (ii) length and width of establishment (in feet); (iii) total square feet; (iv) location of rest room(s); and (v) number of massage tables; (B) the inspection report of the local fire marshal; and (C) evidence of separation from the establishment of rooms used wholly or in part for residential or sleeping purposes by a solid wall or by a wall with a solid door which shall remain locked during business hours; (8) a statement of all misdemeanor and felony offenses of which the owners or operators have been convicted, entered a plea of nolo contendere or guilty , or received deferred adjudication. (d)-(i) (No change.) (j) All massage establishments shall notify the department in writing of any legal action (civil or criminal) which may concern the operation of the massage establishment and be filed against the massage establishment, its owner, operators, officers, directors, or any employee within 10 working days after the massage establishment, its owner, operators, officers, directors, or any employee has commenced the legal action or been served with legal process. The massage establishment shall submit a file-marked copy of the petition or complaint that has been filed with the court with the written notice. (k) Registration renewal shall be as follows. (1) When issued, a registration is valid for one year commencing on the date of issuance of the initial registration. (2) A registrant must renew the registration annually. (3) The renewal date of a registration shall be the last day of the month in which the registration was originally issued. (4) The department shall not renew the registration of a massage establishment that is in violation of the Act or this chapter. (5) At least 30 days prior to the expiration date of the establishment's registration, the department shall send notice to the massage establishment of the expiration date of the registration and the amount of the renewal fee due and a registration renewal form. (6) The registration renewal form shall require the provision of changes in address or ownership or operators and information regarding conviction, pleas of nolo contendere, or guilty, or receipt of deferred adjudication for crimes or offenses by owners or operators. (7) A massage establishment has renewed the registration when the registrant has mailed the renewal form and the required renewal fee to the department prior to the expiration date of the registration. The postmark date shall be considered the date of mailing. (8) The department shall issue to a massage establishment who has met all requirements for renewal a registration renewal card. It shall be affixed to or displayed with the original certificate. (l) A registration issued under this section is not transferable. (m) Exempt organizations and exemption procedures are as follows. (1) The following establishments are specifically exempt from the provisions of the Act regulating massage establishments: (A) an establishment that holds a license, permit, certificate, or other credential issued by the state under another law, and that offers or performs massage therapy under the scope of that credential; (B) a registered massage therapist who practices as a solo practitioner; (C) a nonprofit organization which is tax exempt under 26 United States Codes Annotated, sec.501(c) (Internal Revenue Code); and (D) a hotel, motel, or similar commercial establishment which: (i) offers a sleeping room for rent for a period of time that is more than 10 hours; and (ii) does not allow a tenant or occupant of a sleeping room to subrent the room for a period of time that is less than 10 hours; (E) a business whose primary business is devoted to the sale of food and food products; (F) a health spa in compliance with the Health Spa Act, Texas Civil Statutes, Article 5221l; (G) the office of a physician, chiropractor, physical therapist, or member of another similar licensed profession as determined by the department where the professional is practicing within the scope of the license and where the professional uses a registered massage therapist to practice massage therapy in the professional's office under the professional's delegated authority; (H) an establishment owned or operated by the federal government, the state, a political subdivision of the state, or a municipality; or (I) an establishment which is operational for a period of time of no more than 24 hours in a calendar year and in which the provision of massage therapy services is incidental to the primary athletic, fund raising, or other purpose of the event sponsored by the establishment. (2) An establishment may request an exemption from the registration requirements of this section where it can show that the advertising or provision of massage therapy services is incidental to the person's primary enterprise. (3) An establishment may file a written request addressed to the administrator requesting an exemption and stating the reasons why the exemption should be granted. (4) The commissioner of health will make the final decision and provide written notification of his decision to the applicant and the administrator. (n) No massage establishment registration shall be transferred or sold to another person or owner. (1) The new owner of a massage establishment must apply for registration as a new applicant. (2) A massage establishment may not operate under a new owner until a massage establishment registration is issued by the department to the new owner. (3) The new owner may provide a copy of the sales contract, bill of sale, deed, or other instruments necessary to transfer ownership of the massage establishment if the instruments will provide the department with part of the information usually required from an applicant. (4) The former owner of a massage establishment must surrender the registration certificate of the establishment at the time the application of the new owner is approved by the department. (o) A massage establishment must notify the department in writing and within 10 days of any change concerning: (1) the person who: (A) has an ownership interest in the stock of the corporate owner of 35 percentum or more; or (B) is an officer or director of the corporate owner; and (2) the persons, other than owners, who are: (A) officers, directors, or registered agents of the owner; (B) employees who exercise operational or managerial control over the establishment or who directly or indirectly conduct the day-to-day operations of the establishment; or (C) responsible for the management of the owner. (p) A corporate applicant must file a statement that its franchise taxes are current, that the corporation is exempt from payment of the franchise tax, or that it is an out-of-state corporation that is not subject to the franchise tax. sec.141.18. Unprofessional Conduct. (a) A registrant or the owner or operator of a massage school or massage establishment is engaging in unprofessional conduct that has endangered or is likely to endanger the public health, welfare, and safety, if the person: (1)-(6) (No change.) (7) allows an unregistered person to engage in activity for which registration is required; (8) allows any individual, including a client, student, registrant, employee, or one's self to engage in sexual conduct on the premises of any massage school or massage establishment; (9) practices nude or in clothing designed to arouse or gratify the sexual desire of any individual; (10) performs massage therapy, whether or not for compensation, at or for a sexually oriented business; (11) practices massage therapy fraudulently, with gross incompetence, with gross negligence on a particular occasion, or with negligence or incompetence on more than one occasion; or (12) fails to comply with an order issued pursuant to the Act. (b) (No change.) (c) For the purposes of this section, "sexual conduct" includes: (1) any touching of any part of the genitalia; (2) any touching of the breasts of a female without the consent of the female; (3) any offer or agreement to engage in any activity described in subsection (c)(1) or (2); (4) kissing without the consent of both persons; or (5) deviate sexual intercourse, sexual contact, sexual intercourse, indecent exposure, sexual assault, prostitution, and promotion of prostitution as described in the Texas Penal Code, Chapters 21, 22, and 43, or any offer or agreement to engage in any such activities. (d) A registrant shall post a visible sign, at least 8 1/2 inches by 11 inches, stating the name, mailing address, and telephone number of the department where a patron may file a complaint. 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 December 13, 1991. TRD-9115857 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: January 3, 1992 Proposal publication date: September 3, 1991 For further information, please call: (512) 459-2950 25 TAC sec.sec.141.11-141.13 The repeals are adopted under Texas Civil Statutes, Article 4512k, sec.7, which provides the Texas Board of Health with the authority to adopt rules concerning the regulation and registration of massage therapists, massage instructors, massage schools, and massage establishments and Health and Safety Code, sec.12.001, which provides the Texas Board of Health with the authority to adopt rules for the performance of every duty imposed by law on the Texas Board of Health, the Texas Department of Health, and the commissioner of health. 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 December 13, 1991. TRD-9115856 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: January 3, 1992 Proposal publication date: September 3, 1991 For further information, please call: (512) 459-2950 Chapter 325. Solid Waste Management Subchapter A. General Information The Texas Department of Health (department) adopts amendments to sec.325.5, sec.sec.325.801-325.802, sec.sec.325.811-325.818, and sec.325.831; the repeal of sec.325.803, sec.sec.325.832-325.838, sec.sec.325.851-325.855, sec.325.871, and sec.sec.325.919-325.924; and new sec.sec.325.805-325.809, sec.sec.325.821- 325.828, sec.sec.325.832-325.840, sec.sec.325.841-325.848, sec.sec.325.851- 325.856, sec.sec.325. 861-325.867, sec. sec.325.871-325.878, and sec.325.881, concerning solid waste management. Sections 325.5, 325.802, 325.805, 325.807-325.809, 325.811, 325.814-325.815, 325.821-325.824, 325.832-325.833, 325.835-325.837, 325.839-325.848, 325.851-325. 855, 325.861-325.865, 325.867, 325.872-325.878 are adopted with changes to the proposed text as published in the October 4, 1991, issue of the Texas Register (16 TexReg 5460). Sections 325.801, 325.806, 325.812-325.813, 325.816-325.818, 325.825-325.828, 325.831, 325.834, 325.838, 325.856, 325.866, 325.871, and 325.881 are adopted without changes and will not be republished. The repealed sections are adopted as proposed. The purpose of the amendments, repeals, and new sections is to implement the requirements of Senate Bill 1340, 72nd Legislature, 1991, and Senate Bill 2, First Called Session, 72nd Legislature, 1991, which amended the Solid Waste Disposal Act, Health and Safety Code, Chapter 361. The bills require that the department have rules in effect no later than January 1, 1992, covering a waste tire recycling program which: establishes a priority enforcement list of unauthorized scrap tire storage/disposal sites; and provides incentives to waste tire processors who accept tires from priority enforcement list sites, shred them (along with scrap tires from other sources), and provide for the eventual recycling or energy recovery from the resulting scrap tire derived recyclable material. The sections concern the management of used and scrap tires. The amendments cover general information on solid waste management; general requirements for the management of used and scrap tires; transporters of used and scrap tires; and storage of used and scrap tires. The repealed sections covered general requirements for the management of used and scrap tires; storage of used and scrap tires; the processing and disposal of used and scrap tires; special conditions for beneficial use of used and scrap tires; and forms and documents. The new sections cover generators of used and scrap tires; mobile processors of used and scrap tires; storage of used and scrap tires; processors of used and scrap tires; disposal of used and scrap tires; the priority enforcement list; the waste tire recycling program; and special conditions for beneficial use of used and scrap tires. The department received numerous comments on the proposal at six public hearings held throughout the state. The department also received written comments during the public comment period. A summary of the comments and the department's responses are as follows. Several comments were received concerning the definitions in sec.325.5, as follows. Concerning the definition of "mobile tire processor", a commenter stated that this term should be included in the definitions. The department agrees and has included the definition. Concerning the definition of "recyclable material", a commenter stated that the definition is too limited and should be expanded to include processed tires to be used as fuel. The department agrees that processed tires used for fuel is a recyclable material; however, the department has not changed the definition because it establishes the distinction between solid waste and recyclable material. The definition is not intended to describe possible materials that can be recycled. Concerning the definition of "shredded tire piece", a commenter suggested that the words "that has been" be added between the words "scrap tire ... shredded". The department agrees and has made the change. Concerning the definition of "waste tire facility", two commenters suggested that the word "permitted" be eliminated or replaced with "approved". The department agrees and has made an appropriate change. Concerning the definition of "waste tire facility", a commenter recommended that the definition be broadened to allow sorting, grading, retreading, or other beneficial use of tires. The department agrees with the spirit of the recommendation; however, the type of facility which would perform the listed activities is a recycling facility that does not need a department permit or registration. Concerning the definition of "waste tire processor", a commenter suggested that the definition include "delivery to an end user". The department agrees and has appropriately modified the definition. Concerning the definition of "waste tire recycling fund", a commenter suggested that the words "that are sold" be added between the words "new tires .. . in Texas". The department agrees and has made the change. Two commenters requested that the department clearly define "financial assurance" and apply it to all sites equally. The department's response is that the the sections related to financial assurance have been written clearly and in accordance with state law, and that all tire sites have been required to provide the same type of assurance in amounts applicable to the specifics of the site. Accordingly, the department has made no change. A commenter requested that a definition of a "waste tire recycling facility" be included in the sections. The department's response is that it has determined that a waste tire recycling facility cannot be adequately defined at this time. A more in-depth study is needed to provide an adequate definition. Concerning the definition of "waste tire storage facility", a commenter suggested that the words "before being offered as material" be added between the words "stored ... to facilitate". The department agrees and has made the appropriate change. The department also has replaced the words "registered by the Texas Department of Health" with the word "approved". Concerning the definition of "waste tire transporter", a commenter suggested that the definition is not consistent with state law. The department disagrees because the definition in state law includes the transportation of shredded tire pieces and delivery to a processing facility. A commenter stated that "recycling responsibility" must be defined. The department's response is that it does not believe that a definition of "recycling responsibility" is needed. State law and the sections are written clearly enough to say that the processor has the responsibility to locate a market for the end-use of the shredded tire pieces. Accordingly, the department has not added the definition. Concerning sec.325.802(b), a commenter suggested that the words "as a tire" be inserted between the words "cannot be reused" and the words "is a scrap tire". The department disagrees because an old tire that has finally reached the end of its useful life can be used for some purpose other than as a car tire after it has been taken off the car. Concerning sec.325.802(d), a commenter suggested that the words "offered in commerce and" be inserted between the words "A used tire that is" and the word "reused". The department disagrees because the department believes that the suggestion does not add any substance to the statement. Concerning sec.325.802(f), a commenter suggested that the words "or other in- plant tire scraps" be added to the first sentence of this subsection. The department agrees and has added the words. Concerning sec.325.802(g), a commenter suggested that large tires be exempted from the subsection and allowed to be disposed of in whole form. The department disagrees because the technology needed to split, quarter, or shred large tires will not be developed if there are no large tires with which to deal. Also, disposal of large tires will not work to achieve the goal of recycling and reduction of waste being deposited in landfills. Concerning sec.325.802(h), a commenter suggested that a charge for a rim removal fee be included in this subsection. The department disagrees because the facility operator who receives a tire on a rim should have the discretion to determine if a charge should be made. Concerning sec.325.802(i), a commenter questioned what circumstances will determine if the means are available to reduce solid tires into recyclable material. Another commenter suggested replacing "solid" with "non-pneumatic". The department agrees with the suggestion for non-pneumatic tires; however, the word has been added without eliminating "solid tires". The question about determining the available means to reduce solid tires is of concern to the department; however, the owner of the solid tire or the disposal facility should have the discretion to make that determination. Concerning sec.325.805(b), several commenters stated that generators cannot ensure that used and scrap tires will be delivered to an approved facility. The department agrees and has reworded this section to state that the generator must ensure that the transporter is registered and that the generator inquires about the destination of the tires or directs the transporter as to where the tires are supposed to be delivered. Concerning sec.325.805(c), a commenter discussed having an exemption for the use of specially designed dumpsters for hauling split tires. The department does not have any problem with the use of specially designed equipment, provided this equipment is hauled full and is not dumped into enclosed packer waste vehicles; however, the department does not believe that a change in the language of the subsection is appropriate. Concerning sec.325.807(b) and sec.325.815(a)(1), several commenters expressed confusion about who initiates the manifest and suggested that either the transporter or the generator should be allowed to initiate the manifest. The department's response is that there should be no confusion because sec.325.807(b) states that the generator shall initiate the manifest and the department has deleted the requirement in sec.325.815(a)(1) that the transporter shall initiate the manifest. The department disagrees with the suggestion to allow either the generator or the transporter to initiate the manifest because this would only cause confusion by both parties and because the department feels that the manifest system will only work if the generators are responsible for initiating each manifest. Concerning sec.325.807(b)(9), a commenter stated that the paragraph is confusing and needs clarification. The department agrees and has reworded paragraph (9) and added a new paragraph (11) stating that signatures of the generator, transporter, and destination facility representatives shall be required to acknowledge that the manifest is true and correct. Concerning sec.325.807(d), several commenters requested that the manifest be allowed to substitute for a generator log. The department disagrees with allowing this substitution at this time in order to give the new four-part manifest form and the new manifest system time to work. Accordingly, the department has made no change. Concerning sec.325.808(a), a commenter was concerned about the number of tires that can be accumulated and the length of time for removal as being too short. The department agrees with allowing more time for accumulation and, accordingly, has changed the length of time to 90 days. The number of tires accumulated has no limitations in this case. Concerning sec.325.808(b), a commenter stated that the use of enclosed, lockable containers is too restrictive and that open top containers with tarps should be allowed. The department disagrees because the use of open top containers for accumulation at a generator's location are subject to water accumulating in the tarp or the container and this could cause the generator problems. Concerning sec.325.809(a), a commenter stated that generators should not be required to designate the destination of their tires. The department agrees and has replaced the word "shall" with the word "may". Concerning sec.325.809(b), two commenters suggested exempting generators, who transport their own tires, from obtaining a transporter registration. The department disagrees with providing this exemption because it would affect more than just tire dealers. Concerning sec.325.809(c), two commenters stated that this subsection is not consistent with state law. In response, the department has made appropriate changes to clarify the subsection. Concerning sec.325.811, a commenter stated that the subsection is unclear about the hauling of waste or a commodity. The department's response is that the transportation of whole used or scrap tires or shredded tire pieces from a generation point to a destination point is regulated by these sections. The department has added language at the end of the second sentence in sec.325.811(a) which clarifies the transportation issue. Concerning sec.325.811(a), two commenters recommended that an exemption for registration as a tire transporter should be granted to common carriers (transporters that are regulated by the Railroad Commission of Texas). The department disagrees because the Health and Safety Code, Chapter 361, gives the department the authority to register the transporters it regulates; to exempt a portion of these transporters could have a detrimental effect on the program. Concerning sec.325.811(b), a commenter stated that a manufacturer is not defined as a recycler and, accordingly, "manufacturer" should be replaced with "scrap tire recycler". The department agrees and has made the change. Concerning sec.325.811(c), three commenters stated that a transporter should be allowed to charge a fee for transporting all used and scrap tires. The department disagrees because the law clearly provides a prohibition against charging dealers on or after April 1, 1992, for transporting the dealer's tires. The department, however, reviewed this subsection and the state law and has inserted language that would clarify the concerns about charging fees for transportation of used and scrap tires. Concerning sec.325.812 and sec.325.815, several commenters oppose the transporter requirements for common carriers, stating that they were a duplication of Railroad Commission of Texas rules. The commenters stated that the requirements were excessive and not authorized by state law. The department disagrees because the authorization to adopt the sections was given to the department by the 71st Legislature in 1989. Most of the requirements for tire transporters have been in affect since August 29, 1990. Concerning sec.325.813, a commenter stated that this section was in conflict with sec.325.808(b). In response, the Department has reviewed both sections, found no conflict, and has made no changes. Concerning sec.325.814, a commenter suggested that the vehicle identification requirements be clarified. The department agrees and has added provisions that specify the locations on the vehicle to place the identification. Concerning sec.325.815(a)(1), a commenter stated that this paragraph duplicates sec.325.807(b) and should be deleted. The department agrees and has deleted sec.325.815(a)(1)(A)-(I) and has added a reference to sec.325.807(b). Concerning sec.325.815(a)(2), a commenter requested clarification about "Persons who are not classified as transporters." The department's response is that a "person" is defined in the Health and Safety Code, Chapter 361, as "an individual, corporation, organization, government or governmental subdivision or agency, business trust, partnership, association, or any other legal entity". Accordingly, the department does not believe that the paragraph needs to be changed and has not done so. Concerning sec.325.815(b), two commenters stated that this subsection should be changed to require that the transporter mail the completed manifest back to the generator. The department disagrees because a situation could arise when the transporter would forget to mail the manifests or lose them; and in situations where the transporter and the receiving site is the same organization, it would not matter who returned the manifest. Concerning sec.325.821(b)-(d), a commenter stated that the term "mobile tire shredder" is inappropriately being used in these subsections because of its definition in sec.325.5. The department agrees and has added language to each subsection that a mobile tire processor has the required responsibility. Concerning sec.325.821(b), a commenter questioned if a storage monofill was included in the definition of a "waste tire storage facility", in sec.325.5, should it not also be included in this subsection. The department disagrees because this subsection covers mobile processors and not storage sites; however, the department has changed the definition of a "Waste Tire Storage Facility" by replacing the word "extraction" with the word "removed". Concerning sec.325.821(c), a commenter stated that this subsection does not meet the intent of Senate Bill 1340. The department disagrees because Senate Bill 1340 places the responsibility for conducting or providing for recycling of or energy recovery from tires with the processor who received reimbursement from the waste tire recycling fund. Concerning sec.325.821(d), a commenter stated that the subsection is not consistent with state law. In response, the department has reviewed the state law and the subsection and has made appropriate changes to clarify the subsection. Concerning sec.325.822(c), a commenter suggested that the registration period be extended from 12 months to 36 months. The department agrees and has made the change. Concerning sec.325.822(f)(1)(J), a commenter stated that the subparagraph should be written similar to sec.325.821(b). The department, after reviewing the subparagraph and the subsection, disagrees because the reason for a possible revocation is the failure to send the shredded tire pieces to an end user and not to an intermediate facility. Concerning sec.325.822(g), two commenters stated that the requirements in this section are totally unreasonable in that the required insurance cannot be obtained from any insurance company or other lending institution. The department agrees and has changed the subsection to require that the mobile transporter provide commercial business insurance on all its equipment. Concerning sec.325.823, a commenter stated that the section should be written similar to sec.325.821(b). The department, after reviewing the two sections, disagrees because shredded tire pieces can be taken to any of the locations listed in sec.325.823. Concerning sec.325.823, a commenter suggested that a time frame be set for the delivery of the shredded tire pieces to a storage site. The department disagrees because the suggested requirement would place a burden on the processor that may not be feasible. Concerning sec.325.824, one commenter stated that a scale cannot be attached to the mobile shredder. Another commenter stated that the Texas Department of Agriculture does not certify belt scales on conveyers. The department disagrees that a scale cannot be attached to a mobile shredder because other processors with mobile shredders have stated that attaching a scale is no problem. Regarding the other comment, the department understands the problem; however, since no particular type of scale has been identified in the section, the department will only make reference in subsection (b) to handling this situation in general. Concerning sec.325.825(a), a commenter stated that the period for maintaining records should be five years for all participants covered by this subchapter. The department disagrees because the processor gets reviewed every five years to check on his/her recycling effort, while other participants are not required to pass this review. Concerning sec.325.825(b), a commenter suggested that language be added to allow the processor to keep his records at his place of business. The department disagrees because problems may arise in verifying records if the mobile processor does not have any records with his shredder. Concerning sec.325.826, a commenter stated that some mosquitoes can grow in a seven day period and suggested that the language be changed to eliminate the two week spraying cycle. The department agrees that some mosquitoes may grow in seven days; however, eliminating the two week cycle of monitoring for mosquitoes would cause the site operator to become lax, and when mosquitoes do show up a bigger problem exists. The department believes that the two week period for monitoring will be used as an enforcement tool as well as to control vectors. Accordingly, the department has made no change. Concerning sec.325.827(b)(1), a commenter suggested that a provision be added that all shredded tire pieces must pass a screen of three inch by three inch openings. The department agrees with requiring that the shredded tire pieces should pass a screen with three inch by three inch openings; however, the practicality of this requirement would not be feasible because shredded tire pieces that are greater than nine square inches could pass the screen, i.e., a piece two inch by six inch would pass a three inch screen opening. Accordingly, the department has made no change to the paragraph. Concerning sec.325.832(b)(1), two commenters stated that the storage interval for a Type VIII-WT was too short and that it varied too much with storage times for other storage sites. The department agrees and has changed the storage time to 120 days for a Type VIII-WT site. Concerning sec.325.832(b)(2), a commenter stated that a loophole would be created that would allow processors to "double-dip" into the waste tire recycling fund and collect twice for the same tires. The department disagrees because the payment out of the fund will only be for shredded tire pieces that are weighed at the time of shredding. Accordingly, the department has made no change. Concerning sec.325.832(b)(2), two commenters stated that the 12 month storage time for shredded tire pieces was too short and that it varied too much with storage times of storage sites. The department disagrees because the intent of the program is to send the shredded tire pieces to an end user for recycling. If the pieces were allowed to remain on a storage site for a longer period of time, then the processor would eventually forget that the pieces would need to be sent to an end user. The other reason for the disagreement is because above-ground storage is temporary. Accordingly, the department has made no change. Concerning sec.325.832(b)(2), a commenter stated that above-ground storage of the shredded tire pieces should not be allowed because the pieces would be too hard to handle. The department disagrees because shredded tire pieces stored above ground can be moved by the use of a front end loader easier than whole tires can be moved around. Accordingly, the department has made no change. Concerning sec.325.832(b)(4), a commenter questioned whether there was a duplication of the Type VIII-I and Type VIII-WT as described in sec.325.832(b)(1). The department, after reviewing the two paragraphs, found an error in sec.325. 832(b)(4) which has been corrected. A Type VIII-I is the classification for an illegal site with more than 500 tires on the site. Concerning sec.325.835(a)(3), two commenters stated that there was a contradiction in this section concerning the expiration of registration at the end of 36 months and the renewal of registration every 12 months. The department agrees and has changed the paragraph to reflect a 36 month registration with renewal at the end of 36 months. Concerning sec.325.835(a)(7)(C)(xvi) and sec.325.835(b)(8), a commenter questioned the need for a detailed drainage plan designed by a Professional Engineer for a site that is for temporary use. The department agrees and has appropriately changed the clause and paragraph to require only a simple drainage plan that will identify any existing drainage features and will show the direction of flow of any surface waters crossing the site. Concerning sec.325.835(b)(2)(B), a commenter requested clarification of the subparagraph's intent. The department's response is that the intent is to allow storage of tires or pieces inside a building or other enclosure with a limit on pile size, and to allow storage of tires or pieces in enclosed trailers. The department does not consider it necessary to change the subparagraph for clarification. Concerning sec.325.835(b)(7), a commenter request clarification of the paragraph's intent. The department's response is that the intent is to have the operator provide for adequate fire protection for the storage site. The department agrees that the paragraph needs to be reworded to clarify its intent and has done so. Concerning sec.325.835(c)(2)(E), a commenter suggested that more detailed techniques and procedures be identified for vector control for those who do not know what to do. The department disagrees because for every situation there is a specific method that works effectively, and not all effective methods work in all situations. Vector control has to be specific to the site and tailored to fit the needs of the specific situation. Accordingly, the department has made no changes. Concerning sec.325.835(c)(2)(J) and (K), a commenter suggested a change in wording to clarify the subparagraphs' intent. The department disagrees because it believes that the proposed wording is sufficiently clear regarding intent. Accordingly, the department has made no change. Concerning sec.325.835(d)(1)(c), a commenter recommended that the measurement of "15 by 22 inches" be replaced with the measurement of "11 by 17 inches" in order to be consistent with other sections. The department agrees and has made the change. Concerning sec.325.835(d)(2)(F), a commenter suggested that additional language be added to identify observations of vectors that may become present at a storage site. The department agrees and has added appropriate wording. Concerning sec.325.836, a commenter requested clarification of a Type VIII-S storage monofill as a processor. The department's response is that a storage monofill is not a processor, it is a storage site. Accordingly, the department has made no change. Concerning sec.325.836(a)(3), a commenter stated that the extension of 10 years for a permit is excessive and that it is the same as issuing a permit for disposal for 15 years. The department disagrees concerning the 15 year disposal because the intent of the paragraph is to allow additional storage time for the shredded tire pieces in the event that the recycling market was not present in five years. However, the department does agree that the additional 10 year extension is excessive and can be detrimental to the program. Accordingly, the department has changed the paragraph by eliminating the 10 year extension and providing for a one time five year extension and by adding language that will allow the department to revoke the permit and cash in the financial assurance within six months of the end of the extension period. Concerning sec.325.836(b)(2), a commenter stated that the requirement for a fire wall between the tires was excessive for a storage monofill and would be a burden to the operator to dig up the tire pieces. The department disagrees because the monofill could be a trench operation and the trenches can be marked easily. In an area fill operation, the fire wall will be several feet thick and the disposal areas can be identified. Accordingly, the department has made no change. Concerning sec.325.841(a), three commenters stated that a fixed processor should have the ability to store tires at the facility. The department's response is that it has determined that storage at the processor's fixed facility would be possible if a separate storage site registration is obtained. The registration for the processor is only for the operation of the processing facility. Accordingly, the department has made no change. Concerning sec.325.841(c), a commenter stated that this section did not meet the intent of Senate Bill 1340. The department disagrees because the intent of Senate Bill 1340 is for eventual recycling and this section contains language to this effect. Concerning sec.325.842(a), three commenters stated that the provision for reducing the tire to crumb rubber is misleading and needs clarification. The department agrees and has changed the language by eliminating crumb rubber and replacing it with a particle size of nine square inches or smaller. Concerning sec.325.842(b), a commenter suggested that weighing equipment be included in the subsection to weigh manifested tires. The department disagrees because the waste tire program that has been in effect has been dealing in whole tires and will continue to deal in whole tires until the whole tire is placed in a piece of equipment that will reduce it to at least two or more pieces or into its component parts. Accordingly, the department has made no change. Concerning sec.325.842(c), a commenter stated that there would be a difficulty in accounting for manifested and unmanifested tires versus weighing the shredded pieces. The department disagrees because the whole tires that come into a site can be counted and the shredded tire pieces will be weighed after shredding. The difficulty is not in accounting for whole tires versus shredded tire pieces but in the fact that the processor has to count whole tires. Accordingly, the department has made no change. Concerning sec.325.842(c), a commenter stated that the Texas Department of Agriculture does not certify conveyer scales. The department's response is that it understands this situation. Accordingly, because no specific type of scale is identified in the subsection, the department has changed the wording to provide for a general form that will deal with this situation. Concerning sec.325.842(c), a commenter suggested that a waiver be included that would exempt processors from providing weighing equipment if they did not participate in the waste tire recycling fund. The department disagrees and will not provide such an exemption. However, the department, after reviewing sec.325. 843(a) to determine if it specifies which fixed processors have to obtain a registration, has determined that the subsection does not clearly state who should obtain a registration. Accordingly, the department has made an appropriate change to sec.325.843(a) to clarify this situation. The department believes that this clarification will address the situation with the weighing equipment. Concerning sec.325.843(b)(3)(D), a commenter requested clarification of the subparagraph's intent. The department's response is that the intent is for enforcement purposes. The Department has to have an idea of where a processor may be working in order for the department to be able to schedule inspections and investigations of the illegal tire dumps and the processors. The department does not believe that the subparagraph needs to be clarified and, accordingly, has made no change. Concerning sec.325.843(c), two commenters requested clarification that a copy of the registration must be carried in each vehicle used to shred used and scrap tires when the registration is for a fixed facility. The department agrees that the language in the subsection section is misleading and has deleted the last phrase of the subsection. Concerning sec.325.843(e)(2) and (4), a commenter requested clarification of the intent regarding fixed processors. The department's response is that it has included these paragraphs because the department must be kept aware of changes in place of business and area of operation in order to keep the program functioning properly. Accordingly, the department has made no change. Concerning sec.325.843(f)(3), a commenter requested clarification of the intent regarding fixed processors. The department's response is that the operation of a fixed processor at a location other than the registered site is considered an illegal operation and the processor loses eligibility in the waste tire recycling fund if a new registration has not been obtained. Accordingly, the department made no change. Concerning sec.325.843(g), a commenter requested clarification of the language regarding fixed processors. The department's response is that, after reviewing the subsection, the department has determined that the language was unclear and inappropriate for fixed processors. Accordingly, the department has made appropriate changes to paragraph (1)(B) and (G). Concerning sec.325.845(b)(3) and (4), a commenter suggested that a provision to account for the weight of incoming tires be included. The department disagrees because the manifest system accounts for the movement of whole tires or an equivalent number of whole tires per 18.7 pounds of shredded tire piece. To make a change that would allow for weighing incoming whole tires would cause a change in the whole manifest system that is not warranted. Accordingly, the department has made no change. Concerning sec.325.846, a commenter stated that a waste tire processor should be required to deliver the shredded tire pieces to a waste tire storage site. In response, the department has reviewed this section and found that the delivery requirements for a fixed processor are all indicated, including delivery to a waste tire storage site, and that no changes are needed. Concerning sec.325.851(a)(2), a commenter requested clarification regarding a tire processing facility being considered as a disposal facility. The department's response is that the intent of this paragraph is to identify the final destination of a used or scrap tire at a facility that will either bury, burn, or reprocess the tire into some other commodity. The department believes that the wording is adequate and, accordingly, has made no changes. Concerning sec.sec.325.851-325.856, a commenter requested clarification of the term "permitted". The department's response is that these sections pertain to the permitting of permanent tire disposal facilities; they do not pertain to registered facilities or facilities that produce or reproduce commodities from used and scrap tires. Accordingly, the department believes that no clarification is needed and has made none. Concerning sec.325.852(a)(2), a commenter stated that filled tires cannot be removed from the rim in most cases and that provisions should be made to allow disposal of the tire on the rim. The department agrees with the comment, but believes that there has not been enough information obtained to know how extensive this problem is or all the types of filled tires that are disposed of. Accordingly, the department does not believe that it is appropriate to change the paragraph at this time. Concerning sec.325.855(a), a commenter stated that the phrase "all tire disposal sites" should be changed to reflect monofills to avoid confusion with other permitted disposal sites. The department agrees and has changed the subsection to clarify this situation. Concerning sec.325.855, a commenter suggested that the requirement regarding final cover should be as described in sec.325.850. The department disagrees because more than two feet of final cover will be needed to account for settlement of the cover into the tire monofill. Accordingly, the department has made no change. Concerning sec.325.856, a commenter stated that a tire monofill is contrary to the requirements in Senate Bill 1340. The department disagrees because Senate Bill 1340 has nothing to do with regulating tire monofills. Other parts of the Health and Safety Code, Chapter 361, dealing with the tire program regulate tire monofills. The provisions in these sections of Subchapter R, concerning the management of used and scrap tires, regulate the used and scrap tire program mandated by Senate Bill 1516, 71st Legislature, 1989, and Senate Bill 1340. Accordingly, the department has made no change. Concerning sec.325.856(b)(2), a commenter requested clarification of the relationship between the illegal tire disposal dumps and the priority enforcement list. The department's response is that illegal tire disposal sites cannot be considered eligible for the priority enforcement list because the site may contain tires that have already been shredded, and the priority enforcement list is aimed at cleaning up the stockpiles of tires. Accordingly, the department has made no change. Concerning sec.325.862, several commenters requested clarification of the responsible party, including the definition, the clean-up responsibility, and the ability to contract with the processors prior to April 1, 1992. The department agrees that clarification is needed and has added language to subsections (b) and (c) to clarify the definition of responsible party and has deleted subsection (f) because it contradicted the process that was established in earlier sections. Concerning sec.325.862(e)(2), a commenter suggested that language be added stating that the responsible party should reimburse the State for monies used from the fund if convicted of a violation of State law. The department disagrees because the suggested language does not match the intent of subsection (e) and would only serve to complicate the program by providing for costly and lengthy legal proceedings which would not be beneficial to the State. Accordingly, the department has made no change. Concerning sec.325.862(f), several commenters suggested adding more incentives to make the sites more attractive to program participants. The department agrees; however, the department has deleted this subsection due to the review conducted for a previous comment. Concerning sec.325.863(c), a commenter stated that the threshold limit should be eliminated and that processors should be allowed to choose any site on the priority enforcement list. The department disagrees because of financial concerns. The waste tire recycling fund (WTRF) will not have an unlimited amount of funds at any time during its existence. This limited source of clean-up funds coupled with the ability of or lack of ability of the processors to work and the department's limited ability to verify work performed, process payments, and monitor the activities of the program is behind the reason to set a threshold limit for the priority enforcement list. Accordingly, the department has made no change. Concerning sec.325.865, several commenters stated that the section allows the landowner too much latitude in determining who will process his/her tires, could lead to fraud or a monopoly of the program by a few processors, and is confusing as to whether the program will clean up tire piles or go after a responsible party. In response, the department has made changes throughout the section that will give the department more control over the priority enforcement list sites and eliminate the potential for fraud or monopolies. The changes are as follows. Subsection (a) has been changed to clarify procedures and requirements and delete provisions that are not appropriate. Subsection (b) has been changed to give the department the ability to rush the clean-up of an illegal site as deemed appropriate, and language has been deleted concerning unnecessary enforcement action. Subsection (c) has been deleted entirely due to the changes made in subsection (b). Subsection (d) has been deleted because it conflicted with sec.325.863. Subsection (e) has been retained as proposed, but renumbered as new subsection (c). Subsection (f) has been deleted entirely because it will only serve to complicate the system and provide an avenue for fraud. A new subsection (d) has been written to specify the actions needed that would allow a processor to participate in the program; this new section includes some of the language deleted from subsection (a). Concerning sec.325.867(b), a commenter stated that it would be inappropriate for the department's representative to be able to control certain aspects of the contractor's ability to work. The department agrees and has changed this section by deleting paragraphs (1)-(3) and rewriting deleted paragraph (2) into the final subsection. Concerning sec.325.872(a) and (b), several commenters expressed concern about the program and its objective of recycling used and scrap tires and the provisions of the subsections that promoted shredding of used and scrap tires and no other recycling method. The department agrees and has changed the subsections by redefining the purpose and objective of the waste tire recycling program to include other recycling methods. Concerning sec.325.872(e)(1), a commenter stated that there will not be enough priority enforcement list sites to go around. The department disagrees because, based on the information it now possesses, there will be enough sites for each processor. Accordingly, the department has made no changes. Concerning sec.325.872(e)(2), a commenter stated that there should be more flexibility in the particle size. The department disagrees because state law clearly requires that the particle size must be nine square inches or smaller. Accordingly, the department has made no change. Concerning sec.325.872(e)(5), a commenter stated that the functioning of this provision would lead to abuse problems. The department disagrees because the 50% share of the shredded tire pieces that is not committed to a particular source is open to the processor to use where he/she can best utilize the capacity. Accordingly, the department has made no change. Concerning sec.325.873, several commenters questioned the need for this section, suggested additional language, and stated an objection to the provision in subsection (b)(4). The department, after reviewing the section, has determined that the section is needed and will be retained; however, the department has rewritten the language in subsections (a) and (b) to eliminate unnecessary wording and to change the notice of intent procedure in order to include provisions for a request for proposal. Concerning sec.325.874, a commenter objected to the provision of a processor being required to be the owner/operator of a permitted or registered site as being too restrictive. The department agrees and has appropriately deleted the owner/operator requirements. Concerning sec.325.875, a commenter stated that this section conflicts with sec.325.862. The department agrees and has made appropriate changes to subsection (a). Concerning sec.325.876, several commenters stated that the section is conflicts with sec.325.872(e)(5). The department agrees and has changed this section to delete the conflicting language. Concerning sec.325.877, several commenters expressed concern about the special manifests, the requirements for reporting, and the procedures established for shipping, record keeping, and reporting. The department, after reviewing the section, has determined that it contains provisions and language which is inconsistent with other sections in this subchapter. To correct this problem, the department has made appropriate changes in this section and various other sections. Concerning sec.325.878(c), a commenter requested that the 98% variance be more liberally applied. The department disagrees because state law specifically requires that 100% of the tires that are shredded for reimbursement shall be shredded to 9 square inches or less. Accordingly, the department changed sec.325. 878(c) to eliminate the 98% provision and to incorporate language adopted by Senate Bill 2, 72nd Legislature, First Called Session, 1991. Concerning sec.325.878(e), a commenter stated that this subsection duplicates provisions in another section. The department agrees and has deleted this subsection. Concerning sec.325.881, a commenter stated that the section does not address the use of split, quartered, or shredded tires as filler to reclaim eroded lands. The department's response is that it has not restricted the use of used or scrap tires for beneficial use to only the uses specified in this section. Any use of used and scrap tires or tire pieces is eligible for beneficial use provided that the department's interpretation regarding this section is followed. Accordingly, the department has made no changes. The department received a number of comments regarding the sections generally. The comments and the department's responses are as follows. Several commenters stated that all dumpsites should be included in the 25% eligibility requirement for processing of the tires. The department disagrees because state law specifically requires that at least 25% of the tires shredded comes from sites listed on a priority enforcement list for which a responsible party cannot be located. Several commenters expressed concern regarding the priority enforcement list and providing an adequate number of illegal dumpsites for all processors to work. The department response is that it understands this concern because it knows of at least 500 sites and of a large number of unknown sites that will eventually be placed on the priority enforcement list to be cleaned up. This process is going to take a long time. Several commenters expressed concern about the lack of illegal dumpsites in the El Paso area and requested that a waiver be included in the sections to compensate for this problem. The department understands that at some point in time all the illegal dumpsites will be cleaned up in certain areas of the State, and that provisions in these sections will not allow generators to recycle the tires generated daily. However, this problem cannot be addressed by regulation because state law contains specific language regarding this subject which can only be changed by the legislature. A commenter requested that the sections contain a provision for a $2.00 fee on new tires and the effect on business from Mexico. Since the department is not adopting rules related to the collection of a $2.00 fee, it is not necessary to address this comment. Several commenters requested the deletion of the term "used tire" from the sections. The department's response is that it cannot comply with the request because state law clearly requires that the program in this subchapter is the "Used and Scrap Tire Program". A commenter suggested that all records be maintained in a computer format acceptable to the department. While the department agrees that this is a viable suggestion, the department is not in a position at this time to develope a suitable format and impose it on all processors or others participating in the program. A commenter requested clarification concerning who could pay fees and who did not have to pay fees for transportation or disposal of tires. The department's response is that state law requires that transporters of used or scrap tires who collect from wholesale or retail dealers for delivery to a waste tire facility, or mobile tire shredders who collect and shred used or scrap tires from a wholesale or retail dealer may not charge the dealer to transport the dealers used and scrap tires. This prohibition only applies to the transportation of used and scrap tires, from wholesale and retail dealers, that are hauled to a waste tire processor. Accordingly, the department has made no changes to the sections. A commenter stated that existing facilities are not addressed in the sections. The department disagrees because existing disposal sites are addressed and existing storage sites are also addressed in the sections. A commenter stated that the relationship between the municipal solid waste disposal fee and the waste tire recycling fund is not sufficiently described in the sections. The department's response is that it believes that this subchapter deals with the waste tire program and that the municipal solid waste disposal fee is a separate program which does not need to be addressed in Subchapter R. Two commenters recommended that a six month period be allowed to implement the sections and that facilities be allowed to operate if an application is submitted. The department disagrees with the first recommendation because Senate Bill 1340 does not authorize any implementation date other than the April 1, 1992, starting date for processors to be eligible for payment from the fund. The department disagrees with the second recommendation because the department does not allow any other facility that it permits or registers to begin operation prior to the receipt of the permit or registration. Sites that are in operation on the effective date of these rules must come into compliance as quickly as possible; no grandfather clause will exist in these sections. Accordingly, the department has not implemented these recommendations. A commenter recommended that existing oil storage tanks should be feasible for storage of tires and the shredded tire pieces. The department disagrees because there is no feasible means for removal of the material from the tank which is a requirement of this program if recycling is to take place. Accordingly, the department has made no change. A commenter stated that there is no market for the shredded tire pieces at this time. The department agrees that there are a limited number of end-users at this time; however, the objective of this program is to provide the material of a particle size that will promote the installation of facilities that will be able to recycle these shredded tire pieces. At the start of any new program, it is hard for everyone to visualize how the program will work several years after it has started. In addition to changes made to the sections as a result of public comments, the department made editorial changes for clarification to sec.sec.325.5, 325.805, 325.808-325.809, 325.823, 325.832-325.833, 325.836-325.837, 325.839-325.840, 325. 841, 325.843-325.848, 325.851-325.855, 325.861-325.864, and 325.875. Companies, groups, and associations which commented include: Monahans Chamber of Commerce, Monahans; TU Electric, Monahans; Sefe Tire Disposal of Texas, Ardmore (Oklahoma); Lone Star Enterprises, Marfa; Discount Tire Co., Inc., El Paso; Martin Tire Company, El Paso; El Paso; Pueblo Tires, McAllen; Texas Tire Dealers Association, Austin; Gibson Recycling, Atlanta; Waste Recovery, Inc., Houston; Tiregator Disposal, Inc., Fort Worth; Troice Enterprises, Inc., El Paso; Gator Tire Disposal, Inc., San Antonio; Southern Tire Recyclers, Inc., Fort Worth; Acme Tyre, Atlanta; Texas Motor Transportation Association, Inc., Austin; Alpha Business Consultants, Inc., Dallas; Midland Chamber of Commerce, Midland; Odessa Chamber of Commerce, Odessa; Tire Shredder Service, Inc., Beaumont; Browning- Ferris Industries, Houston; Waste Management of Texas, Inc., Irving; and Liveoak Oil Company of Texas, Houston. In addition, the department also received comments from several individuals. 25 TAC sec.325.5 The amendment is adopted under the Health and Safety Code, sec.361.011, which establishes the department's jurisdiction over municipal solid waste management; sec.361.024, which provides the Texas Board of Health with authority to adopt rules to manage and control municipal solid waste; sec.12.001 which provides the board with authority to adopt rules for the performance of every duty imposed by law on the board, the department, and the commissioner of health; Senate Bill 1340, 72nd Legislature, 1991, and Senate Bill 2, First Called Special Session, 72nd Legislature, 1991, which provide the department with the authority to implement a waste tire recycling program. sec.325.5. Definitions. The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. Other definitions, pertinent to specific sections, are contained within the appropriate sections. Mobile tire processor-An operator of a mobile tire shredder. Mobile tire shredder-A piece of equipment used to split, shred, or quarter tires which is mounted on wheels or is skid-mounted and is hauled from place to place. Postconsumer waste -A material or product that has served its intended use and has been discarded after passing through the hands of a final user. For the purpose of this subchapter, the term does not include industrial or hazardous waste. Recyclable material -Material that has been recovered or diverted from the solid waste stream for purposes of reuse, recycling, or reclamation, a substantial portion of which is consistently used in the manufacture of products which may otherwise be produced using raw or virgin materials. Recyclable material is not solid waste. However, recyclable material may become solid waste at such time, if any, as it is abandoned or disposed of rather than recycled, whereupon it will be solid waste with respect only to the party actually abandoning or disposing of the material. Shredded tire piece-A particle of a used or scrap tire that has been shredded, quartered, or split. Waste tire facility -An approved facility at which used and scrap tires are collected and deposited and shredded to facilitate the future extraction of useful materials for recycling, reuse, or energy recovery. Waste tire processor -A waste tire facility, or a mobile tire shredder, that splits, shreds, or quarters tires and delivers to an end user the split, shredded, or quartered tires for eventual recycling, reuse, or energy recovery at either a waste tire storage facility or a waste tire facility. Waste tire recycling fund (WTRF)-The fund into which tire fees collected on new tires that are sold in Texas are deposited. Waste tire storage facility-An approved facility at which used and scrap tires are collected and stored (before being offered as material) to facilitate the future removal of useful materials for recycling, reuse, or energy recovery. Waste tire transporter -A transporter who collects and transports used and scrap tires or shredded tire pieces for storage, processing, or disposal. Weighed tire-A unit of weight for shredded used or scrap tires that is equal to 18.7 pounds. 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 December 12, 1991. TRD-9115800 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: January 2, 1992 Proposal publication date: October 4, 1991 For further information, please call: (512) 458-7271 Subchapter R. Management of Used and Scrap Tires. General Requirements 25 TAC sec.325.801, sec.325.802 The amendments are adopted under the Health and Safety Code, sec.361.011, which establishes the department's jurisdiction over municipal solid waste management; sec.361.024, which provides the Texas Board of Health with authority to adopt rules to manage and control municipal solid waste; sec.12.001 which provides the board with authority to adopt rules for the performance of every duty imposed by law on the board, the department, and the commissioner of health; Senate Bill 1340, 72nd Legislature, 1991, and Senate Bill 2, First Called Special Session, 72nd Legislature, 1991, which provide the department with the authority to implement a waste tire recycling program. sec.325.802. Applicability. (a) The sections in this subchapter are applicable to persons who are involved in the storage, transportation, processing, disposal and recycling of used or scrap tires regulated by the Texas Department of Health (department) pursuant to sec.325.3 of this title (relating to Applicability). (b) A tire becomes a used tire when it is discarded by a person after it has been utilized for any period of time. A used tire that can be salvaged and used for another purpose, retreaded, or sold as a good used vehicle tire is subject to the requirements of this subchapter, except as noted in sec.325.881 of this title (relating to Beneficial Use of Used and Scrap Tires). A used tire that cannot be reused for any other purpose is a scrap tire and is subject to the requirements of this subchapter. (c) A used tire may include tires which can be reused for another purpose. Used tires that can be salvaged and used for another purpose, retreaded, or sold as a good used vehicle tire are exempted from the requirements to be split, quartered, or shredded at storage sites. All used tires will be subject to manifesting by registered transporters in accordance with the requirements in sec.sec.325.811-325.818 of this title (relating to Transporters of Used and Scrap Tires). Tire stockpiles being held for adjustment by the manufacturer must be classified for reuse or disposal within 90 days. Used tires being held for resale that are stockpiled shall receive appropriate vector control made at a frequency based upon weather conditions and other applicable local ordinances. (d) A used tire that is reused shall become known as a commodity or product when it has been declared reusable, when it has been sorted, marked, and classified, and when it has arrived at any of the following locations: (1) a used tire dealer; (2) a used tire retread shop; or (3) an authorized used tire storage site. (e) The sections in this subchapter are applicable to persons who are in-volved in the storage, transportation, processing, disposal, and recycling of pieces of used and scrap tires that have been split, quartered, or shredded pursuant to sec.325.3 of this title (relating to Applicability). (f) The sections in this subchapter are not applicable to green tire scraps or other in-plant tire scraps. These are still considered as part of the manufacturing process and are subject to disposal requirements as industrial waste. (g) Large used and scrap tires that are 48 inches or more in diameter and 20 inches or more in width, or which weigh a minimum of 500 pounds, are exempted from the requirements to be split, quartered, or shredded at a storage site or a permitted landfill. This exemption is applicable only until technological advances are made to provide a machine that will split, quarter, or shred these tires and it is available for use within a 100 mile radius of the location of such tires. The large used and scrap tires, specified in this subsection, shall not be disposed of and must be either stored or recycled. Adequate vector control shall be maintained at the site storing these tires. (h) A used or scrap tire, attached to a rim, that is received at a waste tire facility, storage site, disposal site, or other solid waste facility shall be removed from the rim and handled accordingly. The rim may be handled as ordinary municipal solid waste or it may be salvaged. (i) A solid or non-pneumatic used or scrap tire may be disposed of in a municipal solid waste facility provided there is no available means to reduce the tire into recyclable material. This agency hereby certifies that the 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 December 12, 1991. TRD-9115801 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: January 2, 1992 Proposal publication date: October 4, 1991 For further information, please call: (512) 458-7271 25 TAC sec.325.803 The repealed section is adopted under the Health and Safety Code, sec.361.011, which establishes the department's jurisdiction over municipal solid waste management; sec.361.024, which provides the Texas Board of Health with authority to adopt rules to manage and control municipal solid waste; sec.12.001 which provides the board with authority to adopt rules for the performance of every duty imposed by law on the board, the department, and the commissioner of health; Senate Bill 1340, 72nd Legislature, 1991, and Senate Bill 2, First Called Special Session, 72nd Legislature, 1991, which provide the department with the authority to implement a waste tire recycling program. 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 December 12, 1991. TRD-9115802 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: January 2, 1992 Proposal publication date: October 4, 1991 For further information, please call: (512) 458-7271 Generators of Used and Scrap Tires 25 TAC sec.sec.325. 805-325.809 The new sections are adopted under the Health and Safety Code, sec.361.011, which establishes the department's jurisdiction over municipal solid waste management; sec.361.024, which provides the Texas Board of Health with authority to adopt rules to manage and control municipal solid waste; sec.12. 001 which provides the board with authority to adopt rules for the performance of every duty imposed by law on the board, the department, and the commissioner of health; Senate Bill 1340, 72nd Legislature, 1991, and Senate Bill 2, First Called Special Session, 72nd Legislature, 1991, which provide the department with the authority to implement a waste tire recycling program. sec.325.805. Applicability and Responsibility. (a) Applicability. The regulations contained in these sections establish standards applicable to the generators of used and scrap tires. For the purpose of this subchapter, a generator shall be as a person who accepts used and scrap tires for storage, who is a fleet operator, or who is a new or used tire retailer, wholesaler, manufacturer, or retreader. (b) Responsibility. Each generator shall be responsible for ensuring that used and scrap tires are transported by a registered transporter. Each generator shall ask the transported where his used and scrap tires are being delivered to, and\or shall designate the destination of the used and scrap tires that they generate. (c) Generator. A generator may not place a whole used or scrap tire or split, quartered, or shredded tire pieces in a dumpster for pickup by a collection vehicle that has an enclosed packer unit attached or that is used on a routine and/or regular collection route. All used or scrap tires and shredded tire pieces transported from a generator's location shall be transported in a separate, identifiable load by manifest. sec.325.806. Notification and Identification Number. Tire generators who regularly dispose of used or scrap tires shall obtain an identification (I.D.) number from the Texas Department of Health (department). The generator must write to the department, identify himself/herself or his/her business as a used or scrap tire generator, provide the business name, mailing address, street address or location, and the city and/or county in which he/she is located. I.D. numbers will be issued for each separate business location. The recipient of an I.D. number shall promptly notify the department of any changes to any of the information in our records. sec.325.807. Record Keeping. (a) Maintenance of record. Copies of manifests, daily logs, or other documentation used to support activities related to the accumulation, handling, and shipment of used and scrap tires shall be retained for a period of three years. All such records shall be made available to the Texas Department of Health (department) upon request. (b) Manifest. Generators shall initiate and maintain a record of each individual load hauled from their business location. The record shall be in the form of a four-part manifest or other similar documentation approved by the department. The manifest shall include the: (1) name and address of the person who generated the whole or scrap tires or the shredded tire pieces and the type of generator; (2) name and department registration number of transporter; (3) date of the event; (4) generator I.D. number; (5) number of whole used or scrap tires or the weight in pounds of shredded tire pieces collected for transportation; (6) name of responsible person(s) collecting, transporting, and depositing the whole used or scrap tires or the shredded tire pieces; (7) date and place where the whole used or scrap tires or the shredded tire pieces were deposited; (8) identification (permit or registration number, location, and operator) of the facility where the whole used or scrap tires or shredded tire pieces were deposited; (9) name of the representative of the destination facility acknowledging receipt of the whole used or scrap tires, and the number received or the shredded tire pieces and the weight received; (10) the location of the generator's site; and (11) a signature of the representative of the generator, transporter, and destination facility acknowledging that the information on the manifest is true and correct. (c) Local ordinances. Where local ordinances require controls and records substantially equivalent to or more stringent than the requirements of subsection (a) of this section, transporters may use such controls and records to satisfy the department's requirement under this section, with approval by the department. (d) Generator's log. Any used or scrap tire generator shall maintain a log showing the date the used and scrap tires were discarded, the number discarded, and the method of discarding the used or scrap tires. This log shall be retained for the period of three years and made available to the department upon request. sec.325.808. On Site Accumulation. (a) Generators of used and scrap tires may store those same tires at the location at which they are generated. Used and scrap tires accumulated at the site must be removed on a periodic basis of up to 90 days. Tires stored out of doors in an uncontrolled pile shall be monitored for vectors, and appropriate vector control measures shall be utilized at least once every two weeks. (b) Used and scrap tires accumulated at a generator's location may be collected in a transportable collection container that is mobile, completely enclosed, and lockable. The entire container shall be hauled from the site by a registered transporter, taken to a permitted or registered tire facility, and be manifested. (c) Retailers and wholesalers who sell used tires as a commodity shall do so only from stock that has been sorted, marked, classified, and arranged in a controlled situation. Used tires that are to be resold as commodities, but are not handled as described in this subsection, shall be considered as stockpiled used or scrap tires and the site shall be subject to registration as a tire storage site, if the number of tires exceeds 500. sec.328.809. Transportation Requirements. (a) A generator may designate the destination of all used and scrap tires generated at his location and initiate the required manifest for each shipment. (b) A generator may transport his/her own used and scrap tires, provided a tire transporter registration has been obtained from the Texas Department of Health (department). Generators who do not transport their own tires shall only use a tire transporter who is registered by the department. (c) A waste tire transporter or a mobile tire shredder shall not charge a fee on or after April 1, 1992, to the wholesale or retail dealer for collecting used or scrap tires for delivery to a waste tire facility or for collecting or shredding used or scrap tires accepted for temporary storage. This prohibition does not apply to the transportation of used tires classified as reusable. This prohibition also does not apply to other generators. (d) Used or defective tires shipped back to the manufacturer or manufacturer's representative for adjustment are not required to be transported by a registered transporter, provided the generator retains, for three years and makes available to the department upon request, records showing the following: (1) the date such tires were shipped; and (2) the number of tires in each shipment. This agency hereby certifies that the 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 December 12, 1991. TRD-9115803 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: January 2, 1992 Proposal publication date: October 4, 1991 For further information, please call: (512) 458-7271 Transporters of Used and Scrap Tires 25 TAC sec.sec.325.811-325.818 The amendments are adopted under the Health and Safety Code, sec.361.011, which establishes the department's jurisdiction over municipal solid waste management; sec.361.024, which provides the Texas Board of Health with authority to adopt rules to manage and control municipal solid waste; sec.12.001 which provides the board with authority to adopt rules for the performance of every duty imposed by law on the board, the department, and the commissioner of health; Senate Bill 1340, 72nd Legislature, 1991, and Senate Bill 2, First Called Special Session, 72nd Legislature, 1991, which provide the department with the authority to implement a waste tire recycling program. sec.325.811. Applicability and Responsibility. (a) Applicability. The regulations contained in these sections establish standards applicable to transporters collecting and hauling used or scrap tires. Methods of transportation shall include, but are not limited to, measures utilizing roadway, rail, and water facilities. These sections are applicable to waste tire transporters and other tire transporters who transport used or scrap tires and shredded tire pieces from a generator to an approved facility or to a recycling facility. (b) Responsibility. Transporters shall maintain records using a manifest system as provided in sec.325.815 of this title (relating to Record Keeping). Each transporter shall be responsible for ensuring that used or scrap tires are transported to a waste tire facility, a permitted or registered storage site, a permitted disposal or monofill site, a used or scrap tire recycler, or a retreader. (c) Prohibition. A transporter may not charge a fee to a retail or wholesale dealer of new tires, for collecting used or scrap tires for delivery to a waste tire facility on or after April 1, 1992. This prohibition does not apply to the transportation of used tires classified as reusable. this prohibition also does not apply to other generators. sec.325.814. Vehicle and Equipment Sanitation Standards. All vehicles and equipment used for the collection and transportation of used or scrap tires shall be constructed, operated, and maintained to prevent loss of used or scrap tires during transport and to prevent health nuisances and safety hazards to operating personnel and the public. Collection vehicles and equipment shall be maintained in a sanitary condition to preclude odors and insect breeding. Any vehicle or trailer used to transport used or scrap tires shall be identified on both sides and the rear of the vehicle. The identification shall consist of the name and place of business of the transporter and the Texas Department of Health (department) registration number using numbers at least 2 1/2 inches tall. Trailers used to transport used or scrap tires shall be either fully enclosed and lockable, or have sidewalls of sufficient height to contain the load and shall be covered with a tarp during transit. sec.325.815. Record Keeping. (a) Manifest. (1) Transporters shall maintain a record of each individual collection and deposit. Such record shall be in the form of a four-part manifest or other similar documentation approved by the Texas Department of Health (department) described in sec.325.807(b) of this title (relating to Record Keeping). (2) Persons who are not classified as transporters may deliver to an approved facility (i.e., storage site, disposal site, waste tire facility, or other processing facility) used or scrap tires without a manifest. The storage site, disposal site, waste tire facility, or other processing facility is authorized to accept these tires in accordance with the conditions specified in this subchapter without a manifest. The storage site, disposal site, waste tire facility, or other processing facility shall maintain a collection log of unmanifested used or scrap tires and shall report the amount of unmanifested tires on the annual summary report for their facility. This collection log shall be retained for a period of three years and shall be made available to the department upon request. (b) Maintenance of records and reporting. The transporter, the storage site, waste tire facility, disposal site, or other processing facility shall mail to the person who generated the used or scrap tires a copy of the manifest that has been completely filled out. The facility operator of the destination of the used and scrap tires shall retain a copy of all manifests of used or scrap tires delivered. The transporter shall retain a copy of all manifests showing the collection and disposition of the used or scrap tires. Manifest copies shall be retained by the generators, transporters, and facility operators for three years and made available to the department upon request. Transporters shall submit to the bureau an annual summary of their activities up to December 31 of each year showing the number of used or scrap tires collected, disposition of such tires, and the number of used or scrap tires delivered to each facility. The report shall be submitted no later than March 1 of the year following the end of the report period. The report shall be prepared on a form provided by the department. (c) (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 December 12, 1991. TRD-9115804 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: January 2, 1992 Proposal publication date: October 4, 1991 For further information, please call: (512) 458-7271 Mobil Processors of Used and Scrap Tires 25 TAC sec.sec.325.821-325.828 The new sections are adopted under the Health and Safety Code, sec.361.011, which establishes the department's jurisdiction over municipal solid waste management; sec.361.024, which provides the Texas Board of Health with authority to adopt rules to manage and control municipal solid waste; sec.12.001 which provides the board with authority to adopt rules for the performance of every duty imposed by law on the board, the department, and the commissioner of health; Senate Bill 1340, 72nd Legislature, 1991, and Senate Bill 2, First Called Special Session, 72nd Legislature, 1991, which provide the department with the authority to implement a waste tire recycling program. sec.325.821. Applicability and Responsibility. (a) Applicability. The regulations contained in these sections establish standards applicable to mobile processors collecting and shredding used and scrap tires. A mobile processor of used and scrap tires includes a machine that splits, quarters, or shreds whole tires in to two or more pieces. (b) Responsibility. Each mobile tire processor operating a mobile tire shredder shall be responsible for ensuring that whole used or scrap tires are split, quartered, or shredded and that the tire pieces are transported to a waste tire processor, or a waste tire storage facility, or a recycling facility that will use the tire pieces. (c) Recycling responsibility. Each mobile tire processor operating a mobile tire shredder that participates in the waste tire recycling program and receives reimbursement from the waste tire recycling fund shall be responsible for ensuring that the shredded tire pieces that are generated have been delivered to a recycling, reuse, or energy recovery facility in accordance with applicable sections of this subchapter. (d) Prohibition. Mobile tire processors operating a mobile tire shredder may not charge a fee, to a retail or wholesale dealer of new tires, for collecting and shredding used or scrap tires accepted for temporary storage, on or after April 1, 1992. This prohibition does not apply to the collecting and shredding of used or scrap tires from other generators. sec.325.822. Registration. (a) Mobile tire shredders shall register their operations with the Texas Department of Health (department), prior to commencing operations. An application for registration shall be made on a form that will be provided by the department upon request. The following information must be provided for registration: (1) the name, address, and telephone number of registrant; (2) the name, address, and telephone number of partners, corporate officers, and directors; (3) a description of vehicles or equipment to be registered, including the: (A) make, model, and year of vehicle or equipment; (B) vehicle license plate (tag) number including state and year, if applicable; (C) name of vehicle, or equipment owner; (D) rated capacity of each piece of equipment or vehicle; (E) type of equipment or vehicle; and (F) area within Texas that shredder will generally operate; and (4) the anticipated number of used or scrap tires to be split, quartered, or shredded per month. (b) Persons who apply to the department for registration and receive the registration shall maintain a copy of the registration form, as annotated by the department with an assigned registration number, at their designated place of business and in each vehicle used to shred used or scrap tires. (c) Registrations shall expire 36 months after the date of issuance. Registrations are required to be renewed prior to the expiration date. Applications for renewal must contain the same information as the initial application and shall be submitted at least 60 days prior to the expiration date. An application for renewal may be obtained from the department. (d) Mobile tire shredders shall notify the department, by letter, within 15 days of any changes to their registration if: (1) the number of used or scrap tires handled or total operation has expanded by 50% over that originally registered; (2) the office or place of business has moved; (3) the registered name has changed; (4) the number of mobile tire shredders has increased; or (5) the area of operation of a shredder has changed. (e) A new registration application is required to be submitted within 10 days of the following, whereupon the old registration number will be voided and the old registration canceled: (1) when the department determines that operations or management methods are no longer adequately described by the existing registration; or (2) when ownership of the registered mobile tire shredder has changed. (f) Revocation or denial of registration procedures are as follows. (1) The department may revoke a registration or refuse to issue a registration for: (A) failure to maintain complete and accurate records; (B) failure to maintain vehicles in safe working order as evidenced by citations from the Texas Department of Public Safety or local traffic law enforcement agencies; (C) falsification of any record maintained or received; (D) delivery of shredded tire pieces to a facility not authorized to handle the material; (E) failure to comply with any rule or order issued by the department pursuant to the requirements of the chapter; (F) failure to submit required reports; (G) failure to maintain insurance or provide proof of insurance as required in this subsection (g) of this section; (H) illegal disposal of shredded tire pieces; (I) collection and/or shredding of used and scrap tires without registration as required in this section; (J) failure to provide delivery of shredded tire pieces to a recycling, reuse, or energy recovery facility as required in this subchapter; (K) falsification of any request for payment from the waste tire recycling fund; (L) failure to complete the work required to completely clean up an illegal tire dump; and (M) failure to account for recycling activities in the required five-year period. (2) Appeal of revocation or denial procedures are as follows. (A) An opportunity for a formal hearing on the revocation of registration may be requested in writing by the registrant by certified mail, return receipt requested, provided the request is postmarked within 20 days after a notice of proposed revocation or denial of registration has been sent from the department to the last known address of the registrant. If the registration is revoked, a transporter shall not collect or shred used and scrap tires regulated under this subchapter. The period of revocation shall be not less than one year nor more than five years. (B) An opportunity for a formal hearing on the denial of registration or renewal of registration may be requested in writing by the applicant by certified mail, return receipt requested, provided the request is postmarked within 20 days after a notice of denial has been sent from the department to the address listed on the application. If the registration is denied, a person shall not collect, transport, or process used or scrap tires regulated under this subchapter. (C) The formal hearing in this paragraph shall be in accordance with the department's formal hearing procedures in Chapter 1 of this title (relating to Board of Health). (g) Each mobile tire shredder shall provide the following evidence of financial responsibility in the form of commercial business insurance as follows: (1) a general liability policy with $0.5 million per occurrence, $1.0 million aggregate limit, $0.5 million personal injury limit, and fire damage provisions; and (2) a combined, single limit vehicle and equipment liability insurance policy with limits of at least $1.0 million per accident. sec.325.823. Delivery Requirements. Mobile tire shredders shall deposit the shredded tire pieces at a waste tire facility, a waste tire storage facility, or at a facility that will recycle, reuse, or recover energy from the shredded tire pieces. The facility accepting delivery must be permitted, registered, or otherwise acknowledged by the Texas Department of Health before delivery can be made. sec.325.824. Vehicle and Equipment Requirements. (a) All vehicles and equipment used for the collection and shredding of used or scrap tires shall be constructed, operated, and maintained to prevent public health nuisances and safety hazards to operating personnel and the public. The equipment shall be periodically cleaned to prevent loose materials from being discharged while in transit or in operation. (b) The mobile tire shredder must be equipped with a scale, certified annually by the weights and measures section of the Texas Department of Agriculture (TDA), to weigh the shredded tire pieces immediately after shredding. Any scale used that is not certified by the TDA must be supported by documentation why it will not be certified and calibration documentation from the manufacturer. (c) The mobile tire shredder must be mounted on wheels or skids. It may not be permanently anchored in a fixed location. 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 December 12, 1991. TRD-9115805 Robert A. MacLean, M.D. Duputy Commissioner Texas Department of Health Effective date: January 2, 1992 Proposal publication date: October 4, 1991 For further information, please call: (512) 458-7271 Storage of Used and Scrap Tires 25 TAC sec.325. 831 The amendment is adopted under the Health and Safety Code, sec.361.011, which establishes the department's jurisdiction over municipal solid waste management; sec.361.024, which provides the Texas Board of Health with authority to adopt rules to manage and control municipal solid waste; sec.12.001 which provides the board with authority to adopt rules for the performance of every duty imposed by law on the board, the department, and the commissioner of health; Senate Bill 1340, 72nd Legislature, 1991, and Senate Bill 2, First Called Special Session, 72nd Legislature, 1991, which provide the department with the authority to implement a waste tire recycling program. 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 December 12, 1991. TRD-9115806 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: January 2, 1992 Proposal publication date: October 4, 1991 For further information, please call: (512) 458-7271 25 TAC sec.sec.325.832-325.838 The repealed sections are adopted under the Health and Safety Code, sec.361.011, which establishes the department's jurisdiction over municipal solid waste management; sec.361.024, which provides the Texas Board of Health with authority to adopt rules to manage and control municipal solid waste; sec.12.001 which provides the board with authority to adopt rules for the performance of every duty imposed by law on the board, the department, and the commissioner of health; Senate Bill 1340, 72nd Legislature, 1991, and Senate Bill 2, First Called Special Session, 72nd Legislature, 1991, which provide the department with the authority to implement a waste tire recycling program. 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 December 12, 1991. TRD-9115807 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: January 2, 1992 Proposal publication date: October 4, 1991 For further information, please call: (512) 458-7271 25 TAC sec.sec.325.832-325.840 The amendments are adopted under the Health and Safety Code, sec.361.011, which establishes the department's jurisdiction over municipal solid waste management; sec.361.024, which provides the Texas Board of Health with authority to adopt rules to manage and control municipal solid waste; sec.12.001 which provides the board with authority to adopt rules for the performance of every duty imposed by law on the board, the department, and the commissioner of health; Senate Bill 1340, 72nd Legislature, 1991, and Senate Bill 2, First Called Special Session, 72nd Legislature, 1991, which provide the department with the authority to implement a waste tire recycling program. sec.325.832. Tire Storage Site Classification. (a) Classification of a tire storage site or waste tire site is based upon the number of tires stored, the origination of the shredded tire pieces stored, and the type of storage operation. (b) The Texas Department of Health (department) will classified all tire storage sites and facilities according to the following. (1) Type VIII-WT -A Type VIII-WT site is one in which less than 500 whole used or scrap tires are stored. Storage of used or scrap tires at a Type VIII-WT site shall be temporary. Tires stored at this site must be removed at intervals no greater than 120 days. (2) Type VIII-R -A Type VIII-R site is one in which more than 500 whole used or scrap tires or an equivalent amount of shredded tire pieces are stored. Storage of used or scrap tires shall be temporary. Storage of whole used or scrap tires, that are not designated as reusable whole used tires, is limited to 60 days. Shredded tire pieces may be stored for a period of up to 12 months, unless written authorization for a longer storage period has been granted because the recycling market cannot handle the shredded tire pieces. A Type VIII-R site shall be registered by the department. (3) Type VIII-S -A Type VIII-S site is a tire monofill which contains shredded tire pieces equivalent to greater than 500 whole used or scrap tires that were shredded to a particle site of not larger than nine square inches and the processor was reimbursed from the waste tire recycling fund (WTRF). Storage at a Type VIII-S site will be considered long term and shall require a permit. (4) Type VIII-I -A Type VIII-I is a waste tire site that stores more than 500 whole used or scrap tires and is considered as an illegal tire dump. These types of sites will be handled through the priority enforcement list and routine surveillance and enforcement activities. (5) Type VIII-L -A Type VIII-L is a designated recycling collection area at a permitted municipal solid waste landfill. Whole used or scrap tires may be stored at a Type VIII-L site for a period of up to 120 days. sec.325.833. Tire Site Identification. (a) Persons who store whole used or scrap tires or shredded tire pieces shall be required to obtain a tire site identification number (Tire Site I.D. Number) from the Texas Department of Health (department). Generators, with the exception of storage sites, who temporarily accumulate used or scrap tires for delivery to a storage site or a waste tire processor, are exempt from obtaining a Tire Site I.D. Number. (b) An application shall be made to the department's Bureau of Solid Waste Management for the Tire Site I.D. Number, on a form provided by the department. The following information must be provided: (1) the name, address, and telephone number of property owner of site; (2) the location of site, including county; (3) the name, address, and telephone number of person making application; (4) the approximate number of tires on site; and (5) the existing land use surrounding the site. (c) The application for a Tire Site I.D. Number can be made verbally or in writing. A written application must be made on the form provided by the department. A verbal application will be accepted only when the applicant can give all the required information. In either case, a Tire Site I.D. Number will be issued upon receipt of the required information. Department representatives may initiate the application to secure a Tire Site I.D. Number for tire sites found during routine surveillance activities. (d) Once a Tire Site I.D. Number has been assigned, a department representative will investigate the site to obtain a rating factor, on a scale of one to 10 with one being lowest, for each of the following conditions: (1) the site location, to determine the potential hazard to the health and the environment based on the location of the site, and site proximity to homes, business, or agricultural land; (2) the area climate, to determine if the climatic conditions of the area will aid the development of potential health and environmental problems at the site; (3) the severity of tire problem, to determine an approximate number of used and scrap tires on the site and how bad the tire problem is; and (4) the property owner/operator, to determine who can be identified as the responsible party for the site and determine how the existence of the site occurred. (e) The rating factor for the site and all other pertinent information gathered during the investigation will be evaluated to determine the classification of the site. The tire storage site will be classified in accordance with sec.325.832 of this title (relating to Tire Storage Site Classification). This classification will be used to determine the eligibility of the site for inclusion in the waste tire recycling fund (WTRF) Program. (f) Applications for a tire storage site that will be initiated after the effective date of these sections will be classified based upon the information in the application. The eligibility of the site for inclusion in the WTRF Program will be made based upon its classification. The site number assigned applications for new sites will be a Tire Site I.D. Number. (g) Waste tire storage sites that have received a Tire Site I.D. Number and have been classified shall be subject to the specific requirements of the appropriate sections of this subchapter. sec.325.835. Requirements for a Type VIII-R Site. (a) Registration requirements. (1) Persons who store or plan to store more than 500 whole used or scrap tires and/or an equivalent amount of shredded tire pieces shall register these sites with the Texas Department of Health (department). Registration forms will be provided by the department upon request. (2) Persons who apply to the department for registration and receive said registration shall maintain a copy of the registration at their designated place of business and at the designated storage site location. (3) Registrations shall expire 36 months after the date of issuance. Registrations may be renewed prior to the expiration date. Applications for renewal shall be submitted at least 120 days prior to the expiration date. (4) Storage site owners and/or operators shall notify the department, by letter, within 15 days of any changes to their registration if: (A) there have been changes to any data submitted in support of the application for registration; (B) the office or place of business has moved; or (C) the registered name has changed. (5) A new registration application is required to be submitted, within 10 days, of the following, whereupon the old registration number will be voided and the old registration canceled if: (A) the department determined that operations or management methods are no longer adequately described by the existing registration; (B) the ownership of the registrant has changed; or (C) the operator of a used or scrap tire storage site has changed. (6) The department may revoke a registration for cause as provided in sec.325.840 of this title (relating to Penalties). An opportunity for a formal hearing on the revocation may be requested by the registrant within 20 days after a notice of revocation has been sent from the department to the last known address of the registrant. If the registration is revoked, a storage site shall not continue to store used or scrap tires regulated under this subchapter. The storage site owner or operator at the time of revocation shall remove all used or scrap tires stored on the site within 90 days after the date of revocation. (7) Preparation and submission of an application shall be in accordance with the following procedures. (A) The application for registration shall be prepared and signed by the applicant on a form to be provided by the department. In general, the application shall include information necessary to make an evaluation of the proposed operation to ensure that the facility is located, designed, and operated so that the health, welfare, and physical property of the public as well as the environment and endangered species are protected. Failure to give complete information as required by these sections may constitute grounds for the department's return of the application without further action. Likewise, the submission of false information shall constitute grounds for disapproval of the application or subsequent revocation of the registration. (B) The application for a registration shall be submitted in triplicate to the department with all of the supporting data unless otherwise advised. Following receipt of the application, the department will forward to the applicant a letter of acknowledgment. (C) Data presented in support of an application shall consist of: (i) the legal name and address of the individual, partnership, corporation, city, county or other governmental entity who is applying for the registration and who will be responsible for site operation; (ii) the legal name and address of landowner where site will be located; (iii) the current status of site, i.e. proposed or existing; (iv) the specific location of site by street address if within the city limits or distance and direction from a city corporate limits or road intersection. The site location shall be further described by giving the direction (using compass headings as N, NE, E, etc.) and distance measured perpendicularly (in feet or miles), unless otherwise noted, from each site boundary to a known physical feature (such as a road, highway, canal, creek, etc. ); (v) the location of site by county, or extraterritorial jurisdiction of a city; (vi) the estimated number of used or scrap tires to be received daily; (vii) the size of the site in acres; (viii) the maximum number of tires (including an equivalent amount of shredded tire pieces) to be stored at this site; (ix) the intended purpose of the tires stored at the site; (x) the time period for which tires will be stored; (xi) the storage method (tire pile or inside a building or enclosure); (xii) a topographic map which shall be a United States Geological Survey 7-1/2 minute quadrangle sheet or equivalent, encompassing the area of the site and showing the location of area streams (particularly those entering and leaving the site), and marked to show the site boundaries, and roadway access. These maps may be obtained at a nominal cost from: Branch of Distribution, United States Geological Survey Federal Center, Denver, Colorado 80225; (xiii) a general location map, which shall be all or a portion of a half-scale county map, prepared by the Transportation Planning Division of the State Department of Highways and Public Transportation, annotated as necessary to show the location of the site; prevailing wind direction; residences, cemeteries, and recreational areas within one mile of the site; and location and type of surface of all roads within one mile which will be used for entering or leaving the site. If only a portion of the map sheet is used, the portion shall include scale, date, north arrow, and two or more latitudes and longitudes. These maps may be obtained at a nominal cost from the nearest District Highway Engineer Office or by writing to: State Department of Highways and Public Transportation, Attention: Transportation Planning Division (D-10), P. O. Box 5051, West Austin Station, Austin, Texas 78763-5051; (xiv) a statement from the owner substantially equivalent to sec.325. 905 of this title (relating to Appendix E--Form for Property Owner Affidavit) shall be submitted when the applicant is not a city, county, state agency, federal agency, or other governmental entity and is not the owner of record of the land described in the application, or does not have an option to buy the land. The applicant shall secure and submit with the application, except as provided in this paragraph. The owner-signed statement shall be witnessed and notarized. If the owner does not sign this affidavit, the applicant shall provide the department with reasonable evidence that the property owner has been properly notified and advised of his responsibilities and potential liabilities; (xv) a site layout plan showing location of storage areas, fire lanes, access roads (internal and external), fire control facilities, site security and fencing, maintenance and control buildings, sanitation facilities, location and description of type of tire splitter to be used, and other operational buildings to be located on the site; (xvi) a simple drainage plan showing drainage flow throughout the site area; locations of streams; and any other important drainage feature of the site. Any additional surface drainage controls that are necessary shall be designed by a professional engineer in accordance with sec.325.74(b)(5)(F)(iii) and (v) of this title (relating to Technical Information Required for Landfill Sites Serving 5,000 Persons or More-Site Development Plan), if required during review of the application or after issuance of the registration, if a detailed drainage plan is required then it shall be prepared, signed, and sealed by a professional engineer in accordance with sec.325.60 of this title (relating to Preparation of Application); (xvii) a legal description of the site consisting of the official metes and bounds description including the volume and page number of the deed record, or if platted property, the book and page number of the plat record of only that acreage encompassed in the application; (xviii) a site operating plan containing information out-lined in subsection (c) of this section; and (xix) an applicant's statement provided by the applicant, or the authorized representative empowered to make commitments for the applicant, that he is familiar with the application and all supporting data and is aware of all commitments represented in the application and that he or she is also familiar with all pertinent requirements in these regulations and he or she agrees to develop and operate the site in accordance with the application, the sections in this subchapter, and any special provisions that may be imposed. (b) Design requirements. (1) Waste tire storage facilities shall be designed or established so that the health, welfare and safety of site operators, transporters, and others who may utilize the site are maintained. (2) Used or scrap tires or shredded tire pieces may be stored using tire piles, inside storage, or a combination of both methods. (A) Tire piles shall be no greater than 15 feet in height nor shall the pile cover an area greater than 8,000 square feet. (B) Used or scrap tires may be stored in any enclosed building or other type of covered enclosure. Where applicable, local fire prevention codes must be met and appropriate precautions taken. Inside storage piles or bins shall not exceed 12,000 cubic feet with a 10 foot aisle space between piles or bins. Storage trailers will be allowed provided the trailer is completely enclosed and lockable. (3) Used or scrap tire piles stored outdoors and outside of areas with building setback lines shall not be within 50 feet of a property line, building, or other structure; and 25 feet from either boundary of an easement. Outdoor used or scrap tire piles and buildings used to store used or scrap tires in areas with building setback lines shall be maintained no closer than 10 feet to the applicable building setback lines. Where no building set back lines exist, buildings used to store used or scrap tiers shall be no closer than 25 feet to a property line. (4) Used or scrap tires shall not be stored for a period longer than 60 days prior to being split, quartered, or shredded. Appropriate vector controls shall be made at a frequency based upon weather conditions and other applicable local ordinances. (5) There shall be a minimum separation of 20 feet between outdoor tire piles. This 20-foot space shall be designated as a fire lane and shall be an all- weather road. The open space between indoor and outdoor tire piles shall be kept open at all times and maintained free of rubbish, equipment, tires, or other materials. (6) The storage site shall be completely enclosed with a security fence at least six feet tall with lockable gates. Storage buildings or enclosures not enclosed with a security fence shall be secured by lockable doors. Storage sites shall be kept locked during all non-operational hours. (7) The storage site shall have adequate fire protection by using fire hydrants or a firewater storage pond or tank on the facility and large capacity carbon dioxide or dry chemical fire extinguisher(s) located in strategically-placed enclosures throughout the entire site. Fire extinguishers used on sites for inside and outside storage, should be equally spaced within the site to provide quick access from any location within the site. The minimum spacing between fire extinguishers, inside and outside, shall be 100 feet. The minimum number of fire extinguishers or fire hydrants for each storage site shall be one per acre. The capacity of a firewater storage pond or tank shall be of sufficient size for firefighting purposes and shall be in conformance to all local and state fire code requirements. (8) Suitable drainage structures or features if required, shall be provided to divert the flow of rainfall run-off or other surface water through the site. (9) Each site shall conspicuously display at the entrance a sign at least 1 1/2 feet by 2 1/2 feet with clear, legible letters stating the name of the site using the words "waste tire storage facility", the registration number, and operating hours. (10) A storage site located within a designated floodplain area shall provide adequate protection levees or dikes to prevent washing out any stored material from the site. (11) The storage site shall be designed in accordance with all local building codes, fire codes, or other appropriate local codes. (c) Site operating plan. (1) The site operating plan is to provide specific guidance and instructions to site management and operating personnel in sufficient detail to enable them to conduct day-to-day operations in a manner consistent with the design of the site and the requirements imposed by the sections in this subchapter. (2) The site operating plan shall include guidance or instructions on the following: (A) security, site access control, the hours and days during which tire-hauling vehicles will be accepted, screening of the site, traffic control, and safety; (B) sequence of the development of the site such as utilization of storage areas, drainage features, firewater storage ponds, trenches, and buildings; (C) control of loading and unloading of whole tires or pieces of tires within designated areas so as to minimize the operational problems at the storage site; (D) fire prevention and control plans, and special training requirements for fire-fighting personnel that may be called for assistance; (E) vector control procedures for any type of vector which may be found; (F) a procedure for removal of any waste material that is not a used or scrap tire to an approved disposal facility. This procedure must specify the means to be used for removal of the waste material illegally dumped at the site. In all cases, such wastes shall be removed from the storage area immediately upon discharge and placed in suitable collection bins or be returned to the offending transporters vehicle and removed from the site. Collection bins must be emptied at least weekly, depending on the amount and type of unauthorized waste. The equipment necessary to meet this objective shall be specified and shall be on site and operable during operating hours; (G) a site attendant to inspect each load that is deposited at the site. The attendant shall have the authority and responsibility to reject unauthorized loads, have unauthorized materials removed by the transporter, assess appropriate disposal fees, and have any unauthorized material removed by on-site personnel; (H) a procedure whereby the transporter manifest required by sec.325.815 of this title (relating to Record Keeping), daily log and other required documents shall be maintained at the site and be available for inspection by the department's representatives and authorized agents or employees of local governments having jurisdiction; (I) dust and mud control measures for access roads, fire lanes, and storage areas; (J) posting of signs and enforcement of site rules; (K) wet-weather operations; (L) preventive maintenance procedures for all storage areas, tire splitter equipment, fire lanes, fire control devices, drainage facilities, access roads, buildings, and other structures on the site during the active life of the site. A schedule shall be established for periodic inspection of all equipment and facilities to determine if unsatisfactory conditions exist; and (M) incorporation of other instructions as necessary to ensure that site personnel comply with all of the operational standards for the site. (d) Record keeping. (1) General. (A) The approved site layout plan, site operating plan, and all supporting data to the application, is an operational requirement, and any significant deviation from any part without prior approval of the department shall be a violation of this subchapter. (B) A copy of the registration with all supporting data, including the approved site layout plan, the approved site operating plan, and the department's current rules shall be on-site and the on-site supervisor shall be knowledgeable of each with respect to the operational requirements of the specific site. (C) All drawings or other sheets prepared for revisions to a site layout plan or other previously-approved documents, which may be required by this subchapter, shall be submitted in triplicate and normally should be 8-1/2 by 11 inches and shall not exceed 11 by 17 inches so that they can be reproduced by normal office copy machines. However, standard-sized drawings folded to 8-1/2 by 11 inches may be submitted or required if their reduction would render them illegible. (2) Daily log. Persons who store used or scrap tires subject to control under this subchapter shall maintain a record of each individual deposit and removal. Such record shall be in the form of a daily log or other similar documentation approved by the department. The daily log shall include the: (A) name and department registration number of the storage site; (B) physical address of the storage site; (C) number of whole used or scrap tires and an equivalent amount of shredded tire pieces received at the site; (D) number of whole used or scrap tires, or equivalent amount of shredded tire pieces, removed from the site (for disposal, resale, or recycling); (E) specific location on the storage site (i.e., tire pile number, bin number, building number, etc.) of used or scrap tires received and removed; (F) description of specific events or occurrences at the site relating to routine maintenance, fires, theft, spraying for vectors, observations of vectors or evidence of vectors, or other similar events or occurrences; (G) number of whole tires being held for resale, adjustments, or other; and (H) name and signature of facility representative acknowledging truth and accuracy of the daily log. (3) Transporter manifests. The storage site operator shall retain a copy of all manifests received from a tire transporter, whether manifest is for used or scrap tires received at the site or removed from the site. (4) Maintenance of records and reporting. The storage site operator shall retain a copy of all records showing the collection and disposition of the used or scrap tires. Such copies shall be retained for three years and made available to the department upon request. Storage site operators shall submit to the bureau an annual summary of their activities up to December 31 of each year showing numbers of used or scrap tires received, disposition of such tires, and numbers of used or scrap tires removed from the facility. The report shall be submitted no later than March 1 of the year following the end of the report period. The report shall be prepared on a form provided by the department. (5) Local ordinances. Where local ordinances require controls and records substantially equivalent to or more stringent than the requirements of any subsection of this section, storage site operators shall use such controls and records to satisfy the department's requirement under this section. sec.325.836. Requirements for a Type VIII-S Site. (a) Permit requirement. (1) Persons who plan to store shredded tire pieces that were shredded to a particle size no larger than nine square inches and were received from a waste tire processor reimbursed from the waste tire recycling fund (WTRF) in a below ground facility or tire monofill shall permit these sites with the Texas Department of Health (department). The below ground facility permitted to store shredded tire pieces shall only receive and store shredded tire pieces nine square inches and smaller. Permit application forms will be provided by the department. (2) Persons who apply to the department for a permit and receive said permit shall maintain a copy of the permit at their designated place of business and at the designated storage site location. (3) A permit issued for a Type VIII-S shall expire 60 months after the date of issuance. An application for renewal shall be submitted at least 12 months prior to the expiration date. If the market for recycling reuse, or energy recovery has not developed sufficiently to absorb the shredded tire pieces stored in the monofill, the department may reissue the permit for a period of only an additional 60 months. Failure to provide an end user for the shredded tire pieces by the 54th month after the renewal, will be sufficient grounds to revoke the permit and cash in the financial assurance. (4) Preparation and submission of permit application shall be in ac-cordance with the requirement of a Type VIII-D Tire Monofill indicated in sec.325.832 of this title (related to Tire Storage Site Classification). (b) Design requirements. (1) A tire storage monofill shall be designed or established so that the health, welfare, and safety of the site operators, transporters, and others who may utilize the site are maintained. (2) The site shall be designed in accordance with the requirements of sec.325.853 of this title (related to Permit Requirements) for a Type VIII-D tire monofill. (c) Site operation. (1) The site operating plan is to provide specific guidance and instructions to site management and operating personnel in sufficient detail to enable them to conduct day-to-day operation in a manner consistent with the design of the site and other requirements imposed by the department. (2) The site operating plan shall be prepared in accordance with the requirements of sec.325.853 for a Type VIII-D tire monofill. (3) The site operating plan shall also include an operational procedure for the extraction or exhumation of the shredded tire pieces that will be transported for recycling, reuse, or energy recovery. (4) Record keeping and maintenance requirements for a Type VIII-S tire storage monofill shall be the same as required in sec.325.835(d) of this title (related to requirements for a Type VIII-R Site). sec.325.837. Requirements for a Type VIII-L Site. (a) Permitted municipal solid waste landfills that elect to designate a recycle collection area for the collection and storage of whole used or scrap tires may do so. The designated recycling collection area shall be issued a tire site identification number and allowed to accumulate whole used and scrap tires for periods not to exceed 120 days. (b) To receive a tire site identification number for the recycling collection area, the permittee shall submit, in triplicate, a change to the approved Site Development Plan designating the collection area. In addition, a metes and bounds description of the designated recycling collection area shall be submitted. (c) The designated recycling collection area shall be a permanent fixed area of the permitted site. Lockable enclosed trailers, open top roll off boxes, or tire piles may be utilized in collecting and storing these tires. The method of operation of this area shall be identified in the changes to the site development plan. sec.325.839. Eligibility for the Waste Tire Recycling Fund (WTRF) Program. (a) Any storage site declared eligible for the WTRF shall operate in accordance with any additional requirements in sec.325.866 of this title (relating to Post Clean-Up Responsibilities). (b) Eligibility of the site for inclusion in the WTRF program shall be determined as follows. (1) Any waste tire storage site that has not received a tire site identification number and that has not been classified is not eligible for participation in the program. (2) The WTRF program targets clean up of illegal tire dumps and shredding of used and scrap tires generated on a daily basis from a retail or wholesale dealer. Waste tire storage sites that have received a tire site identification number and have been classified are eligible for participation in the fund under the appropriate category. (3) Waste tire storage sites which are eligible for participation as follows: (A) clean up of illegal tire dumps: (i) Type VIII-I sites; and (ii) Type VIII-WT sites that are above the priority enforcement list threshold limit; and (B) used and scrap tires generated daily; (i) Type VIII-L sites; (ii) Type VIII-WT sites; and (iii) Type VIII-R sites. sec.325.840. Penalties. Failure of a registrant or permittee or site operator to properly and correctly maintain records, manifests or other documents; or failure of a registrant or permittee, to submit to the Texas Department of Health correct information on the annual summary report or on an application for renewal of his registration by the required due date shall be sufficient cause for the department to revoke the storage site operator's registration and authorization to store used or scrap tires. The department may also take any other action authorized by law to secure compliance to include the assessment of administrative penalties or seeking of civil penalties as prescribed by law. This agency hereby certifies that the 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 December 12, 1991. TRD-9115808 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: January 2, 1992 Proposal publication date: October 4, 1991 For further information, please call: (512) 458-7271 Processors of Used and Scrap Tires 25 TAC sec.sec.325.841-325.848 The new sections are adopted under the Health and Safety Code, sec.361.011, which establishes the department's jurisdiction over municipal solid waste management; sec.361.024, which provides the Texas Board of Health with authority to adopt rules to manage and control municipal solid waste; sec.12.001 which provides the board with authority to adopt rules for the performance of every duty imposed by law on the board, the department, and the commissioner of health; Senate Bill 1340, 72nd Legislature, 1991, and Senate Bill 2, First Called Special Session, 72nd Legislature, 1991, which provide the department with the authority to implement a waste tire recycling program. sec.325.841. Applicability and Responsibility. (a) Applicability. The regulations contained in these sections establish standards applicable to persons who operate as a waste tire processor at a waste tire facility. A waste tire facility is a fixed and permanent facility. (b) Responsibility. All persons who operate as a waste tire processor at a waste tire facility shall be responsible for obtaining all necessary and appropriate state and local permits, licenses, or registrations required, and operate in compliance with such permits, licenses, or registrations, or other applicable state and local codes. (c) Recycling responsibility. Each waste tire facility that participates in the waste tire recycling program and receives reimbursement from the waste tire recycling fund (WTRF) shall be responsible for ensuring that the shredded tire pieces that are generated have been delivered to a recycling, reuse, or energy recovery facility in accordance with applicable sections of this subchapter. (d) WTRF Program. Waste tire facilities that participate in the WTRF program may not charge a fee, to a retail or wholesale dealer of used or new tires, for collecting and shredding used or scrap tires accepted for temporary storage by the dealers, on or after April 1, 1992. sec.325.842. Waste Tire Facility Classification and Operation. (a) A waste tire facility shall be classified as a Type VIII-P facility. The facility shall contain equipment that will shred whole tires and/or reduce the whole tire into a particle size of nine square inches or less. (b) A Type VIII-P site shall be operated in accordance with the provisions in Subchapter G of this chapter (relating to Operational Standards for Solid Waste Processing and Experimental Sites) and the provisions contained in this subchapter. (c) Waste tire shredding or reduction equipment shall be equipped with a scale, certified annually by the weights and measures section of the Texas Department of Agriculture (TDA), shall be maintained at the site and all shredded tire pieces or other resultant elements shall be weighed immediately after processing. Any scale that is not certified by the TDA must be supported by documentation why it will not be certified and calibration documentation from the manufacturer. sec.325.843. Registration Requirements. (a) Persons who process used and scrap tires at a waste tire facility shall obtain a registration for the operation of the waste tire facility. This requirement is only applicable to waste tire facilities that have permanent and fixed equipment that is used to shred or reduce whole tires into a particle size of nine square inches or less. Permanent fixed tire splitting or quartering equipment, some shredding equipment, and recyclers who have processes other than shredding, are not required to be registered. (b) Waste tire facilities shall register their operations with the Texas Department of Health, prior to commencing operations. An application for registration shall be made on a form that will be provided by the department upon request. The following information must be provided for registration: (1) the name, address, and telephone number of registrant; (2) the name, address, and telephone number of partners, corporate officers, and directors; (3) a description of equipment to be registered, including the: (A) type of equipment; (B) name of equipment owner; (C) rated capacity of each piece of equipment; and (D) area within Texas that shredder will be located and will generally operate; (4) the anticipated number of used or scrap tires to be split, quartered, or shredded per month; and (5) metes and bounds description of the site location of the facility. (c) Persons who apply to the department for registration and receive said registration shall maintain a copy of the registration form, as annotated by the department with an assigned registration number, at their designated place of business. (d) Registrations shall expire 60 months after the date of issuance. Registrations are required to be renewed prior to the expiration date. Applications for renewal must contain the same information as the initial application and shall be submitted at least 60 days prior to the expiration date an application for renewal may be obtained from the department. (e) Waste tire facilities shall notify the department, by letter, within 15 days of any changes to their registration if: (1) the number of used or scrap tires handled or total operation has expanded by 50% over that originally registered; (2) the office or place of business has moved; (3) the registered name has changed; or (4) the area of operation of a shredder has changed. (f) A new registration application is required to be submitted, within 10 days, (whereupon the old registration number will be voided and the old registration canceled) if: (1) the department determines that operations or management methods are no longer adequately described by the existing registration; (2) the ownership of the waste tire facility has changed; or (3) the location of the equipment or site has changed. (g) Revocation or denial or registration procedures are as follows. (1) The department may revoke a registration or refuse to issue a registration for: (A) failure to maintain complete and accurate records; (B) failure to maintain equipment in safe working order; (C) falsification of any record maintained or received; (D) delivery of shredded tire pieces to a facility not authorized to handle the material; (E) failure to comply with any rule or order issued by the department pursuant to the requirements of the chapter; (F) failure to submit required reports; (G) failure to maintain financial assurance as required; (H) illegal disposal of shredded tire pieces; (I) collection and/or shredding of used and scrap tires without registration as required in this section; (J) failure to provide delivery of shredded tire pieces to a recycling, reuse, or energy recovery facility as required in this subchapter; (K) falsification of any request for payment from the waste tire recycling fund (WTRF); (L) failure to complete the work required to completely clean up an illegal tire dump; and (M) failure to account for recycling activities in the required five year period. (2) Appeal of revocation or denial procedures are as follows. (A) An opportunity for a formal hearing on the revocation of registration may be requested in writing by the registrant by certified mail, return receipt requested, provided the request is postmarked within 20 days after a notice of proposed revocation or denial of registration has been sent from the department to the last known address of the registrant. If the registration is revoked, a transporter shall not collect or shred used and scrap tires regulated under this subchapter. The period of revocation shall be not less than one year nor more than five years. (B) An opportunity for a formal hearing on the denial of registration or renewal of registration may be requested in writing by the applicant by certified mail, return receipt requested, provided the request is postmarked within 20 days after a notice of denial has been sent from the department to the address listed on the application. If the registration is denied, a person shall not collect, transport, or process used or scrap tires regulated under this subchapter. (C) The formal hearing shall be in accordance with the department's formal hearing procedures in Chapter 1 of this title (relating to Board of Health). sec.325.844. Evidence of Financial Responsibility. (a) The applicant for a Type VIII-P registration shall submit evidence of financial responsibility in an amount adequate to assure the Texas Department of Health (department) that there is sufficient assets to provide proper cleanup and closure of the facility. A firm commitment to provide backup equipment by lease, purchase, or diversion from other activities is part of this responsibility. This assurance may be in the form of a performance bond, a letter of credit from a recognized financial institutions, a trust fund, or insurance in the case of privately-owned facilities, or by commissioners court or city council resolution in the case of publicly-owned facilities. (b) The financial assurance shall be submitted within 30 days prior to the issuance of a permit. It shall be good for one year beginning with the permit issuance. The financial assurance must be renewed annually and shall be submitted at least 60 days prior to the expiration date. (c) The applicant shall submit with the application for a registration an estimate of the total amount of shredded tires measured by weighed tire that the facility will store or process and an estimated number of whole tires that will be on the site during processing. The applicant shall also estimate the cost, using the total amounts of used and scrap tires and shredded tire places, of cleaning up and/or closing the facility. The department will evaluate the estimated submitted and by administrative order determine the amount of financial assurance that each facility is required to provide. sec.325.845. Record keeping. (a) General. (1) The approved site layout plan, site operating plan, and all supporting data to the application, becomes an operational requirement, and any significant deviation from any part without prior approval of the Texas Department of Health (department) is a violation of this subchapter. (2) A copy of the registration with all supporting data, including the approved site layout plan, the approved site operating plan, and the department's current rules shall be on-site and the on-site supervisor shall be knowledgeable of each with respect to the operational requirements of the specific site. (3) All drawings or other sheets prepared for revisions to a site layout plan or other previously-approved documents, which may be required by this subchapter, shall be submitted in triplicate and normally should be 8-1/2 x 11 inches and shall not exceed 15 x 22 inches so that they can be reproduced by normal office copy machines. However, standard-sized drawings folded to 8-1/2 x 11 inches may be submitted or required if their reduction would render them illegible. (b) Daily log. Persons who process used or scrap tires subject to control under this subchapter shall maintain a record of each individual deposit, processing, and removal. Such record shall be in the form of a daily log or other similar documentation approved by the department. The daily log shall include: (1) the name and department permit number of the processing facility; (2) the physical address of the processing facility storage site; (3) the number of whole used or scrap tires received at the site from illegal tire sites and other generators, listed separately; (4) the number of used and scrap tires shredded or processed and the amount of shredded tire pieces; (5) the amounts of shredded tire pieces removed from the site; (6) the specific location on the processing site (i.e., tire pile number, bin number, building number, etc.) of used and scrap tires received and where received from; (7) a description of specific events or occurrences at the site relating to routine maintenance, fires, theft, spraying for vectors, or other similar events or occurrences; (8) other pertinent comments and remarks as needed; and (9) the name and signature of facility representative acknowledging truth and accuracy of the daily log. (c) Transporter manifests. The waste tire processor shall retain a copy of all manifests received from a tire transporter, whether manifest is for used or scrap tires received at the site or removed from the site. (d) Maintenance of records and reporting. The waste tire processor shall retain a copy of all records showing the collection, disposition, and processing of the used or scrap tires. Such copies shall be retained for three years and made available to the department upon request. Waste tire processor shall submit to the department's Bureau of Solid Waste Management an annual summary of their activities up to December 31 of each year showing number of used or scrap tires received, disposition of such tires, and numbers of used or scrap tires removed from the facility. The report shall be submitted no later than March 1 of the year following the end of the report period. The report shall be prepared on a form provided by the department. (e) Local ordinances. Where local ordinances require controls and records substantially equivalent to or more stringent than the requirements of any subsection of this section, storage site operators shall use such controls and records to satisfy the department's requirement under this section. sec.325.846. Delivery Requirement. The waste tire processor shall be required to deliver or have delivered the shredded tire pieces, that reimbursement from the waste tire recycling fund (WTRF) was received, only at a waste tire storage site permitted or registered with the Texas Department of Health, or a facility that will eventually recycle, reuse, or recover energy from the shredded tire pieces. Any shredded tire piece not included in the reimbursement from the WTRF may be disposed of, however, the preferred designation for these shredded tire pieces is a recycling, reuse, or energy recovery facility. sec.325.847. Eligibility for the Waste Tire Recycling Fund (WTRF) Program. Eligibility of the site for inclusion in the WTRF Program shall be determined as follows. (1) Any waste tire processor who operates a waste tire facility that has not received a registration for the facility is not eligible for participation in the program. (2) The WTRF program targets cleanup of illegal tire dumps and shredding of used and scrap tires generated on a daily basis from a retail or wholesale dealer. Waste tire processors that operate waste tire facilities that have received a registration and that shred the used and scrap tires to a particle size no larger than nine square inches are eligible for participation in the fund. sec.325.848. Penalties. Failure of a registrant or site operator to properly and correctly maintain records, manifests or other documents; or failure of a registrant to submit to the Texas Department of Health (department) correct information on the annual summary report by the required due date; or failure of a registrant to operate in accordance with the operational requirements of the site; or failure of a registrant to operate in accordance with the requirements of the Waste Tire Recycling Fund (WTRF) Program shall be sufficient cause of the department to revoke the site operator's permit and authorization to process used or scrap tires. The department may also take any other action authorized by law to secure compliance to include the assessment of administrative penalties or seeking of civil penalties as prescribed by law. This agency hereby certifies that the 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 December 12, 1991. TRD-9115809 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: January 2, 1992 Proposal publication date: October 4, 1991 For further information, please call: (512) 458-7271 Subchapter R. Management of Used and Scrap Tires. Processing and Disposal of Used and Scrap Tires 25 TAC sec.sec.325.851-325.855 The repealed sections are adopted under the Health and Safety Code, sec.361.011, which establishes the department's jurisdiction over municipal solid waste management; sec.361.024, which provides the Texas Board of Health with authority to adopt rules to manage and control municipal solid waste; sec.12.001 which provides the board with authority to adopt rules for the performance of every duty imposed by law on the board, the department, and the commissioner of health; Senate Bill 1340, 72nd Legislature, 1991, and Senate Bill 2, First Called Special Session, 72nd Legislature, 1991, which provide the department with the authority to implement a waste tire recycling program. 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 December 12, 1991. TRD-9115810 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: January 2, 1992 Proposal publication date: October 4, 1991 For further information, please call: (512) 458-7271 Disposal of Used and Scrap Tires 25TAC sec.sec.325. 851-325.856 The new sections are adopted under the Health and Safety Code, sec.361.011, which establishes the department's jurisdiction over municipal solid waste management; sec.361.024, which provides the Texas Board of Health with authority to adopt rules to manage and control municipal solid waste; sec.12. 001 which provides the board with authority to adopt rules for the performance of every duty imposed by law on the board, the department, and the commissioner of health; Senate Bill 1340, 72nd Legislature, 1991, and Senate Bill 2, First Called Special Session, 72nd Legislature, 1991, which provide the department with the authority to implement a waste tire recycling program. sec.325.851. Applicability and Responsibility. (a) Applicability. (1) The regulations contained in these sections establish standards applicable for the disposal of used and scrap tires. (2) For the purpose of these sections, disposal of used and scrap tires pertain to the disposition of any used or scrap tire in a permitted municipal solid waste landfill, in a permitted tire monofill, or in a tire processing facility designed for disposal of a tire or for resource recovery/recycling. (b) Responsibility. (1) Landowners and/or operators of used or scrap tire disposal sites shall ensure that any used or scrap tires deposited at their site are shredded, split, or quartered prior to disposal of the used or scrap tires as required by sec.325.853 of this title (relating to Permit Requirements). (2) Persons who dispose of used or scrap tires regulated by this subchapter shall do so only at a facility permitted by the Texas Department of Health for tire disposal or tire processing for resource recovery/recycling. sec.325.852. Disposal of Tires. (a) Disposal procedures are as follows. (1) Whole used and scrap tires may not be disposed of in any permitted landfill or monofill except for incidental whole tires that are mixed in an enclosed packer unit and that cannot be removed without creating a health and safety hazard to the landfill worker. (2) Used and scrap ties shall be split, quartered, or shredded prior to disposal. Whole tires that are filled with concrete or some other hardened material may be disposed of whole. Whole tires may not be disposed of on wheel rims unless approved by the Texas Department of Health (department). (3) Shredded tire pieces that are nine square inches and smaller may not be disposed of at any facility if the waste tire processor received reimbursement from the waste tire recycling fund (WTRF). (4) Elements of used and scrap tires that remain, after processing, are considered solid waste and not used or scrap tires. (b) Disposal of used and scrap tires will be allowed under the conditions identified in subsection (a) of this section, at any of the following sites: (1) a permitted municipal solid waste landfill; (2) a permitted tire disposal site or monofill; or (3) a permitted tire processing facility designed for incineration of a tire or for resource recovery. (c) The classification for the types of tire disposal sites/facilities listed in subsection (b) of this section shall be as follows: (1) permitted landfill-Type I, II, III, or IV, as provided in sec.325.42 (1), (2), (3), and (4) of this title (relating to Types of Municipal Solid Waste Sites); (2) permitted tire disposal site or monofill-Type VIII-D. A Type VIII-D site or operation may be authorized by the department for the disposal of used or scrap tires only. For the purposes of these sections, a tire disposal site shall be considered to be a monofill. Type VIII-D site shall not be operated within 300 yards of a public road without proper screening. The minimum operational standards are prescribed in sec.sec.325.111-325.114, sec.325.123, and sec.sec.325. 131-325.154 of this title (relating to Operational Standards for Solid Waste Land Disposal Sites); and (3) permitted tire incinerator-Type V, as provided in sec.325.42. sec.325.853. Permit Requirements. (a) A permit application for a tire disposal site shall be submitted to the Texas Department of Health (department) prior to commencing operations. Permit application forms will be provided by the department upon request. The form is included in sec.325.901 of this title (relating to Appendix A-Application for a Permit/Registration to Operate a Municipal Solid Waste Site-Part A (General Data)). (b) Persons who obtain a permit from the department to operate a tire disposal site shall maintain a copy of the permit at their designated place of business and at the designated disposal site location. (c) Municipal solid waste landfills which have been granted a Type I, II, III, or IV permit shall be considered as an approved used or scrap tire disposal facility. (d) A permit for a used or scrap tire disposal site shall be issued in accordance with the procedures, criteria and requirements indicated Subchapter E of this chapter (relating to Permit Procedures and Design Criteria). Used and scrap tire monofills are exempted from the requirements in sec.325.73 of this title (relating to Technical Information Required for Landfills Serving Less than 5, 000 Persons/Permit Application, Part B) and sec.325.74 of this title (relating to Technical Information Required for Landfill Sites Serving 5,000 or More-Site Development Plan) for providing soil liner and groundwater protection systems and for providing subsurface soil investigations and groundwater characterization studies. (e) All used and scrap tire disposal sites or facilities shall shred, split, or quarter all used or scrap tires within 60 days after receipt, provided that vector control by means of spraying or other appropriate methods are used at a frequency based upon the weather conditions and other local ordinances that may apply. An exception to this requirement may be granted by the department if specific circumstances would warrant such an exception. A written request for such an exception must be made and this request must include all reasons for the exception. Used or scrap tires deposited at a disposal or processing site that are delivered in an enclosed compactor vehicle are granted an exemption from being split, quartered, or shredded, provided the used or scrap tire is not retrievable by any means other than scavenging. (f) Additional design and operational requirements for all tire monofills or any permitted solid waste landfill which utilizes a separate trench for tire disposal shall be as follows. (1) In pits or trenches larger than 10,000 square feet, a firewall of not less than 10 feet thick shall be constructed to divide the trench into cells of not more than 10,000 square feet. (2) The maximum depth of any trench shall be 50 feet. (3) Final cover thickness on all completed areas shall be at least five feet. A variance may be granted on the five feet of final cover only if the applicant/operator provides an engineering study on the design and operation of a tire monofill using intermediate cover and a minimum of two and one-half feet of final cover and the department approves this study. sec.325.854. Existing Tire Disposal Sites. (a) An existing underground tire disposal site may remain in operation pending completion of the processing of an application for a permit, providing the site is otherwise in full compliance with all applicable sections of this subchapter. (b) A permit application for an existing tire disposal site that intends to remain in operation shall be submitted to the Texas Department of Health (department) prior to June 1, 1992. (c) Existing tire disposal sites that elect to close shall submit an application for a tire site identification number prior to April 1, 1992, for identification purposes. These sites shall be identified as a Type VIII-ID site. The following documents (which shall require engineering certification) shall be submitted, upon request by the department, to document the intent to close the site: (1) a closure/completion plan for the site which shall portray the proposed final contours, establishing side slopes and top grades, and the proposed drainage features. Protective measures for any area subject to flooding by a 100-year frequency flood shall be described; (2) a closure schedule specifying the dates of the cessation of acceptance of used or scrap tires and of the completion of the closure of the site; and (3) a certified copy of an affidavit to the public for the site, prepared in accordance with sec.325.152 (c) of this title (relating to Site Completion and Closure Procedures). (d) Existing tire disposal sites that elect to close will be subject to at least one inspection from the department's regional office to verify the proper closure of the site. The department's Bureau of Solid Waste Management will then acknowledge the termination of operations and closure of the site. (e) Post closure maintenance must be provided for all closed tire disposal sites in accordance with sec.325.153 of this title (relating to Post-Closure Maintenance). sec.325.855. Final Cover Requirements. (a) Final cover for all tire monofill sites whether in existence prior to the effective date of these sections or whether permitted to operate after the effective date of these sections shall be a minimum of five feet. A variance may be granted on the five feet of final cover only if the applicant/operator provides an engineering study on the design and operation of a tire monofill using intermediate cover and a minimum of 2 1/2 feet of final cover and the Texas Department of Health (department) approves this study. (b) The first 4-1/2 feet or more of cover (see subsection (d) of this section) shall be of clayey soil of classification SC or CL, as defined in the "Unified Soils Classification System" developed by the United States Army Corps of Engineers, compacted in layers of no more than six compacted inches to help minimize the water infiltration potential. A classification CH soil may be used; however, this soil may experience excessive cracking and must therefore be covered by at least 12 inches of topsoil to help in retaining moisture. Other types of soil may be used with prior approval. (c) The final six inches of cover shall be of suitable topsoil which will sustain the growth of vegetation, and shall be seeded or sodded during the first growing season following application of final cover to help minimize erosion. (d) Side slopes of all above ground disposal areas (aerial fills) shall not exceed a 25% grade (four feet horizontal to one foot vertical). The final cover for the top portion of a landfill shall have a minimum gradient of 2.0% and shall not exceed 6.0%, but shall possess a sufficient minimum grade to preclude ponding of surface water when total fill height and expected subsidence are taken into consideration. Side slopes in excess of 25% will not be authorized without controlled drainage such as flumes, diversion terraces, spillways, or other acceptable methods. Disposal of used or scrap tires above natural ground level is prohibited unless pursuant to an engineering site development plan approved by the department. Requests for changes to previously-approved engineering site development plans or new engineering site development plans submitted in support of requests for aerial fills will be processed in accordance with sec.325.111 of this title (relating to General Requirements). 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 December 12, 1991. TRD-9115811 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: January 2, 1992 Proposal publication date: October 4, 1991 For further information, please call: (512) 458-7271 Disposal of Used and Scrap Tires 25 TAC sec.sec.325. 861-325.867 The new sections are adopted under the Health and Safety Code, sec.361.011, which establishes the department's jurisdiction over municipal solid waste management; sec.361.024, which provides the Texas Board of Health with authority to adopt rules to manage and control municipal solid waste; sec.12. 001 which provides the board with authority to adopt rules for the performance of every duty imposed by law on the board, the department, and the commissioner of health; Senate Bill 1340, 72nd Legislature, 1991, and Senate Bill 2, First Called Special Session, 72nd Legislature, 1991, which provide the department with the authority to implement a waste tire recycling program. sec.325.861. Applicability and Responsibility. (a) Applicability. The regulations contained in these sections establish standards applicable to the establishment and maintenance of the priority enforcement list and the responsible party. (b) Responsibility. Each person who operates as a waste tire processor or a mobile tire shredder and who participates in the waste tire recycling fund (WTRF) shall be responsible for operating in compliance with any provision of these sections. sec.325.862. Responsible Party. (a) A waste tire site that is eligible for the priority enforcement list can be cleaned up by waste tire processors and mobile tire shredders and be eligible for the 25% portion of the waste tire recycling fund (WTRF) provided that a responsible party for the site can not be identified. (b) For the purpose of the waste tire recycling program and these sections, a responsible party can be the property owner, the site operator, and/or the person who deposited the used and scrap tires on the site that has the ability to finance the clean-up and/or operation of the waste tire site. The actual determination of the responsible party will be made based upon the facts obtained during the evaluation of the site for classification. This determination will be based upon the ability of the landowner/operator and/or person who deposited the tires to finance the clean-up of the site, the market value of the property in relationship to the cost of cleanup, and the circumstances of how and why the tires were originally dumped on the site. (c) If the Texas Department of Health (department) determines that a responsible party exists for a waste tire site and has exhausted all possible means to force the responsible party to comply with these regulations and the laws of the state, then the department shall notify the responsible party or the landowner, by certified mail, at the last known address of the responsible party or the landowner, of the intent to enter the property and to make arrangements with a waste tire processor or mobile tire shredder to transport the used and scrap tires off the site for shredding or to shred the tires on site and then transport the shredded tire pieces off site. The department shall then seek reimbursement from the responsible party for the cost incurred in the cleanup operation plus attorney's fees either through a mechanics lien filed against the property or by lawsuit. (d) The responsible party shall be obligated to comply with the sections of this subchapter that are applicable to the waste tire site for which he or she is responsible. Failure to comply with the applicable rules shall constitute a violation and will subject the responsible party to enforcement action and possible administrative penalties or court-ordered civil penalties as prescribed by state law. (e) The responsible party may elect to allow the department to use the WTRF to clean up the waste tire site provided the following conditions are met. (1) The responsible party signs a release granting the department full authority to place the site on the priority enforcement list. (2) The responsible party signs an agreement to reimburse the WTRF the cost incurred by the department to have the site cleaned up. (3) The responsible party agrees to clean-up the site of any other municipal solid waste, i.e., waste other than used tires, that may have been improperly disposed of on the property. sec.325.863. Priority Enforcement List. (a) The priority enforcement list (PEL) shall be a list maintained by the Texas Department of Health (department), containing waste tire sites classified as Type VIII-WT, or Type VIII-I. This list will be used to determine which site(s) that the processors can obtain the whole used or scrap tires that fall into the 25% category for processing. (b) The PEL shall be published by the department at least once per calendar quarter of each year. The PEL will be published in the Texas Register in accordance with established procedures. The list can also be obtained from the department's Bureau of Solid Waste Management or one of the field offices. (c) The PEL shall contain a threshold limit which will be used to determine the number of priority sites available for the processors to obtain their 25% tires. The threshold limit will be set, prior to the publication of the PEL, based upon the locations of the sites ranked on the list, the availability of funds for disbursement from the waste tire recycling fund (WTRF), the sites already scheduled and being cleaned up, and the need to clean up the sites which will have a greater adverse impact on public health and the environment. Any site above the threshold limit in one quarter that falls below the threshold limit in a subsequent quarter for which cleanup has been initiated shall remain eligible for reimbursement from the WTRF. (d) The PEL may be subdivided on a regional basis if the number of processors and the number of sites warrant such a division. Each regional subdivision would have a separate threshold limit. sec.325.864. Ranking of Sites. (a) Waste tire sites that are eligible for the priority enforcement list (PEL) will be ranked in accordance with the numerical ratings determined prior to classification of the site and/or any additional information obtained about the site. Numerical ratings for the location of the site, climate of the area, responsible party, and severity of the problem will be added together to obtain the overall numerical rating. (b) The overall numerical rating of a waste tire site may change over a period of time if any of the individual factors used to determine the overall rating change. A change could be an increase or a decrease in the overall numerical rating. sec.325.865. Release of Priority Enforcement Sites. (a) After a site has been placed on the priority enforcement list (PEL) selection of an assigned processor shall be conducted by the Texas Department of Health (department) by random chance, such as a drawing or lottery. The processors authorized by department to participate in the Waste tire Recycling Fund (WTRF) program and receive reimbursement from the WTRF and property owners shall comply with the following. (1) The processor shall prepare a clean-up plan of operation and time schedule for conducting the clean-up operation for the removal of all used and scrap tires from the site. (2) The processor shall submit the clean-up plan of operation and time schedule to the department for approval and to the property owner for concurrence. (3) The property owner shall agree in writing to the clean-up plan and time schedule and shall agree to hold the department harmless of any damages caused by the waste tire processor or crews employed by the processor. (4) The processor shall agree, in writing, to remove all used and scrap tires from the site and to comply with all requirements contained in sec.sec.325.801- 325.881 of this title (relating to Subchapter R. Management of Used and Scrap Tires). (5) The property owner shall sign a release granting the department full authority to authorize the processor to enter the site and complete the clean-up activities. (6) The processor shall complete the clean-up of the assigned site prior to the processor being eligible to participate in a subsequent drawing or lottery. (b) The department, in order to assure that sites found to present the greatest risk to public health and/or the environment are cleaned up as quickly as possible, may where appropriate, seek the service of an available registered processor to clean-up a site on an accelerated schedule. The appropriate provisions of subsection (a) of this section will apply as needed. Adjustments to other schedules will be made as deemed appropriate. (c) If the department determines that a site on the priority enforcement list contains more tires than any single waste tire processor is likely to be able to collect and shred within a reasonable period of time, or if proposed schedules received from waste tire shredders call for significantly longer time frames for total clean-up of any site than is acceptable to the department, the department may seek to have more than one waste tire processor involved in collecting and/or processing tires from the site. (d) Processors that elect to participate in the program will be allowed to clean-up priority enforcement list site that all appropriate arrangements have been made after April 1, 1992. based upon the following criteria: (1) the clean-up plan of operation and time schedule has been approved by the department; (2) the property owner has consented to the plan and schedule and has signed the required releases; (3) the processor has signed the appropriate release or contract whichever is applicable; (4) the department has issued written authorization to initiate the clean-up activities to the processor; (5) sufficient funds are available in the WTRF to enable payment to the processor; and (6) the processor is in compliance with the these sections and on schedule with respect to any other waste tire clean-up plans and/or schedules in process of having been completed. sec.325.867. Authority of Department's Representative. (a) A Texas Department of Health (department) representative may be assigned to each priority enforcement list site during that period of time in which the selected waste tire processor has authority to carry out activities at the site. The waste tire processor shall report to this department designated representative, in whatever reasonable manner and at whatever reasonable times such representative shall require. (b) The department's on-site representative shall have the authority to determine whether conditions and/or activities at the site, or other circumstances warrant that certain activities should be temporarily curtailed, this includes working hours beyond the normal working hours of the department. 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 December 12, 1991. TRD-9115812 Robert A. MacLean M.D. Deputy Commissioner Texas Department of Health Effective date: January 2, 1992 Proposal publication date: October 4, 1991 For further information, please call: (512) 458-7271 Special Conditions for Beneficial Use of Used and Scrap Tires 25 TAC sec.325.871 The repealed section is adopted under the Health and Safety Code, sec.361.011, which establishes the department's jurisdiction over municipal solid waste management; sec.361.024, which provides the Texas Board of Health with authority to adopt rules to manage and control municipal solid waste; sec.12.001 which provides the board with authority to adopt rules for the performance of every duty imposed by law on the board, the department, and the commissioner of health; Senate Bill 1340, 72nd Legislature, 1991, and Senate Bill 2, First Called Special Session, 72nd Legislature, 1991, which provide the department with the authority to implement a waste tire recycling program. 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 December 12, 1991. TRD-9115813 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: January 2, 1992 Proposal publication date: October 4, 1991 For further information, please call: (512) 458-7271 Waste Tire Recycling Program 25 TAC sec.sec.325.871-325.878 The new sections are adopted under the Health and Safety Code, sec.361.011, which establishes the department's jurisdiction over municipal solid waste management; sec.361.024, which provides the Texas Board of Health with authority to adopt rules to manage and control municipal solid waste; sec.12.001 which provides the board with authority to adopt rules for the performance of every duty imposed by law on the board, the department, and the commissioner of health; Senate Bill 1340, 72nd Legislature, 1991, and Senate Bill 2, First Called Special Session, 72nd Legislature, 1991, which provide the department with the authority to implement a waste tire recycling program. sec.325.872. Waste Tire Recycling Program. (a) Purpose. The purpose of the waste tire recycling program (program) is to provide a means for the recycling of all discarded used and scrap tires so that the material contained in the tires can be effectively reused, recycled, or used in energy recovery facilities. The methods for recycling used and scrap tires is through resale of whole tires, retreading, use of the tires or portions of the tires in the manufacture of parts or products, use of whole tires beneficially, or by shredding into small easily used pieces. (b) Objective. The objective of the program is to clean-up illegal dump sites that contain used and scrap tires and to provide a mechanism to recycle the used and scrap tires generated on a daily basis before they get dumped. (c) Used and scrap tire category. The used and scrap tires which are handled within this program and for which reimbursement is made for their processing shall be categorized as: (1) storage site tires, which are used and scrap tires from an illegal tire storage site and certain legal tire storage sites contained in the priority enforcement list (PEL); and (2) generator tires, which are used and scrap tires from a generator who accumulated the used and scrap tires on a daily basis or from other sites not eligible for the PEL. (d) Waste tire recycling fund (WTRF). The WTRF is the vehicle used to drive the program. The tire fees collected on new tires sold in Texas are deposited into the WTRF. The monies in the WTRF are used to reimburse the waste tire processor and the mobile tire shredder, who complies with this subchapter, for shredding the used and scrap tires, derived from eligible storage sites and generators, for eventual reuse, recycling, and energy recovery. (e) Program operation. The operation of the program will be controlled as follows. (1) The mobile tire shredders and waste tire processors who wish to participate and seek reimbursement from the WTRF shall bring their operations into full compliance with this subchapter prior to participation. (2) The processor who plans to shred the used and scrap tires shall shred the tires into a particle size no greater than nine square inches. (3) The processor shall shred at least 25% of the gross monthly weight of shredded tire pieces from storage site tires. (4) The processor shall shred at least 25% of the gross monthly weight of shredded tire pieces from generator tires. (5) The remaining 50% of the gross monthly weight of shredded tire pieces can be obtained from either category in paragraph (3) and (4) of this subsection. (6) The processor shall submit his or her reimbursement request on a format approved by the Texas Department of Health. (7) The processor shall maintain and retain appropriate records to justify his or her reimbursement request. sec.325.873. Announcement of Intent to Participate. (a) Waste tire processors or mobile tire shredders who are registered with the Texas Department of Health (department) and who wish to receive payment from the WTRF for shredding used and/or scrap tires so as to facilitate the future extraction of useful materials for recycling, reuse, or energy recovery, shall submit the notice of such intent on a form or in a format that is published under a "Request for Proposal" (RFP) by the department. (b) Waste tire processors shall indicate in the announcement of intent the information required in the RFP. sec.325.874. Other Permits or Registrations Required. (a) Waste tire processors who intend to participate in the waste tire recycling program described in these sections and who intend to ship whole tires from any priority enforcement list site, for temporary storage prior to shredding, or for immediate shredding, must have a registered tire storage site at which such whole tires may be held for no longer than 60 days, or the number of days allowed by the named facility's registration (whichever is greater), prior to their being shredded. (b) Waste tire processors who intend to participate in the tire recycling program described in these sections and who have not made arrangements for the immediate shipment of all shredded tires, for which payment under such program is to be sought, directly to an approved end user who has committed to either recycle the shredded material or burn it for energy recovery, must either: (1) also be the owner/operator of a department permitted or registered tire storage site at which any shredded tires for which payment is to be sought, shall be temporarily stored under the direct personal supervision of the person requesting payment; or (2) have made arrangements with other registered or permitted tire storage site operators for the temporary storage of processed material. sec.325.875. Approval to Collect and Process Tires From Priority Enforcement List Sites. (a) Prior to collecting and/or shredding tires from any priority enforcement list site, a waste tire processor must provide a clean-up plan of operation and a schedule for completing the clean-up of all used and scrap tires from the site. Collection activities shall commence only after the submitted plan and schedule have been accepted by the department. Provisions of sec.325.862 of this title (relating to release of Priority Enforcement List Sites) have been met. (b) The collection and shredding schedule must indicate: (1) the amount of collection and/or shredding capacity, in either tires or pounds of shredded rubber per day, that the processor is promising to commit to the project; (2) the number of days required to finish the project, with the understanding that if more tires are found to be on-site than the number used to calculate, originally, the overall project length, a correction factor may be applied, based on the promised collection and/or shredding capacity; and (3) the date, or range of dates that work on the site could commence. (c) If the Texas Department of Health (department) finds that any of the schedule related information described in subsection (b)(1)-(3) of this section to be unacceptable, amended schedules may be negotiated with the waste tire processor. (d) The site clean-up plan of operation submitted by a waste tire processor shall, as a minimum,indicate the following: (1) their waste tire processor identification number; (2) the name under which the waste tire processor identification number was issued; (3) whether they intend to shred all the tires on-site, haul all tires to a permitted waste tire facility, or conduct the operation using both methods; (4) the number of weighed tires from other priority enforcement list sites that, as of the date the site clean-up plan was filed, have been collected and/or shredded; (5) the total number of tires from in-state sources other than priority enforcement list sites that, as of the date the site clean-up plan was filed, have been collected and/or shredded; (6) the method of recycling or energy recovery planned for the tires which are proposed to be collected and shredded; (7) the registration number(s) of any and all waste tire transporters who are expected to haul either whole or shredded tires from the priority enforcement list site; and (8) the identification of any temporary storage sites, proposed to be utilized for either whole tires or shredded rubber. (e) Depending on the unique situation at a site, the department may require that only waste tire processors who are willing to transport all tires off-site for shredding at a permitted waste tire facility shall be allowed to collect and process tires from that particular site. (f) The department may require that collection and processing at a particular site be carried out only between certain hours of the day and on certain days of the week. sec.325.876. Waste Tire Processor Eligibility Requirements. In addition to the scheduling and planning requirements contained in sec.325.875 of this title (relating to Approval to Collect and Process Tires From Priority Enforcement List Sites), waste tire processors desiring to receive, or to continue receiving, tires from any priority enforcement list site must comply with all applicable provisions of this subchapter and a contract signed with the State to receive monies from the Waste Tire Recycling Fund (WTRF). sec.325.877. Shipping, Record Keeping, and Reporting Requirements. (a) Shipments. (1) All shipments of whole used or scrap tires into a fixed processing site or to a mobile shredder temporarily located for shredding shall be manifested on forms which are approved by the Texas Department of Health (department) and contain the information described in sec.325.807 of this title (relating to Recording Keeping). (2) All whole used and scrap tires that will receive reimbursement from the Waste Tire Recycling Fund, on or after April 1, 1992, shall be manifested from the generation location to the processor. In the case of mobile tire shredders operating at a priority enforcement list (PEL) site, the whole used and scrap tires must be collected from the stockpile and taken to the shredder, an adequate daily log shall be maintained to account for these collected tires. (b) Record keeping. (1) All processors shall maintain adequate records showing the number of whole tires collected, their sources, the number of tires shredded, and the amount of shredded tire pieces in pounds and/or tons. (2) Copies of all manifests, daily logs, or other records shall be made available to the department's representative if requested. (c) Applicability of other sections in this subchapter. Except as may be allowed differently in subsections (a)-(e) of this section, all procedures set forth in sec.325.825 of this title (relating to Record Keeping), sec.325.813 of this title (relating to Delivery Requirement), sec.325.815 of this title (relating to Record Keeping), and sec.325.817 of this title (relating to Transporter Fees) shall apply to this section. (d) Weighing of shredded tires. All tires shredded by a waste tire processor who is qualified to participate in the program, shall be weighed and the total amount recorded, by date. (e) Requests for payment. By not later than the 10th day of the month, waste tire processors who have shredded used or scrap tires during the preceding month, shall submit to the department a request for payment, in the amount of $0.85 per weighed tire, for any tire shredded to a particle size of nine square inches or less. Requests for payment shall be submitted on forms or in a format to be provided by the department. Information required to be included on such forms is as follows. (1) For all waste tire processors, the total pounds of tires shredded during the previous calendar month shall be reported. (2) In the case of mobile shredders that process scrap tires at locations other than at a permitted or registered waste tire facility which also serves as that shredder's home base, the waste tire processor must, in addition to the total required under paragraph (1) of this subsection, report: (A) the total pounds of tires shredded on-site at priority enforcement list sites during the same period; and (B) the total pounds of tires shredded during the same period at in-state locations other than priority enforcement list sites. sec.325.878. Payment Policies and Procedures. (a) Payments provided by the State of Texas under this subchapter shall be only for the shredding of used and/or scrap tires and shall be in accordance with the reimbursement rate required by law. (b) Waste tire processors, to be eligible to receive payment for shredding, must at their own expense provide: (1) all payments to registered waste tire transporters covering the expenses associated with the shipment of whole, split, or quartered tires from a Texas wholesale or retail tire dealer to any permitted or registered waste tire facility for the purpose of eventual reimbursement under these sections; (2) all payments to registered waste tire transporters covering expenses associated with the shipment of any tire, whether whole, split, quartered or shredded, from any priority enforcement list site to another authorized location; (3) all payments to laborers, equipment operators, or other employees whose services may be needed, in order to comply with the site clean-up requirements described in sec.325.875 of this title (relating to Approval to Collect and Process Tires From Priority Enforcement List Sites); and (4) all acquisition, maintenance, and/or operating costs associated with any equipment or machinery needed, in order to comply with the site clean-up requirements described in sec.325.875 of this title (relating to Approval to Collect and Process Tires From Priority Enforcement List Sites) and to satisfactorily shred all used/scrap tires, that are removed from such sites, or received from other sources, for the purpose of receiving payment under these sections. (c) Shredded tires for which payment under these sections is sought, must be shown, by the waste tire processor, to meet the minimum requirements for whole used and scrap tires that have been collected and shredded or shredded on-site by a mobile tire shredder on or after April 1, 1992. Tires accumulated at storage sites that are not PEL sites prior to April 1, 1992, are not eligible for reimbursement from the fund. (d) Failure on the part of a waste tire processor to complete the clean-up of all used and/or scrap tires from a priority enforcement list site, within a reasonable time, may cause payment to such processor under these sections to be delayed or withheld pending satisfactory completion. The Texas Department of Health (department) may include, in a written agreement with a waste tire processor authorizing such processor access to a priority enforcement list site for the purpose of receiving used or scrap tires, a penalty clause describing the extent to which payment for shredding of any used or scrap tire, whether from the site in question or not, may be withheld due to noncompliance with the site clean-up agreement. 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 December 12, 1991. TRD-9115814 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: January 2, 1992 Proposal publication date: October 4, 1991 For further information, please call: (512) 458-7271 25 TAC sec.325.881 The new section is adopted under the Health and Safety Code, sec.361.011, which establishes the department's jurisdiction over municipal solid waste management; sec.361.024, which provides the Texas Board of Health with authority to adopt rules to manage and control municipal solid waste; sec.12.001 which provides the board with authority to adopt rules for the performance of every duty imposed by law on the board, the department, and the commissioner of health; Senate Bill 1340, 72nd Legislature, 1991, and Senate Bill 2, First Called Special Session, 72nd Legislature, 1991, which provide the department with the authority to implement a waste tire recycling program. 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 December 12, 1991. TRD-9115815 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: January 2, 1992 Proposal publication date: October 4, 1991 For further information, please call: (512) 458-7271 Subchapter X. Forms and Documents 25 TAC sec.sec.325. 919-325.924 The repealed sections are adopted under the Health and Safety Code, sec.361.011, which establishes the department's jurisdiction over municipal solid waste management; sec.361.024, which provides the Texas Board of Health with authority to adopt rules to manage and control municipal solid waste; sec.12. 001 which provides the board with authority to adopt rules for the performance of every duty imposed by law on the board, the department, and the commissioner of health; Senate Bill 1340, 72nd Legislature, 1991, and Senate Bill 2, First Called Special Session, 72nd Legislature, 1991, which provide the department with the authority to implement a waste tire recycling program. 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 December 12, 1991. TRD-9115816 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: January 2, 1992 Proposal publication date: October 4, 1991 For further information, please call: (512) 458-7271 Part II. Texas Department of Mental Health and Mental Retardation Chapter 405. Client (Patient) Care Subchapter E. Electroconvulsive Therapy 25 TAC sec.sec.405.101-405.114 The Texas Department of Mental Health and Mental Retardation (TXMHMR) adopts the repeal of sec.sec.405.101-405.114, concerning electroconvulsive therapy (ECT). The repeal of the sections is adopted contemporaneously with the adoption of the new sections which replace them, also in this issue of the Texas Register. The new sections update practice, terminology, and technology, and establish the current American Psychiatric Association guidelines governing ECT as the clinical standard for TXMHMR. The sections also apply to entities with whom the department and community mental health and mental retardation centers contract for the provision of the electroconvulsive therapy services. No public comment was received on the proposed repeals. The repeals are adopted under Texas Civil Statutes, Article 5547-202, sec.2.11, which provide the Texas Board of Mental Health and Mental Retardation with rulemaking powers. 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 December 11, 1991. TRD-9115688 Ann K. Utley Chairman Texas Board of Mental Health and Mental Retardation Effective date: January 1, 1992 Proposal publication date: August 2, 1991 For further information, please call: (512) 465-4516 The Texas Department of Mental Health and Mental Retardation (TXMHMR) adopts new sec.sec.405.101-405.114. Sections 405.103, 405.104, and 405.110 are adopted with changes to the text proposed as published in the August 2, 1991, issue of the Texas Register (16 TexReg 4204). Sections 405.101, 405.102, 405.105-405.111, and 405.114 are adopted without changes and will not be republished. The new sections are adopted contemporaneously with the adoption of the repeal of the sections they would replace, also in this issue of the Texas Register. The new sections update practice, terminology, and technology, and establish the current American Psychiatric Association guidelines governing ECT as the clinical standard for TXMHMR. The sections also apply to entities with whom the department and community mental health and mental retardation centers contract for the provision of the electroconvulsive therapy services. Section 405.103 is changed on adoption to correct a typographical error in the definition of the term "chemical or gaseous agents." In the same section, the definition of "informed consent" is revised to note that in obtaining informed consent, information must be conveyed in the person's primary mode of communication. Also concerning the definition of "informed consent," the listing of risks associated with ECT has been revised to reflect the requirements of the Texas Medical Disclosure Panel, and to note that memory dysfunction associated with ECT may be permanent. In the same definition, language has been revised to indicate that the individual giving consent may withdraw consent at any time, including cases in which the person giving consent is the guardian. A definition of "maintenance therapy" is added. In sec.405.104, language is changed to reference age as one of the considerations when evaluating an individual for ECT. In subsection (b), language has been revised to indicate that in cases in which an incompetent patient refuses consent, a guardian ad litem must be appointed by the court for purposes of making that decision for the individual. This language replaces language that would allow ECT to be given over the objections of an individual provided three physicians certify the need for treatment. In sec.405.10, language has been added requiring all individuals to be pre- oxygenated prior to receiving ECT. Advocacy, Inc., Austin, Texas, requested a public hearing on the proposal, which was held on August 19, 1991, in the auditorium of the central office of TXMHMR, at 909 West 45th Street, Austin. The following organizations testified and in some cases provided additional written testimony concerning the proposal: Committee for Truth in Psychiatry; Dian Cox, National Mental Health Consumers Association, National Association of Psychiatric Survivors; Mental Health Association; Advocacy, Inc.; Texas Alliance for the Mentally Ill; and Texas Mental Health Consumers. Additional written comments were received from National Head Injury Foundation; Dallas County Mental Health and Mental Retardation Center; Grey Panthers of Austin; World Institute on Disability; and an anonymous individual. Several commenters spoke in favor of elements of the proposal which they felt represented improvements over the subchapter that would be replaced. One commenter praised TXMHMR for responding to public concerns about patient dignity. All commenters made recommendations for additional changes. A number of commenters called for changes in the proposal that the department did not make because the requirements are already included in either the proposal or in the American Psychiatric Association guidelines for use of electroconvulsive therapy, or the requested changes exceed the current medical standard of care for ECT as established in the APA guidelines. One commenter noted that careful monitoring of the patient before, during, and after the ECT should be set out in greater detail. The department responds that careful monitoring before, during, and after ECT is the standard of care as expressed in the APA guidelines and TXMHMR practice. The same commenter noted post-treatment recommendations and procedures should be given to the patient. The department responds that APA guidelines and TXMHMR practice indicate that post-treatment recommendations are included in the consent process. The commenter also requested that pre- and post-treatment physical examinations be required. The department responds that physicals prior to ECT are required (see sec.405.106), but mandatory post-treatment physicals per se are not the standard of care. If further physical evaluation is indicated in the course of clinical monitoring, it will be performed. The same commenter stated that in no event should an older person receive ECT without a licensed anesthetist present. The department appreciates the commenter's concern regarding anesthesia, and has added language in sec.405.110(d) that specifies the requirement that all patients be pre- oxygenated prior to anesthesia and ECT, a practice which has been shown to reduce the risk of mental and other impairment. Note also that the department's standard regarding who may administer anesthesia is consistent with APA guidelines. A commenter recommended that the provision requiring equipment for tracheotomy in the ECT room be deleted from sec.405.110(b). The department responds that each item required in the ECT room is considered by the department to be essential and necessary. The same commenter suggested that nurses and technicians with current registration of certification in advanced cardiac life support and with demonstrated training or experience in the use of general anesthetic agents with ECT be permitted to administer anesthesia during ECT. The department responds that the guidelines regarding the individuals who may administer anesthesia outlined in sec.405.110(d) are consistent with APA guidelines. Several commenters provided oral or written testimony about the impact that ECT has had on their lives, most notably permanent memory loss and inability to function independently in the community. These individuals called for changes in departmental policy that would ensure that no individual be given ECT without consent and that all prospective ECT recipients be given information about the possible side effects of ECT, including permanent memory loss. The department responds that it is its intent to create and enforce policies that recognize the potential for this procedure to be abusive in effect, to provide a mechanism to ensure informed consent, and to effectively prevent untoward effects of ECT from occurring. The medical and administrative staff of the department generally agree that the administration of ECT without the consent of the individual is not desirable and usually not warranted; however, on rare occasion, such use of ECT may be necessary to protect the life of an individual who is severely depressed and unresponsive to other forms of treatment or for whom other forms of treatment are contraindicated. The mechanism for considering ECT in such a case has been substantially modified to require the consent of a court-appointed guardian ad litem for individuals who are incompetent and do not otherwise have guardians. The department agrees that the consent process is critical in the upholding of rights of individuals receiving ECT. It is further acknowledged that permanent memory dysfunction is a potential risk in ECT, and language has been added to the definition of "informed consent" that requires this possibility to be discussed. Note that modifications to the informed consent definition reflect the requirements of the Texas Medical Disclosure Panel. A commenter cited a letter from a physician at a TXMHMR facility who recommended that regulations should require consultation with and approval from an uninvolved psychiatrist for any patient for whom more than 10 treatments are recommended in a series. The department responds that the limit of 15 treatments in a series prior to the necessity for consultation was established in recognition of the growing use of unilateral, as opposed to bilateral, ECT. The same commenter also cited the TXMHMR physician's recommendation that TXMHMR hospitals should use the 90-day medication reviews to identify depressed patients who have not responded to the treatment. The commenter and physician suggest that ECT should be an option for these patients, otherwise they are deprived of their opportunity to have effective treatment. The department responds that treatment plan reviews are intended to provide the opportunity to evaluate the effectiveness of care and consider alternative approaches. ECT is a form of treatment that may be considered if clinically indicated, but it should not be regarded as a special form of therapy to be broadly promoted. Two commenters suggested that ECT is a form of head injury which may cause disability and suggested that there should be a suspension of ECT until more is known about its long-term effects and its safety is proven. The department responds that the safety of ECT, when it is appropriately administered and monitored, has been established. Two commenters called for TXMHMR to expand the applicability of the rules to all mental health facilities in the state, including private facilities. Both commenters expressed the opinion that TXMHMR has the statutory authority to impose such regulations. One commenter requested that the department request that TDH amend its licensing rules and regulations to address ECT. The department responds that concurrent with the sunset review of rules governing licensure of private psychiatric hospitals, serious consideration is being given to the recommendations of the commenters concerning the application of ECT rules in private psychiatric hospital settings. Commenters concerned with the practice of ECT in hospital-based psychiatric units licensed by the Texas Department of Health should make their concerns known to that agency. A commenter noted that with regard to obtaining the individual's consent to ECT, the rules should clearly require that communication to the patient be in his/her primary language and/or mode of communication and that the communication be in clear, layperson terms. The department responds that the only element of the suggestion not included in the definition as proposed, i.e., "mode of communication," has been added to language as adopted. A commenter expressed concern that the potential ECT side effects of fractures and/or respiratory and/or cardiovascular problems especially with older and medically fragile people have not been included in explanations set out for informed consent, nor have the severity of the memory loss and possibility of brain dysfunction been adequately addressed. The department responds that the informed consent process for ECT has been revised on adoption to conform to the requirements set out by the Texas Medical Disclosure Panel. Note changes in the definition of "informed consent" in rules as adopted. The APA guidelines, which are established as the TXMHMR clinical standard, discuss factors relevant to informed consent in some depth. A commenter requested that a sample consent form be attached as an appendix to the rules with an opportunity for comment for adversary [sic] groups as to its content and form; at minimum, the form should be in English and in Spanish, but other languages such as Korean and Vietnamese should be considered. In addition, the patient should be warned against making any decisions soon after the ECT. The department responds that the purpose of the subchapter is not to serve as a textbook for practicing physicians. The revisions to the definition of "informed consent" address in part the concerns expressed. In response to the evident concern of commenters about the quantity and quality of information available to prospective ECT recipients, the department is considering developing a brochure to be distributed to all potential ECT patients or their legal guardians prior to consent. A commenter requested that the informed consent requirements include warnings about the necessary restrictions which should be discussed with the person prior to consent to ECT. In the definition of "informed consent," "permanent" has been added to the description of possible memory dysfunction associated with ECT. A commenter called for informed consent requirements to include warnings about the necessary restrictions, which should be given before the person consents to ECT. The department responds that in the list of risks that must be discussed, language has been added to address "significant temporary post-treatment confusion requiring special care." A commenter suggested that there should be a statement that the therapeutic benefits associated with ECT may be transient, and notes that the suggestion comes directly from the APA guidelines. The department responds that the guidelines have been established as the clinical standard for ECT in TXMHMR facilities and that further reiteration is not necessary. A commenter noted that the proposed language suggests that a guardian would not be able to withdraw consent for ECT during a course of treatment. The guardian should have this ability. The department agrees and has changed the language. One commenter noted that although it may be a "widely accepted point of law" that a person is presumed competent absent a judicial finding to the contrary, a reminder of this principle is necessary. The department responds that revised procedures requiring consent by the individual, the individual's guardian, or a guardian ad litem respond to the commenter's concern. A commenter suggested that the decision to utilize ECT on older people should be made by at least one psychiatrist with an expertise in the physical and emotional problems of the older person. The department responds that the prevailing standard of care does not require a gerontologist to be involved. Patient's age has been added to the factors to be considered prior to performing ECT. A commenter noted that the rules should reflect an increased concern for those most likely to suffer from ECT, such as the elderly or the elderly who have been taking psychoactive medications. The department responds that the APA guidelines treat this issue. A commenter expressed concern about the vagueness surrounding privileging of physicians to use ECT. The department responds that the APA guidelines provide direction with regard to training and privileging. This is the prevailing standard as required by the Joint Commission on Accreditation of Healthcare Organizations, i.e., to require facilities to be specific about procedures for privileging staff to perform ECT and other activities. A commenter objected to the lack of a requirement for an anesthesiologist or nurse anesthetist. The TXMHMR standard is the prevailing standard of care as expressed in APA guidelines. A commenter called for requirements for evaluating ECT, i.e., a description of the treatment goals and how they will be measured, such as with post-ECT cognitive testing. The department responds that the APA guidelines are the established standard of care, and the delineation of treatment goals with measure of progress toward achievement is a standard part of treatment planning under the department's Mental Health Recordkeeping System (MHRS). One commenter requested that statistics be maintained relating to the patients' source of payment, whether consent was obtained from the patient, and the demographics of the community population. The same commenter urged that TXMHMR issue an annual report available to the public reporting the statistics on a facility by facility basis, and that TXMHMR centralize the information in a data bank formatted in a manner to determine whether any segment of Texas' population is disproportionately impacted by ECT. The department responds that TXMHMR would be pleased to provide data for a study. A commenter noted that "maintenance therapy" should be defined. The department responds that a definition of "maintenance therapy" has been added. A commenter suggested that the department permit administration of ECT in a series on an outpatient basis if it could be confirmed that the ECT recipient had transportation to and from treatments and had supervision at home. The commenter noted that the medical work-up necessary before receipt of ECT exhausts most individual's insurance benefits, and suggested outpatient ECT as a cost-effective solution. The department responds that the care of the individual is TXMHMR's primary concern and responsibility, and that responsibility overrides fiscal considerations. One commenter requested that insulin coma therapy be added to the section prohibiting use of gaseous agents. The department responds that insulin coma therapy is extremely outmoded and never used in TXMHMR operated or funded programs. The new sections are adopted under Texas Civil Statutes, Article 5547-202, sec.2.11, which provide the Texas Board of Mental Health and Mental Retardation with rulemaking powers. sec.403.103. Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise. Chemical or gaseous agents-Those substances which may be capable of inducing a seizure and including, but not limited to, pentylenetetrazol (Metrazol) and flurothyl (Indoklon). Commissioner-The commissioner of the Texas Department of Mental Health and Mental Retardation. Department-The Texas Department of Mental Health and Mental Retardation. ECT-Electroconvulsive therapy. Electroconvulsive therapy (ECT)-A form of somatic treatment for certain psychiatric illnesses, in which electrical current applied to the scalp results in a seizure, usually (because of anesthesia and muscle relaxants) without outward signs of a convulsion. Executive director -The chief executive officer of a community mental health and mental retardation center. Fully qualified child psychiatrist-A physician, licensed to practice medicine in Texas, who has completed approved residency training in general psychiatry, and an approved fellowship program in child psychiatry. Fully qualified psychiatrist-A physician, licensed to practice medicine in Texas, who has completed approved residency training in psychiatry. Informed consent -The knowing consent of an individual or his or her legally authorized representative, so situated as to be able to exercise free power of choice without undue inducement or any element of force, fraud, deceit, duress, or other form of constraint or coercion. The basic elements of information necessary to informed consent, as well as discussion of informed consent and ongoing counselling with the patient regarding his or her care, must be provided in simple, nontechnical terms in the person's primary language or mode of communication. The elements of informed consent include: (A) a fair explanation of the procedures to be followed and their purposes, including identification of any procedures which are experimental; (B) a discussion of the nature, degree, duration, and probability of significant risks and/or side effects and/or adverse effects, including the probability of significant temporary post-treatment confusion requiring special care, fractures or dislocations of bones, and the possibility of permanent memory dysfunction concerning events prior to, during, and immediately following the treatment; (C) a description of any benefits reasonably to be expected; (D) a disclosure of any appropriate alternative procedures that might be advantageous for the subject; (E) an offer to answer any inquiries concerning the procedures; and (F) an instruction that the consenting party is free to withdraw consent and to discontinue treatment or series of treatments at any time without prejudice to the care of the individual, including an instruction that consent is for a specified maximum number of treatments (not to exceed 15), and that additional treatments shall require renewed written informed consent. Maintenance therapy -Treatment with electroconvulsive therapy on an individually determined intermittent schedule for purposes of preventing relapse. Medical specialist -A physician, licensed to practice medicine in Texas, who is generally recognized by virtue of training or professional certification as having expertise in a given area of medical practice. Nurse anesthetist -A nurse properly trained and credentialed to administer general anesthesia. Series of treatments -Usually six-15 treatments. Superintendent-The superintendent or the director of the facility. TDMHMR medical director-The department's medical director for professional services. Treatment-The administration of electroconvulsive therapy, unilaterally or bilaterally, with anesthesia, under appropriate clinical conditions for monitoring, safety, and efficacy. sec.405.104. General. (a) The decision to use (ECT) electroconvulsive therapy must be based on a careful assessment of diagnosis, symptomatology, degree of impairment, factors such as suicide risk or danger of exhaustion, and the patient's age and physical status. The patient's prior use of ECT and the nature of any therapeutic response or adverse reaction should also be considered. (b) Prior to receiving ECT, every patient, voluntary or involuntary, adult or minor, competent or incompetent, shall be given full explanation of ECT consistent with the specific items cited in sec.405. 103 of this title (relating to Definitions), and written informed consent, or documentation concerning why written informed consent was not obtained, must be entered in the patient's permanent record, as follows. (1) Informed consent by adult patients. No adult patient shall be given ECT unless: (A) written informed consent has been obtained from the patient; or (B) written informed consent has been obtained from the legal guardian of the person of the patient or guardian ad litem. (2) Informed consent by minor patients. Consent of/for minor patients shall follow the current standards and guidelines of the Joint Commission on the Accreditation of Healthcare Organizations (JCAHO). No minor patient shall be given ECT unless written informed consent has been obtained from the patient and from the patient's parent, managing conservator, or the legal guardian of the person of the patient or guardian ad litem. (c) If any patient, without regard to competency, objects to ECT and there is an alternative method of treatment (that is not contraindicated and which has not been demonstrated ineffective) to which the patient does not object, the alternative method should be used. (d) It is not to be inferred, however, that ECT should be held as a treatment of "last resort." Rather, it is, at times, the treatment of choice. Full documentation of all factors considered in arriving at the decision to use ECT, the consent process, the treatment procedures, and patient response to treatment are to be entered into the patient's permanent medical record. (e) The use of ECT for punishment, solely for control of behavior, for convenience of staff, in order to make patients more compliant, and the use of ECT in a discriminatory or abusive manner are explicitly prohibited. sec.405.110. Medical Procedures To Be Followed in Administration of Electroconvulsive Therapy. (a) Personnel. Electroconvulsive therapy (ECT) may be administered only by a fully qualified psychiatrist trained and credentialed by the facility providing the treatment to use ECT, or by a physician in training in an approved residency program under the direct supervision of a fully qualified psychiatrist so trained and credentialed. In specific circumstances a licensed physician who is not a fully qualified psychiatrist but who has demonstrated training and experience in the administration of ECT may administer ECT providing authorization has been provided in writing to the superintendent by the medical director. Assistants shall include a recovery nurse and an ECT treatment nurse or assistant trained in ECT procedures. (b) Equipment. Equipment available in the ECT room shall receive a general inspection on a regular basis. Equipment shall include, but not be limited to, the following: (1) an ECT machine of contemporary model which shall be calibrated at least semiannually; (2) a respiratory support system including oxygen, endotracheal intubation tray, suction apparatus, and equipment for tracheotomy; (3) a cardiac arrest tray with appropriate drugs; (4) a cardiac monitor and defibrillator. (c) Recovery room. A recovery room containing emergency equipment and supplies shall be used, the patients to be therein until fully alert and all vital signs are stable. (d) Anesthesia. (1) General anesthesia shall be administered to all patients as a standard procedure during ECT. (2) Anesthesia shall be administered only by persons credentialed by the medical staff to do so, and who are: (A) medical specialists credentialed and privileged in anesthesiology; (B) nurse anesthetists (CRNA); or (C) physicians holding current registration or certification in advanced cardiac life support and with demonstrated training or experience in the use of general anesthetic agents with ECT. (3) Prior to ECT, all patients will be pre-oxygenated. 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 December 11, 1991. TRD-9115687 Ann K. Utley Chairman Texas Board of Mental Health and Mental Retardation Effective date: January 1, 1992 Proposal publication date: August 2, 1991 For further information, please call: (512) 465-4516 TITLE 28. INSURANCE Part II. Texas Workers' Compensation Commission Chapter 134. Benefits-Guidelines for Medical Services, Charges, and Payments Subchapter C. Medical Fee Guidelines 28 TAC sec.134.200 The Texas Workers' Compensation Commission adopts the repeal of sec.134.200, concerning medical fee guidelines which established maximum allowable fees for medical services provided, and durable medical equipment sold or rented, to injured workers under the workers' compensation laws of Texas, without changes to the proposed text as published in the October 22, 1991, issue of the Texas Register (16 TexReg 5889). A notice not to enforce this section from December 11, 1991 until the effective date of this repeal was published in the December 6, 1991, issue of the Texas Register (16 TexReg 7044). The repeal of this section is adopted because a superceding medical fee guideline has been adopted under sec.134.201 of this title (relating to Medical Fee Guideline). No comments were received regarding adoption of the repeal. The repeal is adopted under Texas Civil Statutes, Article 8308, sec.2.09(a), which authorize the commission to adopt rules necessary to administer the Texas Workers' Compensation Act. 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 December 16, 1991. TRD-9115915 Susan M. Kelley General Counsel Texas Workers' Compensation Commission Effective date: January 6, 1992 Proposal publication date: October 22, 1991 For further information, please call: (512) 440-3972 TITLE 31. NATURAL RESOURCES AND CONSERVATION Part IX. Texas Water Commission Chapter 335. Industrial Solid Waste and Municipal Hazardous Waste Subchapter Q. Pollution Prevention: Source Reduction and Waste Minimization 31 TAC sec.sec.335.471-335.480 The Texas Water Commission (TWC) adopts new sec.sec.335.471-335.480, concerning source reduction and waste minimization plans and reporting. The new sections incorporate new provisions of the Texas Solid Waste Disposal Act (TSWDA), Chapter 361, Texas Health and Safety Code (Vernon's Supplement 1991) recently promulgated by the legislature in Senate Bill 1099, 72nd Legislature, 1991. New sec.sec.335.471-335.476, 335.479, and 335.480 are adopted with changes to the proposed text as published in the September 20, 1991, issue of the Texas Register (16 TexReg 5199). New sec.335.477 and sec.335.478 are adopted without changes and will not be republished. For clarification purposes and to remain consistent with the TACB rules, the following nonsubstantive addition was made to sec.335.471 concerning definitions: "The words and terms used in this subchapter have the meanings given in the Waste Reduction Policy Act of 1991, Senate Bill 1099, or the regulations promulgated thereunder." Some minor clerical errors need to be corrected as follows: In the definition of "acute hazardous waste", the correct cite to the Code of Federal Regulations (CFR) is sec.261.11(a)(2). Section 335.472(2) should read "...Emergency Planning and Community Right-to-Know Act of 1986 (EPCRA), sec.313." The correct cite in sec.335.480(a) should be Chapter 424, Acts of the 63rd Legislature, Regular Session, 1973 (Texas Civil Statutes, Article 6252-17a). The correct conversion for 1,000 kilograms to tons in sec.335.475(5)(A) should be 1.102 tons. For clarification purposes and to maintain consistency with the TACB, the following nonsubstantive changes were made to sec.335.474 concerning source reduction and waste minimization plans: "...may be updated annually as appropriate according to the schedule listed in sec.335.475 (relating to Implementation Dates)." and "...a plan is not in effect. Prior to completion of the plan and each succeeding plan, a new five-year (or more) plan shall be prepared." Section 335.474(1)(A)(ii) should read "Contaminants", not "Contaminations". Finally, the last three words of sec.335.479 ("...of this chapter.") are deleted. Written comments to the proposed new sections pertaining to this title were submitted to the TWC by the following: Brown & Root, Inc.; Electric Reliability Council of Texas, Inc.; Ethyl Corporation-Houston Plant; Exxon Company, U.S.A.; the law firm of Jones, Day, Reavis & Pogue; the law firm of McGinnis, Lochridge & Kilgore; Sierra Club-Lone Star Chapter; Evelyn and Willie Sims; Star Enterprise; Tarrant Coalition for Environmental Awareness; Texans United Education Fund; Texas Automobile Dealers Association; Texas Chemical Council; Texas Eastman Company (Kodak); and Texas Instruments. In addition, oral comments were received from citizens at public hearings conducted by the TWC in the following cities: Austin, Dallas, Houston, Euless, Tyler, Corpus Christi, Midland, Beaumont, and Weslaco. New sec.335.471, relating to definitions. Several commenters felt that revisions to the definitions for "release," "small-quantity generator," "toxic release inventory (TRI)," and "waste minimization" should be made, and that additional definitions for terms such as "detoxification" and "neutralization" were needed. One commenter also said that certain definitions are inconsistent with other laws and regulations. Since the definitions used were mandated by Senate Bill 1099 and generally conform to the definitions currently applied in the field of pollution prevention, no changes to the proposed rules are deemed necessary at this time. New sec.335.472, relating to Pollutants and Contaminants. One commenter felt that the definition for "pollutant or contaminant" was too broad, and other commenters wanted "hazardous air pollutants (HAP) as defined in the Federal Clean Air Act included in the definition of "pollutant or contaminant". The definition for "pollutant or contaminant" is defined by Senate Bill 1099. The statute is specific as to its application to hazardous waste and TRI listed chemicals. Another comment received regarding sec.335.472 suggested that the term "313 chemical" should be substituted for "chemicals" for clarification proposes. Since a reference is already made to sec.313 of the Emergency Planning and Community Right-to-Know Act, use of the term "313 chemical" is unnecessary. Another commenter expressed concern about what it felt was a lack of specificity in using the phrase "all hazardous wastes generated" in sec.335.472(1) . The TWC believes that the universe of substances which are hazardous wastes is well defined in 40 Code of Federal Regulations (CFR) Part 261, and these are the wastes targeted by this rule. One commenter recommended against excluding conditionally exempt small-quantity generators (CESQG) from this program because they felt that any level of hazardous waste needs to be regulated. Senate Bill 1099 specifically exempted CESQG by exclusion in sec.361.434(2). Another commenter expressed uncertainty as to how temporary or closed facilities would be handled vis-a-vis reporting requirements. Any facility that generates waste, except for conditionally exempt small quantity generators and/or a TRI reporting facility, must have a plan in place in accordance with these rules. If a facility does not generate waste and does not report under the TRI provisions of EPCRA, these rules would not apply. For clarification purposes, the TWC staff has decided to delete the language in sec.335.473(3) which reads ". ..whose releases...(relating to Implementation Dates)." This language is unnecessary and is a potential source of confusion. New sec.335.474, relating to source reduction and waste minimization plans. One commenter suggests that some of the planning and reporting aspects of the rule are redundant of other programs already in place. The staff acknowledges this but would like to point out that these rules also include additional requirements not included in any other reporting requirements, and that all the information required in these rules is necessary to develop and evaluate pollution prevention activities around the state. One final note to this comment is that these rules and provisions are required by Senate Bill 1099. Another commenter suggests several additions to sec.335.474(1) that would allow facilities to attach other required reporting information. Due to the nature of the special requirements of these rules, the staff will develop and provide forms for reporting under this statute. These forms will differ in content from current forms required by the TWC and the EPA. Another commenter wanted a single, consolidated, Texas-wide plan for all small service stations and gasoline marketing terminals because of the small amounts and unpredictable and cyclic nature of the wastes generated. Although this approach may be in the company's best interest, every facility is responsible for tracking waste generated on a monthly basis to determine its generator category. The facility must then develop a plan based on its individual, unique requirements. The facility managers must be involved in and manage their own plans in order to successfully accomplish the source reduction and waste minimization goals of Senate Bill 1099. Also, under the terms of Senate Bill 1099 each facility must prepare a plan. A couple of commenters felt that the proposed pollution prevention rules were too burdensome and difficult for their companies to comply with. The staff agrees that small businesses may require assistance to accomplish the additional requirements of these new rules. The ultimate goal of pollution prevention is source reduction, and the staffs of both the TACB and the TWC are in the process of developing programs to assist small businesses in meeting these requirements. Phasing-in of these small quantity generator facilities among the last covered by the implementation schedule, allows sufficient time for the affected facilities to obtain assistance and develop adequate programs before the deadline for a plan is due. One commenter suggested that the agencies periodically revisit the issue of source reduction and waste minimization plan components after the first groups of plans are submitted to determine if any modification in components is necessary. The staff of the TWC is committed to the pollution prevention program and will continually review the process for possible improvement. A suggestion was made that the authority to certify a plan be delegated to any officer of the corporation or any manager of a "large facility." Section 361. 435(a)(8) of Senate Bill 1099 clearly states that only those persons who have the authority to commit the corporation's resources to implement the plan are able to certify the plan. One commenter pointed out that the term "chemicals" is not defined in the proposed rules or statutory language. The rules currently provide that part of the executive summary and the plan must include a prioritized list of chemicals to be reduced. The staff agrees and has changed the rule language to reflect "pollutants and contaminants" which is defined, rather than "chemicals" which is not. New sec.335.475, relating to Implementation Dates. Most environmental groups and individuals felt the first plans should be in place by January 1993 rather than the proposed date of July 1993. They felt that the timetable was too lengthy and should be shortened to between three and five years. In contrast, most businesses were in favor of pushing the time frame back. The implementation was scheduled to incorporate 99.6% of the hazardous waste volume and 95.8% of the total TRI reported volume in the first year. Due to the large number of facilities to be included in the initial stages of this program, the schedule must be maintained as proposed to provide adequate time to evaluate these facilities' plans and to prepare legislatively mandated reports. One commenter suggested that only the dry weight of wastes be used since many are diluted with large quantities of water which then becomes a contaminated waste of significantly larger volume. Another commenter felt that the program will inappropriately focus on volume reductions rather than on the hazardous constituents. The Resource Conservation and Recovery Act (RCRA) requires the entire volume of hazardous and nonhazardous waste material be reported regardless of the percentages of constituents therein, unless the material is exempted. Another commenter suggested that only wastes generated at the point of generation should be counted and wastes generated as the result of voluntary clean-up, closures, or RCRA corrective action at land disposal units should be excluded. The TWC is developing a reporting method to delineate one time generated wastes from the total waste volume. They are still, however, considered hazardous waste. The goal is to encourage clean-ups and simplify reporting. The previous commenter also suggested a tiered approach which would consider toxicity rather than volume of hazardous waste generated or TRI released. The staffs did not choose the tiered approach because the current method will cover the largest amount of hazardous wastes (99%) at facilities in the shortest amount of time. Facilities will also be able to use existing report data to comply rather than develop additional reporting methods. Facilities are encouraged to consider toxicity when developing individual site reduction goals and plans. New sec.335.476, relating to reports and recordkeeping. In general, industry felt that the February deadline for the annual report was unrealistic. This date only allows one month to compile the data required for submittal. While this seems to be a short deadline, most businesses use computers to compile the required data. Hazardous waste generated must be recorded on a monthly basis to determine the generator's waste category, so a February report should not be unreasonably difficult to produce. One commenter pointed out that hazardous waste generated (Annual Waste Summary) for the previous year is due to the TWC by January 25, and the Superfund Amendments and Reauthorization Act Title III, TRI report is due by July 1; therefore, a September 1 date for the annual report would be more appropriate. Another commenter proposed a March 15th date. The staff agreed to delay the report date from February 1 to March 1 to allow owners and operators additional time to prepare the annual report, but any later date would further delay the pollution prevention program, and make it extremely difficult for the TWC staff to meet their January 1st reporting deadline. Another commenter was concerned that its member companies will be required to report data for the entire calendar year of 1993 even though their plans are not required to be in place until July 1, 1993. They felt that the first report should only cover the period from July 1-December 31, 1993. The staff strongly disagrees with the commenter's position. There is no substantive reason why the facility cannot report for the entire calendar year as they already maintain this data for the hazardous waste and the TRI annual reports. Use of the base year of 1987 was supported by one commenter, but they also expressed that use of more current data may be more logical due to at least a five year lapse between base year and first plan submittal. Other environmental commenters felt that a more recent base year should be selected. Another commenter felt that the base year should be flexible, based on the facility and when the facility began their source reduction and waste minimization program. The base year 1987 was selected because it was the first year that both the Hazardous Waste Generated and the Toxic Release Inventory reports were required concurrently. At this time, many companies began source reduction and waste minimization programs. These companies which aggressively pursued a source reduction and waste minimization program at that time should not be penalized through a reporting system that does not reflect those efforts when compared to companies that have not begun a reduction program. For clarification purposes, the TWC staff has changed the wording of the first paragraph of sec.335.476 to make it clear that an executive summary is to be submitted upon implementation of the plan and also within 30 days of any change to the plan and that a certification of completeness and correctness is submitted with the initial executive summary. New sec.335.477, relating to exemptions. Five commenters addressed various aspects of sec.335.477, one of these was concerned that a facility could obtain an exemption from the source reduction and waste minimization program. Senate Bill 1099 required the commission and the board to develop, as an incentive to promote the implementation of source reduction and waste minimization, an opportunity for a facility to be exempted from the requirements of the program provided that they meet appropriate criteria. As proposed, in order for a facility to be exempted from the requirements of the source reduction waste minimization program, the facility must demonstrate that it has accomplished at least a 90% reduction, plus obtain approval by the executive directors of both the TWC and TACB after a demonstration is made that further reduction is not technically and economically feasible. This demonstration will be a difficult task for most facilities to accomplish and then must be redemonstrated annually thereafter to maintain the exemption. Two commenters felt that the board or commission, rather than the executive directors, should grant the exemption from continuing with the plan. Since the executive directors are selected by the board/commission and are delegated with the daily operation of the agencies, the staff feels that the executive director is the proper level for this decision. The board and commission are informed of all important decisions and have an opportunity to review any exemption granted by the executive directors. Also, exemptions of this nature are generally granted by the executive directors. Another commenter felt that the 90% waste reduction demonstration from the base year of 1987 was arbitrary and did not take into account reductions prior to the base year. The base year of 1987 was chosen because it represents the first reporting year in which both hazardous waste generated and TRI reports were required concurrently. This same commenter suggests that it would be helpful if the TWC would develop a guideline for conducting an objective assessment of "potential impact on human health and the environment" (see sec.335. 477(b)(2)). The TWC will explore the possibility of developing such guidelines. One commenter felt that an exemption level should be set at 70%, instead of the 90% proposed, because this would maintain consistency with the TWC's goal of reducing generation and disposal of hazardous waste and acutely toxic substances from 1987 levels by the year 2000. The staff believes that a facility must meet a more stringent requirement for an exemption than the average goal established by the TWC initiatives. Another commenter felt that there was a need for a mechanism to allow for formal citizen input prior to the granting of exemptions. Upon request of the executive director, staff would provide individual notice and opportunity to comment on any exemption request and would fully consider any comments received prior to reaching a determination. New sec.335.478, relating to administrative completeness. No comments were received regarding this section. New sec.335.479, relating to enforcement. No comments were received regarding this section; however, the TWC will delete the last three words of the section as proposed ("...of this chapter"), since they are redundant. New sec.335.480, relating to confidentiality. Four commenters wanted the plans to be made public. Another commenter felt that any public release of information was too costly for the industries which could be using this additional expense toward waste reduction or minimization. The statute specifies that the plans be confidential because many of the recommended changes would involve long-term modifications to the facility, process changes, and/or other methods which might involve trade secrets or proprietary process information. The public will have access to an executive summary of the plan. The staff agrees with one commenter's recommendation that all facilities should be encouraged to share their source reduction and waste minimization plans with the public to the maximum extent possible. The TWC would encourage all facilities to place their executive summary in a local library, City Hall, or other location readily accessible to the affected community. Other comments. A great number of the comments received addressed issues which are beyond the scope of this rulemaking. In addition to those mentioned previously, a significant number related to making substantive changes which cannot be accomplished during this rulemaking. One commenter pointed out slight textual discrepancies between TACB and TWC rule language. Other issues regarded activities not conducted or regulated by the TACB and/or TWC and included waste determinations from elementary neutralization units or wastewater treatment facilities, developing a suitable standard for assessment of "potential impact on human health and the environment," duplication of reports, emergency response, surface water, ground water and aquifer contamination which were referred to the TWC for analysis. The new sections are adopted under the Texas Water Code, sec.5.104 and sec.26. 011, which gives the commission the authority to adopt any rules necessary to carry out its powers, duties, and policies and to protect water quality in the state. The sections are also adopted under the TSWDA, sec.3 and sec.4, which gives the commission the authority to regulate industrial solid wastes and hazardous municipal solid wastes and to adopt rules and promulgate rules consistent with the general intent and purposes of the Act. sec.335.471. Definitions. The following words and terms when used in this subchapter, shall have the meanings given in the Waste Reduction Policy Act of 1991, Senate Bill 1099, or the regulations promulgated thereunder. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise. Further, the following words and terms, as defined herein, shall only have application to this subchapter. Acute hazardous waste-Hazardous waste listed by the administrator of the United States Environmental Protection Agency under the federal Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act (RCRA) of 1976 (42 United States Code sec.6901 et seq), because the waste meets the criteria listing hazardous waste identified in 40 Code of Federal Regulations, sec.261.11(a)(2). Board-The Texas Air Control Board. Commission-The Texas Water Commission. Committee-The waste reduction advisory committee established by the Texas Solid Waste Disposal Act, Health and Safety Code, sec.361.0215. Conditionally exempt small-quantity generator-A generator that does not accumulate more than 1,000 kilograms of hazardous waste at any one time on his facility and who generates less than 100 kilograms of hazardous waste in any given month. Environment-Water, air, and land and the interrelationship that exists among and between water, air, land, and all living things. Facility-All buildings, equipment, structures, and other stationary items located on a single site or on contiguous or adjacent sites that are owned or operated by a person who is subject to this subchapter or by a person who controls, is controlled by, or is under common control with a person subject to this subchapter. Generator and generator of hazardous waste -Have the meaning assigned by the Texas Solid Waste Disposal Act, Health and Safety Code, sec.361.131. Large-quantity generator -A generator that generates, through ongoing processes and operations at a facility: (A) more than 1, 000 kilograms of hazardous waste in a month; or (B) more than one kilogram of acute hazardous waste in a month. Media and medium -Air, water, and land into which waste is emitted, released, discharged, or disposed. Pollutant or contaminant-Includes any element, substance, compound, disease- causing agent, or mixture that after release into the environment and on exposure, ingestion, inhalation, or assimilation into any organism, either directly from the environment or indirectly by ingestion through food chains, will or may reasonably be anticipated to cause death, disease, behavioral abnormalities, cancer, genetic mutation, physiological malfunctions, including malfunctions in reproduction, or physical deformations in the organism or its offspring. The term does not include petroleum, crude oil, or any fraction of crude oil that is not otherwise specifically listed or designated as a hazardous substance under sec.101(14)(A)-(F) of the environmental response law, nor does it include natural gas, natural gas liquids, liquefied natural gas, synthetic gas of pipeline quality, or mixtures of natural gas and synthetic gas. Release-Any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment. The term does not include: (A) a release that results in an exposure to a person solely within a workplace, concerning a claim that the person may assert against the person's employer; (B) an emission from the engine exhaust of a motor vehicle, rolling stock, aircraft, vessel, or pipeline pumping station engine; (C) a release of source, by-product, or special nuclear material from a nuclear incident, as those terms are defined by the Atomic Energy Act of 1954, as amended (42 United States Code sec.2011 et seq), if the release is subject to requirements concerning financial protection established by the Nuclear Regulatory Commission under that Act, sec.170. (D) for the purposes of the federal Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42 United States Code sec.9601 et seq.), sec.104 or other response action, a release of source, by-product, or special nuclear material from a processing site designated under the Uranium Mill Tailings Radiation Control Act of 1978 (42 United States Code, sec.7912 and sec.7942) sec.102(a)(1) or sec.302(a); and (E) the normal application of fertilizer. Small quantity generator-A generator that generates through ongoing processes and operation at a facility: (A) equal to or less than 1,000 kilograms but more than or equal to 100 kilograms of hazardous waste in a month; or (B) equal to or less than one kilogram of acute hazardous waste in a month. Source reduction -Has the meaning assigned by the federal Pollution Prevention Act of 1990, Publication Law 101-508, sec.6603, 104 Stat. 1388. Tons-2,000 pounds, also referred to as short tons. Toxic release inventory (TRI)-A program which includes those chemicals on the list in Committee Print Number 99-169 of the United States Senate Committee on Environment and Public Works, titled "Toxic Chemicals Subject to the Emergency Planning and Community Right-To-Know Act of 1986 (EPCRA, 42 United States Code, sec.11023), sec.313" including any revised version of the list as may be made by the Administrator of the Environmental Protection Agency (EPA). Waste minimization -A practice that reduces the environmental or health hazards associated with hazardous wastes, pollutants, or contaminants. Examples may include reuse, recycling, neutralization, and detoxification. sec.335.472. Pollutants and Contaminants. The following pollutants and contaminants are subject to source reduction and waste minimization planning: (1) all hazardous wastes generated; (2) all chemicals which exceed threshold reporting requirements pursuant to Emergency Planning and Community Right-to-Know Act of 1986 (EPCRA), sec.313. sec.335.473. Applicability. This subchapter applies to facilities which are required to develop a source reduction and waste minimization plan pursuant to the Waste Reduction Policy Act of 1991, Senate Bill 1099, or the regulations promulgated thereunder, including: (1) all large quantity generators of hazardous waste; (2) all generators other than large quantity generators and conditionally exempt small quantity generators as defined by Health and Safety Code, sec.361. 431(3); (3) persons subject to sec.313, Title III, Superfund Amendments and Reauthorization Act of 1986 (Emergency Planning and Community Right-to-Know Act (EPCRA), 42 United States Code, sec.11023). These TRI covered facilities would be required to develop source reduction and waste minimization plans for only the TRI listed chemicals that exceed threshold quantities established under EPCRA. sec.335.474. Source Reduction and Waste Minimization Plans. All persons identified under sec.335.473 of this title (relating to Applicability) shall prepare a five-year (or more) source reduction and waste minimization plan which may be updated annually as appropriate according to the schedule listed in sec.335.475 (relating to Implementation Dates). Plans shall be updated as necessary to assure that there never exists a time period for which a plan is not in effect. Prior to completion of the plan and each succeeding plan, a new five-year (or more) plan shall be prepared. Plans prepared under paragraphs (1) -(3) of this section shall contain a separate component addressing source reduction activities and a separate component addressing waste minimization activities. (1) With the exception of small quantity generators which are subject to paragraph (3) of this section, the plan shall include, at a minimum: (A) an initial survey that identifies: (i) for facilities described in sec.335.473(1), activities that generate hazardous waste; and (ii) for facilities described in sec.335.473(c), activities that result in the release of pollutants or contaminants designated under sec.335.472 of this title (relating to Pollutants and Contaminants); (B) based on the initial survey, a prioritized list of economically and technologically feasible source reduction and waste minimization projects; (C) an explanation of source reduction or waste minimization projects to be undertaken, with a discussion of technical and economic considerations, and environmental and human health risks considered in selecting each project to be undertaken; (D) an estimate of the type and amount of reduction anticipated; (E) a schedule for the implementation of each source reduction and waste minimization project; (F) source reduction and waste minimization goals for the entire facility, including incremental goals to aid in evaluating progress; (G) an explanation of employee awareness and training programs to aid in accomplishing source reduction and waste minimization goals; (H) certification by the owner of the facility, or, if the facility is owned by a corporation, by an officer of the corporation that owns the facility who has the authority to commit the corporation's resources to implement the plan, that the plan is complete and correct; (I) identification of cases in which the implementation of a source reduction or waste minimization activity designed to reduce risk to human health or the environment may result in the release of a different pollutant or contaminant or may shift the release to another medium; and (J) an executive summary of the plan which shall include at a minimum: (i) a description of the facility which shall include: (I) name of the facility; (II) address; (III) contact; (IV) a general description of the facility; and (V) TACB account number, TWC solid waste notice of registration number, TWC wastewater permit number, EPA identification number (RCRA number), National Pollutant Discharge Elimination System (NPDES) permit number, and underground injection well code identification number. (ii) a list of all hazardous wastes generated and the volume of each; (iii) a list of all reportable TRI releases and the volume of each; (iv) a prioritized list of pollutants and contaminants to be reduced; (v) a statement of reduction goals; (vi) an explanation of environmental and human health risks considered in determining reduction goals; (vii) implementation milestones for individual project development; (viii) an implementation schedule for future reduction goals; and (ix) identification and description of cases in which the implementation of source reduction or waste minimization activity designed to reduce risk to human health or the environment may result in the release of a different pollutant or contaminant or may shift the release to another medium. Included in this description shall be a discussion of the change in characteristic of the normal waste stream or release and how it will be managed in that affected medium. (2) The source reduction and waste minimization plan may also include: (A) a discussion of the person's previous efforts at the facility to reduce risk to human health and the environment or to reduce the generation of hazardous waste or the release of pollutants or contaminants; (B) a discussion of the effect changes in environmental regulations have had on the achievement of the source reduction and waste minimization goals; (C) the effect that events the person could not control have had on the achievement of the source reduction and waste minimization goals; (D) a description of projects that have reduced the generation of hazardous waste or the release of pollutants or contaminants; and (E) a discussion of the operational decisions made at the facility that have affected the achievement of the source reduction or waste minimization goals or other risk reduction efforts. (3) The plans of small quantity generators shall include, at a minimum: (A) a description of the facility which shall include: (i) name of the facility; (ii) address; (iii) contact; (iv) general description of the facility; and (v) TACB account number, TWC Solid Waste Notice of Registration number, TWC Wastewater Permit Number, EPA Identification number (RCRA number), NPDES permit number, and underground injection well code identification number. (B) a list of all hazardous wastes generated and the volume of each; (C) a list of all reportable TRI releases and the volume of each; (D) a prioritized list of pollutants and contaminants to be reduced; (E) a statement of reduction goals; (F) information on environmental and human health risks, such as material safety data sheets or other available documentation, considered in determining reduction goals; (G) implementation milestones for individual project development; (H) an implementation schedule for future reduction goals; and (I) identification and description of cases in which the implementation of a source reduction or waste minimization activity designed to reduce risk to human health or the environment may result in the release of a different pollutant or contaminant or may shift the release to another medium. Included in this description shall be a discussion of the change in characteristic of the normal waste stream or release and how it will be managed in that affected medium. sec.335.475. Implementation Dates. All facilities subject to this subchapter shall develop a source reduction and waste minimization plan. The implementation year shall be determined by the prior year's reported volumes of hazardous waste generated and/or total TRI releases. A facility once subject to this subchapter shall remain subject until it no longer meets the requirements of sec.335.473 of this title (relating to Applicability) or are exempted under sec.335.477 of this title (relating to Exemptions). Volumes for calculations will be based on total hazardous waste generated and/or total TRI releases. The executive summary shall be submitted to the commission and the board on the date the plan is required to be in place. Plan implementation will be according to the following schedule. (1) The source reduction and waste minimization plan shall be in place, available for review, and shall be implemented no later than July 1, 1993 for: (A) hazardous waste generators reporting 5,000 tons or more; or (B) TRI facilities reporting 100 tons or more. (2) The source reduction and waste minimization plan shall be in place, available for review, and shall be implemented no later than January 1, 1994 for: (A) hazardous waste generators reporting less than 5,000 tons but more than or equal to 500 tons; or (B) TRI facilities reporting less than 100 tons but more than or equal to 10 tons. (3) The source reduction and waste minimization plan shall be in place, available for review, and shall be implemented no later than January 1, 1995 for: (A) hazardous waste generators reporting less than 500 tons but more than or equal to 15 tons; or (B) TRI facilities reporting less than 10 tons but more than or equal to five tons. (4) The source reduction and waste minimization plan shall be in place, available for review, and shall be implemented no later than January 1, 1996 for: (A) hazardous waste generators reporting less than 15 tons but more than or equal to five tons; or (B) TRI facilities reporting less than five tons but more than or equal to one ton. (5) The source reduction and waste minimization plan shall be in place, available for review, and shall be implemented no later than January 1, 1997 for: (A) hazardous waste generators reporting less than five tons but greater than 1.102 tons (1,000 kilograms); or (B) TRI facilities reporting less than one ton. (6) After the effective date of this subchapter, any facility which becomes subject to the requirement to have a source reduction and waste minimization plan, either within 90 days prior to or at any time following the dates referenced in paragraph (1)-(5) of this section, shall have 90 days to have the plan in place and available for review. sec.335.476. Reports and Recordkeeping. All persons required to develop a source reduction and waste minimization plan for a facility under this subchapter shall submit to the commission and the board, concurrent with implementation of the plan under sec.335.475 of this of this title (relating to Implementation Dates), an initial executive summary of such plan and a copy of the certification of completeness and correctness in sec.335.474(1)(H) of this title (relating to Source Reduction and Waste Minimization Plans). Within 30 days of any revision of such plan, a revised executive summary shall be submitted. All owners and operators required to develop a plan shall also submit an annual report according to the schedule outlined in paragraph (4) of this section. (1) The report shall detail the facility's progress in implementing the source reduction and waste minimization plan and include: (A) an assessment of the progress toward the achievement of the facility source reduction goal and the facility waste minimization goal; (B) a statement to include, for facilities described in sec.335.473(1) of this title (relating to Applicability), the amount of hazardous waste generated and, for facilities described in sec.335.473(3), the amount of the release of reportable pollutants or contaminants designated under the Texas Solid Waste Disposal Act, Health and Safety Code, sec.361.433(c) in the year preceding the report, and a comparison of those amounts with the amounts generated or released using 1987 as the base year. (C) any modification to the plan. (2) The report may include: (A) a discussion of the person's previous effort at the facility to reduce hazardous waste or the release of pollutants or contaminants through source reduction or waste minimization; (B) a discussion of the effect changes in environmental regulations have had on the achievement of the source reduction and waste minimization goals; (C) the effect that events the person could not control have had on the achievement of the source reduction and waste minimization goals; and (D) a discussion of the operational decisions the person has made that have affected the achievement of the source reduction and waste minimization goals. (3) The report shall contain a separate component addressing source reduction activities and a separate component addressing waste minimization activities. (4) The report and the executive summary of the plan shall be submitted according to the following schedule and annually thereafter. (A) For all facilities meeting the specifications of sec.335.475(1) or of this title (relating to Implementation Dates), the first report will be due on or before March 1, 1994. The report will cover calendar year 1993. (B) For all facilities meeting the specifications of sec.335.475(2), the first report will be due on or before March 1, 1995. The report will cover calendar year 1994. (C) For all facilities meeting the specifications of sec.335.475(3), the first report will be due on or before March 1, 1996. The report will cover calendar year 1995. (D) For all facilities meeting the specifications of sec.335.475(4), the first report will be due on or before March 1, 1997. The report will cover calendar year 1996. (E) For all facilities meeting the specifications of sec.335.475(5), the first report will be due on or before March 1, 1998. The report will cover calendar year 1997. (5) Base line data from the calendar year 1987 shall be used in developing each of the first reports referred to in paragraph (4) of this section. (6) The report shall be submitted on forms furnished or approved by the executive directors of the commission and the board and shall contain at a minimum the information specified in paragraph (1) of this section. Upon written request by the facility, the executive directors may authorize a modification in the reporting period. sec.335.479. Enforcement. Failure to have a source reduction and waste minimization plan in accordance with this subchapter or failure to submit a source reduction and waste minimization annual report in accordance with this subchapter is a violation. sec.335.480. Confidentiality. (a) A source reduction and waste minimization plan shall be maintained at each facility owned or operated by a person and/or generator who is subject to this subchapter and shall be available to commission or board personnel for inspection. The source reduction and waste minimization plan is not a public record for the purposes of Chapter 424, Acts of the 63rd Legislature, 1973 (Texas Civil Statutes, Article 6252-17a). (b) The executive summary of the plan and the annual report are public records. On request, the person and/or generator shall make available to the public a copy of the executive summary of the plan or annual report. (c) If an owner or operator of a facility for which a source reduction and waste minimization plan has been prepared shows to the satisfaction of the commission or board that an executive summary of the plan, annual report, or portion of a summary or report prepared under this subchapter would divulge a trade secret if made public, the commission or board shall classify as confidential the summary, report, or portion of the summary or report. (d) To the extent that a plan, executive summary, annual report, or portion of a plan, summary, or annual report would otherwise qualify as a trade secret, an action by the commission or board or an employee of the commission or board does not affect its status as a trade secret. (e) Information classified by the commission or board as confidential under this section is not a public record for purposes of Chapter 424, Acts of the 63rd Legislature, 1973 (Texas Civil Statutes, Article 6252-17a), and may not be used in a public hearing or disclosed to a person outside the commission or board unless a court decides that the information is necessary for the determination of an issue being decided at the public hearing. 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 December 12, 1991. TRD-9115818 John Vay Director, Legal Division Texas Water Commission Effective date: January 3, 1992 Proposal publication date: September 20, 1991 For further information, please call: (512) 463-8069 TITLE 34. PUBLIC FINANCE Part I. Comptroller of Public Accounts Chapter 3. Tax Administration Subchapter L. Motor Fuels Tax 34 TAC sec.3.193 The Comptroller of Public Accounts adopts an amendment to sec.3.193, concerning the documentation required to be submitted with a report or refund claim when bad debt is taken as a credit or a refund is requested, without changes to the proposed text as published in the November 8, 1991, issue of the Texas Register (16 TexReg 6417). Bad debt may be taken as a credit by a distributor or supplier on his monthly report or a refund may be requested. No comments were received regarding adoption of the amendment. The amendment is adopted under the Tax Code, sec.111.002, which provides the comptroller with the authority to prescribe, adopt, and enforce rules relating to the administration and enforcement of the provisions of the Tax Code, Title 2. 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 December 13, 1991. TRD-9115882 Martin Cherry Chief, General Law Section Comptroller of Public Accounts Effective date: January 3, 1992 Proposal publication date: November 8, 1991 For further information, please call: (512) 463-4028 Part IV. Employees Retirement System of Texas Chapter 73. Benefits 34 TAC sec.73.31 The Employees Retirement System of Texas adopts new sec.73.31, without changes to the proposed text as published in the November 8, 1991, issue of the Texas Register (16 TexReg 83). There will be an adjustment to annuities with an effective date prior to September 1, 1991, in order to recognize changes in plan design. Annuitants will receive benefits from adjustment to annuities resulting from changes in plan design. No comments were received regarding adoption of the new section. The new section is adopted under the Texas Government Code, sec.814.602, which provides Employees Retirement System of Texas with the authority to adopt rules that adjust or modify annuities to the extent necessary to be consistent with changes in plan design. 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 December 11, 1991. TRD-9115684 Charles D. Travis Executive Director Employees Retirement System of Texas Effective date: January 1, 1992 Proposal publication date: November 8, 1991 For further information, please call: (512) 867-3336 TITLE 37. PUBLIC SAFETY AND CORRECTIONS Part VI. Texas Department of Criminal Justice Chapter 161. Administration Subchapter B. Organization 37 TAC sec.161.21 The Texas Department of Criminal Justice adopts an amendment to sec.161.21, concerning organization, without changes to the proposed text as published in the October 22, 1991, issue of the Texas Register (16 TexReg 5891). The purpose of the amendment is to coordinate functions and to ensure that funds are available for reimbursement of expenses for all meetings of councils, committees, and advisory groups. No comments were received regarding adoption of the amendment. The amendment is adopted under the Texas Code of Criminal Procedure, Article 42.13, sec.2(a), which provides the Texas Board of Criminal Justice with authority to adopt rules concerning the operation of the Community Justice Assistance Division. 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 December 11, 1991. TRD-9115763 Jackee Cox General Counsel Texas Department of Criminal Justice Effective date: January 2, 1992 Proposal publication date: October 22, 1991 For further information, please call: (512) 463-9988 Chapter 163. Standards Subchapter B. Local Departments 37 TAC sec.163.21 The Texas Department of Criminal Justice adopts new sec.163.21, concerning local departments, with changes to the proposed text as published in the October 22, 1991, issue of the Texas Register (16 TexReg 5891). In subsections (h) and (k), the reference to the Community Justice Assistance Division (CJAD) was changed to the Texas Department of Criminal Justice (TDCJ) to reflect the fact that the indicated functions are performed by the department, rather than by the Division. The purpose of the new section is to recodify prior rules in conformity with the requirements of the secretary of state, and to incorporate new requirements added to the Texas Code of Criminal Procedure (TCCP), Article 42.131, sec.3(b) by House Bill 93 during the Second Called Session of the 72nd Legislature. The new provisions conform to statutory revisions, which require that every jurisdiction have a community justice council and a community justice task force. No comments were received regarding adoption of the new section. The new section is adopted under TCCP, Article 42.13, sec.2(a), which provides the Texas Board of Criminal Justice with authority to adopt rules concerning the operation of the Community Justice Assistance Division. sec.163.21. Administration. (a) Public protection (Texas Code of Criminal Procedure (TCCP) Article 42.13, sec.2(a)). Community supervision and corrections departments (CSCD) should recognize their responsibility to the community by providing opportunities for rehabilitation of offenders, and by initiating appropriate action to impose more restrictive sanctions or to remove promptly from the community those offenders who through their behavior have demonstrated their failure to follow the rules imposed by the court. (b) Community education (TCCP, Article 42.13, sec.2(a)). CSCDs should recognize their position as a public agency, always responsive to the needs of the community, making every reasonable effort to educate the community to the duties, responsibilities, and accomplishments of the community corrections system. (c) Professional competence (TCCP, Article 42.13, sec.2(a)). CSCDs should be impartial, non-political, and professionally competent. (d) Administrative manual (TCCP, Article 42.13, sec.2(a)). (1) CSCDs should develop an administrative manual defining general purposes and functional objectives, incorporating all written policies and procedures, assuring that they are distributed to all staff members. Departments should use the publication "Guidelines for the Organization, Management, and Operation of Local Adult Probation Departments in Texas," as a guide in the development of its administrative, personnel, and operational policies and procedures. These policies and procedures should be reviewed annually and revised as necessary. The Community Justice Assistance Division (CJAD) is to be notified about the appointment of a CSCD chief/director and shall be responsible for providing the chief/director with copies of the standards, guidelines, and other appropriate information within 30 days. (e) Job description (TCCP, Article 42.13, 2(a)). CSCDs should have written job descriptions for all positions. Probation officers should be released from routine clerical and record-keeping responsibilities which may be performed by clerical personnel. Job descriptions should be reviewed and revised at least annually. (f) Training officer (TCCP, Article 42.13, sec.2(a)). CSCDs should have a designated officer to monitor the skill levels and training needs of individual staff members and develop a plan for meeting those needs. To facilitate the training function, the officer may conduct internal audits of direct supervision cases to check for technical compliance, for utilization of case classification, and for supervision planning. (g) Entry level salary (TCCP, Article 42.13, sec.2(a)). CSCDs should establish the entry level salary of probation officers based upon educational requirements as provided by law, experience, levels of responsibility, and the prevailing wage structure for comparable positions at the local level. (h) Automobile allowance (TCCP, Article 42.13, sec.2(a)) . CSCDs should establish an automobile allowance for the use of personal automobiles on official business by authorized individuals to be paid from judicial district funds. Personal automobile allowance should not be less than the state allowance per mile. Flat rate monthly payment based on approximate mileage computed at not less than the current state rate per mile is not prohibited. Departments paying flat rate monthly allowances should maintain written documentation within the probation department of business mileage. This documentation should include the officer's name, month, and officer's signature. The form should also contain the date, beginning odometer reading, ending odometer reading, total miles driven, and purpose of trips for each business day. These forms should be available for review by the Texas Department of Criminal Justice (TDCJ) auditors. (i) Per diem (TCCP, Article 42.13, sec.2(a)). CSCDs should establish per diem allowances for employee expenses at a rate not less than the rate allowed state employees. (j) Records (TCCP, Article 42.13, sec.3). CSCDs shall maintain and provide to CJAD fiscal records and statistical data consistent with the requirements of the statute. (k) Audits (TCCP, Article 42.13, sec.3 and sec.4; TCCP, Article 42.131, sec.8). The TDCJ shall conduct a fiscal audit of each CSCD at least once every two years. Outside audits are not required unless requested by TDCJ. (l) Budget (TCCP, Article 42.13, sec.2 and sec.3). CSCDs shall prepare and operate from an annual budget developed in a form consistent with good accounting practices and approved by the judge(s) of their judicial district. A copy of the budget shall be provided to the CJAD and other entities as required by law. (m) Annual report (TCCP, Article 42.13, sec.3 and sec.4). CSCDs should publish and furnish an annual report and a financial report to the judge(s) of the judicial district covering its operations and the condition of community corrections services in its judicial district during the previous year, making whatever recommendations it considers necessary. A copy of these reports should be provided to CJAD and other entities as required by law. (n) Equal employment opportunity. CSCDs shall comply with the Equal Employment Opportunity Act. (o) Ethics (TCCP, Article 42.131, sec.5(a)). CSCDs should provide each probation officer with a copy of the Code of Ethics adopted by the CJAD and a copy of the procedure developed by the department to be used in investigating and reviewing any alleged violation. CSCDs shall see that probation officers comply with the Code of Ethics and take disciplinary action for noncompliance. (p) Multi-department districts (TCCP, Article 42.131, sec.3). (1) Judicial districts composed of more than one county may apply to the CJAD for authorization to establish more than one CSCD within that judicial district. The application submitted by the judge(s) shall explain how the creation of more than one department will promote: (A) administrative convenience; (B) economy; or (C) improved community supervision and corrections services, and other reasons if any. (2) The application shall indicate the financial impact and the approval of the judges in the judicial district or districts hearing criminal cases affected by the change. (q) Automobile liability insurance (TCCP, Article 42.13, sec.2). CSCDs should require all individuals using their automobiles for department business to provide documentation of liability insurance coverage or fiscal responsibility as required by law for personal motor vehicles used in conduct of official business. (r) Automobiles purchased or leased by judicial districts (TCCP, Article 42.13, sec.2). CSCDs should ensure that economical use of judicial district funds is considered if the judicial district purchases automobiles to be used by CSCD personnel. (s) Expenses for training (TCCP, Article 41.13 sec.2(a)). CSCDs may use judicial district funds to pay the expenses of training for employees. The training must be related to community supervision and corrections services or to the employee's particular function or professional advancement within the department. Departments may also use judicial district funds to pay the expenses of training for judges trying criminal cases. Training for judges must be related to community supervision and corrections or to the judge's function as an administrator of the department. 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 December 11, 1991. TRD-9115764 Jackee Cox General Counsel Texas Department of Criminal Justice Effective date: January 2, 1992 Proposal publication date: October 22, 1991 For further information, please call: (512) 463-9988 37 TAC sec.163.29 The Texas Department of Criminal Justice adopts new sec.163.29, concerning community justice councils, with changes to the proposed text as published in the October 22, 1991, issue of the Texas Register (16 TexReg 5893). The purpose of the amended standard as recodified is to incorporate revisions to the Texas Code of Criminal Procedure (TCCP), Article 42.131, sec.3(b), as adopted in House Bill 93, Second Called Session of the 72nd Legislature, which requires every jurisdiction to have a community justice council and a community justice task force. In subsection (a)(6), the phrase "department be chosen," is amended to read, "department to be chosen." In subsection (b)(15), the word "confirmation" is changed to "recognition." No comments were received regarding adoption of the new section. The new section is adopted under TCCP, Article 42.13, sec.2(a), which provides the Texas Board of Criminal Justice with authority to adopt rules concerning the operation of the Community Justice Assistance Division. sec.163.29. Community Justice Councils and Community Justice Task Forces Texas Code of Criminal Procedure, (Article 42.131, sec.3(b)). (a) Establishment. In accordance with the Texas Code of Criminal Procedure (TCCP), Article 42.131, a community justice council (CJC) must be established by the district judge or judges, unless a board or council exists in the community on or before September 1, 1991 that performs duties substantially similar to those imposed on a CJC. The CJC shall provide continuing policy guidance and direction for the development of community justice plans and community corrections facilities and programs. The council membership should consist of the following persons or their designees: (1) a sheriff of a county served by the community supervision and corrections department (department), chosen by the sheriffs of the counties served by the department; (2) a county commissioner or a county judge from a county served by the department, chosen by the county commissioners and county judges of the counties served by the department; (3) a city council member of the most populous municipality in a county served by the department, chosen by the members of the city councils of cities served by the department; (4) not more than two state legislators elected from a county served by the department, chosen by the state legislators elected from the counties served by the department; (5) the presiding judge from a judicial district served by the department chosen by the district judges from the judicial districts served by the department; (6) a judge of a statutory county court exercising criminal jurisdiction in a county served by the department to be chosen by the judges of statutory county courts with criminal jurisdiction in counties served by the department; (7) a county attorney with criminal jurisdiction from a county served by the department, chosen by the county attorneys with criminal jurisdiction from the counties served by the department; (8) a district attorney or criminal district attorney from a judicial district served by the department chosen by the district attorneys or criminal district attorneys from the judicial districts served by the department; (9) an elected member of the board of trustees of an independent school district in a county served by the department, chosen by the members of the boards of trustees of independent school districts located in counties served by the department; and (10) members of the general public and representatives of any non-profit organizations which play a significant role in the corrections system of the community. (b) Community justice task force. The CJC shall appoint a community justice task force to provide support staff for the development of a community justice plan. The task force may consist of any number of members, but should include: (1) the county or regional director of the Texas Department of Human Services with responsibility for the area served by the department; (2) the chief of police of the most populous municipality served by the department; (3) the chief juvenile probation officer of the juvenile probation office serving the most populous area served by the department; (4) the superintendent of the most populous school district served by the department; (5) the supervisor of the Department of Public Safety region closest to the department, or the supervisor's designee; (6) the county or regional director of the Texas Department of Mental Health and Mental Retardation with responsibility for the area served by the department; (7) a substance abuse treatment professional appointed by the council of governments serving the area served by the department; (8) the chief/director of the department; (9) the local or regional representative of the Board of Pardons and Paroles Division of the Texas Department of Criminal Justice with responsibility for the area to be served by the department; (10) the representative of the Texas Employment Commission with responsibility for the area served by the department; (11) the representative of the Texas Rehabilitation Commission with responsibility for the area served by the department; (12) a licensed attorney who practices in the area served by the department and whose practice consists primarily of criminal law; (13) a court administrator, if one serves the area served by the department; (14) a representative of a community service organization that provides services to the area served by the department; and (15) a representative of an organization in the area served by the department that is actively involved in issues relating to defendant's rights, chosen by the county commissioners and county judges of the counties served by the department. As with the membership of the CJC, it is encouraged that the membership of the community justice task force be expanded to include members of the general public and representatives of any non-profit organizations which play a significant role in the corrections system of the community. (c) Recognition. In order for a group to be recognized as a designated CJC under the provisions of the TCCP, Article 42.13, sec.6 and Article 42.131, sec.3, the judge(s) responsible for establishing the CJC shall forward to the Community Justice Assistance Division (CJAD) the following items: (1) a list of names and titles of the individual members of the CJC or group functioning as a CJC; (2) documentation as to the date of formation of the CJC or group; (3) written documentation indicating the charge, responsibilities, and/or duties of the CJC or group; (4) a list of names and titles of the individual members of the Community Justice Task Force; and (5) written documentation indicating the charge, responsibilities, and/or duties of the task force. The CJAD, after a review of the materials submitted by the jurisdiction, will issue a letter of recognition. (d) Continuing recognition. In order for a CJC to maintain its recognition status the judge(s) responsible for establishing the CJC shall file with the CJAD by September 1 each year a list of active members of the council and of the task force. It is the intent for establishing jurisdictions to replace members of the councils as vacancies occur. 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 December 11, 1991. TRD-9115766 Jackee Cox General Counsel Texas Department of Criminal Justice Effective date: January 2, 1992 Proposal publication date: October 22, 1991 For further information, please call: (512) 463-9988 37 TAC sec.163.31 The Texas Department of Criminal Justice adopts an amendment to sec.163.31, concerning the community justice plan, without changes to the proposed text as published in the October 22, 1991, issue of the Texas Register (16 TexReg 5895). The purpose of the rule is to recodify prior rules to conform to the requirements of the secretary of state, and to incorporate new requirements concerning the community justice plans, as promulgated through amendments to the Texas Code of Criminal Procedure (TCCP), Article 42.131, sec.3(c), incorporated in House Bill 93. No comments were received regarding adoption of the amendment. The amendment is adopted under TCCP, Article 42.13, sec.2(a), which provides the Texas Board of Criminal Justice with authority to adopt rules concerning the operation of the Community Justice Assistance Division. 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 December 11, 1991. TRD-9115771 Jackee Cox General Counsel Texas Department of Criminal Justice Effective date: January 2, 1992 Proposal publication date: October 22, 1991 For further information, please call: (512) 463-9988 Subchapter C. Programs and Services 37 TAC sec.163.55 The Texas Department of Criminal Justice adopts new sec.163.55, concerning residential services, with changes to the proposed text as published in the October 22, 1991, issue of the Texas Register (16 TexReg 5895). The purpose of sec.163.55 as adopted is to recodify prior rules in conformity with requirements imposed by the secretary of state, and to incorporate the requirements of new statutory provisions requiring notice and public hearings prior to the selection of sites for community corrections facilities, as promulgated in amendments to the Texas Code Criminal Procedure (TCCP), Article 42.13, sec.10(d) and (e). The statutory citation in subsection (1)(2), which refers to the authority of the Texas Jail Standards Commission, is changed to reflect the recodification of that agency's powers and duties at Title IV, Chapter 511, the Texas Government Code. No comments were received regarding adoption of the new section. The new section is adopted under TCCP, Article 42.13, sec.2(a), which provides the Texas Board of Criminal Justice with authority to adopt rules concerning the operation of the Community Justice Assistance Division. sec.163.55. Residential Services (the Texas Code of Criminal Procedure, Article 42.13, sec.5). (a) Purpose. Residential facilities funded by the Community Justice Assistance Division (CJAD) shall provide the courts with a sentencing alternative designed to: (1) reduce jail/prison overcrowding by impacting potential jail/prison admissions as identified by a risk assessment instrument approved by the CJAD; (2) provide public protection by ensuring levels of security appropriate for the population served by the facility, including as a minimum a monitored and structured environment in which residents' interior and exterior movements and activities can be supervised by specific destination and time; (3) provide an intermediate sanction for offenders who require a level of supervision/services greater than that of non-residential supervision to ensure compliance with the conditions of probation and law-abiding behavior; and (4) provide services that target reintegration of the offender back into the community. (b) Types of programs (the Texas Code of Criminal Procedure (TCCP), Article 42.13, sec.6). Facilities funded by the CJAD and operated by departments, other governmental entities, or private contractors may include, but are not limited to: (1) community corrections facilities, including: (A) restitution centers; (B) court residential treatment centers; (C) substance abuse treatment facilities; (D) custody camps and boot camps; (E) residential facilities for the mentally impaired; (F) intermediate sanction facilities; (G) halfway houses; (H) pre-parole transfer facilities; and (I) work facilities; and (2) county correctional centers (CCC). (A) The commissioners court of a county may establish a CCC after receiving written consent of the sheriff. (B) The sheriff of the county in which a CCC has been established is responsible for the operation of the CCC and must consult with the chief/director of the community supervision and corrections department (CSCD) serving the county about issues relating to probationers participating in the CCC programs. (C) The sheriff through the CCC program may: (i) house and provide work programs and counseling for eligible defendants; and (ii) in cooperation with the CSCD serving the county, operate work programs and counseling programs for probationers. (c) Offender eligibility. Placement of offenders in residential facilities shall only be by an order of the court and shall meet the following criteria: (1) community corrections facilities: (A) the defendant did not cause serious bodily injury or death of another as a result of the commission of the offense as determined by the trier of facts; (B) the defendant did not use a deadly weapon during the commission of or flight from the offense as determined by the trier of the facts; (C) the defendant matches the profile of offenders historically committed to county jail/prison from that jurisdiction; or the defendant has high risk/needs, who, if supervised at a lower supervision level would have increased the likelihood of violating the conditions of probation; and (D) for restitution centers only: (i) the defendant must have been convicted or pled guilty or nolo contendre to a felony offense other than those under the Texas Penal Code, Title 5; and (ii) the defendant must be employable. (2) CCCs. The defendant is eligible for placement: (A) in lieu of a sentence of confinement in county jail; (B) in lieu of jail time as a condition of probation; (C) in lieu of jail time as punishment for violation of conditions of probation; or (D) if required as a condition of probation to participate in a work program or counseling program through a county correctional center. (d) Funding eligibility. Upon application and approval, the CJAD will distribute funds to CSCDs, counties, or municipalities which: (1) are in compliance with CJAD standards; if application is made by a CSCD; or (2) are in compliance with CJAD standards for residential services if application is made by a county or municipality; and (3) have had their community justice plan accepted by the CJAD. (e) Target population. The CSCDs, counties, or municipalities operating facilities shall define a specific target population of offenders to be served and provide supervision/services that address the level of risk and needs of that target population. (f) Term of participation. The term of participation in residential facilities shall be based on the following criteria: (1) the offender has made sufficient progress towards meeting the objectives of the supervision plan; (2) the offender has satisfied a sentence of confinement; or (3) the offender has satisfied a period of detention as a condition of probation. (g) Policies and procedures. Local jurisdictions shall provide supervision/services to offenders placed in residential facilities in accordance with policies and procedures as described in the facility's operations manual. The policies and procedures shall be approved by the division director of the CJAD prior to accepting residents. These policies and procedures shall include, but are not limited to, the following: (1) using the CJAD case management system for residential services or an equivalent as approved by CJAD; (2) providing food services; (3) providing a level of security consistent with public protection; (4) providing a resident discipline system; (5) providing fiscal accountability; (6) providing for property inventory and control; (7) providing for fire and other emergency plans such as medical and natural disasters; (8) providing for protection of residents' rights; (9) ensuring ready access to medical and psychiatric emergency services 24 hours a day; (10) providing the court with timely written resident evaluation reports; (11) providing for release procedures and continuity of supervision services based on an exit plan predicated on existing resources, upon release from the facility; (12) developing and implementing negotiated supervision (13) implementing sound personnel practices; (14) orienting new residents; and (15) providing a pass/furlough policy for residents. All policies and procedures are to be reviewed and updated as necessary and approved annually by the division director of CJAD as per minimum guidelines established by the CJAD. (h) Maximum resident capacity. The maximum resident capacity should be defined as the total number of offenders who can be housed at the facility at any given time as determined by the CSCD and approved by the CJAD. (i) Utilization. Agencies establishing facilities under this section shall ensure that the facility reaches 90% capacity within the first six months of operation. Facilities should strive to have 100% capacity utilizing appropriate placements only and shall not fall below 90% capacity. (j) Denying admission. An offender who appears to be an inappropriate placement shall be returned to the court of original jurisdiction by the facility director so placement into a more appropriate community corrections sanction may be determined. An offender may be placed on a waiting list or returned to the court for an alternative sanction if the facility has reached capacity. (k) Public meeting (TCCP, Article 42.13, sec.10). Agencies interested in the establishment of community corrections facilities should demonstrate sensitivity to the community and other issues considered important by the community justice council by holding a public meeting on the proposed site. A minimum of 30 days prior to the meeting, the agency proposing to operate the facility shall: (1) publish notice of the date, hour, place, and subject of the meeting in three consecutive issues of a newspaper, or in newspapers that collectively have, general circulation in the county in which the proposed facility is to be located. In describing the subject of the meeting, the notice is to specifically state the address of the proposed location of the facility and describe the proposed action. The public meeting is to be held in the county where the facility's location is being proposed, at a site as close as practicable to the proposed location of the facility; and (2) mail a copy of the notice to each city council member, county commissioner, state representative and state senator who represents the area in which the proposed facility is to be located, unless the proposed facility has been previously authorized to operate at a particular location by a Community Justice Council. (l) Physical plant. (1) Community corrections facilities (TCCP, Article 42.12, sec.5(a)(8)). Agencies operating facilities under this section must provide annually to the CJAD documentation that the facility meets local and state safety, health and sanitation standards, codes, and ordinances. The agency must also ensure that the facility provides an environment that promotes reintegration of the offender into the community. (2) CCCs. Agencies operating facilities under this section must follow the county correctional center standards and rules as adopted by the Texas Commission on Jail Standards pursuant to Title IV, Chapter 511, the Texas Government Code. (m) Data. Agencies operating or utilizing facilities under this section shall submit, on a timely basis, data required by the CJAD. 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 December 11, 1991. TRD-9115769 Jackee Cox General Counsel Texas Department of Criminal Justice Effective date: January 2, 1992 Proposal publication date: October 22, 1991 For further information, please call: (512) 463-9988 Chapter 165. State Aid Distribution and Monitoring Subchapter C. Community Corrections Program 37 TAC sec.165.41 The Texas Department of Criminal Justice adopts an amendment to sec.165.41, concerning Community Corrections Program, without changes to the proposed text as published in the October 22, 1991, issue of the Texas Register (16 TexReg 5897). The purpose of the rule as adopted is to recodify prior rules in conformity with requirements of the secretary of state, and to add a new requirement that all community justice plans be prepared by community justice councils, in conformity with the new requirements of the Texas Code of Criminal Procedure (TCCP), Article 42.131, as amended by House Bill 93. No comments were received regarding adoption of the amendment. The amendment is adopted under TCCP, Article 42.13, sec.2(a), which provides the Texas Board of Criminal Justice with authority to adopt rules concerning the operation of the Community Justice Assistance Division. 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 December 11, 1991. TRD-9115768 Jackee Cox General Counsel Texas Department of Criminal Justice Effective date: January 2, 1992 Proposal publication date: October 22, 1991 For further information, please call: (512) 463-9988 TITLE 40. SOCIAL SERVICES AND ASSISTANCE Part I. Texas Department of Human Services Chapter 15. Medicaid Eligibility Subchapter E. Income The Texas Department of Human Services adopts the repeal of sec.15.450, amendment of sec.15.460, and new sec.sec.15.450-15.454, concerning general principles of income, without changes to the proposed text as published in the October 29, 1991, issue of the Texas Register (16 TexReg 6123). The sections and repeal are justified because they are consistent with operating policy, and clients are not denied because third-party payments are counted as income. The repeal and sections will function by reestablishing the policy that third- party payments of medical and social services are not countable income. The department received no comments regarding adoption of the repeal and sections. 40 TAC sec.15.450 The repeal is adopted under the Human Resources Code, Title 2, Chapter 22, which authorizes the department to administer public assistance programs, and Chapter 32, which authorizes the department to administer 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 December 11, 1991. TRD-9115695 Nancy Murphy Agency liaison, Policy and Document Support Texas Department of Human Services Effective date: February 1, 1992 Proposal publication date: October 29, 1991 For further information, please call: (512) 450-3765 40 TAC sec.sec.15.450-15.451, 15.460 The amendment and new sections are adopted under the Human Resources Code, Title 2, Chapter 22, which authorizes the department to administer public assistance programs, and Chapter 32, which authorizes the department to administer 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 December 11, 1991. TRD-9115696 Nancy Murphy Agency liaison, Policy and Document Support Texas Department of Human Services Effective date: February 1, 1992 Proposal publication date: October 29, 1991 For further information, please call: (512) 450-3765 Chapter 29. Purchased Health Services Subchapter F. Physician Services 40 TAC sec.29.504 The Texas Department of Human Services (DHS) adopts new sec.29.504, concerning physician certification requirements, in its Purchased Health Services chapter. This new rule is being adopted in compliance with the Omnibus Budget Reconciliation Act of 1990, sec.4752(e). The purpose of the new rule is to implement a federal requirement concerning physician certification. Those physicians who intend to provide care to Medicaid-enrolled pregnant and/or postpartum women and/or children under 21, must be certified before they can receive Medicaid payment for their service. Physicians enrolled in Medicaid prior to January 1, 1992, will have until January 1, 1994, to meet one of the six qualifying conditions for certification. The justification of this new section will be to provide better quality of care to pregnant and/or postpartum women and children under age 21. The new section is adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which authorizes the department to administer public and medical assistance programs. To comply with federal requirements, this new section is adopted effective January 1, 1992. sec.29.504. Physician Certification Requirements. (a) For Medicaid provider enrollments effective on or after January 1, 1992, new physician providers offering services to Medicaid-enrolled pregnant and/or postpartum women and/or children under age 21 must be certified in order for payment to be made for these services. For purposes of Medicaid, "certification" means that the physician must have at least one of the following: (1) certification by the appropriate medical specialty board, recognized by either the American Board of Medical Specialties or the American Osteopathic Association, for family practice or obstetrics (for services to pregnant and/or postpartum women), or for family practice or pediatrics (for services to children under 21); or (2) documentation of a current, formal referral and/or consulting relationship with a physician certified by the appropriate specialty board, such as specified in paragraph (1) of this subsection for purposes of specialized treatment and admission to a hospital; or (3) admitting privileges in a Title XIX-participating hospital; or (4) employment by or affiliation with a federally-qualified health center (FQHC); or (5) membership in the National Health Services Corp; or (6) certification by the secretary of the United States Department of Health and Human Services as being qualified to provide services to pregnant and/or postpartum women and/or children under age 21. (b) Physician providers enrolled in Medicaid prior to January 1, 1992, must meet one of the certification requirements specified in subsection (a) of this section by January 1, 1994, to continue to receive payment for services provided to pregnant and/or postpartum women and/or children under age 21. 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 December 11, 1991. TRD-9115697 Nancy Murphy Agency liaison, Policy and Document Support Texas Department of Human Services Effective date: January 1, 1992 For further information, please call: (512) 450-3765 Chapter 49. Child Protective Services Subchapter M. Substitute Care Placement Services 40 TAC sec.49.1313 The Texas Department of Human Services adopts new sec.49.1313, concerning substitute-care placement services. The new section is adopted without changes to the proposed text as published in the November 5, 1991, issue of the Texas Register (16 TexReg 6277). The new section is justified because better placement decisions for children in foster care can be made as a result of enforcing the section. The new section will function by establishing policies for reviewing the concerns of foster parents when they disagree with placement decisions that affect children currently in their care. The department received no comments regarding adoption of the new section. The new section is adopted under the Human Resources Code, Title 2, Chapter 22, which authorizes the department to administer public assistance programs; Chapter 41, which authorizes the department to enforce laws for the protection of children; and Chapter 47, which authorizes the department to administer programs to promote the adoption of hard-to-place children. The new section is also proposed under the Texas Family Code, Title 2, Chapter 34, which authorizes the department to provide services to alleviate the effects of child abuse and neglect. 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 December 13, 1991. TRD-9115877 Nancy Murphy Agency liaison, Policy and Document Support Texas Department of Human Services Effective date: February 1, 1992 Proposal publication date: November 5, 1991 For further information, please call: (512) 450-3765 Chapter 72. Memoranda of Understanding with Other State Agencies Memoranda of Understanding for Child Protective Services 40 TAC sec.72.901 The Texas Department of Human Services adopts an amendment to sec.72.901, concerning service delivery to dysfunctional families, with changes to the proposed text as published in the October 29, 1991, issue of the Texas Register (16 TexReg 6126). The amendment is justified because it ensures that dysfunctional families will continue receiving coordinated services when the department, Texas Youth Commission (TYC), and Texas Juvenile Probation Commission (TJPC) have sufficient funding to enter into joint contracts. The amendment will function by requiring the department, TYC, and TJPC to continue complying with the Human Resources Code (HRC), sec.53.001. Although the department received no comments regarding adoption of the amendment, the department has initiated one change to improve the accuracy of the amendment. In subsection (a), the department has changed the Texas Human Resources Code reference from "sec.71.001" to "sec.53.001." This change reflects recent amendments of the Texas Human Resources Code passed by the 72nd Texas Legislature. The amendment is adopted under the Human Resources Code, Title 2, Chapter 22, which authorizes the department to administer public assistance programs, and Chapter 53, which authorizes the department to enter into a memorandum of understanding with the TYC and the TJPC, regarding service delivery to dysfunctional families. sec.72.901. Memorandum of Understanding Regarding Service Delivery to Dysfunctional Families. (a) The Texas Department of Human Services, the Texas Youth Commission, and the Texas Juvenile Probation Commission, hereinafter referred to as "the agencies," agree to this memorandum of understanding (MOU) in compliance with Texas Human Resources Code sec.53.001. (b) By July 15 of every odd-numbered year, or within 30 days after the Governor of Texas signs a general appropriations act, whichever is later, each of the agencies will determine which portion, if any, of its funding to designate for serving its clients through the joint contract(s) specified in subsection (c) of this section. None of the agencies is obligated to enter into the joint contracts specified in subsection (c) of this section unless all of the agencies elect to do so. (c) Beginning on September 1, 1990, and by September 1 every year thereafter in which the agencies decide to enter into the joint contracts specified in this subsection, the agencies will award one or more joint contracts for nonresidential community services to help dysfunctional families in each agency's client population. At a minimum, each contract must include the following services: (1)-(3) (No change.) (4) individual counseling for a limited number of clients referred from the support groups specified in paragraph (3) of this subsection during family crises. (d) All joint contracts awarded under the provisions of this section must be publicized and awarded in conformity with all applicable requirements of Chapter 69 of this title (relating to Contracted Services). (e) The agencies will ensure that contracted services are available to clients by September 1 of every fiscal year in which the agencies enter into the joint contracts specified in subsection (c) of this section. (f) The agencies initially adopted this section on September 11, 1990. The agencies will amend it whenever they agree to revisions. (g) The agencies will meet at least once each year to review and consider revising this section before the beginning of the next fiscal 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 December 13, 1991. TRD-9115878 Nancy Murphy Agency liaison, Policy and Document Support Texas Department of Human Services Effective date: January 15, 1992 Proposal publication date: October 29, 1991 For further information, please call: (512) 450-3765 Texas Department of Insurance Exempt Filing Notification Pursuant to the Insurance Code, Chapter 5, Subchapter L (Editor's note: As required by the Insurance Code, Article 5.96 and Article 5.97, the Register publishes notices of actions taken by the State Board of Insurance pursuant to Chapter 5, Subchapter L, of the Code. Board action taken under these articles is not subject to the Administrative Procedure and Texas Register Act. These actions become effective 15 days after the date of publication or on a later specified date. The text of the material being adopted will not be published, but may be examined in the offices of the State Board of Insurance, 333 Guadalupe, Austin.) The Texas Department of Insurance has adopted a filing by CUMIS Insurance Society, Inc. of revised rates and rules for the Credit Union Discovery Bond Program. In accordance with the provisions of Texas Insurance Code, Article 5.97, a text of the proposed filing has been filed in the Office of the Chief Clerk of the State Board of Insurance. The proposed filing has been available for public inspection for 15 days and a public hearing was not requested by any party. The filing submitted by CUMIS Insurance Society, Inc. proposes an overall increase of 7.8% in the rates for the basic bond. The following rate changes have been proposed for the optional coverages available under the bond program: a 19.25% decrease in the rate for the IRA Coverage Endorsement; a 32.25% increase in the rate for the Share Draft Coverage Endorsement; a 32.25% increase in the rate for the Ligation Coverage Endorsement; and a 19.25% decrease in the rates for the Consumer Legislation Endorsement. Additional changes contained in this filing that impact the rates are an increase in the Lack of Faithful Performance multiplier from 1.24 to 1.30, a .8% increase in the limit factors for the basic bond, a revised rule concerning the location charge applicable to branch offices and the addition of credit factors for the minimum deductible under the specific insuring clauses. Other notable changes proposed in this filing include revisions of the rating rules pertaining to Consumer Legislation coverage, the Cash Letter Endorsement, and the Fiduciary Liability Endorsement. These revisions have been proposed to clarify their applicability. Also the maximum coverage limits for Audit Expense Coverage and Word-Wide Coverage for Plastic Cards have been increased. The revised rates and rules for the Credit Union Discovery Bond Program become effective on the 15th day after notice of this action is published in the Texas Register. This notice is filed pursuant to Article 5.97, which exempts it from the requirements of the Administrative Procedure and Texas Register Act. Issued in Austin, Texas, on December 16, 1991. TRD-9115903 Linda Von Quintus-Dorn Chief Clerk State Board of Insurance Effective date: January 4, 1992 For further information, please call: (512) 463-6328