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 4. AGRICULTURE Part II. Texas Animal Health Commission Chapter 34. Veterinary Biologics 4 TAC sec.34.2 The Texas Animal Health Commission adopts an amendment to sec.34.2, concerning general requirements, without changes to the proposed text as published in the April 17, 1992, issue of the Texas Register (17 TexReg 2649). The amendment was needed as it was necessary to provide that Arkansas Type Infectious Bronchitis Vaccine (AIB) may be used without restriction in Texas. Poultry raisers in the state may use Arkansas Type Infectious Bronchitis Vaccine (AIB) in their poultry flocks without restriction. One individual commenter did not believe in prudent to allow unrestricted use of the vaccine in the state as he thinks it will speed up the spread of infectious bronchitis in poultry. Members of the commission do not agree with the comment and believe the poultry industry should be allowed to have unrestricted use of the Arkansas 99 strain of infectious bronchitis vaccine. The amendment is adopted under the Agriculture Code, Texas Civil Statutes, Chapter 161, which provides the commission with the authority to adopt rules and sets forth duties of this commission to protect livestock in the state from disease. 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 June 24, 1992. TRD-9208782 Terry Beals, DVM Executive Director Texas Animal Health Commission Effective date: July 20, 1992 Proposal publication date: April 17, 1992 For further information, please call: (512) 479-6697 Chapter 35. Brucellosis Subchapter A. Eradication of Brucellosis in Cattle 4 TAC sec.35.2 The Texas Animal Health Commission adopts an amendment to sec.35.2, concerning general requirements, without changes to the proposed text as published in the April 17, 1992, issue of the Texas Register (17 TexReg 2649). This amendment was necessary to provide consistency in language insofar as postquarantine release testing time-frames for herds released from quarantine; and for dealers to maintain records of cattle transactions for a definite period of time. Herd owners whose herds have been released from quarantine are required to retest all test-eligible cattle in the herd in not less than six months nor more than twelve months from the date of the releasing test; dealers are required to maintain records of each cattle transaction for a period of two years. No comments were received regarding adoption of the amendment. The amendment is adopted under the Agriculture Code, Texas Civil Statutes, Chapter 161 and 163, which provides the commission with the authority to adopt rules and set forth the duties of this commission to protect livestock in the state from disease. 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 June 24, 1992. TRD-9208783 Terry Beals, DVM Executive Director Texas Animal Health Commission Effective date: July 20, 1992 Proposal publication date: April 17, 1992 For further information, please call: (512) 479-6697 Subchapter B. Eradication of Brucellosis in Swine 4 TAC sec.35.41 The Texas Animal Health Commission adopts an amendment to sec.35.41, concerning definitions, without changes to the proposed text as published in the April 17, 1992, issue of the Texas Register (17 TexReg 2650). The amendment is necessary to add new definitions for an adjacent herd; a high-risk herd; infected herd retest; waste food feeding operation and waste food feeding complex; and amend definitions for brucellosis exposed swine; herd; herd test; identification of reactor; and swine classification. These definitions clearly define the intent of certain words and terms used throughout the swine brucellosis regulations. No comments were received regarding adoption of the amendment. The amendment is adopted under the Agriculture Code, Texas Civil Statutes, Chapters 161 and 165, which provides the commission with the authority to adopt rules and set forth the duties of this commission to control disease. 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 June 24, 1992. TRD-9208784 Terry Beals, DVM Executive Director Texas Animal Health Commission Effective date: July 20, 1992 Proposal publication date: April 17, 1992 For further information, please call: (512) 479-6697 4 TAC sec.35.42 The Texas Animal Health Commission adopts the repeal of sec.35.42, concerning classification of swine by testing blood and semen, without changes to the proposed text as published in the April 17, 1992, issue of the Texas Register (17 TexReg 2649). This section is proposed for repeal because the procedures and tests do not conform to tests and interpretations currently used. A new rules will replace this rule and will provide the general public with the correct information for classifying swine which are tested for brucellosis. No comments were received regarding adoption of the repeal. The repeal is adopted under the Agriculture Code, Texas Civil Statutes, Chapter 161 and 165, which provides the commission with the authority to adopt rules and set forth the duties of this commission to control disease. 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 June 24, 1992. TRD-9208786 Terry Beals, DVM Executive Director Texas Animal Health Commission Effective date: July 20, 1992 Proposal publication date: April 17, 1992 For further information, please call: (512) 479-6697 The Texas Animal Health Commission adopts new sec.35.42, concerning classification of swine by blood and semen tests, without changes to the proposed text as published in the April 24, 1992, issue of the Texas Register (17 TexReg 2919). This rule is necessary to provide the general public with information concerning classification of swine when they are tested for brucellosis. Swine will be classified using the card, automated complement fixation, and rivanol tests; also the semen plasma test can be used as a supplemental test of boars used for artificial insemination; a designated epidemiologist may reclassify an animal when consideration and evaluation of relevant bacteriologic, serologic, or epidemiologic evidence justifies the reclassification. No comments were received regarding adoption of the new section. The new section is adopted under the Agriculture Code, Texas Civil Statutes, Chapters 161 and 165, which provides the commission with the authority to adopt rules and set forth the duties of this commission to control disease. 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 June 24, 1992. TRD-9208785 Terry Beals, DVM Executive Director Texas Animal Health Commission Effective date: July 20, 1992 Proposal publication date: April 24, 1992 For further information, please call: (512) 479-6697 4 TAC sec.35.43 The Texas Animal Health Commission adopts an amendment to sec.35.43, concerning persons authorized to conduct official test, without changes to the proposed text as published in the April 17, 1992, issue of the Texas Register (17 TexReg 2653). The amendment is necessary to clarify that the amendment to this section refers to accredited veterinarians by the United States Department of Agriculture (USDA) rather than being accredited by the commission. When blood samples are collected from swine for the purpose of conducting tests for brucellosis, only veterinarians who are accredited by the United States Department of Agriculture, or their employees, or regularly employed representatives of this agency, or the USDA are authorized to collect blood the samples. No comments were received regarding adoption of the amendment. The amendment is adopted under the Agriculture Code, Texas Civil Statutes, Chapters 161 and 165, which provides the commission with the authority to adopt rules and set forth the duties of this commission to control disease. 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 June 24, 1992. TRD-9208787 Terry Beals, DVM Executive Director Texas Animal Health Commission Effective date: July 20, 1992 Proposal publication date: April 17, 1992 For further information, please call: (512) 479-6697 4 TAC sec.35.44 The Texas Animal Health Commission adopts an amendment to sec.35.44, concerning identification and movement of brucellosis infected and exposed swine, without changes to the proposed text as published in the April 17, 1992, issue of the Texas Register (17 TexReg 2653). The amendment is necessary to provide that swine which have been identified as reactors must be held separate and apart from other swine being held for sale to a recognized slaughter establishment. Reactor swine must be held separate and apart from other swine when moving through a state or federally approved market for sale to a recognized slaughter establishment. No comments were received regarding adoption of the amendment. The amendment is adopted under the Agriculture Code, Texas Civil Statutes, Chapters 161 and 165, which provides the commission with the authority to adopt rules and set forth the duties of this commission to control disease. 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 June 24, 1992. TRD-9208788 Terry Beals, DVM Executive Director Texas Animal Health Commission Effective date: July 20, 1992 Proposal publication date: April 17, 1992 For further information, please call: (512) 479-6697 4 TAC sec.35.45 The Texas Animal Health Commission adopts an amendment to sec.35.45, concerning procedures for handling brucellosis infected adjacent and high risk herds of swine, with changes to the proposed text as published in the April 17, 1992, issue of the Texas Register (17 TexReg 2653). The change was made to clarify depopulation of a herd and when indemnity may be paid. The amendment is necessary to require one additional herd test before a herd can be released from a quarantine as presently required by the brucellosis eradication, uniform methods and rules. Those herd tests will include younger swine as well. These added features for infected herd testing will help assure the public that infection has been identified and removed before quarantines are released. A provision is added to allow quarantine of adjacent and high-risk herds to prevent possible spread of infection and provide a guideline for depopulation, if that was chosen. In infected herd tests all sexually intact swine above weaning age, rather than above six months of age, must be tested; infected swine herds must have three negative herd tests for release of quarantine rather than two. The first test must be 30 days from the date of the removal of the reactors; the second test must be 60 days to 90 days after the first test and the third must be 60 days to 90 days following the second test. The provision for an adjacent and high risk herd will require a quarantine on these herds pending determination of whether the animals are infected; an infected, adjacent or high risk herd is eligible for depopulation provided a recommendation is made and funds are available and the owner concurs. No comments were received regarding adoption of the amendment. The amendment is adopted under the Agriculture Code, Texas Civil Statutes, Chapters 161 and 165, which provides the commission with the authority to adopt rules and set forth the duties of this commission to control disease. sec.34.45. Procedures for Handling Brucellosis Infected, Adjacent, and High Risk Herds of Swine. (a) Infected herds. All swine in infected herds must be confined to the premises under quarantine until the herd has been freed of brucellosis or sold for slaughter under permit. Three negative infected herd retests are required for release of quarantine, with the first retest occurring 30 days or more after all reactors have been removed for slaughter. The second retest must be conducted 60 to 90 days after the first negative retest. A third negative infected herd retest is required 60 to 90 days following the second retest. Herds of origin of Market Swine Test (MST) reactors that fail to reveal additional reactors on a herd test would not be required to be held under quarantine for additional testing unless there is evidence of brucella infection or exposure to brucellosis. (b) Adjacent and high risk herds. All swine in adjacent and high risk herds may be quarantined until an epidemiologist through testing or other epidemiological evidence determines the herd is not infected or not at risk of becoming infected. (c) Depopulation. Any infected, adjacent, or high risk herd may be depopulated. Indemnity may be paid to the herd owner, if funds are made available for indemnity purposes and a recommendation is made by the epidemiologist to depopulate the herd and the owner concurs. 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 June 24, 1992. TRD-9208789 Terry Beals, DVM Executive Director Texas Animal Health Commission Effective date: July 20, 1992 Proposal publication date: April 17, 1992 For further information, please call: (512) 479-6697 4 TAC sec.35.46 The Texas Animal Health Commission adopts an amendment to sec.35.46, concerning plans for eradicating brucellosis from infected swine herds, without changes to the proposed text as published in the April 17, 1992, issue of the Texas Register (17 TexReg 2654). The amendment is necessary to bring each of three plans into compliance with the United States Department of Agriculture (USDA) swine brucellosis eradication uniform methods and rules. One of these plans may be used for eradicating brucellosis from infected swine herds. Three tests rather than two tests are required for release of a swine quarantine in Plans Two and Three; gilt pigs must be removed from the sows at 28 days of age rather than 42 days of age as stated in Plan Two. No comments were received regarding adoption of the amendment. The amendment is adopted under the Agriculture Code, Texas Civil Statutes, Chapters 161 and 165, which provides the commission with the authority to adopt rules and set forth the duties of this commission to control disease. 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 June 24, 1992. TRD-9208790 Terry Beals, DVM Executive Director Texas Animal Health Commission Effective date: July 20, 1992 Proposal publication date: April 17, 1992 For further information, please call: (512) 479-6697 4 TAC sec.35.48 The Texas Animal Health Commission adopts an amendment to sec.35.48, concerning initial validation and revalidation of individual swine herd, without changes to the proposed text as published in the April 17, 1992, issue of the Texas Register (17 TexReg 2654). The amendment is necessary to provide that requirements for swine herd validation can be more easily understood and also to have the rules comply with the United States Department of Agriculture, swine brucellosis uniform methods and rules. Increment testing for initial validation of a herd is now provided for; swine which are added to a herd must be retested in 30 days to 60 days rather than 60 day to 90 days. Use of swine semen in validated herds must be obtained from boars in validated brucellosis free herds. The requirement for market swine testing as a means of herd revalidation has been removed; and the 60-day grace period for revalidation of a herd is no longer allowed. No comments were received regarding adoption of the amendment. The amendment is adopted under the Agriculture Code, Texas Civil Statutes, Chapters 161 and 165, which provides the commission with the authority to adopt rules and set forth the duties of this commission to control disease. 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 June 24, 1992. TRD-9208791 Terry Beals, DVM Executive Director Texas Animal Health Commission Effective date: July 20, 1992 Proposal publication date: April 17, 1992 For further information, please call: (512) 479-6697 Chapter 39. Scabies 4 TAC sec.39.1 The Texas Animal Health Commission adopts an amendment to sec.39.1, concerning cattle, sheep, and goat scabies, without changes to the proposed text as published in the April 17, 1992, issue of the Texas Register (17 TexReg 2656). The amendment is necessary to provide that cattle treated with Invermectin must be withheld from slaughter as prescribed by the product label. When Ivermectin is the selected treatment for psoroptic or sarcoptic scabies, Invomec injectable can be used to treat cattle provided product labeling is closely observed to assure that the Invermectin has had ample time to be eliminated from the body tissue before the animal is slaughtered and the meat used for human consumption. Invermectin cannot be used to treat female dairy cattle of breeding age. No comments were received regarding adoption of the amendment. The amendment is adopted under the Agriculture Code, Texas Civil Statutes, Chapters 161 and 164, which provides the commission with the authority to adopt rules and set forth the duties of this commission to control disease. 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 June 24, 1992. TRD-9208792 Terry Beals, DVM Executive Director Texas Animal Health Commission Effective date: July 20, 1992 Proposal publication date: April 17, 1992 For further information, please call: (512) 479-6697 Chapter 43. Tuberculosis Subchapter A. Cattle 4 TAC sec.43.1 The Texas Animal Health Commission adopts an amendment to sec.43.1, concerning cattle, without changes to the proposed text as published in the April 17, 1992, issue of the Texas Register (17 TexReg 2656). The amendment is necessary to state the correct amount of tuberculin to be injected into an animal being tested for tuberculosis when the single cervical test is used. The dosage has been changed from .2cc to .1cc. When cattle are tested for tuberculosis using the single cervical test, the veterinarian will inject .1cc of tuberculin intradermally into a pre-clipped site on the animal's neck. No comments were received regarding adoption of the amendment. The amendment is adopted under the Agriculture Code, Texas Civil Statutes, Chapters 161 and 162, which provides the commission with the authority to adopt rules and set forth the duties of this commission to control disease. 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 June 24, 1992. TRD-9208793 Terry Beals, DVM Executive Director Texas Animal Health Commission Effective date: July 20, 1992 Proposal publication date: April 17, 1992 For further information, please call: (512) 479-6697 Chapter 51. Interstate Shows and Fairs 4 TAC sec.51.1 The Texas Animal Health Commission adopts an amendment to sec.51.1, concerning definitions, without changes to the proposed text as published in the April 17, 1992, issue of the Texas Register (17 TexReg 2657). The amendment is necessary to define an "S" permit. An "S" permit is any document designated by the executive director for restricted movement of cattle. The definition advises herd owners they have the option of using an "S" permit, a VS 1-27, or a New Mexico Form 1A, provided this form is clearly identified as an "S" permit and lists the market of origin of the animals and is accompanied by the purchase sheet. No comments were received regarding adoption of the amendment. The amendment is adopted under the Agriculture Code, Texas Civil Statutes, Chapter 161, which provides the commission with the authority to adopt rules and set forth the duties of this commission to control disease. 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 June 24, 1992. TRD-9208794 Terry Beals, DVM Executive Director Texas Animal Health Commission Effective date: July 20, 1992 Proposal publication date: April 17, 1992 For further information, please call: (512) 479-6697 4 TAC sec.51.2 The Texas Animal Health Commission adopts an amendment to sec.51.2, concerning general requirements, without changes to the proposed text as published in the April 17, 1992, issue of the Texas Register (17 TexReg 2657). The amendment is necessary to provide for the movement of restricted cattle and accompanied by an "S" permit rather than limit the document to only the VS 1-27. An "S" permit, or a VS 1-27 permit, or a New Mexico Form 1A may be completed and used so long as the New Mexico Form 1A is clearly identified as an "S" permit and lists the animal's market of origin and is accompanied by the purchase sheet. No comments were received regarding adoption of the amendment. The amendment is adopted under the Agriculture Code, Texas Civil Statutes, Chapter 161, which provides the commission with the authority to adopt rules and set forth the duties of this commission to control disease. 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 June 24, 1992. TRD-9208795 Terry Beals, DVM Executive Director Texas Animal Health Commission Effective date: July 20, 1992 Proposal publication date: April 17, 1992 For further information, please call: (512) 479-6697 Chapter 55. Swine 4 TAC sec.55.5 The Texas Animal Health Commission adopts an amendment to sec.55.5, concerning pseudorabies, without changes to the proposed text as published in the April 17, 1992, issue of the Texas Register (17 TexReg 2657). The amendment is necessary to provide that herd plans are more clearly written and testing requirements are included in the herd plan; the monitoring of swine within one and one-half miles of the infected herd is required; to provide requirements for testing some younger swine to assure infection is not in that age group in the qualified herd selection. A random sampling test procedure is provided to detect pseudorabies in some herds; swine which are determined to be infected are required to be identified with a red reactor tag and disposed of in seven days and accompanied by a VS 1-27 permit; a herd plan must be developed for an infected herd and must include provisions for release of the quarantine; all swine herds located within 1.5 miles of an infected swine herd are required to be monitored by either testing all breeding swine or having a random sample test; the initial qualifying and re-qualifying test requirements for pseudorabies free status requires testing a certain number of progeny under six months of age representing 20% of the breeding herd, and is included in the herd plan for testing an infected herd. The progeny are selected from the older part of those pigs under six months of age. No comments were received regarding adoption of the amendment. The amendment is adopted under the Agriculture Code, Texas Civil Statutes, Chapters 161 and 165, which provides the commission with the authority to adopt rules and set forth the duties of this commission to control disease. 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 June 24, 1992. TRD-9208796 Terry Beals, DVM Executive Director Texas Animal Health Commission Effective date: July 20, 1992 Proposal publication date: April 17, 1992 For further information, please call: (512) 479-6697 4 TAC sec.55.8 The Texas Animal Health Commission adopts an amendment to sec.55.8, concerning dealer recordkeeping, without changes to the proposed text as published in the April 17, 1992, issue of the Texas Register (17 TexReg 2659). The amendment is necessary to provide the livestock producer with information that a dealer is required to maintain records of each transaction for a definite period of time. A livestock dealer is required to maintain records on swine sales for a minimum of two years after the completion of a transaction. No comments were received regarding adoption of the amendment. The amendment is adopted under the Agriculture Code, Texas Civil Statutes, Chapters 161 and 165, which provides the commission with the authority to adopt rules and sets forth the duties of this commission to control disease. 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 June 24, 1992. TRD-9208797 Terry Beals, DVM Executive Director Texas Animal Health Commission Effective date: July 20, 1992 Proposal publication date: April 17, 1992 For further information, please call: (512) 479-6697 4 TAC sec.55.9 The Texas Animal Health Commission adopts new sec.55.9, concerning feral swine, without changes to the proposed text as published in the April 17, 1992, issue of the Texas Register (17 TexReg 2660). The new section is necessary to provide movement requirements for feral swine in order to prevent exposing domestic swine to diseases carried by feral swine. Feral swine are required to be tested for brucellosis and pseudorabies for movement to a game preserve; the animals can move direct to slaughter without restrictions and they may move to markets for sale to slaughter provided they are held in isolation at the market and moved directly to slaughter with a VS 1-27 permit. No comments were received regarding adoption of the new section. The new section is adopted under the Agriculture Code, Texas Civil Statutes, Chapters 161 and 165, which provides the commission with the authority to adopt rules and set forth the duties of this commission to control disease. 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 June 24, 1992. TRD-9208798 Terry Beals, DVM Executive Director Texas Animal Health Commission Effective date: July 20, 1992 Proposal publication date: April 17, 1992 For further information, please call: (512) 479-6697 Chapter 57. Poultry General 4 TAC sec.57.10 The Texas Animal Health Commission adopts an amendment to sec.57.10, concerning definitions, without changes to the proposed text as published in the April 17, 1992, issue of the Texas Register (17 TexReg 2660). The amendment is necessary to provide that the definition of Arkansas infectious bronchitis vaccine (AIB) be amended to allow this vaccine to be used without restriction in this state. The Texas Poultry Federation recommends and support this amendment and has worked very closely with this agency. The definition provides information to poultry raisers that they may vaccinate their poultry using AIB vaccine without restrictions. One commenter did not believe it prudent to allow unrestricted use of the vaccine in the state as he believed it will speed up the spread of infectious bronchitis in poultry. A poultry producer commented against the adoption of the amendment. Members of the commission do not agree with the comment and believe that the poultry industry should be allowed to have unrestricted use of the Arkansas 99 strain of infectious bronchitis vaccine. The amendment is adopted under the Agriculture Code, Texas Civil Statutes, Chapter 161, which provides the commission with the authority to adopt rules and set forth the duties of this commission to control disease. 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 June 24, 1992. TRD-9208799 Terry Beals, DVM Executive Director Texas Animal Health Commission Effective date: July 20, 1992 Proposal publication date: April 17, 1992 For further information, please call: (512) 479-6697 TITLE 16. ECONOMIC REGULATION Part II. Public Utility Commission of Texas Chapter 23. Substantive Rules Rates 16 TAC sec.23.21 The Public Utility Commission of Texas adopts an amendment to sec.23.21, concerning rates, without changes to the proposed text as published in the February 14, 1992, issue of the Texas Register (17 TexReg 1271). The amendment changes the label that is required to be placed on the customer's utility bill to identify any billing adjustment made to reflect the effect of House Bill 11, 72nd Legislature, First Called Special Session. Section 16.072 of that bill amends the Public Utility Regulatory Act, sec.43, to require that the commission provide for adjustments to utility billings to account for the effect on state taxes upon the motion of any utility or the commission's own motion. Some of the comments received during the comment period opposed the adoption of the proposed amendment. Each of the comments is discussed below. Comments were received from Central and South West Services, Inc., (CSW), Texas Telephone Association (TTA), El Paso Electric Company (EPEC), and Southwestern Public Service Company (SPS). All of the comments were reviewed by the commission staff. The published proposal calls for the label to be changed to "cost of service surcharge" if the adjustment increases the change to the customer or "cost of service credit" if the adjustment decreases the charge to the customer. CSW and TTA supported the amendment. TTa commented that the proposed language "more clearly defines the nature of the pass-through." CSW stated on behalf of their three operating companies that they would prefer that the adjustment not be separately itemized or labeled on the bill, but the proposed language was acceptable and would adequately describe the nature of the charge. CSW noted that the difficulty in devising a label that accurately described the charge. EPEC opposed the amendment and commented that the label was misleading, confusing, and not informative. The company commented that because the adjustment is not based on the taxes that a utility already had in its rates, the adjustment is not cost based as the label suggests. EPEC suggested that the label should be, "state franchise tax adjustment" and noted that the length of any description and the ease with which it can be placed on a bill are additional considerations. SPS commented that the proposed label was confusing and inappropriate because a customer after reading the label "will not have a clue as to what the adjustment relates to." SPS suggested that the label be, "House Bill 11 Adjustment." The commission disagrees with the comments of SPS and EPEC. State taxes are an item in the utility's cost of service. The adjustment to the billing from the effect of House Bill 11 on state taxes is an adjustment to reflect a change in one item of the utility's cost of service. Thus, the proposed label is accurate. The amendment is adopted under Texas Civil Statutes, Article 1446d, sec.16(a) , which provide the Public Utility Commission of Texas with the authority to make and enforce the rules reasonably required in the exercise of its powers and jurisdiction. 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 June 26, 1992. TRD-9208870 John M. Renfrow Secretary Public Utility Commission Effective date: July 17, 1992 Proposal publication date: February 14, 1992 For further information, please call: (512) 458-0100 TITLE 22. EXAMINING BOARDS Part XXIII. Texas Real Estate Commission Chapter 535. Provisions of the Real Estate License Act Definitions 22 TAC sec.535.19, sec.535.21 The Texas Real Estate Commission adopts amendments to sec.535.19, concerning property locators and to sec.535.21, concerning lot sales and publication, with changes to the proposed text as published in the April 24, 1992, issue of the Texas Register (17 TexReg 2920). The amendments define activities which may be performed by a person who is not licensed as a real estate broker or salesman. The amendments permit unlicensed persons to compile and distribute publications containing advertisements or information about real estate if any fee received by the person is not contingent upon the sale, purchase, rent, or lease of the property. One commenter recommended that the proposed amendments not be adopted because they were overly broad and did not clarify whether the person responsible for a publication could provide specific information in response to general requests without being licensed. The commission determined that the amendments permitted only compilation and distribution of publications containing real estate advertisements or information by unlicensed persons and that the amendments did not authorize other activities, such as procuring prospective tenants or making referrals in response to a prospect's specific real estate needs. The Texas Association of Realtors did not support or oppose adoption of the amendments, but suggested changes to the sec.535.19 and to sec.535.21 to clarify that the amendments concerned property for sale, purchase, rent or lease and to retain language in sec.535.21 which specifically described apartment or home-finding services as an example of the activity requiring a real estate license. The commission concurred and made the suggested changes, although the final version of the text was modified to avoid using language which might have been interpreted as a reference to a specific locator service. The Texas Association of Realtors also suggested that language be added to sec.535.21 to stress that the section was meant to be narrowly construed. The commission concurred and made the suggested change. The amendments are adopted under Texas Civil Statutes, Article 6573a, sec.5(e) , 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.535.19. Locating Property. (a) Except as provided by this section a real estate license is required for a person to receive a fee or other consideration for assisting another person to locate real property for sale, purchase, rent, or lease, such as the operation of a service which finds apartments or homes. (b) The compilation and distribution of information relating to rental vacancies or property for sale, purchase, rent, or lease is activity for which a real estate license is required if payment of any fee or other consideration received by the person who compiles and distributes the information is contingent upon the sale, purchase, rental, or lease of the property. An advance fee is a contingent fee if the fee must be returned if the property is not sold, purchased, rental, or leased. sec.535.21. Unimproved Lot Sales; Listing Publications. (a)-(b) (No change.) (c) A person may contract to advertise real estate for purchase, sale, lease, or rental in a publication without being licensed under Texas Civil Statutes, Article 6573a, (the Act), unless payment of any fee or consideration the person receives is contingent upon the purchase, sale, lease, or rental of the property advertised in the publication. For the purposes of this section an advance fee is a contingent fee if the person is obligated to return the fee if the property is not purchased, sold, leased, or rented. The section shall be narrowly construed to effectuate the purposes for which this section was adopted. 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 June 24, 1992. TRD-9208828 Mark A. Moseley General Counsel Texas Real Estate Commission Effective date: July 17, 1992 Proposal publication date: April 24, 1992 For further information, please call: (512) 465-3900 Part XXIV. Texas Board of Veterinary Medical Examiners Chapter 573. Rules of Professional Conduct Responsibilities to Clients 22 TAC sec.573.24 The Texas Board of Veterinary Medical Examiners adopts an amendment sec.573. 24, concerning responsibilities to clients, without changes to the proposed text as published in the March 10, 1992, issue of the Texas Register (17 TexReg 1800). The previous rule required examination of the animal prior to writing health certificates. The amendment requires examination of the animal before any certificate is issued which attests to the animal's physical condition. The amendment will require examination of animals prior to the issuance of certificates stating the health of the animal. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 8890, sec.7(a), which provide the Texas Board of Veterinary Medical Examiners with the authority to make, alter, or amend such rules and regulations as may be necessary or desirable to carry into effect the provisions of this 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 June 26, 1992. TRD-9208930 Buddy Matthijetz Executive Director Texas Board of Veterinary Medical Examiners Effective date: July 20, 1992 Proposal publication date: March 10, 1992 For further information, please call: (512) 447-1183 Responsibilities to Clients 22 TAC sec.573.28 The Texas Board of Veterinary Medical Examiners adopts an amendment to sec. 573.28, concerning maintenance of sanitary premises, without changes to the proposed text as published in the March 10, 1992, issue of the Texas Register (17 TexReg 1801). The previous rule stated veterinarians are required to maintain their facilities in compliance with local health requirements. In many cities there are no city and/or county public health laws. The amendment will require veterinary facilities to be maintained in a clean and sanitary condition, without any accumulation of trash or debris. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 8890, sec.7(a), which provide the Texas Board of Veterinary Medical Examiners with the authority to make, alter, or amend such rules and regulations as may be necessary or desirable to carry into effect the provisions of this 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 June 26, 1992. TRD-9208931 Buddy Matthijetz Executive Director Texas Board of Veterinary Medical Examiners Effective date: July 20, 1992 Proposal publication date: March 10, 1992 For further information, please call: (512) 447-1183 Advertising, Endorsements and Certificates 22 TAC sec.573.30 The Texas Board of Veterinary Medical Examiners adopts an amendment sec.573. 30, concerning advertising, without changes to the proposed text as published in the March 10, 1992, issue of the Texas Register (17 TexReg 1801). The amendment is needed because in order to determine the correct licensee placing advertisements, the full name is required. The amendment will require licensees to include their full name on all advertising instead of the previous "surname only" requirement. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 8890, sec.7(a), which provide the Texas Board of Veterinary Medical Examiners with the authority to make, alter, or amend such rules and regulations as may be necessary or desirable to carry into effect the provisions of this 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 June 26, 1992. TRD-9208933 Buddy Matthijetz Executive Director Texas Board of Veterinary Medical Examiners Effective date: July 20, 1992 Proposal publication date: March 10, 1992 For further information, please call: (512) 447-1183 22 TAC sec.573.41 The Texas Board of Veterinary Medical Examiners adopts an amendment to sec. 573.41, concerning use of prescription drugs, with changes to the proposed text as published in the March 20, 1992, issue of the Texas Register (17 TexReg 2090). The amendment further defines "therapeutically indicated" to include the health and well being of animals. The amendment requires that veterinarians examine animals to determine that the prescription drug is required for the health and/or well being of the animal, prior to prescribing, dispensing, ordering, delivering, or ordering delivered, the drug. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 8890, sec.7(a), which provide the Texas Board of Veterinary Medical Examiners with the authority to make, alter, or amend such rules and regulations as may be necessary or desirable to carry into effect the provisions of this Act. sec.573.41. Use of Prescription Drugs. (a) It is unprofessional conduct for a licensed veterinarian to prescribe or dispense, deliver, or order delivered any prescription drug without first having established a veterinarian/client/patient relationship and determined that such prescription drug is therapeutically indicated for the health and/or well being of the animal(s). Prescription drugs include all controlled substances in Schedules I thru V and Legend Drugs which bear the federal legends, recognized as such by any law of the State of Texas or of the United States. (b) It shall be unprofessional and a violation of the Rules of Professional Conduct for a licensed veterinarian to prescribe, provide, obtain, order, administer, possess, dispense, give, or deliver to or for any person prescription drugs, that are not necessary or required for the medical care of animals, or where the use or possession of such drugs would promote addiction thereto. Prescription drugs are defined in subsection (a) of this section. 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 June 26, 1992. TRD-9208928 Buddy Matthijetz Executive Director Texas Board of Veterinary Medical Examiners Effective date: July 20, 1992 Proposal publication date: March 20, 1992 For further information, please call: (512) 447-1183 Prescribing and/or Dispensing Medications 22 TAC sec.573.43 The Texas Board of Veterinary Medical Examiners adopts an amendment to sec. 573.43, concerning misuse of DEA narcotics registration, without changes to the proposed text as published in the March 20, 1992, issue of the Texas Register (17 TexReg 2092). The amendment brings the rule into compliance with federal and state regulations. The amendment will require licensees to comply with federal and state laws concerning the use of DEA and DPS controlled substances certificates, and clarifies when DEA and DPS controlled substances certificates are required. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 8890, sec.7(a), which provide the Texas Board of Veterinary Medical Examiners with the authority to make, alter, or amend such rules and regulations as may be necessary or desirable to carry into effect the provisions of this 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 June 26, 1992. TRD-9208929 Buddy Matthijetz Executive Director Texas Board of Veterinary Medical Examiners Effective date: July 20, 1992 Proposal publication date: March 20, 1992 For further information, please call: (512) 447-1183 Other Provisions 22 TAC sec.573.61 The Texas Board of Veterinary Medical Examiners adopts an amendment sec.573. 61, concerning other provisions, without changes to the proposed text as published in the March 20, 1992, issue of the Texas Register (17 TexReg 2091). The new section provides the profession with easy access to DPS requirements for the security of controlled substances. It does not place any additional requirements for security as it is a quote from the current DPS laws and regulations. The new section will require licensees to secure their controlled substances in accordance with DPS requirements. No comments were received regarding adoption of the new section. The new section is adopted under Texas Civil Statutes, Article 8890, sec.7(a) , which provide the Texas Board of Veterinary Medical Examiners with the authority to make, alter, or amend such rules and regulations as may be necessary or desirable to carry into effect the provisions of this 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 June 26, 1992. TRD-9208934 Buddy Matthijetz Executive Director Texas Board of Veterinary Medical Examiners Effective date: July 20, 1992 Proposal publication date: March 20, 1992 For further information, please call: (512) 447-1183 22 TAC sec.573.62 The Texas Board of Veterinary Medical Examiners adopts new sec.573.62, concerning other provisions, without changes to the proposed text as published in the March 20, 1992, issue of the Texas Register (17 TexReg 2092). The new section will give the board a specific rule to address when violations of board orders and negotiated settlement occur. The new section will provide the board with specific authority to take action in accordance with the Administrative Procedure and Texas Register Act, if a licensee violates the conditions set forth in their board order or negotiated settlement. No comments were received regarding adoption of the new section. The new section is adopted under Texas Civil Statutes, Article 8890, sec.7(a) , which provide the Texas Board of Veterinary Medical Examiners with the authority to make, alter, or amend such rules and regulations as may be necessary or desirable to carry into effect the provisions of this 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 June 26, 1992. TRD-9208932 Buddy Matthijetz Executive Director Texas Board of Veterinary Medical Examiners Effective date: July 20, 1992 Proposal publication date: March 20, 1992 For further information, please call: (512) 447-1183 Other Provisions 22 TAC sec.573.63 The Texas Board of Veterinary Medical Examiners adopts new sec.573.63 concerning other provisions, without changes to the proposed text as published in the March 20, 1992, issue of the Texas Register (17 TexReg 2092). The new section further defines the board's existing authority to inspect veterinary facilities and records. The new section will require veterinarians to allow representatives of the Board, during regular business hours, to inspect and/or copy client and patient records and associated documents, i.e. invoices, receipts, transfer documents, etc. No comments were received regarding adoption of the new section. The new section is adopted under Texas Civil Statutes, Article 8890, sec.7(a) , which provide the Texas Board of Veterinary Medical Examiners with the authority to make, alter, or amend such rules and regulations as may be necessary or desirable to carry into effect the provisions of this 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 June 26, 1992. TRD-9208927 Buddy Matthijetz Executive Director Texas Board of Veterinary Medical Examiners Effective date: July 20, 1992 Proposal publication date: March 20, 1992 For further information, please call: (512) 447-1183 TITLE 25. HEALTH SERVICES Part II. Texas Department of Mental Health and Mental Retardation Chapter 401. System Administration Subchapter B. Interagency Agreements 25 TAC sec.401.56 The Texas Department of Mental Health and Mental Retardation adopts new sec. 401.56 concerning biennial revision and updating of the Texas long-term care plan for the elderly, without changes to the text as published in the May 1, 1992, issue of Texas Register (17 TexReg 3148). The new section adopts by reference a memorandum of understanding (MOU) that clearly defines the responsibilities of the following state agencies in biennially revising and updating of the Texas Long-Term Care Plan for the Elderly: Texas Department of Aging, Texas Department of Human Services, Texas Department of Health, and Texas Department of Mental Health and Mental Retardation. Senate Bill 377 of the 72nd Texas Legislature requires the agencies to adopt the MOU by rule. No comments were received regarding adoption of the new section. The new section is adopted under the Health and Safety Code, Title 7, sec.532. 015, which provides 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 June 26, 1992. TRD-9208918 Ann Utley Chairman Texas Board of Mental Health and Mental Retardation Effective date: July 20, 1992 Proposal publication date: May 1, 1992 For further information, please call: (512) 465-4670 Chapter 403. Other Agencies and the Public Subchapter Subchapter P. Public Responsibility Committees 25 TAC sec.sec.403.441-403.454 The Texas Department of Mental Health and Mental Retardation (TXMHMR) adopts the repeal of sec.sec.403.441-403.454, concerning public responsibility committees, without changes to the proposed text as published in the May 8, 1992, issue fo the Texas Register (17 TexReg 3333). The repeal of the subchapter is adopted contemporaneously with the adoption of the new subchapter which replaces it, Chapter 410, Subchapter A (relating to Public Responsibility Committees), also in this issue of the Texas Register. The purpose of the new subchapter is to update policies and procedures guiding the functions of public responsibility committees at TXMHMR facilities and community mental health and mental retardation centers. The new subchapter would take effect September 1, 1992, which is the beginning of the reporting year for PRCs. No comments were received regarding adoption of the 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 proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on June 26, 1992. TRD-9208905 Ann K. Utley Chairman Texas Board of Mental Health and Mental Retardation Proposed date of adoption: September 1, 1992 For further information, please call: (512) 465-4516 Chapter 404. Protection of Clients and Staff Subchapter A. Abuse and Neglect of Persons Served by TXMHMR Facilities 25 TAC sec.sec.404.1-404.20 The Texas Department of Mental Health and Mental Retardation (TXMHMR) adopts the repeal of sec.sec.404.1-404.20, concerning abuse and neglect of persons served by TXMHMR facilities, without changes to the proposed text as published in the March 24, 1992, issue of the Texas Register (17 TexReg 2177). The repeals are adopted contemporaneously with the adoption of the new sections which replace them, also in this issue of the Texas Register. The new sections establish policies and procedures for abuse and neglect investigations which prepare for the transfer of the abuse and neglect investigation function to the Texas Protective and Regulatory Services agency, expected to occur September 1, 1992. It is anticipated that these rules will convey to the new agency upon its creation. No comments were received regarding adoption of the repeals. The repeal of the sections is adopted under Texas Civil Statutes, Article 5547-202, sec.2.11, which provides 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 June 26, 1992. TRD-9208904 Anne K. Utley Chairman Texas Board of Mental Health and Mental Retardation Effective date: August 1, 1992 Proposal publication date: March 24, 1992 For further information, please call: 465-4616 25 TAC sec.sec.404.1-404.20 The Texas Department of Mental Health and Mental Retardation (TXMHMR) adopts new sec.sec.404.1-404.20. Sections 404.2-404.13, 404.15-404.17, and 404. 19 are adopted with changes to the proposed text as published in the March 24, 1992, issue of the Texas Register (17 TexReg 2177). Sections 404.1, 404. 14, 404.18, and 404.20 are adopted without changes and will not be republished. Exhibit A, Procedures and Techniques for Investigation of Abuse," Exhibit D, "Procedures in Abuse and Neglect Investigations and Thurston Rebuttal Proceedings," and Exhibit G, "Client Abuse/Neglect Report" (AN-1-A Form) are also adopted with changes. The new sections are adopted contemporaneously with the adoption of the repeal of existing Chapter 404, Subchapter A, also governing abuse and neglect of persons served by TXMHMR facilities. The purpose of the new subchapter is to establish policies and procedures for abuse and neglect investigations which prepare for the transfer of the abuse and neglect investigation function to the Texas Protective and Regulatory Services agency, expected to occur September 1, 1992. It is anticipated that these rules will convey to the new agency upon its creation. The name of the AN-1-A form ("Report of Client Abuse/Neglect") is added throughout the document for the purpose of clarification. Section 404.02 is changed on adoption to clarify application of the provisions to community-based services of TXMHMR facilities. In addition, application to contractors and community-based services is clarified throughout the document. In sec.404.3, the definitions of complainant and incitement are clarified. In addition, definitions for the terms "inconclusive" and "preponderance of evidence" are added. The definition of "Office of Consumer Services and Rights Protection" is expanded to clarify the transfer of its responsibilities to the Office of MHMR Protective Services, DPRS, upon its creation, and a definition for the Office of MHMR Protective Services, DPRS, is added. The term "excessive" is deleted as a descriptor of "force" in sec.404.4(a)(2) (B). Section 404.5 is revised to clarify its application to contractors and to clarify procedures to be followed relating to the theft of property belonging to a person served. Section 404.6(b) is revised to require submission of a written report within two hours of the verbal report of an allegation of suspected sexual assault or sexual exploitation. It is clarified in sec.404.6(d)(2) that facilities may establish their own arrangements with local law enforcement agencies regarding the reporting of abuse- related allegations. Section 404. 6(g) is revised to require that the abuse and neglect investigator submit a copy of the written report of an allegation to the head of the facility. Section 404.7(2) is changed to allow an individual's treatment team to be informed of an allegation of sexual assault against the individual on the next working day if the allegation is made on a weekend or holiday. In addition, it is clarified that the actions outlined in response to an allegation against a person served apply only to incidents of sexual assault; other aggressive actions by persons served are reported and responded to in accordance with provisions outlined in Chapter 405, Subchapter G (relating to Unusual Incidents Involving Persons Served by TXMHMR Facilities). The requirement that a copy of any restrictions on individuals' access to an alleged victim be included in the investigator's final report is revised in sec.404.7(3) to require that the restriction simply be noted in the report. Actions required by the head of the facility when the accused is a private citizen or an Independent School District employee are added in sec.404.7(4) and (5). Section 404.7(6) is revised to clarify that a certified letter should be sent if the head of the facility is unable to contact the parent, guardian, spouse, or other appropriate relative by telephone to inform the person of an allegation of abuse or neglect. Verbal abuse is added to the types of abuse which would require immediate follow-up action by the head of the facility in sec.404.7(7). Guidelines regarding the review of allegations for possible peer review are clarified in sec.404.7(8). In sec.404.8(b), training requirements are added for abuse and neglect investigators. Section 404.8(c) has been revised to ensure that facilities assist investigators by taking steps to ensure that staff who are relevant to an investigation are available in an expeditious manner. Section 404.8(e)(1) is revised to clarify that the investigator shall begin the investigation of an allegation of abuse/neglect immediately with the interview of the complainant. Section 404.8(e)(1)(B) is revised to require that the rights officer report back to the abuse and neglect investigator regarding the disposition of any rights allegations turned over by the investigator. Section 404.8(e)(1)(D) is revised to required that the head of the facility sign any report of an unfounded allegation. Procedures investigators should follow when an allegation is determined to be unfounded are added to sec.404.8(e)(2). Section 404.8(f) is deleted and can now be found in sec.404.10(c). Section 404.9(a) is revised to allow the abuse and neglect investigator up to ten working days to complete the investigation. It is clarified in the same section that the abuse and neglect investigator is to complete the "Client Abuse/Neglect Report" (AN-1-A) form up to the point at which the head of the facility makes the final determination when submitting the form with the completed report of the investigation. Section 404.10 is revised to permit the head of the facility to utilize an authority of one or more persons to review the investigative report prior to the head of the facility's decision on a final determination. Section 404.10(b) (3)(A) is revised to outline the procedure to be followed when the head of the facility and/or the review authority disagree with the recommendation of the abuse and neglect investigator. Instructions for returning the completed AN-1-A form to the abuse and neglect investigator for data entry are added to sec.404.10(b)(3)(C). Section 404.10(b)(4) is revised to ensure that the alleged victim is informed of the outcome of the abuse/neglect investigation. A description of the rights of employees when interviewed by the review authority or the head of the facility is included as sec.404.10(c). Section 404.11(a)(2)(C) is revised to reference the maximum suspension for an employee determined to have committed Class III abuse or neglect. It is clarified that the head of the facility's designee may notify the disciplined employee of the disciplinary action. Reporting requirements for allegations involving private citizens and Independent School District employees are added to sec.404.12. The title of the AN-1-A form is clarified in sec.404.13. It is clarified that employees found guilty of retaliatory action will be subject to disciplinary action. Section 404.14(b)(3) is revised to clarify that the alleged victim, etc., shall also be informed of the outcome of an appeal. In sec.404.16(a)(3), the requirement for refresher training within six months of adoption of this subchapter is deleted, although both a briefing and annual training are still required. In sec.404.17(b), requirements regarding provision of the investigative report to interested parties are clarified. The names of several documents referenced in sec.404.19 have been revised to reflect current working titles. Exhibit A is revised to reference new Exhibit D, a memo from Cathy Campbell. Information regarding procedures for documenting unfounded allegations are included. Information regarding photographs is revised to correspond with information in the new subchapter, as is information regarding the number of copies of the final report the abuse and neglect investigator is to submit. Language is added clarifying that responsibilities assigned to the Office of Consumer Services and Rights Protection shall transfer to the Office of MHMR Protective Services, DPRS, upon its creation. Exhibit D is revised to outline the rights of employees interviewed by the review authority or the head of the facility. The space for the signature of the abuse and neglect committee chair is deleted from Exhibit G and replaced with a space for the signature of the abuse and neglect investigator. Comments on the proposed subchapter were received from four organizations or individuals, including the ARC/Texas; the Mental Health Association in Texas; the Life Management Center, San Antonio; Permian Basin Community Centers for MHMR, Midland; Advocacy, Inc., Austin; and David Pharis, Austin. All commenters expressed support for the proposed sections, although all offered recommendations for changes. A commenter asked for clarification regarding action if an employee fails to report abuse or neglect or is proven to have lied during an abuse investigation. The department responds that employees who fail to report or fail to cooperate in an abuse investigation are disciplined according to guidelines established in the department's Personnel Operating Instruction (406-3). With regard to the department's use of the terms "serious" and "nonserious" to describe the range of injuries that might be sustained by persons served in facilities, a commenter noted that any injury that results in harm to a resident of a state facility represents a serious problem, and should not be demeaned by use of the term "nonserious." The department responds that the terms are not intended to demean the seriousness of any injury to a person served; rather, the terms are used in reference to "physical injuries." In this context, the classification of an injury as "serious" or "nonserious" is used for the sole purpose of determining the level of physical injury sustained by a person served for purposes of ensuring appropriate medical attention. The provision that the head of the facility seek appropriate additional attention for a person served who has been the victim of abuse or neglect, including psychological attention, indicates that the department in no way intends to consider any incident of abuse or neglect as "nonserious." A commenter noted that the definition of "complainant" in sec.404.3 was unclear. The department responds that the definition has been clarified to include examples of individuals who may be complainants. Another commenter asked that the definition of "preponderance of evidence" be added. The department responds that the definition has been added. A commenter asked for clarification of the phrase "may have caused" in sec. 404.4(a). The same commenter asked whether or not Class I abuse needed to be expanded to reflect the expansion of Class II abuse. The department responds that "may have caused" refers to a situation in which the individual's action, under normal circumstances, could potentially have led to the injury of an individual served, although no injury resulted in this particular incident. Class I abuse does not need to be expanded to reflect the expansion of Class II abuse. With regard to sec.404.5(c), a commenter asked what the procedure would be if an individual were injured as a result of the use of restraint, seclusion, or the application of approved behavior modifications and believed he or she had been abused. Another commenter asked that language be included specifying that inappropriate use of restraint, seclusion, or behavior modifications would be investigated as abuse or neglect. The department responds that it is intended that any such allegation would be investigated to determine whether or not use of the technique was appropriate and whether or not abuse had occurred. Appropriate training of investigators ensures that such investigations take place. A commenter noted that theft of property is a criminal offense and should be reported to appropriate law enforcement officials. The department agrees, and language has been added to sec.404.5(d) to reflect this. Two commenters asked that sec.404.6(a) and (a)(2) be revised to reflect penalties for failing to report suspicions or knowledge of abuse to the abuse and neglect investigator. The department responds that the determination of the disciplinary action must be left to the head of the facility to allow consideration of the circumstances of the situation. The disciplinary action for an employee who fails to report abuse because they were not certain it was abuse may not be the same as the disciplinary action taken against an employee who refuses to report a clear case of abuse. With regard to sec.404.7, a commenter suggested that the Office of Consumer Services and Rights Protection and the appropriate investigative office at DHS (or its successor agency) should be notified by the head of the facility as soon as the head of the facility is made aware of an alleged incident of abuse. The commenter noted that this would offer DHS an opportunity to initiate an objective, third-party investigation concurrent with the in-house investigation, thus increasing the integrity of the investigative process. The department responds that this is not necessary since the creation of TDPRS will create a situation in which all investigations of abuse will be conducted by an objective party. Also concerning sec.404.7, a commenter recommended that the investigator have authority to determine whether an allegation will be investigated as abuse or neglect or whether it will be deferred to peer review, and that the investigator have the authority to investigate any allegation involving abuse and neglect, including those with clinical issues. The department responds that proposed processes have been problem-free since implemented in September 1991. The shared expertise of the investigator, the medical or nursing director, and the head of the facility has resulted in appropriate decisions concerning the process of investigation. The involvement of the Board of Nurse Examiners and Board of Medical Examiners provides additional external oversight. Another commenter asked whether abuse investigations at community centers would also be conducted by an investigator from the TDPRS. The department responds that at this time, it is believed that TDPRS will only conduct investigations at department facilities. As the agency is established, however, this may change. A commenter requested that language be added specifying guidelines for making decisions regarding what action should be taken regarding the employee. The department responds that the head of the facility must take into consideration the circumstances of the situation and make an informed decision of the type of action to be taken to protect the individuals served. A commenter noted that in order to discharge their duties adequately, abuse and neglect investigators will need to be trained in investigative techniques. The department agrees, and a training requirement has been added in sec.404. 8(b). Concerning sec.404.8(e)(1)(B), a commenter suggested that there needs to be communication between the rights officer and the abuse and neglect investigator regarding the disposition of any allegations turned over to the rights officer. The same commenter asked that language be added to sec.404.9(a) (1) and sec.404.10(b)(3)(D) which states that the abuse and neglect investigator may also make recommendations to the head of the facility regarding rights issues. The department responds that the requested language has been added to sec.404.8(e)(1)(B). However, the abuse and neglect investigator is free to make recommendations regarding any aspect of the facility's operations in which he or she feels a change or improvement is necessary; therefore, there is no need to specify what issues those recommendations may address. Regarding sec.404.8(e)(1)(C)(i), a commenter requested that the phrase "obtained as a direct result of an interview" be added after the phrase "witness statements." The department responds that Exhibit A, "Procedures and Techniques for Investigation of Abuse and Neglect" specifies that the investigator is to interview all witnesses or persons who may provide collateral information and obtain written statements following the interview. With reference to sec.404.8(e)(1)(D), a commenter recommended that the head of the facility sign off on all allegations that the investigator deems unfounded and closes. Language has been changed to respond to the commenter's suggestion. Concerning sec.404.9(a), a commenter requested that the phrase "commencement of the investigation" be revised to read "receipt of the allegation." The department responds that sec.404.8(e) requires the investigator to begin the investigation immediately upon receipt of the allegation; the two phrases therefore carry the same meaning, and the change is not necessary. The same commenter suggested that at a minimum, the Office of CSRP should keep track of the frequency with which an investigator requests additional time to complete the investigative report. The department responds that this is an internal statistic which will necessarily be monitored and does not need to be specified. A commenter expressed concern that provisions in sec.404.10(b)(3)(A) and (B) permitted the superintendent to refute and then disregard the findings of the abuse and neglect investigator. The commenter suggested that the findings of the investigator need to have the authority of a final determination. The commenter noted that the superintendent (and others) may need the opportunity to challenge the findings of the investigator's report and suggested that the superintendent be permitted some type of administrative appeal. The department responds that language has been added which provides the investigator access to the same appeals process as the complainant for cases in which the head of the facility does not concur with the investigator's recommendations. Concerning sec.404.10(b)(4)-(5), a commenter asked that specific timelines be given regarding the occurrence of notifications. The department responds that "promptly" and "timely" imply rapid action; specific timeframes are not necessary. With regard to sec.404.11(a)(1), a commenter asked if confirmed cases are the only ones which are weighed when considering repeat offenses in determining appropriate disciplinary action. The department responds that a pattern of previous unconfirmed cases is examined in consideration of disciplinary action. A commenter suggested that disciplinary action in response to confirmed Class II abuse, outlined in sec.404.11(a)(2)(B), should be limited to dismissal from employment. The commenter noted that the definition of Class II abuse indicates that the action was performed knowingly, recklessly, or intentionally, or that it involved excessive force/corporal punishment or resulted in exploitation. The department disagrees with requiring dismissal from employment in every case of Class II abuse; it is an option, but there is also a need for a range of remedies based on the nature and seriousness of the incident. A commenter asked what options were available to the head of the facility or the Office of Consumer Services and Rights Protection in the event that a contractor overturned a recommendation that abuse be confirmed. The department responds that the head of the facility would need to consider the safety of persons served; were the head of the facility concerned for the life, health, or safety of the persons served, a decision would need to be made regarding the continuation of the contract. Regarding sec.404.14(a), a commenter suggested that employees who are complainants not be permitted to appeal the outcome of an investigation. The commenter noted that allowing an employee to appeal may invite some employees to create unjustified turmoil within the facility. The department responds that the Texas Family Code mandates that any individual who makes a complaint be permitted to appeal the outcome of the investigation. Another commenter suggested that it be further clarified that an employee who is a complainant is permitted to appeal the outcome of the investigation. The department responds that the definition of complainant has been revised to give examples of complainants, and employees are included in that expanded definition. Regarding sec.404.14(b)(3), a commenter suggested that language be added requiring that the alleged victim and the parents, guardian, spouse, or other appropriate relatives who were notified of the allegation of abuse be notified of the outcome of an appeal. The department responds that language has been added. A commenter asked that disciplinary action be specified for persons who engage in retaliatory action. The department responds that the action must be left to the determination of the head of the facility based upon the circumstances of the situation. The new sections are adopted under the Texas Health and Safety Code, sec.532. 015 (Texas Civil Statutes, Article 5547-202, sec.2.11), which provide the Texas Department of Mental Health and Mental Retardation with broad rulemaking powers. sec.404.2. Application. The provisions of this subchapter shall apply to all facilities of the Texas Department of Mental Health and Mental Retardation, including their community-based services, and their contractors and agents. sec.404.3. Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise. Absent-A term in the Client Assignment and Registration system used to describe when a person is physically away from a campus-based location, formerly known as "furlough." Abuse and neglect investigator-An employee or independent contractor (consultant) with expertise in conducting investigations, training, experience, and demonstrated competence in the area of investigation. The investigators will be employed or retained by the Office of Consumer Services and Rights Protection of the Texas Department of Mental Health and Mental Retardation until such time that the Texas Protective and Regulatory Services agency is created. Adult-A person 18 years of age or older. Agent-Any individual not employed by the facility but working under the auspices of the facility, such as a volunteer, a student, etc. Allegation-A report by a person believing or having knowledge that a person receiving services has been or is in a state of abuse, exploitation, or neglect as defined in this subchapter. Child-A person under 18 years of age who is not and has not been married or who has not had the disabilities of minority removed for general purposes. Client Abuse and Neglect Reporting System (CANRS)-A subsystem of CARE developed to record incidents involving abuse or neglect of persons served by facilities. Client Assignment and Registration System (CARE) -The on-line data entry system developed to provide demographic and other data about persons served by the department. Clinical issues -Issues related to unsafe nursing or medical practice or violations of the Nursing Practice Act or Medical Practice Act. Complainant-The person filing a complaint, whether the victim of alleged abuse and neglect, a third party filing a complaint on behalf of the alleged victim, or both. Confirmed-Term used to describe an allegation of abuse or neglect which is supported by the preponderance of the evidence. Contractor-Any organization, entity, or individual associated by contract in a working alliance with a facility. Department-The Texas Department of Mental Health and Mental Retardation. Designee-A staff member immediately available who assume designated responsibilities of the head of the facility. Exploitation-The illegal or improper act or process of using the resources of a person served for monetary or personal benefit, profit, or gain. Facility-Any institution, program, or service operated by the department. Head of the facility-The superintendent or director of a facility. Incitement-To spur to action or instigate into activity; implies responsibility for initiating another's actions. Inconclusive-Term used to describe an allegation leading to no conclusion or definite result due to lack of witnesses or other relevant evidence. Negligence-An action that a person of ordinary prudence would not have taken under the same or similar circumstances, or the failure to take an action that a person of ordinary prudence would have taken under the same or similar circumstances. Nonserious physical injury-Any injury determined not to be serious by the examining physician. Examples of nonserious injury may include the following: superficial laceration, contusion, abrasion. Office of Consumer Services and Rights Protection -The office located at the Texas Department of Mental Health and Mental Retardation until such time as the Office of MHMR Protective Services, DPRS, is created. Office of MHMR Protective Services, DPRS-The office located at the Texas Department of Protective and Regulatory Services which, upon its creation, will assume the responsibilities of the Office of Consumer Services and Rights Protection as outlined in this subchapter. Peer review-A review of clinical and/or medical practice(s) by peer physicians or nurses. Perpetrator unknown -Term used to describe instances in which abuse or neglect is confirmed but positive identification of the responsible person cannot be made, and in which self-injury has been eliminated as the cause. Person served-Any person receiving services from the department, including those persons who are absent who are still carried on the rolls of the facility. Preponderance of evidence-The greater weight of evidence, or evidence which is more credible and convincing to the mind. Prevention and Management of Aggressive Behavior (PMAB) -The department's proprietary risk management program which uses the least intrusive, most effective options to reduce the risk of injury for persons receiving services and for staff from acts or potential acts of aggression. Retaliatory action -Any action intended to inflict emotional or physical harm or inconvenience on an employee or person served that is taken because he or she has reported abuse or neglect. This includes, but is not limited to, harassment, disciplinary measures, discrimination, reprimand, threat, and criticism. Serious physical injury-An injury determined to be serious by the examining physician. Examples of serious injury may include the following: fracture; dislocation of any joint; internal injury; any contusion larger than two and one half inches in diameter; concussion; second or third degree burn. Sexual assault -A criminal act as defined in the Texas Penal Code, sec.22. 011, a copy of which is included as an attachment in Exhibit A. Sexual exploitation -Any act in which a less able individual is coerced, manipulated, or otherwise used sexually, or is threatened with the same by a more physically and intellectually advanced or more socially able individual. Sexually transmitted disease-Any infection of a person served, with or without symptoms or clinical manifestations, that is or may be transmitted from one person to another during or as a result of sexual contact between persons. Unconfirmed-Term used to describe an allegation of abuse or neglect which is not supported by the preponderance of the evidence. sec.404.4. Classification of Abuse and Neglect. When the perpetrator is an employee, contractor, or agent, or the perpetrator is unknown, confirmed abuse or neglect shall be classified in accordance with the "Procedures and Techniques for Investigation of Abuse and Neglect," which is herein adopted by reference in sec.404.18 of this title (relating to Exhibits) as Exhibit A. (1) Class I abuse means: (A) any act or failure to act performed knowingly, recklessly, or intentionally, including incitement to act, which caused or may have caused serious physical injury to a person served; or (B) any sexual assault or sexual exploitation involving an employee, agent, or contractor and a person served, without regard to injury. (2) Class II abuse means: (A) any act or failure to act performed knowingly, recklessly, or intentionally, including incitement to act, which caused or may have caused nonserious physical injury to a person served, (B) any act of force or corporal punishment, including striking or pushing a person served, regardless of whether the act results in nonserious injury to a person served; or (C) exploitation. (3) Class III abuse means any use of verbal or other communication to curse, vilify, or degrade a person served, or to threaten a person served with physical or emotional harm, or any act which vilifies, degrades, or threatens a person served with physical or emotional harm. (4) Neglect means negligence which causes or could predictably lead to any physical or emotional injury to a person served. sec.404.5. Prohibition Against Abuse and Neglect of Persons Served by Facilities, Facility Contractors, and Agents. (a) Abuse or neglect of persons served by facilities, facility contractors, and agents is prohibited and shall be grounds for appropriate action, including reporting to law enforcement authorities; reporting to governing boards for professional practice; and, additionally for employees, disciplinary action up to and including termination. (b) Any pregnancy of a person served, provided there is medical verification that the conception could have occurred while the person was a resident of the facility or contractor, or any diagnosis of a sexually transmitted disease in a person served which could have occurred while the person was a resident of the facility shall be reported in keeping with the provisions of this subchapter as possible Class I abuse or neglect. Additional reporting requirements for the head of the facility or designee are described in Chapter 404, Subchapter G of this title (relating to Unusual Incidents Involving Persons Served by TXMHMR Facilities). (c) Abuse does not include: (1) the proper use of restraints or seclusion, including PMAB, and the approved application of behavior modification techniques as described in Chapter 405, Subchapter F of this title (relating to Restraint and Seclusion-Mental Health Facilities) and Chapter 405, Subchapter HH of this title (relating to Restraint and Seclusion Mtal Retardation Facilities); (2) other actions taken in accordance with the rules of the department; or (3) such actions as an employee may reasonably believe to be immediately necessary to avoid imminent harm to self, persons served, or other individuals if such actions are limited only to those actions reasonably believed to be necessary under the existing circumstances. (d) All theft of property belonging to a person served shall be handled administratively and reported to local or state law enforcement agencies as appropriate. sec.404.6. Reporting Responsibilities of All TXMHMR Employees. (a) Each employee who suspects or has knowledge of, or who is involved in an allegation of, abuse or neglect shall make a verbal report to the abuse and neglect investigator immediately, if possible, but in no case more than one hour after the incident. The employee shall submit a written incident report to the abuse and neglect investigator within two hours. Employees who become aware of a situation at any time after the fact shall make a verbal report to the abuse and neglect investigator immediately, if possible, but in no case more than one hour after learning of the incident. The employee shall submit a written incident report to the abuse and neglect investigator within two hours. (1) The "Report of Suspected Abuse/Neglect" form, which is attached as Exhibit B, should be made available to all staff to expedite the process of submitting written reports. However, lack of availability of this form should not impede the reporting of abuse and neglect. (2) Failure to make such reports within the allotted time period without sufficient justification shall be considered a violation of this subsection and make the employee subject to disciplinary action and possible criminal prosecution. (b) Without regard to the identity of the perpetrator, suspected sexual assault, or sexual exploitation shall be reported to the abuse and neglect investigator immediately, if possible, but in no case more than one hour later by the person making the allegation. If the person making the allegation is not an employee, e.g., a person receiving services, a guest, etc., staff shall assist the individual in making the report, if necessary. The employee shall submit a written incident report (such as the "Report of Suspected Abuse/Neglect) to the abuse and neglect investigator within two hours. (c) If there is reason to suspect that a person served was abused, neglected, or exploited during an absence from the facility with a family member or guardian, the employee shall immediately, if possible, but in no case more than one hour later contact the Department of Human Services (1-800-252-5400) and the head of the facility or designee. (d) Upon receiving a report of an allegation of abuse or neglect, the investigator will: (1) immediately notify the head of the facility or designee; (2) immediately, if possible, but in no case more than one hour later report abuse-related allegations of a criminal nature to the appropriate local or state law enforcement agencies unless other reporting requirements have been agreed to with local or state law enforcement agencies. Such agreements shall be in writing and signed by both the head of the facility and a representative of the law enforcement agency. (e) Anonymous allegations will be received and investigated following the same procedures that are used when the complainant is known. (f) An allegation that sexual assault has been committed by a person receiving services shall be reported and investigated following the procedures outlined in this subchapter with the understanding that negligence on the part of staff may have made it possible for the assault to have occurred. Other aggressive behaviors by persons receiving services shall be reported and investigated according to sec.404.244 of this title (relating to Reporting Injuries and Incidents Involving Persons Served) and sec.404.245 of this title (relating to Reporting a Criminal Act). (g) Upon receipt of the "Report of Suspected Abuse/Neglect" form, the abuse and neglect investigator shall submit a copy to the head of the facility or designee. sec.404.7. Responsibilities of the Head of the Facility or Designee: Immediate Actions Required. Immediately upon notification of an allegation of abuse or neglect, if possible, but in no case more than one hour later, the head of the facility or designee shall ensure that adequate medical care has been provided to the victim, and shall take measures to ensure the safety of the individual, including the following actions. (1) If the accused is an employee, the head of the facility or designee will determine whether action should be taken regarding the employee, which may include immediately granting the employee emergency leave, reassigning the employee to a non-direct care area, allowing the employee to continue in a non-direct care post pending investigation, or allowing the employee to remain in his or her current position pending investigation. (2) If the accused is a person receiving services (in cases of sexual assault), the head of the facility or designee will take immediate appropriate action to protect the victim, e.g., one-on-one observation of the accused and/or the victim, separation, etc. For cases in which a person served is accused of sexual assault, the head of the facility or designee shall refer the allegation to that person's treatment team or interdisciplinary team within 24 hours, unless the allegation is made on a weekend or holiday, in which case the allegation may be referred to the treatment team or interdisciplinary team on the next working day. Additional appropriate actions in response to sexual assault and other aggressive behaviors by persons receiving services shall be taken according to sec.404.244 of this title (relating to Reporting Injuries and Incidents Involving Persons Served) and sec.404.245 of this title (relating to Reporting a Criminal Act). (3) If the accused is another person who is known but who is neither a staff member nor a person receiving services, e. g., family member, friend, etc., the head of the facility or designee will effect a restriction on that person's access to the victim pending investigation. The restriction should be documented in the record of the person served, and should be noted in the final report. (4) If the accused is a private citizen, the head of the facility or designee will immediately, if possible, but in no case more than one hour later notify TDHS for their investigation. (5) If the accused is an Independent School District (ISD) employee, the head of the facility or designee will immediately, if possible, but in no case more than one hour later contact the superintendent of the ISD, and the appropriate local or state law enforcement agency (if appropriate) for their investigation. (6) The head of the facility or designee shall immediately, if possible, but in no case later than 24 hours after notification of an allegation of abuse/neglect, notify the parents, guardian, spouse, or other appropriate relative of the alleged victim, unless specifically prohibited by Chapter 403, Subchapter K of this title (relating to Client-Identifying Information), Chapter 404, Subchapter E of this title (relating to Rights of Persons Receiving Mental Health Services), or Chapter 405, Subchapter Y of this title (relating to Client Rights-Mental Retardation Services). If contact cannot be made by telephone, the head of the facility or designee will notify the parents, guardian, spouse, or other appropriate relative of the alleged victim by certified mail, return receipt requested. (7) If the allegation involves verbal abuse, physical abuse, sexual assault, or sexual exploitation, the head of the facility or designee will ensure necessary immediate and ongoing medical and/or psychological attention is obtained for the victim, and, as needed, for the perpetrator, if a person receiving services. Such attention may include screening and treatment for sexually transmitted diseases, psychological counseling and support, etc., consistent with the procedures described in "Procedures and Techniques for Investigation of Abuse and Neglect," which is referenced in sec.404.18 of this title (relating to Exhibits) as Exhibit A. (8) If the allegation involves the actions of a physician or registered nurse, the head of the facility or designee, in coordination with abuse and neglect investigator and the facility medical or nursing director, as appropriate, will determine whether the allegation involves the clinical practice of a physician or registered nurse. If the abuse or neglect allegation does not involve clinical issues the abuse and neglect investigator will pursue an investigation. If a determination is made that the allegation involves the clinical practice of a physician or registered nurse, the abuse and neglect investigator shall turn the allegation over to the head of the facility or designee, who shall: (A) immediately refer the allegation to the medical director or nursing director, as appropriate, for review for possible peer review as outlined in Operating Instruction 408-2, governing Investigative Medical Peer Review, and Operating Instruction 408-1, governing Professional Nursing Quality Assurance, which are referenced in sec.404.18 of this title (relating to Exhibits) as Exhibit E and Exhibit F, respectively. If the allegation is against the medical director or nursing director, it shall be referred to the TXMHMR medical director or the TXMHMR nursing director, as appropriate. (9) The head of the facility shall ensure that reports of allegations of abuse or neglect are made as required by law to the licensing authority for the discipline under review, e.g., to the Board of Medical Examiners for physicians, and to the Board of Nurse Examiners for registered nurses. sec.404.8. Abuse and Neglect Investigator. (a) Abuse and neglect investigator. An abuse and neglect investigator will conduct all abuse and neglect investigations. (b) Training. Abuse and neglect investigators will receive appropriate training in issues related to the efficient and effective investigation of all allegations, including, but not limited to, how to conduct investigations and patient rights. (c) Investigations. Facilities shall ensure that abuse and neglect investigators are afforded immediate access to all records and provided keys as are necessary to carry out the investigation. Facilities will assist in whatever way possible to make staff who are relevant to the investigation available in an expeditious manner. (d) Consultants. The abuse and neglect investigator may retain a consultant for the purpose of assisting with investigations. (e) Responsibilities. (1) The abuse and neglect investigator shall fully investigate alleged incidents of abuse or neglect. (A) The abuse and neglect investigator shall begin the investigation immediately, i.e., interview the complainant, and assure the safety and medical examination/treatment for the person served as needed. (B) Allegations determined by the investigator to involve rights violations shall be turned over to the facility's rights officer as appropriate. The facility rights officer shall report back to the abuse and neglect investigator regarding the disposition of any such allegation. (C) Investigative procedures outlined in "Procedures and Techniques for Investigation of Abuse and Neglect," which is referenced in sec.404.18 of this title (relating to Exhibits) as Exhibit A, are to be followed in all investigations. (i) Written statements shall be obtained from all witnesses and any other persons who may provide collateral information. (ii) The abuse and neglect investigator shall ensure that all photographs relevant to the investigation, including photographs depicting the existence or nonexistence of injuries, are taken as soon as possible, but in no case more than 24 hours after the report of the allegation. Copies of all such photographs shall be submitted with the investigative report sent to the head of the facility and the Office of Consumer Services and Rights Protection, Central Office. (iii) The physician's exam and treatment of abuse-related injuries shall be documented on the Client Injury/Incident Report form, which is referenced in sec.404.18 of this title (relating to Exhibits) as Exhibit C, and attached to the investigative report submitted to the Office of Consumer Services and Rights Protection, Central Office. The physician's remarks during or following the examination should address the injury's cause, age, and treatment, to the extent that can be determined, as well as the timing of the medical exam with regard to the date the injury was received. All clinical issues will be referred to the medical/clinical director or designee for consultation. (D) If at any point during the course of the investigation it becomes apparent (via written witness statements and other evidence gathered) that the allegation is obviously spurious, the investigation may be closed as unfounded after being signed by the head of the facility. The reason for the determination, based on specific evidence, will be included in the report. A copy of all such investigations shall be sent to the Office of Consumer Services and Rights Protection and to the head of the facility. (2) The abuse and neglect investigator shall indicate "perpetrator unknown" in those instances where the preponderance of evidence exists to confirm abuse or neglect, but positive identification of the person(s) responsible cannot be determined and self-injury has been eliminated as the cause. Evidence must exist that abuse or neglect has been committed for the term "perpetrator unknown" to be used. When there is a lack of evidence that abuse or neglect has occurred, the recommendation should be that the investigation was inconclusive or unconfirmed. sec.404.9. Responsibilities of Abuse and Neglect Investigator; Completion of Investigation. (a) Within 10 working days of the commencement of the investigation, the abuse and neglect investigator shall complete the investigation and submit to both the director of the Office of Consumer Services and Rights Protection and the head of the facility a copy of: (1) the investigative report, including a statement of the allegation(s), a summary of the investigation, an analysis of the evidence, the abuse and neglect investigator's recommendations concerning whether or not abuse or neglect occurred, the "Client Abuse/Neglect Report" (AN-1-A) form, which is referenced in sec.404.18 of this title (relating to Exhibits) as Exhibit G, completed up to the point at which the head of the facility makes the final determination, and concerns resulting from the investigation; (2) the Client Injury/Incident Report, which is referenced in sec.404. 18 of this title (relating to Exhibits) as Exhibit C; and (3) all witness statements and supporting documents. (b) If additional time is required to complete the investigative report, written justification must be received by the Office of Consumer Services and Rights Protection for approval or disapproval and this will be noted in the final report. (c) In cases of abuse or neglect previously reported to a law enforcement agency, the investigator will submit a copy of the investigative report to the appropriate law enforcement agency. (d) When abuse of a child is alleged, the head of the facility shall submit a "Final Report of Suspected Abuse and Neglect in a Child Care Facility," which is referenced in sec.404.18 of this title (relating to Exhibits) as Exhibit H, to the Office of Consumer Services and Rights Protection. sec.404.10. Responsibilities of the Head of the Facility or Designee; Completion of the Investigation. (a) Upon receiving the written investigative report from the investigator, the head of the facility may submit the report and concerns articulated by the investigator to a review authority of one or more persons who shall review the investigation. The review authority may include a member of the facility's public responsibility committee. The authority may call witnesses in the course of the review. All interviews with witnesses shall be tape recorded. (b) Upon completion of the investigation of any allegation, the head of the facility or designee shall take the following actions: (1) review the abuse and neglect investigator's report; (2) review the authority's report, if applicable; and (3) interview witnesses, if necessary, prior to making a final determination (if a review authority was not utilized for this purpose). (A) Recommendations by the abuse and neglect investigator and the review authority, if applicable, concerning whether abuse or neglect occurred are not binding on the head of the facility; however, the head of the facility or designee shall document the specific reasons for his or her determination as to whether or not abuse occurred. (1) Such documentation shall be included with the final investigative report and be forwarded by the head of the facility or designee to the Office of Consumer Services and Rights Protection. (2) In the event that the head of the facility and/or the review authority disagree with the recommendation of the investigator, the investigator may appeal the determination of the head of the facility following the procedures described in sec.404.14 of this subtitle (relating to Appeals Process). (B) The head of the facility or designee shall submit to the Director of the Office of Consumer Services and Rights Protection a copy of the report of the review panel, if applicable. (C) The head of the facility or designee shall submit the completed "Client Abuse/Neglect Report" (AN-1-A) to the abuse and neglect investigator within thirty calendar days after receipt of the investigative report. The abuse and neglect investigator shall be responsible for entering the information into the CANRS system. (D) The head of the facility or designee shall establish a mechanism for evaluating the concerns of the abuse and neglect investigator and the review authority, if applicable, which result from the investigation. (4) Unless specifically prohibited by Chapter 403, Subchapter K of this title (relating to Client- Identifying Information), Chapter 405, Subchapter L of this title (relating to Client Rights -Mental Health Services), or Chapter 405, Subchapter Y of this title (relating to Client Rights-Mental Retardation Services), the head of the facility or designee shall ensure that the alleged victim and the parents, guardian, spouse, or other appropriate relatives who were notified of the allegation are promptly notified of the final results of the investigation. (5) The head of the facility or designee shall ensure that, if requested, the parents, guardian, spouse, or other appropriate relatives are notified in a timely manner if a grievance is filed by the employee regarding the findings. (c) The rights of employees summoned to appear before the abuse and neglect review authority or the superintendent/director are outlined in the memo titled "Procedures in Abuse and Neglect Investigations and Thurston Rebuttal Proceedings," which is herein adopted by reference as Exhibit D and which is referenced in sec.404.18 of this title (relating to Exhibits) as Exhibit D. sec.404.11. Responsibilities of Head of the Facility or Designee: Disciplinary Action. The head of the facility or designee shall be responsible for taking prompt and proper disciplinary action when a charge of abuse or neglect is confirmed. (1) Disciplinary action shall be based on criteria including, but not limited to: (A) the seriousness of the abuse and/or neglect; (B) the circumstances surrounding the event; (C) the employee's record; (D) repeat offenses; and (E) if a second violation, the length of time between violations. (2) When the head of the facility or designee determines that abuse or neglect has occurred, the following disciplinary action shall be taken: (A) Class I abuse. The employee shall be dismissed from employment. (B) Class II abuse. The employee shall be placed on suspension for up to 10 days, demoted, or dismissed. If the employee is exempt under the provisions of the Fair Labor Standards Act (FLSA), the suspension shall be in compliance with relevant provisions of the FLSA and current TXMHMR personnel policies. (C) Class III abuse, neglect. The employee may receive a written reprimand which shall become a part of the employee's personnel file, or may be placed on suspension for up to 10 days, demoted, or dismissed. If the employee is exempt under the provisions of the Fair Labor Standards Act (FLSA) the suspension shall be in compliance with relevant provisions of the FLSA and current TXMHMR personnel policies. (3) When disciplinary action is taken against an employee based on abuse or neglect, the head of a facility or designee shall notify the disciplined employee in writing of the disciplinary action and any right to a grievance hearing the employee may have under the department's internal policies and procedures relating to employee grievances. sec.404.12. Abuse and Neglect Investigative Procedures for Facility Contractors, Private Citizens, and Independent School District (ISD) Employees. For purposes of reporting, investigating, and preventing abuse and neglect by contractors of state facilities, the procedures described in this subchapter for employees of facilities shall be followed. (1) An allegation that an employee of a contractor has committed abuse or neglect shall be reported to the abuse and neglect investigator immediately, if possible, but in no case more than one hour later. The abuse and neglect investigator will immediately notify the administrator of the contract provider and the head of the facility or designee. (2) The investigation of an allegation that an employee of a contractor has committed abuse or neglect shall be handled in accordance with the procedures outlined in sec.404.8 of this subchapter (relating to Abuse and Neglect Investigator). (3) The abuse and neglect investigator shall submit a written report to the administrator of the contract provider and the head of the facility or designee regarding whether there is cause to believe that abuse or neglect has occurred in the incident investigated. If there is any disagreement in the findings, the administrator of the contract provider shall document the specific reasons and notify the Office of CSRP and the head of the facility or designee. (4) The administrator of the contract facility shall notify the head of the facility or designee of any action taken against the accused contract employee. (5) The head of the facility or designee will complete the "Client Abuse/Neglect Report" (AN-1-A) and forward to the Office of CSRP. (6) Any abuse or neglect allegation where the accused is a private citizen shall be reported to TDHS for investigation. (7) Any abuse or neglect allegation where the accused is an employee of an Independent School District shall be reported to the superintendent of the ISD, and local or state law enforcement agencies (if appropriate) for investigation. sec.404.13. Responsibilities of the Office of Consumer Services and Rights Protection. The Office of Consumer Services and Rights Protection shall: (1) monitor statistical trends in abuse and neglect; (2) review all abuse and neglect investigations and make recommendations to facilities concerning corrective and preventive actions (including rights violations which may require further action); (3) determine closure on all investigations within 30 days of when the "Client Abuse/Neglect Report" (AN-1-A) is received; (4) report all allegations of abuse involving a child to the Office of Youth Care Investigations; (5) report all allegations of abuse involving adults served by the Department to the Adult Protective Services division of the Texas Department of Human Services (DHS) until such time as the Texas Protective and Regulatory Services agency is created; and (6) ensure that appropriate reports of abuse regarding registered nurses or physicians are made to the respective boards of examiners. sec.404.15. Prohibition Against Retaliatory Action. (a) Any employee or person served who in good faith reports abuse, exploitation, or neglect shall not be subjected to retaliatory action by any employee of the department or any person affiliated with an employee of the department. (b) Any person who believes he or she is being subjected to retaliatory action upon making a report of abuse or neglect, or who believes a report has been ignored without cause, shall immediately, contact the head of the facility or designee. Such person may also contact: (1) the Office of Consumer Services and Rights Protection, Central Office, at the toll free number 1 (800) 252-8154; (2) the Office of the Attorney General at (512) 463-2120 which, under the Whistleblower Act, Texas Civil Statutes, Article 6252-16a, may prosecute a supervisor who suspends or terminates a public employee for reporting a violation of law to law enforcement authorities. (c) Any employee found guilty of retaliatory action will be subject to disciplinary action. sec.404.16. Staff Training in Identifying and Reporting Abuse and Neglect. (a) This subchapter shall be thoroughly and periodically explained to all employees, contractors, and agents of each facility as follows. (1) All new employees, contractors, and agents shall receive the instruction on the content of this subchapter during their orientation training and prior to beginning work that involves direct contact with any person served. Acknowledgment of this instruction shall be certified by the employee, contractor, or agent using the Orientation to Chapter 404, Subchapter A form, which is referenced in sec.404.18 of this title (relating to Exhibits) as Exhibit I, and filed. (2) Orientation shall include a thorough explanation of the definitions contained in these rules, including the categories or classes of abuse or neglect, the disciplinary consequences of abuse or neglect, and the procedures for reporting incidents of abuse or neglect. (3) Within 60 days after the effective date of this subchapter, all current employees, contractors, and agents shall be briefed on the contents of this subchapter by the head of the facility or designee. Acknowledgment of this instruction shall be certified by each employee using the Orientation to Chapter 404, Subchapter A form, which is referenced in sec.404.18 of this title (relating to Exhibits) as Exhibit I and filed in the employee's record. (b) Those employees, contractors, and agents in frequent contact with persons served shall receive additional instruction on the prevention and therapeutic management of aggressive, combative behavior or similar volatile situations as a unit of training within the employee's six months probationary period of employment. Training shall comply with training standards promulgated by the department. (c) All supervisory personnel shall have a continuing responsibility to keep employees, contractors, and agents currently informed on rules governing abuse or neglect and shall ensure that each employee receives training on identifying and reporting abuse and neglect not less than once each calendar year. Such training shall be reported to the facility office for staff development. (d) Instructional materials, audiovisual, and/or other training aids concerning this subchapter shall be approved by the deputy commissioner of Human Resources, Central Office, in concurrence with the Office of Legal Services and the Office of Consumer Services and Rights Protection. (e) A record shall be kept by the facility office for staff development on each employee receiving orientation, annual training, or additional instruction in compliance with this section, including the date training was provided and the name of the individual conducting the training. sec.404.17. Confidentiality of Investigative Process and Report. (a) The reports, records, and working papers used by or developed in the investigative process and the resulting final report regarding abuse and neglect are confidential and may be disclosed only as provided under law. Information discussed during deliberations of abuse and neglect investigations may not be discussed outside the purview of those deliberations with the exception of the concerns and recommendations which are to be addressed by the appropriate person(s) or as otherwise allowed in sec.404.7 of this title (relating to Responsibilities of the Head of the Facility or Designee: Immediate Actions Required) and in sec.404.8 of this title (relating to Abuse and Neglect Investigator.) (b) Some information may be released as follows: (1) Parents/guardians shall be told that an abuse or neglect allegation has been made, with a description of the nature of the allegation and any action taken such as medical treatment provided or remedial measures. (2) Upon request, copies of the investigative report shall be released to the person served, legal guardian, or parent (if the person served is a minor) in accordance with Open Records Decision 90-562, a copy of which is attached as Exhibit J. The names of other persons served shall be blocked out throughout the report. (3) The complainant shall be notified of the findings, but neither the perpetrator's name nor the disciplinary action taken shall be released to the complainant. The name of the person served may be used in informing the complainant of the findings. (4) The accused shall be informed of the investigative findings. If disciplinary action is taken and the employee files a grievance, the employee may read the investigative report and listen to the tape recordings of witness interviews conducted by the review authority or the superintendent/director. The employee may obtain a copy of the investigative report, but may not receive a copy of the recordings. sec.404.19. References. Reference is made to the following statutes, rules of the department, and attorney general opinions: (1) Texas Family Code, sec.34.01 et seq.; (2) Title 7, Chapter 576, sec.576.005, Health and Safety Code (formerly Texas Civil Statutes, Article 5547-87); (3) Title 7, Chapter 532, sec.532.011, Health and Safety Code (formerly Texas Civil Statutes, Article 5547-202, sec.2.12); (4) Title 7, Subtitle D, Health and Safety Code (formerly Texas Civil Statutes, Article 5547-300); (5) Whistleblower Act, Texas Civil Statutes, Article 6252-16a; (6) Texas Penal Code, Chapters 19 and 21, sec.sec.22. 01, 22.02, 22.04, 22. 05, 22.07, 22.08, 22.10; (7) Texas Family Code, sec.sec.11.01, 34.01, 34.02, 34.03; (8) Human Resources Code, Chapter 48; (9) Chapter 403, Subchapter P (relating to Public Responsibility Committees); (10) Chapter 404, Subchapter G (relating to Unusual Incidents at TXMHMR Facilities); (11) Chapter 405, Subchapter F (relating to Restraint and Seclusion Mental Health); (12) Chapter 405, Subchapter G (relating to Restraint and Seclusion Mental Retardation); (13) Chapter 404, Subchapter E (relating to Rights of Persons Receiving Mental Health Services); (14) Chapter 405, Subchapter Y (relating to Client Rights Mental Retardation Services); (15) TXMHMR Personnel OI, 406 3, sections relating to: (A) emergency leave; (B) suspension, demotion, and reduction in salary; and (C) dismissal for cause; (16) TXMHMR policy and procedures relating to employee grievances; and (17) Attorney General Opinions H-237 (1974), H-986 (1977), and H-494 (1975). 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 June 26, 1992. TRD-9208903 Anne K. Utley Chairman Texas Board of Mental Health and Mental Retardation Effective date: August 1, 1992 Proposal publication date: March 24, 1992 For further information, please call: 465-4670 Chapter 410. Volunteer Services and Public Information Subchapter A. Public Responsibility Committees 25 TAC sec.sec.410.1-410.14 The Texas Department of Mental Health and Mental Retardation (TXMHMR) adopts new sec.sec.410.1-410.14, concerning pubic responsibility committees. Sections 410.3-410.9 and 410.14 are adopted with changes to the proposed text as published in the May 8, 1992, issue of the Texas Register (17 TexReg 3333). In addition, Exhibit E, "Notice of Any Action Taken," is adopted with changes. Sections 410.1, 410.2, and 410.10-410.13 are adopted without changes and will not be republished. The new sections are adopted contemporaneously with the adoption of the repeal of existing Chapter 403, Subchapter P, also governing public responsibility committees. The purpose of the new subchapter is to update policies and procedures guiding the functions of public responsibility committees at TXMHMR facilities and community mental health and mental retardation centers. The new subchapter would take effect September 1, 1992, which is the beginning of the reporting year for PRCs. Throughout the document, the term "other" has been added to the phrase "denial of rights" to reflect the fact that abuse is a denial of rights. In sec.410.3, definitions for "complaint" and "rights protection officer" are added. In addition, the definition of "volunteer services council (VSC)" is revised to reflect current trends. Section 410.4 has been revised to reflect that, in abuse investigations, the PRC will work in coordination with the entity charged with conducting an abuse/neglect investigation. Section 410.5(b)(3) has been revised to clarify that an individual receiving services may be a member of a PRC provided the individual is not currently receiving inpatient services from the facility or community center. Section 410.5(c)(3) is revised to reflect that open meetings requirements must be met when informing interested parties of the time and place of meetings to select members of PRCs. In sec.410.5(d)(2), it is clarified that any interested party may receive a copy of the PRC roster upon request. Section 410.5(f) is revised to clarify that reimbursement for travel will be in accordance with facility or community center policy. A requirement that training be documented is added in sec.410. 5(f). In addition, it is clarified that training will be provided at times that are convenient to participants. Section 410.5(g) is revised to clarify that only the PRC chair or a member designated by the PRC chair may collect complaints from the PRC's post office box and enter those complaints on the PRC log. Language has been added clarifying that the rights protection officer will coordinate and, as appropriate, provide training to PRC members. It is also clarified that the RPO will provide administrative assistance to the PRC. Criteria for removal of PRC members from the committee are revised in sec.410. 5(h) to reflect that the PRC chair may remove a member for failing to attend two consecutive PRC meetings, failure to participate in training, or failure to comply with the provisions of this subchapter. Language is added requiring the PRC chair to notify the facility's volunteer services council or the community MHMR center's local authorizing agencies, as appropriate, of the reason for the removal and the need for replacement. In addition, it is clarified that a member may be removed by the volunteer services council or local authorizing agencies, as appropriate, on the recommendation of a majority of the PRC members. Section 410.6(f) is revised to require the PRC secretary to maintain the PRC minutes, with a copy maintained by the RPO in a permanent file. Section 410.7 is revised to require the facility or community center to submit copies of all publicity to the Office of Consumer Services and Rights Protection, Central Office, on an annual basis. Language is added to sec.410.8(a)(1) requiring the PRC chair or a member designated by the PRC chair to check the PRC's post office box for complaints at least every seven days. In sec.410.8(a)(2)(A), it is clarified that PRC members may only interview family members of persons served with the consent of the person served or the parent/guardian of the person served. In sec.410.8(a)(2)(F), language has been added outlining PRC participation in facility abuse investigation review authorities. Section 410.9(b)(1) is revised to reflect the Office of Consumer Services and Rights Protection's role as the commissioner's designee. The dates to be covered in the PRC's annual report are clarified in sec.410.9(c)(1), and sec.410.9(c)(2) is revised to reflect the need to submit the annual report to the facility's or community center's rights protection officer. In sec.410.14, language is revised to add the TXMHMR medical director, abuse and neglect investigators employed by the Office of MHMR Protective Services, DPRS, upon its creation, and rights protection officer to the list of people to whom the subchapter should be distributed. Exhibit E, "Notice of Any Action Taken," is revised to include information about steps which may be taken if the complainant is dissatisfied with the recommendation of the PRC. Comments on the proposed subchapter were received from 12 individuals or organizations, including Advocacy, Inc.; TEXAMI; Collin County AMI; Pecan Valley MHMR Region, Stephenville; Central Counties MHMR, Temple; Life Resource Center, Beaumont; Northeast Texas MHMR Center, Texarkana; Harris County Mental Health and Mental Retardation Authority, Houston; Life Management Center for MHMR Services, El Paso; Denton County MHMR Center, Denton; Lynda C. Baldwin, Galveston; and Clyde M. Herrington, Lufkin. All commenters offered recommendations for changes. A commenter recommended that recruitment of PRC members be conducted through entities that appoint Boards of Trustees, and suggested that the Volunteer Services Council be relieved of this responsibility. The department responds that assigning the task to the facility's volunteer services council, which is the entity generally responsible for the recruitment of volunteers, does not preclude involvement by the entities that appoint Boards of Trustees. A commenter asked where the PRC might turn should it find itself in need of legal advice. The department responds that PRCs at facilities may consult with the department attorney assigned to the particular facility. Community centers employ private attorneys, and PRCs may be able to consult with them. A commenter suggested adding a definition of "complaint" to sec.410.3. The same commenter suggested adding the term "other" before the phrase "denial of rights" (both in the definition of "complaint" and throughout the document) to clarify that abuse is a denial of rights. The department responds that both recommendations have been followed. With regard to sec.410.5(a)(1), a commenter requested that the minimum number of members of a PRC be changed from five to seven in recognition of recruitment difficulties. Another commenter asked what the PRC should do if it had fewer than the minimum number of members. The department responds that the statutory language creating PRCs requires seven members. The department suggests broadening recruitment efforts to involve local corporations, advocacy organizations, students in related studies, and other areas as a means of increasing membership. A commenter recommended that sec.410.5(a)(1) be revised to require that representation on PRCs include parents, guardians, consumer groups, and advocacy groups, noting that these groups have a better understanding of the issues associated with mental illness and mental retardation. The department responds "shall include" is strong enough to imply that the above listed groups be represented in membership. Concerning sec.410.5(a)(4), a commenter expressed concern that the provision prohibiting the PRC to comprise a majority of relatives of individuals receiving services held the possibility of shutting out the individuals most likely to take their responsibilities seriously. The department responds that membership must be limited to permit other interested parties, such as members of consumer groups and members of the general public, to participate to provide a well-balanced, objective mechanism for reviewing issues. With regard to sec.410.5(b)(3), a commenter suggested that the provision prohibiting an individual receiving services from PRC membership be revised to prohibit "individuals currently receiving inpatient services from a facility or community center." The commenter noted that it is conceivable that an individual living in the community and receiving outpatient services could serve a valuable role as a PRC member. The department agrees, and language has been revised as recommended. A commenter expressed opposition to allowing the executive director, volunteer services council, or any other agent of the community center to appoint PRC members, as outlined in sec.410.5(c)(1). The commenter noted that it would be preferable to have an agent independent of the community center such as the local chapter of an advocacy organization responsible for appointments. Another commenter expressed opposition to assigning the facility volunteer services council the responsibility of appointing PRC members. The department responds that according to statute, the local establishing agencies of community centers and the executive committee of each facility's volunteer services council must be responsible for PRC appointments. Concerning sec.410.5(c)(1)(A), two commenters suggested adding timelines regarding notification of parents and advocates of the time and place of meetings to select PRC members. One commenter suggested requiring a minimum of three weeks' notice. The department responds that language has been added requiring that such notices be made in keeping with the open meetings requirements outlined in Texas Civil Statutes, Article 6252-17. A commenter suggested that a limit to the number of terms a member may serve be reinstated in the subchapter, noting that member "burn-out" can reduce the effectiveness of the committee. The commenter suggested that members be permitted to serve no more than three consecutive terms before having to sit out for one year. The department responds that the term limits were removed in response to a number of concerns expressed regarding recruitment, with several commenters noting that qualified, dedicated members were often lost as a result of term limitations. The department also notes that a member who is "burnt-out" is free to refuse re-appointment to the PRC. A commenter suggested revising sec.410.5(d)(2) to require that the roster be forwarded to advocacy organizations. The department responds that language has been revised to state that the roster may be forwarded to any interested party upon request. With regard to sec.410.5(f)(2), a commenter noted that there are no sources identified for "additional specialized training" for PRC members. The commenter requested that a list be written into the rules which included advocacy organizations. The department responds that the determination of the type and source of specialized training necessary should be left with the PRC, the facility or community center, and/or the rights protection officer. Language has been revised in sec.410.5(g)(2)(A) to reflect that the RPO may not be capable of providing all types of training necessary. It is clarified that the RPO is responsible for coordinating training (i.e., locating sources) and, as appropriate, providing training to PRC members. With regard to sec.410.5(g), a number of commenters expressed opinions about the proposed assignment of the rights protection officer as PRC liaison. Several commenters praised the appropriateness of the assignment; however, several others expressed concern that the PRC would lose its credibility as an independent body as a result of being affiliated with the RPO, and would come to be seen simply as an extension of the facility and the RPO. Commenters expressed concern about the RPO maintaining the PRC log, suggesting that such responsibility was better placed with the PRC itself. The department responds that the intent of the assignment of the RPO as liaison to the PRC was to provide the PRC with accurate, timely answers to information regarding patients' rights. Language has been revised throughout the section to ensure that the PRC maintains its independence i.e., the addition of language clarifying that the RPO coordinates training required by the PRC (and provides it as appropriate). It was never the department's intent that the RPO should "take over" the PRC log, which would give the impression of the RPO assuming the PRC's functions. Language has been added clarifying that only the PRC chair or a member designated by the PRC chair may collect complaints from the PRC post office box and enter those complaints on the PRC log. The PRC will continue to function as an independent body. The assignment of the RPO as liaison to the PRC ensures that all facility staff are fulfilling the assignments they are best equipped to accomplish. The volunteer services department is responsible for recruiting, acknowledging, and providing basic orientation to PRC members just as the volunteer services department does for all volunteers. The RPO is responsible for providing accurate, timely information to the PRC upon its request and for ensuring that the PRC is able to fulfill its responsibility which, although independent of the department, is an important part of the department's rights program, for which the RPO is responsible. A commenter suggested that executive directors of community centers and superintendents/directors of facilities be permitted to determine the staff responsible for the PRC effort (i.e., rights protection officer, volunteer services office, etc.). The department responds that there needs to be some consistency throughout the system and that the responsibility rightfully rests with the RPO, who is capable of providing the PRC information regarding rights issues upon request. A commenter recommended that PRC members receive initial training regarding their role as it pertains to the protection of consumer rights from the Office of Consumer Services and Rights Protection. The commenter noted that differences in interpretations of rules, policies, or implementation efforts occur between staff in the facilities and CO, and suggested that having CO staff provide training would ensure that the PRC understands the philosophy and spirit behind a rule. The department responds that such efforts have been made in the past and will be attempted in the future; to reflect the possibility of provision of such training, sec.410.5(a)(2)(A) has been revised to note that the RPO is responsible for coordinating training as well as providing it when appropriate. With regard to sec.410.5(a)(2)(C), the same commenter recommended that the PRC be responsible for maintaining its own log. The commenter noted that this would provide an additional element of confidentiality and serve to advance the PRCs credibility as an independent mechanism. The department responds that it was never the intent that the rights protection officer should document complaints in the log; rather, the RPO is responsible for "maintaining" the log in the sense of storing it and keeping track of it. Language has been revised to clarify this point, and additional language has been added in sec. 410.5(g)(2) which affirms that only the PRC chair or a member designated by the PRC chair may collect complaints from the PRC post office box and enter those complaints on the PRC log. Concerning sec.410.5(h)(1), a commenter noted that it was unclear whether the list of reasons for removal from the PRC was all-inconclusive. The commenter also expressed opposition to having members dismissed by agents of the facility or community center. Another commenter expressed concern about the provision permitting a PRC member to be removed at the request of a majority of the PRC. The commenter suggested the provision gave the appearance of the ability to stack the committee by unscrupulous members. The department responds that the provisions for removal from the PRC have been revised to take these comments into consideration. The PRC chair is now permitted to remove a member from the PRC for failure to attend two consecutive meetings, failure to attend training, or failure to comply with the provisions of this subchapter. The chair must notify the volunteer services council or local establishing agencies, as appropriate, of the reason for the removal and the need for replacement. In addition, members may be removed by the volunteer services council or local establishing agencies, as appropriate, at the request of the majority of the PRC members. This provision serves to create an additional "check and balance" prior to removal of a member by the majority of the PRC. Also with regard to the same section, a commenter expressed opposition to the inclusion of failure to participate in training as a reason for removal from the PRC. The department responds that a PRC member who does not understand his or her role is of little use to the PRC; therefore, this is a legitimate reason for removal. With regard to sec.410.6(c), a commenter suggested that a provision be added requiring that the total membership be an uneven number so that a decision is always achievable since votes are decided by a simple majority. The department responds that according to Robert's Rules of Order, the chair only votes in order to break a tie. Therefore, such a provision is unnecessary. A commenter suggested that a provision be added to sec.410.6(d) stating that if the person making the complaint objects to the presence of additional individuals, the objection must be honored. The department responds that specific complaints are discussed at PRC meetings only within the context of analysis of trends. The meetings are much more general; complaints are resolved between meetings. Several commenters questioned the requirement in sec.410.6(f) that the PRC chair maintain the minutes in a permanent file. One commenter asked where the file would be located; several others suggested the rights protection officer or volunteer services director should maintain the minutes. The department responds that the requirement for maintaining the minutes has been transferred to the secretary, and a provision has been added requiring that a copy be maintained by the rights protection officer in a permanent file. In language added to sec.410.5(g)(2)(C), the rights protection officer is required to provide space for storage of PRC minutes and PRC logs. Concerning sec.410.7(a), a commenter suggested that the responsibility for providing individuals, their families, and the general public with information about the existence, purpose, and composition of the PRC should rest with the facility or community center. The commenter also suggested that the rule detail consequences for failing to provide this information. The department responds that according to language in sec.410.7(a), this responsibility does lie with the facility or community center. Language has been added requiring that copies of the publicity be sent to the Office of Consumer Services and Rights Protection on an annual basis as a means of ensuring that the information is provided. With regard to sec.410.8(a)(1), a commenter emphasized the importance of the PRC having its own post office box which is not accessible to facility or center staff. The department responds that language added in sec.410.5(g)(2) clarifies that only the PRC chair or a member designated by the PRC chair may collect complaints from the PRC post office box. Regarding sec.410.8(a)(1)(B), a commenter questioned how often the PRC was required to check its post office box. The department responds that language has been added requiring that the post office box be checked for complaints at least every seven days. Concerning sec.410.8(a)(1)(D), a commenter emphasized the importance of all complaints being documented. The department agrees, and new language added to sec.410.5(g)(2) clarifies that only the PRC chair or a member designated by the PRC chair may collect complaints and enter them on the PRC log. This eliminates the possibility of any other individual collecting complaints without documenting them. Several commenters suggested that the reporting requirements outlined in sec. 410.9 are too extensive. A commenter suggested the requirements made the PRC appear to be a subdivision of MHMR rather than an independent body. Another commenter suggested that the report be required annually or as necessary. Another commenter asked what entities receiving the reports are supposed to do with them. The department responds that both quarterly and annual reports are necessary. The quarterly report includes the actual log, which details each complaint investigated information which is important to facility and community center administrators. The annual report, on the other hand, provides an overview of the PRCs work for the previous year it provides a summary of the types of complaints handled without including all the details. This report is required by statute to be provided to the advocacy system. Upon receipt of these reports, entities should review the reports and consider trends and/or action necessary. A commenter suggested that community center boards of trustees serve only as policy-making entities, and therefore do not require quarterly reports. The commenter suggested an annual report would be sufficient. The department responds that policy-making requires awareness, and therefore a quarterly report keeping the board aware throughout the year is essential. Regarding the submission of quarterly and annual reports to the Office of Consumer Services and Rights Protection, a commenter asked whether the role of commissioner's designee would transfer to the new Texas Department of Protective and Regulatory Services upon its creation. The department responds that as of this time, there is no plan to transfer this responsibility. Concerning sec.404.11, a commenter noted the importance of the PRC having the ability to resolve complaints in a satisfactory manner. The commenter noted that a lack of empowerment to resolve complaints will erode the credibility of the PRC and the service system. Another commenter asked why the director or superintendent was noted as the party responsible for taking appropriate corrective action. The department agrees that the PRC needs to pursue an issue until an appropriate resolution is achieved. The superintendent/director of a facility or executive director of a community center is the appropriate body to take corrective action as the chief administrator of the facility. However, if dissatisfied with the corrective action, the PRC may appeal the action (or lack of action). And if PRC members are still dissatisfied, they can request a review by the Office of Youth Care Investigation, Attorney General's office, or the Office of Adult Protection Services, Department of Human Services, as appropriate. In fulfilling its responsibility, the PRC must be aware of all avenues available, and should actively pursue these avenues until the situation is appropriately resolved. A commenter suggested that appeals outlined in sec.404.11(a)(2)(B) should also be filed with the commissioner and the Office of CSRP. The department responds that submission of a copy of the appeal to these entities technically equates to filing a complaint; all are reviewed and, if necessary, actions are taken. Another commenter suggested that the Board of Trustees is not the appropriate body for handling PRC appeals. The commenter suggested this involved the board in responsibilities other than policy making, and suggested the Office of Consumer Services and Rights Protection or Advocacy, Inc., might be a more appropriate source. The department responds that as the entity to which the executive director must answer, the board of trustees is an appropriate body to consider appeals of corrective action taken. These sections are adopted under the Texas Health and Safety Code, sec.532. 015 (Texas Civil Statutes, Article 5547-202, sec.2.11), which provide the Texas Department of Mental Health and Mental Retardation with broad rulemaking powers. sec.410.3. Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise. Advocacy, Inc. -The system of advocacy in Texas for individuals with developmental disabilities and mental illness, created pursuant to Public Law 94-103, sec.113. Board-The board govern a community mental health and mental retardation center. Commissioner-The commissioner of the Texas Department of Mental Health and Mental Retardation. Community MHMR center-A community center for mental health and mental retardation established pursuant to Texas Health and Safety Code, sec. sec.534. 001 et seq, (Texas Civil Statutes, Article 5547-203). Complaint-An allegation of abuse or other denial of rights of a person served by a facility or community MHMR center which is submitted to the public responsibility committee for investigation. Department or TXMHMR-The Texas Department of Mental Health and Mental Retardation. Facility-Any hospital, state school for individuals with mental retardation, state center, or other facility of the Texas Department of Mental Health and Mental Retardation and its respective outreach programs, or any organizational entity that may be hereafter made a part of the department. Fiscal year-The period of time between the first day of September and the last day of the next August, inclusive. Individual-Any person who seeks or receives services from a TXMHMR facility or community MHMR center. Interdisciplinary team -A group of professionals and paraprofessionals who assess the individual's treatment, training, and habilitation needs and make recommendations for services. Legally adequate consent-Consent given by a person or the person's legally authorized representative when each of the following conditions has been met. (1) Legal capacity. The person giving the consent is 18 years of age or older and has not been adjudicated incompetent to manage personal affairs by an appropriate court of law; is at least 16 years of age but under 18 years of age receiving voluntary mental health services and has not been adjudicated incompetent to manage personal affairs by an appropriate court of law; is the parent of a person served under 18 years of age who is not and has not been married or has not had disabilities of minority removed for general purposes; or is the guardian who, under court order, has been appointed guardian of the person of the individual. (2) Comprehension of information. The person giving the consent has been informed of and comprehends the nature, purpose, consequences, risks, and benefits of and alternatives to the procedures, and the fact that withholding or withdrawal of consent shall not prejudice any future provision of care and services to the individual. (3) Voluntariness. The consent has been given voluntarily and free from coercion and undue influence. Local authorizing agencies-Those agencies which have authorized community mental health and mental retardation centers as defined in Texas Health and Safety Code, sec.sec.534.001 et seq (Texas Civil Statutes, Article 5547-203). PRC-Public responsibility committee. PRC log-The summary of investigations of correspondence received directly by the PRC. A sample PRC log is attached as Exhibit A. Rights protection officer (RPO)-An individual at a facility or community center who is responsible for implementing the rights program for persons served by the facility or center. Also known as the consumer rights officer. Volunteer services council (VSC)-A non-profit corporation of volunteers who work on behalf of TXMHMR. sec.410.4. Functions of the PRC. (a) The public responsibility committee (PRC) is an independent, impartial third-party mechanism whose functions shall include, but are not limited to, the following: (1) protecting, preserving, promoting, and advocating for the health, safety, welfare, and legal and human rights of individuals; (2) inquiring into or investigating and responding to comment, suggestions, or complaints made with regard to individuals; (3) ensuring that individuals and, when appropriate, their families, are informed of their rights and the means of protecting those rights; (4) participating in the individual's interdisciplinary team as the PRC deems appropriate (for individual's receiving mental health services, PRC participation in the interdisciplinary team shall be with the individual's permission only); and (5) submitting instances of abuse or other denial of rights to the appropriate authorities for action. The public responsibility committee, the Office of Consumer Services and Rights Protection, and/or the entity conducting an abuse/neglect investigation shall work together to ensure efficient and thorough investigation of allegations. (b) Members of the PRC should be especially familiar with the facility or community MHMR center, its policies, the rights handbooks for persons receiving services, Chapter 404 of this title (relating to Protection of Clients and Staff), and Chapter 405 of this title (relating to Client (Patient) Care). sec.410.5. Membership. (a) Composition. (1) Each facility or community MHMR center's PRC shall have a minimum of seven members. The membership shall include, but not be limited to, representation by parents, guardians, consumer groups, and advocacy organizations. (2) Facilities may appoint a PRC representative in the locale of its community services or outreach programs. (3) At the beginning of each fiscal year, the PRC shall elect one of its members as chairperson and another member as secretary. (4) At no time shall a majority of any PRC membership be composed of relatives of individuals receiving services. (b) Eligibility. Members of the PRC must: (1) reside in the area served by the facility or community MHMR center; (2) be capable of mature, objective judgment of medical, legal, social, and ethical considerations pertaining to the committee's work; (3) not be an individual currently receiving inpatient services from the facility or community center; and (4) not be affiliated with the facility or community MHMR center. This includes employment, financial, or other relationship between a person and TXMHMR central office, a facility, community MHMR center, i.e., full-or part-time employee, former employee, member of a governing or advisory board or panel, paid consultant, contractor, or supplier, or a person related to any such person, such as spouse, parent, grandparent, sibling, child, or grandchild. Any such relation to the spouse of an employee, former employee, member of a governing or advisory board or panel, consultant, contractor, or supplier is also considered an affiliation. (A) After a one-year separation from employment, former employees may serve on public responsibility committees through the regular channels of becoming a member and with the approval of the facility superintendent/director or the executive director of the community MHMR center. (B) After a one-year separation from affiliation, all other parties considered affiliated shall be permitted to serve on public responsibility committees through the regular channels of becoming a member. (c) Selection of membership. (1) The executive committee of each facility's volunteer services council shall ensure representation and consultation and select persons to serve voluntarily as members of the PRC. At community MHMR centers, the community MHMR center's local authorizing agencies will serve in this function. The selection process shall include: (A) informing local parents' associations, consumer groups, and advocacy organizations of the selection process and time and place of meeting in keeping with open meetings requirements established in Texas Civil Statutes, Article 6252-17; (B) inviting such groups to submit nominations for membership; (C) giving public notice of the members selected. (2) Members shall be chosen without regard to sex, race, color, creed, national origin, age, or handicap. (d) Terms of appointment. (1) Members shall be appointed to serve a two-year term. There is no limit on the number of terms served. (A) Membership terms shall be staggered. (B) Expiring terms shall extend until another member is appointed. (2) A roster of all current PRC members will be maintained by the Office of Volunteer Services, Central Office, and may be forwarded to interested parties upon request. (e) Reimbursement. Members of a PRC shall serve without compensation other than reimbursement (by the facility or community MHMR center) for actual expenses, including travel expenses necessarily incurred in the performance of their duties in accordance with facility or community center policy. (f) Training requirements. To obtain essential general knowledge of the facility or community MHMR center, members shall participate in training prior to assuming duties. Training shall be provided at times which are convenient to participants, shall be documented through sign-in sheets, and shall include, but not be limited to: (1) at least one general orientation to the facility or community MHMR center and its volunteer policies; and (2) additional specialized training related to their specific assignment as members of the PRC. (g) Relationship to facility and community MHMR center staff. (1) PRC members and staff should cooperate with each other to develop good working relationships, mutual acceptance, and cooperation. (2) The PRC chair or a member of the PRC designated by the chair shall be the only individual permitted to collect complaints from the PRC's post office box and shall be responsible for entering complaints received on the PRC log. (3) The facility or community MHMR center's rights protection officer shall serve as staff liaison to the public responsibility committee and shall: (A) coordinate and, as appropriate, provide training in issues relevant to the PRC's operation, including, but not limited to, legal issues and issues relating to the rights of persons receiving services; (B) coordinate PRC meetings; (C) provide administrative assistance and space for storage of PRC logs and minutes of PRC meetings. The rights protection officer shall maintain confidentiality in all matters relating to receipt, investigation, and reporting of complaints by the PRC. (4) The facility or community MHMR center's volunteer services department shall recruit and provide general training and orientation for PRC members, provide appropriate recognition, and maintain the PRC membership roster and submit changes. At community centers where there is no volunteer services department, the executive director of the community center shall appoint an individual to perform these tasks. (5) The superintendent/director of a facility or the executive director of a community MHMR center may designate either the volunteer services department or the facility or center's rights protection officer to provide assistance to the PRC chair in ordering supplies from central office including PRC letterhead and log report forms. A sample sheet of PRC letterhead is attached as Exhibit B. (6) The staff liaison shall maintain confidentiality in all matters relating to receipt, investigation, and reporting of complaints by the PRC. (h) Removal from PRC. (1) Removal by PRC chair. (A) The PRC chair shall remove a PRC member from the committee for: (i) failure to attend two consecutive meetings of the PRC in the absence of an acceptable reason; (ii) failure to participate in training; and (iii) failure to comply with the provisions of this subchapter. (B) Upon such removal, the PRC chair shall notify the executive committee of the facility's volunteer services council or the community MHMR center's local authorizing agencies, as appropriate, of the reason for removal and the need for replacement. (2) Removal on recommendation of PRC. On the recommendation of a majority of the PRC, a member may be removed by the executive committee of the facility's volunteer services council or the community MHMR center's local authorizing agencies, as appropriate. (3) Replacement of member. Replacement of the member shall be in accordance with this section. sec.410.6. Meetings. (a) The PRC shall meet as often as necessary to fulfill its duties, but not less than quarterly. (b) The PRC shall determine the times and locations of its meetings. Meetings may be held via teleconference. (c) A quorum of the committee (the majority of its total membership) must be present to conduct business. Votes shall be decided by a simple majority of members present. (d) Facility or community MHMR center staff may attend a PRC meeting with the permission of the PRC. (e) The PRC may invite other appropriate individuals to attend a meeting. (f) The minutes of each PRC meeting shall be maintained by the PRC secretary and a copy maintained by the RPO in a permanent file. sec.410.7. Information Responsibilities. (a) Facility and community MHMR center responsibilities. (1) Each facility and community MHMR center shall be responsible for informing individuals, their families, and the general public of the existence, purpose, and composition of the PRC. Each facility or community MHMR center shall accomplish this task by: (A) distributing news releases to news media at least once a year, stressing the fact that the PRC is an independent, impartial body and that none of its members are affiliated with TXMHMR Central Office, the facility, or the community MHMR center, as applicable; (B) publishing brief statements of PRC purpose and accessibility in periodic publications; (C) posting printed notices conspicuously in all appropriate buildings; and (D) including PRC information in handout materials routinely given to newly admitted individuals, their families, and new employees. A sample document which can be used to accomplish this task is attached as Exhibit C. (2) Copies of all publicity shall be submitted to the Office of Consumer Services and Rights Protection, Central Office, on an annual basis. (b) PRC responsibilities. (1) Each PRC shall publish and distribute information related to its purpose and accessibility. (2) Each PRC will respond to questions, comments, and suggestions related to its purpose. (3) When appropriate, the PRC may assist an individual in securing legal counsel but may not offer any legal advice. sec.410.8. Investigatory Responsibilities. Each facility or community MHMR center public responsibility committee (PRC) shall receive, investigate, and report complaints made to it by, or on behalf of, individuals and shall make recommendations to appropriate line authorities. (1) Receipt of complaints. In order to facilitate the receipt of complaints, the PRC must have its own post office box, which must be checked for complaints at least every seven days. Rental fees must be paid by the facility's volunteer services council. Community MHMR centers may pay the rental fees if volunteer donations are not available. (A) Complaints must be in writing and should be signed. (i) If a complainant is unable to sign or write, the complaint may be dictated and the complainant's mark confirmed by a witness. (ii) A PRC member must reduce an oral complaint to writing and present it to the PRC. (iii) A PRC member must reduce an anonymous complaint to writing and present it to the PRC. (B) Complaints must be sent directly to the PRC and must be opened by a member of the PRC. (C) Each PRC shall maintain confidential records of complaints received, acknowledge receipt of complaints, and inform the individuals and/or complainants of any action taken. A sample form which may be used to acknowledge receipt of complaints is attached as Exhibit D. A sample form which may be used to inform complainants of any action taken is attached as Exhibit E. (D) The PRC shall record all complaints received in the PRC log, a copy of which is attached as Exhibit A and made a part of this subchapter. (2) Investigation of complaints. In investigating an allegation of denial of individual rights, the PRC shall initiate an investigation or inquiry within 10 calendar days of receipt of a complaint. In investigating a report of alleged abuse or neglect, the PRC shall immediately contact the abuse investigator for the facility or the executive director of the community MHMR center, as appropriate, who shall ensure that an abuse investigation is initiated. At facilities, the superintendent or director is responsible for reporting results of abuse investigations to the PRC in accordance with Chapter 404, Subchapter A of this title (relating to Abuse and Neglect in TXMHMR Facilities). (A) Authority to interview. During an investigation, PRC members may interview the following persons, when appropriate: (i) the complainant; (ii) the individual, if other than the complainant; (iii) any other individual involved in the complaint as participant or observer; (iv) family members, guardians, and/or other representatives of the individual with the consent of the person served or the parent/guardian of the person served, as appropriate; (v) staff members; and (vi) nonstaff members (volunteers). (B) Authority to inspect site. When investigating complaints of abuse or other denial of rights, the PRC shall have the authority, with or without notice, to inspect the facility or community MHMR center which offers services to the individual. (C) Authority to inspect records-mental retardation. When investigating complaints of abuse or other denial of rights involving an individual with a primary or secondary diagnosis of mental retardation, the PRC shall have the authority, with or without notice, to inspect records relating to the diagnosis, evaluation, or treatment of the individual, as those records relate to the complaint. (D) Authority to inspect records-mental health. PRC investigations of complaints of abuse or other denial of rights of persons with a diagnosis of mental illness are considered evaluations of the abuse protection system of facility and community MHMR center programs. The PRC shall have access to the facility or community MHMR center records relating to the treatment of the individual who has filed a complaint with the committee as those records relate to the complaint. (E) Considerations during investigation. PRC members should observe the facility's or community MHMR center's established schedules and procedures during the investigation of any complaint. (F) PRC participation in facility abuse investigation review authorities. At facilities, the superintendent/director may ask a PRC member to participate as a member of an authority reviewing an abuse investigation as outlined in Chapter 404, Subchapter A of this title (relating to Abuse and Neglect of Persons Served by TXMHMR Facilities). sec.410.9. Routine Reporting Responsibilities. (a) Membership changes. Within two weeks of the addition of any new member to the committee, the PRC shall submit to the Office of Volunteer Services, central office, the new member's name, address, date of appointment, and term expiration date. (b) Quarterly report. The chairperson of the PRC shall maintain a PRC log. On a quarterly basis, the PRC chair shall submit a report which includes the PRC log, sign-in sheets from meetings, and proof of training conducted in the previous quarter. (1) The quarterly report shall be submitted to: (A) the commissioner's designee (Office of Consumer Services and Rights Protection, central office); (B) the facility superintendent/director or the community MHMR center's executive director; (C) the community MHMR center's board of trustees; and (D) the facility or community MHMR center's rights protection officer (RPO), who shall meet with the PRC at least quarterly to discuss trends evidenced in the logs. (2) For any authorized recipient of the log other than qualified auditing personnel within TXMHMR and the parties named in this paragraph and paragraphs (1) and (3) of this subsection, individuals' and employees' names shall be obliterated. (c) Annual report. (1) The PRC shall make an annual report summarizing its work for the previous twelve months (September 1 through August 31), including: (A) a complete membership roster, including names, addresses, dates of appointments, term expiration dates, and the PRC mailing address; (B) dates of meetings and training (including sign-in sheets and proof of training); and (C) a completed annual report form. A sample copy of the annual report form is attached as Exhibit F. (2) The report shall be submitted no later than October 31 of each year to: (A) the facility's superintendent/director or the community MHMR center's executive director; (B) the facility's or community MHMR center's RPO; (C) the commissioner and the commissioner's designee (Office of Consumer Services and Rights Protection); and (D) Advocacy, Inc., 7800 Shoal Creek Boulevard, Suite 171 E, Austin, Texas 78757. sec.410.14. Distribution. (a) The provisions of this subchapter shall be distributed to members of the Texas Board of Mental Health and Mental Retardation; deputy commissioners; the TXMHMR medical director; associate and assistant deputy commissioners; and directors of central office; superintendents and directors of all TXMHMR facilities and community MHMR centers; chairpersons of boards of trustees of community MHMR centers; directors of volunteer services; chairpersons of all facility and community MHMR center public responsibility committees; and abuse and neglect investigators employed by the Office of MHMR Protective Services, DPRS, upon its creation. (b) The superintendent or director of each facility and community MHMR center shall disseminate the information contained in this subchapter to all appropriate staff members, including rights protection officers, and volunteers. 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 June 26, 1992. TRD-9208906 Anne K. Utley Chairman Texas Board of Mental Health and Mental Retardation Effective date: September 1, 1992 Proposal publication date: May 8, 1992 For further information, please call: 465-4670 TITLE 28. INSURANCE Part I. Texas Department of Insurance Chapter 1. General Administration Subchapter I. Disclosure of Guaranty Fund Nonparticipation 28 TAC sec.1.1001 The State Board of Insurance of the Texas Department of Insurance adopts an amendment to 28 TAC sec.1.1001, concerning disclosure of guaranty fund nonparticipation. The amendment adds subsection (g) to 28 TAC sec.1.1001, to specify that the disclosure notice is not applicable to fidelity, surety, or guaranty bonds, without changes to the proposed text as published in the December 27, 1991, issue of the Texas Register (16 TexReg 7702). Section 1.1001 provides specific directions for disclosure of guaranty fund nonparticipation on each certificate or evidence of coverage and on each insurance policy, contract, or application that is delivered or issued for delivery in this state, that is not covered by an insurance guaranty fund or other solvency protection arrangement. The amendment to sec.1.1001 is necessary to comply with Section 11.08, Chapter 242, Acts of the 72nd Legislature, Regular Session, 1991, which amends the Insurance Code, Article 21.28-E, to specifically exempt fidelity, surety and guaranty bonds from the guaranty fund disclosure requirement. The amendment provides a specific exception with respect to fidelity, guaranty and surety bonds from the compliance requirements implemented by the current 28 TAC sec.1.1001. No comments were received regarding adoption of the amendment. The amendment is adopted under the Insurance Code, Articles 21.28-E and 1. 04, and Texas Civil Statutes, Article 6252-13a, sec.4 and sec.5. The Insurance Code, Article 21.28-E(b) authorizes and requires the State Board of Insurance to administer statutory provisions and promulgate statements that must be used by insurers to comply with Article 21.28-E, relating to the disclosure of guaranty fund nonparticipation. Article 1.04 authorizes the Board to determine policy and rules in accordance with the laws of this state for uniform application. Texas Civil Statutes, Article 6252-13a sec.4 and sec.5 authorize and require each state agency to adopt rules of practice setting forth the nature and requirement of available procedures and prescribe the procedures for adoption of rules by a state administrative agency. The adopted amendment affects regulation of disclosures by insurers under the Insurance Code, Article 21.28-E. 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 June 26, 1992. TRD-9208891 Linda K. von Quintus-Dorn Chief Clerk Texas Department of Insurance Effective date: July 17, 1992 Proposal publication date: December 27, 1991 For further information, please call: (512) 463-6327 Chapter 3. Life, Accident and Health Insurance and Annuities Subchapter Y. Minimum Standards for Benefits for Long-Term Care Coverage Under Individual and Group Policies The State Board of Insurance of the Texas Department of Insurance, adopts amendments to sec.sec.3.3801-3.3805, 3.3807, 3.3809-3.3812, 3.3819, 3.3821-3. 3826, and 3.3828-3.3832, and new sec.sec.3.3813-3.3815, 3.3818, 3.3820, 3. 3837-3. 3839, and 3.3849-3.3850, concerning minimum standards for benefits for long-term care coverage under individual and group policies, following passage of Article 13 of House Bill 62, Second Called Session of the 72nd Texas Legislature, creating Article 3.70-12 of the Insurance Code. Sections 3.3803, 3.3804, 3.3813, 3.3814, 3.3818, 3.3821, 3.3830, 3.3837, 3.3840, 3.3849 are from the proposed as published in the February 25, 1992, and March 3, 1992, issues of the Texas Register (17 TexReg 1507 and 1591). Sections 3.3801, 3. 3802, 3.3805, 3.3807, 3.3809-3.3812, 3.3815, 3.3819, 3.3820, 3.3822-3.3826, 3. 3828-3.3832, 3.3838, 3.3839, 3.3850 are adopted without changes and will not be republished. During the period for public comment for the proposed amendments and new sections a public hearing was requested and convened May 28, 1992, as Docket Number R-1898. As a result of many comments received during the respective comment periods, and the hearing pursuant to Docket Number R-1898. The amendments and new sections will assure orderly implementation and effective disclosure of long-term insurance benefits and premiums by companies licensed to provide such coverages, pursuant to the Insurance Code, Article 3. 70-12. Article 3.70-12, sec.3(a) directs the State Board of Insurance to establish specific standards for provisions of long-term care insurance policies and standards for full and fair disclosure setting forth the manner, content and required disclosures for the marketing and sale of long-term care insurance policies, in addition to and in accordance with provisions of the Insurance Code in Chapter 3 applicable to all accident and health coverages. Article 3.70-12, sec.7 provides that in addition to other rules required or authorized by Article 3.70-12 the board may adopt reasonable rules necessary to carry out the article. The adopted sections contain a number of changes to the amendments and new sections as proposed and published. The change to sec.3. 3803 (relating to Applicability and Scope) clarifies that the sections do apply to policies which are designed as long-term care products, even if those policies do not otherwise meet the definition of a long-term care coverage. The change to the definition of "long-term care insurance" in sec.3.3804 (relating to Definitions) clarifies that the term also includes a policy or rider, other than a group or individual annuity or life insurance policy, that provides for payment of benefits based on cognitive impairment or the loss of functional capacity. The change to sec.3.3813 (relating to Policy Definition of Personal Care) adds the elements of "continence" and "mobility" to the minimum standard list of activities of daily living, which are instrumental in triggering eligibility for benefits for long-term care. The change to sec.3.3814 (relating to Policy Definition of Adult Day Care) makes it clear that programs and settings for "adult day care" are subject to the provisions of the Human Resources Code, Chapter 103, relating to licensing and quality of care requirements. Two changes are made to sec.3.3818 (relating to Eligibility for Benefits). The change to sec.3.3818(1) accommodates the addition of activities of daily living by insurers to trigger eligibility for benefits, provided that presence of an inability to perform any two of the activities of daily living in sec.3. 3813 (relating to Policy Definition of Personal Care) will automatically trigger eligibility for benefits. The change to sec.3.3818(2) provides a minimum standard for the definition of the term "impairment of cognitive ability." The change to sec.3.3821 (relating to Limits on Group Long-Term Care Insurance) makes it clear that the reference to the Insurance Code, Article 3. 51-6, sec.1(a) is specifically directed to paragraph (6) of that Insurance Code section, relating to discretionary groups. The change to sec.3.3830(f) provides that notice of proposed replacement of a long-term care coverage is to be made by a replacing insurer within five working days from the date the application is received by the replacing insurer at its home office. Three changes are made to sec.3.3837 (relating to Reporting Requirements). The first change clarifies that the records maintenance and reporting for replacement and lapse events apply to both the number and dollar amounts of annual sales attributable to long-term care products. The second change to the section sets a minimum threshold of sales, below which an agent which otherwise would be included in a report of agents with the greatest percentage of lapse or replacement will in fact be excluded. A final change to the section clarifies that the maintenance and reporting requirements required by the section relate to the sale and lapse of long-term care products only. The change to sec.3.3840 (relating to Requirements to Deliver Shopper's Guide) adds a paragraph providing for use of the most recent revision of the shopper's guide developed by the National Association of Insurance Commissioners until approval of the shopper's guide developed by the Texas Department of Insurance. Two changes are made to sec.3.3849 (relating to Effective Date). The first change provides that any policy permitted to be delivered or issued in the state in conformity with the Insurance Code, Article 3.70-12, may be delivered or issued only until September 1, 1992. After that date, all new issues and deliveries are subject to the provisions of these sections as amended or added. The second change to the section details that the first reporting period for requirements set out in sec.3.3837 (relating to Reporting Requirements) shall be calendar year 1992, with the first report due to the department no later than June 30, 1993. The amendment to sec.3.3801 references the authority vested in the board under the Insurance Code, Article 3.70-12. The amendment to sec.3.3802 provides that the purpose of this subchapter as amended is to implement the Insurance Code, Article 3.70-12, to provide uniform standards for benefits and disclosures, thereby facilitating the availability of long-term care coverage that is in the best interest of the insurance consumers of this state. The amendment to sec.3.3803 provides that the sections apply to contracts and evidences of coverage issued by health maintenance organizations. The amendment to sec.3.3804 changes definition of essential terms to include health maintenance organizations and contracts or evidences of coverages issued by them. The amendment to sec.3.3805 extends the limitations applicable to sec. sec.3. 3806-3.3812 to sec.sec.3.3813-3.3815 as well. The amendment to sec.3.3807 clarifies when the term "guaranteed renewable" may be used. The amendment to sec.3.3809 is editorial in nature only, and makes no substantive change to this section. The amendment to sec.3.3810 clarifies when the term "noncancellable" may be used. The amendment to sec.3.3811 makes reference to the Insurance Code, Article 3.70-12, sec.3(c), which sets out the restrictions on the definition of pre-existing conditions limitations. The amendment to sec. 3.3812 removes the term "home health agency" from the policy definition of "provider." The amendment to sec.3.3819 sets standards for reserves and specifies the characteristics which must be present if the method of reserving is to be acceptable. The amendment to sec.3.3821 is editorial in nature and references the "department" rather than the "board." The amendment to sec.3. 3822 revises the minimum standard for renewability to include group coverage. The amendment to sec.3.3823 sets out disclosures to be made to applicants for long-term care coverage at the time of application for long-term care benefits or services. The amendment to sec.3.3824 sets out limitations on pre-existing conditions provisions generally, and sets out restrictions on pre-existing condition waiting periods and other probationary periods in circumstances where long-term care coverage is replaced. The amendment to sec.3.3825 clarifies that prior hospitalization or institutionalization limitations apply to group coverage, sets out further limitations on conditions for eligibility, and provides for required disclosures. The amendment to sec.3.3828 provides, in the event of conversion from a group policy having managed-care provisions, elucidation about substantially equivalent benefits. Such amendment also provides that upon discontinuance and replacement, the replacement coverage shall be offered to all persons covered under the previous group policy on a nondiscriminatory basis. The amendment to sec.3.3829 provides for a required disclosure of the 30-day free look period available to all long-term care coverage applicants. Such amendment also provides that any permitted limitation or condition of eligibility must be clearly labeled and described in a separate paragraph of the policy or contract. The amendment to sec.3.3830 changes the requirements for replacement of long-term care coverages and includes questions to be included upon the taking of an application for long-term care coverage, as well as new disclosures which are required. The amendment to sec.3.3831 is nonsubstantive and made for purposes of clarification only. The amendment to sec.3.3832 requires that outlines of coverage provided in connection with long-term care coverage be standard in format and content, and sets out the essential requirements for such outlines of coverage. New sec.3.3813 provides a policy definition for the term "personal care." New sec.3.3814 provides a policy definition for the term "adult day care. " New sec.3.3815 provides a policy definition for the term "home health agency" and the standards for home health and adult day care benefits. New sec.3.3818 provides for the occurrence of events which will result in the eligibility for benefits or services under long-term care coverages. New sec.3.3820 requires that any company offering long-term care coverage in this state also offer prospective covered persons the opportunity to purchase coverage providing for benefit levels to increase throughout the interval of coverage to mitigate the effects of economic inflation and increases to medical costs. New sec.3.3837 replaces the prior section addressing effective date with requirements for reporting agent activity with respect to lapses of long-term care coverages and replacement sales. New sec.3. 3838 replaces the prior section addressing severability with filing requirements for advertising for long-term care coverages. New sec.3.3839 sets out standards for marketing long-term care coverages to assure that comparison of policies by agents will be fair and accurate, that excessive insurance is not sold or issued, and to help alleviate the practices of twisting, high pressure tactics, and cold lead advertising. New sec.3.3849 sets out the effective date of this subchapter as amended. New sec.3.3850 sets out the severability provisions which previously had comprised sec.3.3838. Written comments from 11 sources were received during the combined period for comment running from February 26, 1992, to April 3, 1992. No comments were received against the sections, although all commenters submitting written comments in favor of the amendments and new sections included recommendations and suggestions for additions to and deletions from the proposed amendments and proposed new sections as published. Names of those making comments included Aetna Life Insurance Company, AMEX Life Assurance Company, Christian Fidelity Life Insurance Company, CIGNA Companies, CNA Insurance Companies, Consumers Union, Health Insurance Association of America, Office of Public Insurance Counsel, The Prudential, Teachers Insurance and Annuity Association, Transport Life Insurance Company, and UNUM Life Insurance Company of America. Comments addressing a number of subject areas were received with respect to matters not directly addressed in this adoption, both during the period for written comment, and at the public hearing under Docket Number R-1898. Major topics of comment included the following: proposals focusing on inclusion of nonforfeiture benefits, reduced paid up benefits, or other equity features in long-term care coverages; proposals for uniform benefits packages and uniform definitions for long-term care coverages; proposals relating to rating practices and rate caps for long-term care coverages; and required disclosure about future premium rate increases for long-term care coverages. With respect to proposals focusing on nonforfeiture benefits, reduced paid up benefits and other equity features, a number of commenters primarily emphasized that long-term care coverages should be required to include such types of benefits as a minimum standard. Other comments raised questions about the extent to which such a requirement would confer a true economic benefit to those policyholders to whom such provisions would be directed. Still other comments urged that at a minimum a nonforfeiture benefit be permitted to be included in long-term care coverages at the option of the insurer. The department responds that the issue of nonforfeiture benefits is one which needs to be addressed by regulation in the near future. The department notes that it is aware of the lack of unanimity, both among insurers and among other groups who advocate nonforfeiture benefits in long-term care products, about which provisions for nonforfeiture benefits are optimal in the long-term care arena at present. The department also notes that long-term care coverages incorporating nonforfeiture benefits have not been approved in the past because of unresolved actuarial questions regarding reserving methodology and requirements associated with such a benefit, as well as the absence of a clear departmental policy established by the board with respect to such matters. The department intends to scrutinize the work of the NAIC task force in this area, as well as to examine positions and proposals of other groups in determining recommendations to the board for its consideration of required nonforfeiture benefits for long-term care coverages. In addition, the department intends to closely examine and recommend to the board for its consideration provisions relating to options for inclusion of a nonforfeiture benefit during the interim over which mandated nonforfeiture benefits are being considered. With respect to uniform benefits packages and uniform definitions, comments in favor of such uniformity stressed how essential standardization in these areas is to: reduce uncertainty about whether the same term might have a different meaning between and among issuers of long-term care coverages; to prevent or diminish marketplace confusion that can result if too wide a variety of products or features are available within and among issuers of long-term care coverages; and provide for a meaningful comparison of essential features, and costs associated with such features, of long-term care benefits packages available. The department agrees that uniformity in a product line such as long-term care coverage is desirable, and intends to focus resources on the development of uniform definitions and standardized benefits packages, with input from sources outside the department. The department also notes that development of uniform benefits packages is a matter requiring great care and attention so that the consumer service goals noted previously may be attained while still retaining those features most frequently sought by covered persons, thereby offering flexibility and choice to insureds across benefits packages. With respect to rating practices and upper level constraints on premium rate increases, the comments focused on a recommendation to include a limit on how much rates for long-term care coverage can increase, as well as a filing and approval procedure for premium increases. The department responds that the adoption contains provisions which relate to premium rates and are designed to assist in determining whether rates are appropriately set. In addition, the department notes that resources currently are being utilized to scrutinize rating practices in the long-term care area, in order to develop recommendations for board consideration regarding rating practices of long-term care coverage issuers. Finally, the department notes that it currently does not directly regulate premium rates for health coverages, including long-term care coverages, as part of the review and approval process, because of the current statutory framework for such regulation. With respect to required disclosure about future premium rate increases for long-term care coverages, comments emphasized that the sections as proposed contain a required disclosure relative to future premium rate increases only in sec.3.3820, relating to mandatory offers for inflation protection, and that additional disclosure about future rate increases should be required. The department responds that it agrees that required disclosure of future premium rate increases is very important. For that reason, sec.3.3820(c)(2) as adopted requires disclosure of any expected premium increases or additional premiums required to pay for automatic or optional benefits increases. In addition, sec. 3.3820(f) provides that offers of inflation protection providing for automatic benefit increases in a package where the insurer expects the premium to remain constant must prominently disclose that the premium may change in the future unless the premium is guaranteed to remain constant. Moreover, sec.3. 3832, relating to the outline of coverage which must be provided with each coverage issued for long-term care, contains a requirement that issues clearly disclose the terms under which the coverage may be continued in force, including a statement of whether the company has the right to change the premium, and if so, a clear and concise description of each circumstance under which the premium could change. Finally, though the department considers current premium rate disclosure requirements sufficient for the present time, it emphasizes its intention to remain vigilant about all disclosure issues, including disclosure about future increases to premium for long-term care coverage, and to immediately recommend to the board for approval disclosure proposals as necessary. Comments related to sec. 3.3804. One commenter recommended that the definition of long-term care insurance be changed to be the same as the definition in the NAIC Model Act. Department response: Because the department believes a slight change to the proposed definition of long-term care insurance is in order, the adoption includes a change so that the definition of long-term care insurance will include those policies that provide payment for benefits based on cognitive impairment or the loss of functional capacity. With this modification, the definition specifically corresponds to the statutory definition in Article 3.70-12, sec.2, paragraph (4). The statutory definition of long-term care insurance, differs from the NAIC Model definition, however, and must be followed in the amendments to these sections. Comments related to sec. 3.3813. Commenters suggested that the proposed definition of "personal care" which was based on assistance in the activities of daily living, such as bathing, eating, dressing, transferring and toileting, permits insurers no latitude and suggested that the department change the definition to correspond to the NAIC Model. Commenters differed on what to include as activities of daily living, but recommended greater flexibility. Commenters also expressed the need for clarification in the definition of "personal care" in terms of the activities of daily living. Department response: Upon departmental consideration of comments and rationale for inclusion of elements other than the five proposed in sec.3.3813 (relating to Policy Definition of Personal Care) as activities of daily living, the adoption includes a clarification to the definition "personal care" and requirements concerning the activities of daily living. The change adds "continence" and "mobility" to the activities of daily living used to define "personal care" and permits insurers to utilize additional ADLs besides those listed. Comments related to sec.3.3814. Two commenters expressed concern regarding the proposed definition of "adult day care" and recommended that it be changed so that the program and setting be required to be licensed in the state. Department response: The department concurs with the concerns expressed, and for that reason the adoption includes changes which would require any adult day care program or facility be operated according to licensing and quality of care requirements in the Human Resources Code, Chapter 103. Comments related to sec.3.3818. Four commenters asked for greater flexibility in the application of activities of daily living. The request made was twofold: first, that two additional generally recognized ADLs be added to the five set forth in sec.3.3813, and second, that insurers be able to utilize ADLs in addition to the seven required to be utilized by each insurer to trigger eligibility for benefits. Other commenters requested that the term "impairment of cognitive ability" be addressed in terms of a minimum standard for definition of the term. Department response: The department agrees that the two ADLs as set forth in earlier discussion should be included in sec.3. 3813, and that sec.3.3818 should be revised to accommodate the use of other ADLs as set forth by insurers, so long as the presence of any two ADLs triggers eligibility for benefits, and so long as the presence of conditions with respect to any two of the seven set out in sec.3.3813 as adopted will result in eligibility for benefits. The final adoption accordingly includes such changes. The department also agrees that the final adoption should include a minimum standard for definition of "impairment of cognitive ability, " and such a minimum standard for definition of the term is included as part of this final adoption. Comments related to sec.3.3820. A commenter indicated that the proposed rule is not clear regarding whether other additional inflation protection options could be offered by insurers. Commenters suggested that the proposed requirements for inflation protection were too limiting and that insurers should be allowed to offer other inflation protection options besides those set forth in the proposed rule. Other commenters voiced support of the inflation protection provisions, but emphasized other value protection issues, as summarized in the introductory sentences of this section. Department response: The department recognizes the need for inflation protection, as well as the need to simplify the benefits and options available for purposes of comparison across products offered. For this reason, the final adoption retains inflation protection requirements as proposed and published. Such inflation protections provisions, although not absolutely mandatory, are nonetheless mandatory unless the insurer obtains an informed, written rejection from the insured. The written rejection requires reference to specific policies or plans which have been reviewed in connection with the rejection. Such provisions offer to the insured flexibility in making a choice, while at the same time providing both the availability of such protection and a meaningful opportunity for the insured to actually compare benefit elements between or among policies and plans. For insurers, the adoption provides flexibility insofar as the insurer has a choice among three different possible inflation protection packages to offer, and within the package calling for an incremental increase to benefits annually, the choice of percentage rate equal to or in excess of 5.0% annually is a matter over which the insurer has discretion and control. Comments related to sec.3.3824. One commenter urged the board not to delete sec.3.3824(c), as proposed, apparently reading the deletion of that subsection as an outright prohibition against the pre-existing condition exclusion. Department response: The department responds that sec.3.3824(c) in the current regulation was written prior to the time that the Insurance Code, Article 3.70-12 was enacted. Article 3.70-12 explicitly addresses the matter of pre-existing condition exclusions in sec. 3(c), and sets forth an upper level constraint of six months from effective date of coverage for denial of benefits based on an pre-existing condition. For this reason, the adoption does not make a change to the proposed deletion of existing sec.3.3824(c). Comments related to sec.3. 3826. Two commenters recommended the board withdraw sec.3.3826(a)(2)(B), which requires that biologically-based brain diseases be a covered condition. The reasons stated for such recommendation were as follows: such a requirement far exceeds any set thus far by the NAIC in its models; such a requirement will result in increased cost of coverage for all covered persons since it greatly expands the class of individuals who will qualify for coverage; such a requirement does not provide a clear indication of what is meant by biologically-based serious mental illness; and such a requirement purports to take away what is permitted in sec.3.3809 (relating to the Policy Definition of Mental or Nervous Disorder) and what is permitted in the first clause of sec.3. 3826(a). One commenter emphasized that long-term care insurance coverage should be available in the event of biologically-based brain disease other than Alzheimer's Disease, since the occurrence of such a condition amounts to a biological disability. Department response: The department emphasizes that the Insurance Code, Article 3.70-12, sets out both what is to be considered to be long-term care insurance, and also areas within which the board is to address minimum standards that are necessary and essential in long-term care coverage. Because long-term care insurance coverage should be available in the event of biologically-based brain disease, the adoption makes no change to sec.3.3826(a) (2)(B) as originally proposed and published. Comments related to sec.3.3830. Three commenters recommended deletion of sec.3.3830(c) from the adopted section, on the alternative bases that it is unnecessary because of provisions in sec.21.113 (relating to rules pertaining specifically to accident and health insurance advertising and health maintenance organization advertising), or that it is unnecessary because it requires the provision of information that is irrelevant to the marketing and sale of long-term care coverage. One commenter further suggested that if sec.3.3830(c) is retained in the final adoption, it be modified to require only information pertinent to the appropriateness of replacement of long-term care coverage. One commenter suggested additional language to sec.3.3830(f) to clarify that the five-day time limit with respect to notification on replacement applies to actual receipt by the replacing insurer of an application "at its home office" rather than constructive receipt through its agent at some location other than the home office. Department response: With respect to sec.3.3830(c), the department is not persuaded that provision of such information is unnecessary or irrelevant to the marketing and sale of long-term care insurance, because such a requirement assists in the identification of areas where the sale of a long-term care coverage might result in duplication of coverage. For this reason the final adoption retains sec.3.3830(c) as proposed and published. With respect to sec.3.3830(f), the department agrees that the addition of the words "at its home office" provides clarification about when the receipt of an application by the replacing insurer triggers the five-day time period for notifying the existing insurer. The final adoption therefore incorporates such language. Comments related to sec.3.3837. One commenter objected to the section in its entirety on the following grounds: the report implies wrongdoing on the part of the agent regardless of the sec.3.3837(a)(2) provision; the department has not been able to specify how the report is to be used; the manner in which agents are reported is arbitrary and malicious; the cost to companies and ultimately to consumers of generating such reports exceeds any benefit to justify the expense; and the report is required of companies and agents regardless of the volume of business to be reported. The commenter recommended elimination of the proposed section from the regulation. Two other commenters expressed similar concerns on this matter. They each suggested some minimum threshold number of policies sold and lapsed or replaced, below which an agent who otherwise would be included in the report would instead be excluded. The commenters pointed out that lapse rates and replacement rates alone, especially when very small numbers of policies are the means by which such rates are determined, do not portray an accurate picture of whether the agent is generally doing a good job or doing a bad job. One of the two other commenters also suggested that such reports should apply only to individual coverages, since replacement in the group market has not been targeted as a problem area. Department response: After careful consideration of the comments submitted, the department agrees that some changes to sec.3.3837 are necessary, but disagrees with the argument that the section should be deleted entirely. For that reason, the final adoption includes provisions that any agent who otherwise would be included in the annual report because of lapse or replacement rates for long-term care business, but who sold 20 or fewer policies for the period covered by the report, shall not be included in the report. In addition, the final adoption clarifies that the maintenance of records is to apply to both the number of policies sold and to the dollar amount of policies sold, and further that such maintenance and reporting applies only to long-term care coverages. With respect to a threshold for companies similar to that set out for agents for exception reporting purposes, the department is does not see the need for such a minimum threshold for companies, since it believes that requiring even those companies with proportionally small numbers of long-term care sales to report will result in the receipt of information that is helpful in determining both how involved and how effective a particular company is in the long-term care market. For that reason, the final adoption contains no such minimum threshold for companies. Comments related to sec.3.3838. Three commenters addressed the filing requirements for advertising, suggesting that the 60-day filing requirement prior to first use be reduced to 30 days prior to first use. Department response: The department disagrees. The 60-day-prior-to-first-use filing requirement in sec.3.3838 facilitates attainment of the purpose set out in sec.3.3802 (relating to Purpose) of these sections. It also permits an appropriate time period for comparison of benefits, definitions, limitations, and other features of the policy with representations that are set forth in the advertising. The time period is not unreasonable because it coincides with the 60-day time period set out in statute for the review and approval of the policies to which the advertising would apply. Comments related to sec.3.3840. One commenter suggested that sec.3.3840 as published has words omitted and requires clarification. Two other commenters suggested that the department should use the shopper's guide developed by the NAIC, rather than its own. One of these commenters pointed out that the NAIC guide is what it is permitted to use in the other states in which it markets, and stated that its use would help control the costs associated with providing a Texas-specific shopper's guide. The other of the two commenters suggested use of the NAIC guide on the grounds that uniformity is desirable in the matter of a shopper's guide, and further requested that in lieu requiring insurers to use a guide developed by the department, the board consider allowing insurers the option of choosing to use the department shopper's guide or the NAIC shopper's guide. Department response: With respect to the first commenter, the department notes that sec. 3. 3840 as published in the Texas Register is different from the format and language authorized by the board for publication and transmitted to the Register by the chief clerk. With respect to the second commenters, the department position is that uniformity is an important aspect of consideration for a shopper's guide; therefore, an election by insurers to use different guides is not as desirable as having one single guide. For this reason, the final adoption requires each insurer to use the guide developed by the department. But, because a current revision of the shopper's guide might not be available on the effective date of these sections, the adoption permits insurers to use the NAIC shopper's guide until the revision of the shopper's guide developed by the department is approved. Comments related to sec.3.3849. One commenter stated that the effective date as set out in the published proposal does not permit sufficient transition time and requested an extension of time to fully comply so that insurers will have a period during which to prepare and file advertising material, prepare computer systems for reporting requirements, refile policies, and get them approved and printed. Department response: The department agrees that some provision for transition is needed in the effective date requirements for these sections. For that reason, the final adoption includes provisions providing for transition with respect to the effective date for certain policy issues. Policies, certificates, or evidences of coverage which were filed or approved prior to the effective date of the sections but after the effective date of Article 3.70-12 and in compliance with the statute, may be issued or delivered only until September 1, 1992. In addition, the final adoption includes a provision that the first reporting year for purposes of sec.3.3837 (relating to reporting requirements for replacement and lapse rates) is calendar year 1992, with the first report being due not later than June 30, 1993. 28 TAC sec.sec.3.3801-3.3805, 3.3807, 3.3809-3.3815, 3.3818-3. 3826, 3.3828, 3.3829, 3.3831, 3.3832, 3.3839, 3.3840, 3.3849, 3.3850 The amendments and new sections are proposed under the Insurance Code, Article 3.70-12, sec.sec.3(a), 3(b), 4(c), and 7; Article 1.04(b); and Texas Civil Statutes, Article 6252-13a, sec. sec.4 and 5. The Insurance Code, Article 3. 70-12, sec.3(a) provides the board shall by rule establish specific standards for provisions of long-term care coverage, and standards for full and fair disclosure setting forth the manner, content and required disclosures for the marketing and sale of long-term care coverages. Article 3.70-12, sec. 3(b) provides that such rules are to include requirements no less favorable than the minimum standards adopted in any model laws or regulations relating to minimum standards for long term care insurance. Article 3.70-12, sec.4(c) provides that the board adopt reasonable rules providing loss ratio standards applicable to rates charged for long-term care coverages, in a manner no less favorable to the holders of such policies than any model laws, rules and regulations adopted in connection with minimum standards for benefits for long-term care coverage. Article 3.70-12, sec.7 provides that in addition to other rules required or authorized, the board may adopt reasonable rules necessary and proper to carry out the article and that such rules shall include requirements no less favorable than minimum standards for long-term care coverage adopted in any model laws or regulations relating to minimum standards for benefits for long-term care insurance. The Insurance Code, Article 1.04(b) provides the board to determine rules in accordance with the laws of this state for uniform application. Texas Civil Statutes, Article 6252-13a, sec.4 authorize and require each state agency to adopt rules of practice setting forth the nature and requirement of available procedures; sec. 5 prescribes the procedures for adoption of rules by a state administrative agency. Adoption of these amendments and new sections affects regulation of minimum standards for long-term care coverage pursuant to the Insurance Code, Article 3.70-12. sec.3.3803. Applicability and Scope. The sections in this subchapter apply to all long-term care insurance policies and group long-term insurance certificates, other than those certificates issued or delivered pursuant to out-of-state single employer or labor union group policies, delivered or issued for delivery in this state on or after the effective date of this subchapter by insurers; by fraternal benefit societies, to the extent they are subject to provisions of Article 3.70-12; and by nonprofit health, hospital, and medical service corporations, including a company subject to the Insurance Code, Chapter 20; except that they do not apply to a policy which is not designed, advertised, marketed, nor offered as long-term care insurance or nursing home insurance. The provisions of these sections also apply to evidences of coverage delivered or issued for delivery in this state by health maintenance organizations under the Texas Health Maintenance Organization Act (Texas Insurance Code, Chapter 20A). sec.3.3804. Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise. Applicant-The person who seeks to contract for benefits or services, in the instance of an individual long-term care insurance policy; or the proposed certificate holder or enrollee, in the instance of a group long-term care insurance policy. Certificate-Any certificate issued under a group long-term care insurance policy, which certificate has been delivered or issued for delivery in this state. For purposes of these sections, the term also includes any evidence of coverage issued pursuant to a group health maintenance organization contract for long-term care health coverage. Long-term care insurance-Any insurance policy, group certificate, rider to such policy or certificate, or evidence of coverage issued by a health maintenance organization subject to the Texas Health Maintenance Organization Act (Texas Insurance Code, Chapter 20A) which is advertised, marketed, offered, or designed to provide coverage for not less than 12 consecutive months for each covered person on an expense-incurred, indemnity, prepaid, or other basis; for one or more necessary or medically necessary diagnostic, preventive, therapeutic, rehabilitative, maintenance, or personal care services, provided in a setting other than an acute care unit of a hospital. The term "long-term care insurance" shall not include any insurance policy, group certificate, subscriber contract or evidence of coverage which is offered primarily to provide basic Medicare supplement coverage, basic hospital expense coverage, basic medical-surgical expense coverage, hospital confinement indemnity coverage, major medical expense coverage, disability income protection coverage, accident only coverage, specified disease or specified accident coverage, or limited benefit health coverage. The term also includes a policy or rider, other than a group or individual annuity or life insurance policy, that provides for payment of benefits based on cognitive impairment or the loss of functional capacity. Policy-Any policy, contract, subscriber agreement, rider, or endorsement, delivered or issued for delivery in this state by an insurer, fraternal benefit society, nonprofit group hospital service corporation, or health maintenance organization subject to the Texas Health Maintenance Organization Act (Texas Insurance Code, Chapter 20A,). sec.3.3813. Policy Definition of Personal Care. The term "personal care" shall mean the provision of practical and essential services to assist an individual with the activities of daily living, which include, but are not limited to: bathing, continence, dressing, eating, mobility, toileting, and transferring. sec.3.3814. Policy Definition of Adult Day Care. The term "adult day care" shall mean a program for six or more individuals, of social and health-related services provided during the day in a community group setting for the purpose of supporting frail, impaired elderly, or other disabled adults who can benefit from care in a group setting outside the home. Such program and setting shall be one operated pursuant to the provisions of the Human Resources Code, Chapter 103, relating to licensing and quality of care requirements in the provision of adult day care. sec.3.3818. Eligibility for Benefits. A long-term care insurance policy or certificate shall contain provisions conditioning eligibility for benefits or services upon the occurrence of either of the following events: (1) the inability to perform, without assistance, any two activities of daily living, as set forth by the insurer; provided, however, that such activities of daily living must include at a minimum those which are set forth in sec.3.3813 of this title (relating to the Policy Definition of Personal Care); or (2) the impairment of cognitive ability. For purposes of this subchapter, the term "impairment of cognitive ability" shall not be defined more restrictively than the deterioration or loss in intellectual capacity requiring continual supervision for protection of self and others, as established by the clinical diagnosis of any licensed practitioner in this state authorized to make such a diagnosis. Such diagnosis shall include the patient's history and physical, neurological, psychological and/or psychiatric evaluations, and laboratory findings. sec.3.3821. Limits on Group Long-Term Care Insurance. No group long-term care insurance coverage may be offered to a resident of this state under a group policy issued in another state to a group described in the Insurance Code, Article 3.51-6, sec.1(a)(6), unless the Texas Department of Insurance has made a determination that the group long-term care insurance requirements adopted by the State of Texas have been met, and the certificate for group long-term insurance coverage has been properly filed and approved by the department. sec.3.3840. Requirements to Deliver Shopper's Guide. A long-term care insurance shopper's guide in the format developed by the Texas Department of Insurance shall be provided to all prospective applicants of a long-term care insurance policy or certificate, as provided in this section. (1) In the case of agent solicitation, an agent must deliver the shopper's guide prior to the presentation of an application or enrollment form. (2) In the case of direct response solicitations, the shopper's guide must be presented in conjunction with any application or enrollment form. (3) Until final approval of the shopper's guide developed by the department, agents may use the most recent revision of the shopper's guide developed for long-term care insurance products by the National Association of Insurance Commissioners. sec.3.3849. Effective Date. Except as otherwise provided, the sections of this subchapter, as amended and adopted by the board, shall become effective 20 days from the date they are filed, as adopted by the board, with the Office of the Secretary of State and shall be applicable to all long-term care insurance policies and subscriber contracts of hospital and medical service associations filed for approval on and after that date. These sections as amended or added apply to all policies, certificates, and evidences of coverage delivered or issued for delivery on or after September 1, 1992, which were filed or approved on or after March 1, 1992, but prior to the effective date of these sections. The first reporting period for the requirements set out in sec.3.3837 of this title (relating to Reporting Requirements) shall be calendar year 1992, with the first report due to the department not later than June 30, 1993. 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 June 29, 1992. TRD-9208919 Linda K. von Quintus-Dorn Chief Clerk Texas Department of Insurance Effective date: July 20, 1992 Proposal publication date: February 25, 1992 For further information, please call: (512) 463-6327 28 TAC sec.sec.3.3830, 3.3837, 3.3838 The amendment and new sections are proposed under the Insurance Code, Article 3.70-12, sec.sec.3(a), 3(b), 4(c), and 7; Article 1.04(b); and Texas Civil Statutes, Article 6252-13a, sec. sec.4 and 5. The Insurance Code, Article 3. 70-12, sec.3(a) provides the board shall by rule establish specific standards for provisions of long-term care coverage, and standards for full and fair disclosure setting forth the manner, content and required disclosures for the marketing and sale of long-term care coverages. Article 3.70-12, sec. 3(b) provides that such rules are to include requirements no less favorable than the minimum standards adopted in any model laws or regulations relating to minimum standards for long term care insurance. Article 3.70-12, sec.4(c) provides that the board adopt reasonable rules providing loss ratio standards applicable to rates charged for long-term care coverages, in a manner no less favorable to the holders of such policies than any model laws, rules and regulations adopted in connection with minimum standards for benefits for long-term care coverage. Article 3.70-12, sec.7 provides that in addition to other rules required or authorized, the board may adopt reasonable rules necessary and proper to carry out the article and that such rules shall include requirements no less favorable than minimum standards for long-term care coverage adopted in any model laws or regulations relating to minimum standards for benefits for long-term care insurance. The Insurance Code, Article 1.04(b) provides the board to determine rules in accordance with the laws of this state for uniform application. Texas Civil Statutes, Article 6252-13a, sec.4 authorize and require each state agency to adopt rules of practice setting forth the nature and requirement of available procedures; sec. 5 prescribes the procedures for adoption of rules by a state administrative agency. Adoption of the amendment and new sections affects regulation of minimum standards for long-term care coverage pursuant to the Insurance Code, Article 3.70-12. sec.3.3837. Reporting Requirements. (a) Every insurer shall maintain records, for each agent, of that agent's number and dollar amount of replacement sales as a percentage of the agent's total number and amount of annual sales attributable to long-term care products, as well as the number and dollar amount of lapses of long-term care insurance policies sold by the agent and expressed as a percentage of the agent's total annual sales attributable to long-term care products. (1) Each insurer shall report by June 30 of every year the 10% of its agents with the greatest percentages of lapses and replacements as measured by this subsection; provided, however, that any agent with 20 or fewer sales of long-term care policies for any reporting period shall not be included in such report, even if such agent's replacement-and-lapse percentage rates would otherwise result in inclusion in such report. (2) Reported replacement and lapse rates do not alone constitute a violation of insurance laws or necessarily imply wrongdoing. The reports are for the purpose of reviewing more closely agent activities regarding the sale of long-term care insurance. (3) Every insurer shall report by June 30 of every year the number of lapsed long-term care policies as a percentage of its total annual sales of such policies and as a percentage of its total number of long-term care policies in force as of the end of the preceding calendar year. (4) Every insurer shall report by June 30 of every year the number of replacement long-term care policies sold as a percentage of its total annual sales of such products, and as a percentage of its total number of such policies in force as of the preceding calendar year. (b) For purposes of this section, reporting requirements relate only to long-term care insurance and coverages that are delivered or issued for delivery in this 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 June 29, 1992. TRD-9208920 Linda K. von Quintus-Dorn Chief Clerk Texas Department of Insurance Effective date: July 20, 1992 Proposal publication date: March 3, 1992 For further information, please call: (512) 463-6327 28 TAC sec.3.3837, sec.3.3838 The State Board of Insurance of the Texas Department of Insurance adopts the repeal of sec.3.3837 and sec.3.3838, concerning the effective date and severability of sections in this subchapter, without changes to the proposed text as published in the March 3, 1992, issue of the Texas Register (17 TexReg 1596). Repeal of sec.3.3837 and sec.3.3838 enables the board simultaneously to adopt new sections which replace these repealed sections with provisions which are part of a larger rule-making effort to implement new legislation, House Bill 62, Second Called Session of the 72nd Legislature, Article 13, which created Article 3.70-12 of the Insurance Code. Notice of final adoption of the new sections which replace these repealed sections appears elsewhere in this issue of the Texas Register. Repeal of sec.3.3837 (relating to Effective Date) results in the deletion of certain obsolete language and permits the provisions relating to effective date to be transferred to a new more appropriate section location within the subchapter. Repeal of sec.3.3838 (relating to Severability) permits replacement at that section heading with provisions to implement new legislation, and transfer of provisions relating to severability to a new and more appropriate section location within the subchapter. No comments were received regarding adoption of the repeal. The repeals are adopted under the Insurance Code, Articles 3.70-12 and 1.04, and Texas Civil Statutes, Article 6252-13a, sec.4 and sec.5. The Insurance Code, Article 3.70-12, sec.7 authorizes the board to promulgate rules to carry out the provisions of the article. Article 1.04(b) provides the State Board of Insurance with the authority to determine policy and rules in accordance with the laws of this state for uniform application. Texas Civil Statutes, Article 6252-13a, sec.4 and sec.5 authorize and require each state agency to adopt rules of practice setting forth the nature and requirement of available procedures and prescribe the procedures for the adoption of rules by a state administrative agency. The adopted repeals affect regulation of minimum standards for benefits for long-term care coverages pursuant to the Insurance Code Article 3.70-12. 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 June 29, 1992. TRD-9209023 Linda K. von Quintus-Dorn Chief Clerk Texas Department of Insurance Effective date: July 20, 1992 Proposal publication date: March 3, 1992 For further information, please call: (512) 463-6327 TITLE 31. NATURAL RESOURCES AND CONSERVATION Part III. Texas Air Control Board Chapter 101. General Rules 31 TAC sec.101.1 The Texas Air Control Board (TACB) adopts an amendment to sec.101.1, concerning definitions and the State Implementation Plan (SIP), with changes to the proposed text as published in the January 28, 1992, issue of the Texas Register (17 TexReg 720). The adopted revisions respond to requirements of Title I of the Federal Clean Air Act (FCAA), concerning New Source Review for nonattainment areas. The amendments add or modify various definitions for consistency with new source review requirements of the FCAA. Public hearings were held in Houston on February 25, 1992, and in Austin on February 27, 1992, to consider the proposed revisions. Testimony was received from 44 commenters during the comment period which ended February 28, 1992. The following discussion initially addresses the more general comments and addresses the comments which deal with specific provisions of the proposal. Southern Union Gas (Southern) suggested that emissions offsets and trading criteria should be established so that natural gas fueled stationary engines and heat recovery (cogeneration) units can provide marketable credits so as to affect a net reduction of emissions. Mobil Oil Corporation (Mobil) did not want TACB to implement the nitrogen oxides (NO [sub]x)) provisions of the new source review (NSR) rules i.e., definitions of major source/modification and offsets, because there is, as yet, no established mechanism for banking, buying, or otherwise acquiring NO offsets, and there is very limited technology for controlling NO emissions. Global Octanes Corporation (Global) stated that TACB should consider establishing an emissions offset "bank" for growth. There may be a marketplace established for emission offsets, but TACB will need to establish the mechanism, rules, and accounting procedures for the "bank." Texas Mid-Continent Oil and Gas Association (TMOGA) and El Paso Natural Gas Company (EPNGC) asked TACB to confirm that the term "creditable source emission increases and decreases" in the definition of de minimis threshold includes those decreases creditable to the source through the use of "banked" emissions credits. TACB has assigned the task of establishing an emissions trading program to a special task force. This task force is exploring methodologies by which offsets may be banked, bought, or traded. While reductions in volatile organic compounds (VOC) emissions will continue to play an important role in the overall ozone control strategy, NO reductions appear to be an important step toward attainment of the ozone standard. Analysis of ambient monitoring data in Texas, supported by results of dispersion modeling for other areas, confirms that reduction of NO emissions is imperative for the timely attainment of the ozone standard in Texas. The NSR rules will only serve to limit the growth of NO. Further reductions are anticipated if a variety of NO [sub]x control technologies are currently available. The limitation of NO growth in the nonattainment areas is required by the 1990 FCAA Amendments and TACB cannot wait for completion of an emissions trading program before implementing these rules. The Texas Chemical Council (TCC), Baker & Botts (Baker), Mobil, and Exxon Chemical Americas (Exxon) stated that the TACB did not establish an effective date for these provisions. They felt that November 15, 1992 is the SIP submission date, and the rules should be effective only when the United States Environmental Protection Agency (EPA) approves the SIP revision. Houston Lighting and Power (HL&P), Global, and the Greater Houston Partnership (GHP) requested that the TACB postpone the effective date of proposed regulations until such time as EPA approves the SIP. Texas Utilities (TU) requested that the TACB defer the effective date for any NO requirements until the date on which EPA approves the SIP. Southern felt that TACB should not implement NO [sub]x controls because NO[sub]x levels in Texas are well below National Ambient Air Quality Standards (NAAQS), and the NO[sub]x effect on ozone is unclear at this time. It is true that November 15, 1992, is the federally required NSR SIP submission date for ozone and carbon monoxide nonattainment areas. However, May 15, 1992, is the required NSR SIP submission date for sulfur oxides, NO, and lead nonattainment areas; and June 30, 1992, is the required NSR SIP submission date for inhalable particulate matter (PM10) nonattainment areas. The Federal timetable also specifies SIP submission dates for each nonattainment area. While the EPA approval of any SIP is supposed to be accomplished within six months, the actual timetable is frequently many times longer. The staff believes that waiting until EPA approves the NSR SIP before implementing the proposed regulations could lessen the chances of nonattainment areas achieving compliance in accordance with the federal timetables. Furthermore, the staff does not recognize a meaningful advantage accruing to anyone as a result of a delay. EPA has taken the position that permits in process at the time of SIP approval will be affected by the new requirements. TACB, however, would intend to continue processing applications received before November 15, 1992, under the preexisting requirements. The adopted regulation will become effective on November 15, 1992. ENRON Power Corporation (ENRON) thought that TACB should delay the proposed NO regulation implementation, such that it coincides with the federal timetable for revising the NO emissions requirements. This delay would not result in a delay in the attainment of the ozone standard. HL&P, Baker, and EPNGC suggested that TACB delay implementation of the offset requirements for major new or modified NOx sources until after the Urban Airshed Modeling (UAM) has demonstrated that NO [sub]x reductions will actually improve ambient ozone levels. EPNGC also suggested that, at the very least, the TACB should incorporate flexibility for NO [sub]x regulations into its final rule. emissions is necessary to attain the ozone standard within the time frames mandated by the FCAA. The roles of NO [sub]x and VOC in ozone formation have been well documented. Traditional ozone control strategy in the SIP has focused on reduction of VOC emissions in areas failing to attain the NAAQS for ozone. More recently, attention has been shifting to the significance of NO [sub]x as a precursor to ozone and, in particular, the effect of the VOC/NO ratio on ambient ozone concentrations. Studies using results of both atmospheric dispersion modeling and ambient monitoring clearly suggest the effectiveness of NO [sub]x control in reducing ozone. While reductions in VOC emissions will continue to play an important role in the overall ozone control strategy, NO [sub]x reductions have emerged as the next technically justifiable step toward attainment of the ozone standard. Section 185(b) of the 1990 FCAA amendments requires EPA, in conjunction with the National Academy of Science, to conduct a study on the roles of NO [sub]x and VOC in ozone formation. The 1991 study by the National Research Council concluded that ozone control is much more sensitive to NO reductions than previously recognized. Dispersion modeling for the Baton Rouge, Louisiana area, using the UAM, predicted that a 60% reduction in NO from stationary sources would result in a 93.8% reduction in the total area exceeding the ozone standard, relative to a base case with no additional controls of VOC or NO [sub]x . In contrast, a 60% reduction in reactive VOC from stationary sources decreased ozone levels by only 12.1%. Similarities to the Baton Rouge area with respect to meteorology and source types and emissions predict comparable ozone reductions in the Texas Gulf Coast area as a result of NO control. The maximum ozone that can form from given amounts of VOC and N [sub]x is dependent on the ratio of VOC to NO concentrations ("VOC/NO ratio") in the ambient air. Dispersion modeling has shown that for VOC/NO ratios of 20 or above, NO control is generally more effective than VOC control in reducing ozone. At these high VOC/NO ratios, the system is said to be "NO [sub]x -limited." Under these conditions, the photochemical reactions that form ozone are limited by the amount of available NO. Thus, decreasing available NO leads directly to a decrease in ozone. , VOC, and ozone monitoring data for 1984-1989 in the four Texas nonattainment areas examined variables affecting maximum ozone concentrations and performed statistical analyses of variations by site and by year. Measured ambient VOC/NO [sub]x ratios are 14.0 in El Paso, 20.3 in Dallas, 21.5 in Houston, 24.4 in Fort Worth, and 54.6 in Beaumont, suggesting that NO control would be highly effective in reducing ozone in Texas. The study concluded that ozone control in Texas is expected to be more sensitive to NO reductions than to VOC reductions. Documentation of the role of NO in ozone formation and control is extensive. While dispersion models such as UAM are extremely helpful analytical tools, other strong technical evidence must be considered as well. Analysis of ambient monitoring data in Texas, together with the results of dispersion modeling for other areas, clearly indicates that NO [sub]x reductions will be necessary for timely attainment of the ozone standard in Texas. HL&P, ENRON, and Global felt that TACB should only apply NSR regulations (in the NO source case) to prospective new and modified major sources for which complete applications are submitted after the date the regulations are finalized. TCC, Baker, Mobil, and Exxon suggested that if TACB designates November 15, 1992, as the effective date, then all complete permit applications received prior to that date should be grandfathered. TCC, Mobil, and Exxon also stated that if TACB does not grandfather complete permit applications, industry would be held at the mercy of the TACB staff as to what requirements will apply to each project. They felt that TACB staff could institute a work slowdown and thereby hold up authorizing permits until after the deadline. The Sierra Club (Sierra) felt that the TACB should make the definition of "new major source" effective immediately instead of waiting until the November 1992 federal deadline. Any permit application received before the November 15, 1992, effective date will be processed under the existing guidelines. Any permit application received on or after November 15, 1992, will be processed under the new guidelines and would be required to comply with the new rules. A November 15, 1992, effective date would allow the TACB permitting staff and the regulated community time to incorporate the NSR rules into their permitting methodology. TCC, Mobil, and Exxon suggested that in order to incorporate the federal program, two critical terms, "potential to emit" and "stationary source," need to be added to the general rules. An individual suggested that the term "expected emissions" in sec.116.3(a)(8) should be defined to minimize subjective judgement and to treat each permit consistently. The individual also suggested that the term "areal expansion" in sec.116.3(a)(14)(A), (B), and (C) should be defined so that the situation is not limited to waste facilities that actually expand their land base. The terms "stationary source" and "potential to emit" are included in the current version of the general rules. Definitions which were not proposed for the hearing can not be added at this time. The staff will consider the remaining suggested additions for future rulemaking. An individual requested that TACB hold the hearings at night so that most people can attend. The staff already conducts the majority of hearings at night, but is willing to increase this effort. Public hearings are currently scheduled in locations and at times that will hopefully provide the greatest public access, while maintaining reasonable cost considerations. HL&P suggested that the fundamental differences in the federal and the Texas NSR programs make a consolidation of definitions ill-advised at this time. HL&P, TCC, Baker, GHP, Mobil, TU, and Exxon suggested that TACB should adopt the federal definitions verbatim. HL&P, TCC, Mobil, and Exxon requested that TACB make every reasonable effort to combine federal requirements pertaining to the scope and schedule of the NSR program with existing state programs so Texas will have a single integrated program for addressing air quality issues. The intent of this regulation change is not to combine the federal and state NSR programs into a single integrated program, but rather to implement the amended FCAA NSR requirements. The staff agrees that the fundamental differences in the federal and state programs make a consolidation of definitions ill-advised at this time. Each of the definition additions or changes included in the proposal was made either to address discrepancies identified by EPA in the previous NSR SIP or to address the NSR requirements of the 1990 FCAA amendments. For that reason, the caveat "applies only to nonattainment area, new source review rules pursuant to FCAA provisions" was included with each of the appropriate definitions. In the proposal, many of the definitions were summarized, but not copied verbatim, from the federal rules. The staff has adopted revised definitions that match the federal language in the CFR as closely as possible. Each of the adopted definitions that have been reworded will be identified in the following paragraphs which describe changes to the definitions. EPA stated that the proposed regulations affect new major sources and major modifications for VOC and NO [sub]x in areas that are nonattainment for ozone. This will include Victoria County which is nonattainment, but with incomplete data. This is appropriate for sources of VOC, but not for sources of NO, because the NO requirements of the 1990 FCAA amendments in sec.182(f) apply only to classifiable areas. The staff has adopted clarification of the inclusion of Victoria County, until it is reclassified as attainment, by adding an explanation to footnote 1 in Table I of the general rules. EPA and Fina Oil and Chemical Company (Fina) stated that the minimum offset rule for serious ozone nonattainment areas was proposed to be 1.30 to 1. This is more stringent than the 1.20 to 1 offset ratio specified in sec.182(c)(10) of the FCAA. EPA and Fina were unsure of how the proposed regulation addresses the serious ozone nonattainment area provisions of the FCAA which provide for less stringent requirements whenever a source obtains an internal offset ratio greater than 1.30 to 1. EPA also stated that TACB has chosen to require the general offset ratio of 1.30 to 1 and Best Available Control Technology (BACT) for areas designated severe nonattainment for ozone. EPA suggested that the public record should clearly address whether TACB intends to adopt requirements that are more strict than required by the FCAA. The current TACB regulations for permitting major sources or major modifications in nonattainment areas require the use of the Lowest Achievable Emissions Rate (LAER). In serious nonattainment areas, the FCAA, sec.182(c)(7) and (8) allows a modification to sources if they use a greater offset of 1.30 to 1 and alternative controls. For serious nonattainment areas, the staff has adopted a minimum offset ratio of 1.20 to 1 and LAER, or BACT in lieu of LAER if the source chooses to use an offset ratio of 1.30 to 1. With regard to EPA comments on severe nonattainment areas, sec.182(d)(2) of the FCAA allows the minimum offset ratio to be 1.20 to 1 if the state chooses to require existing major sources of VOC or NO in the area to use BACT. At the present, the state can not make the demonstration that all existing major sources comply with BACT; therefore, the adopted rule includes an offset ratio of 1.30 to 1 for severe areas. Sierra stated that an offset ratio of greater than 1 to 1 was required, but not specified. They also suggested that netting down to a minimum level of significance should not be allowed by a new facility. Contemporaneous reduction should only be used for inclusion in the "offset" process. Global stated that the new definition of de minimis and Table I will mean that virtually any new source or modification will require offsets in order to build, construct, and/or expand. These offsets are not currently obtainable, thereby stifling new growth. Footnote number 3 of the adopted Table I specifies an offset ratio of greater than 1.00 to 1 for carbon monoxide (CO), sulfur dioxide (SO) , PM, and lead nonattainment areas. Offset ratios are greater in ozone nonattainment areas. The TACB staff anticipates that the lower major source/major modification emission thresholds will make it more difficult to "net out" of nonattainment review. Vinson & Elkins wanted TACB to verify that offsets at major sources or major modifications be only required for those increases in total allowable NO emissions which occur after the effective date of the proposed regulation; e.g. , if a source was permitted for 1,000 tons per year (TPY) and proposes a modification of 30 TPY, then the offset would only apply to the 30 TPY. The staff agrees that the offset requirements only apply to the proposed increase over the permitted emissions. EPA was uncertain whether the revised regulation addresses the provisions of the FCAA, sec.173(e). This FCAA paragraph specifies alternative offsetting requirements for the permitting of emissions from rocket engines or motors. This should be addressed for the public record. The staff will add this proposed revision to the next Regulation VI changes so that it can be considered by the November 15, 1992, deadline. TCC, Mobil, TU, and Exxon stated that the FCAA amendments included a de minimis threshold test for serious and severe ozone nonattainment areas only, and TACB is attempting to create a similar, but not mandated, five-year test for marginal and moderate ozone nonattainment areas. TCC, Mobil, and Exxon also stated that TACB improperly extended the de minimis threshold test to nonattainment areas for other criteria pollutants. They propose to limit the de minimis threshold test only to serious or severe ozone nonattainment areas. EPA stated that the FCAA amendments, sec.182(c)(6) and sec.182(d), only specify such five-year cumulated increases and decreases of emissions in areas designated as serious or severe for ozone. EPA expressed no objection to TACB being more stringent than the FCAA; however, they recommended that TACB clearly address in the public record its intention to adopt a more stringent requirement. The FCAA requires the de minimis threshold for ozone nonattainment areas classified as serious and severe. The staff has adopted a de minimis threshold test for moderate ozone nonattainment areas which is more stringent than the FCAA requirements to prevent a series of non-major increases to accumulate into a significant increase in ambient ozone levels, and which will be necessary for those areas to come into compliance with the NAAQS. TACB has not adopted a de minimis threshold test, as proposed, for all non-ozone nonattainment areas because the threshold would be a significant disincentive for growth in the state. Sierra favored the de minimis threshold level as a means to eventually trigger the designation of a major source. Global, TMOGA, and EPNGC were concerned that the de minimis threshold would cause even very small increases in VOC or NO [sub]x emissions for existing sources, when netted with other increases over the past five years, to trigger the full NSR process. This could cause retrofitting of emissions controls which would be a major burden, not logically justified by the incremental increases, and is a disincentive for growth without some help from TACB. The de minimis threshold is a requirement of the FCAA amendments; however, the staff also believes that the de minimis threshold is a very important tool for ozone nonattainment areas to come into compliance with the NAAQS. Global requested that TACB clarify that offsets will only apply to the emissions increase and all subsequent increases which trigger the threshold, rather than to apply retroactively to previously permitted sources. Any permit application with a proposed emissions increase received before the November 15, 1992, effective date will be processed with the existing guidelines. Any permit application with a proposed emissions increase received on or after November 15, 1992, will be processed with the new guidelines and would not apply retroactively to previously permitted sources. Sierra cautioned TACB that in the definition of "actual emissions," the wording, "The reviewing authority may presume that the source specific allowable emissions for the unit are equivalent to the actual emissions," may allow companies to make modification increases which on paper are shown to be decreases. TACB should use actual emissions as a baseline for presentday operations as described and not a grandfathered historic allowable. TCC, Mobil, and Exxon stated that TACB has removed wording which should be reinstated to assure consistency between federal and state programs. EPA stated that the definition indicates the reviewing authority may presume the source specific allowable emissions from an emissions unit are equivalent to the actual emissions. The presumption needs to include the phrase "upon a determination that it is more representative of normal source operation." An individual felt that actual emissions should be required to have monitoring measurements to demonstrate actual emissions. TACB proposed wording, referenced by Sierra, was copied verbatim from 40 Code of Federal Regulations, sec.51.165(a)(1)(xii)(C). The wording referenced by the TCC, Exxon, and Mobil was summarized by the staff in the proposal. The requirement to have monitoring measurements to demonstrate actual emissions is not stated in the Code of Federal Regulations; however, requirements to expand the use of continuous emissions monitoring will be proposed in future rulemaking. The adopted definition has been changed to reflect the Code of Federal Regulations wording as closely as possible. TCC, Mobil, and Exxon stated that the TACB proposed definition "allowable emissions" eliminated one federal provision, which requires that a more stringent SIP emission limit should be considered when calculating allowable emissions. They recommended the provision be reinstated and the last part of the definition be broken out into component parts to improve clarity. EPA requested the definition be made consistent with 40 Code of Federal Regulations, sec.51.165(a)(1)(xi). A portion of the wording in the Code of Federal Regulations was summarized by the staff in the proposal. The adopted definition has been changed to reflect the Code of Federal Regulations wording as closely as possible. TCC, Mobil, and Exxon requested adoption of the proposed definition "begin actual construction" as drafted. An individual stated that land clearing and surveying should be part of this definition since construction can not occur without them. The proposed definition is verbatim from 40 Code of Federal Regulations, sec.51.165(a)(1)(xv). TACB has adopted the definition as proposed. TCC, Mobil, and Exxon stated that the language describing industry grouping in the proposed definition "building, structure, facility, or installation" is not precise in referencing the two digit standard industrial classification (SIC) code as the major group code. Industrial facilities actually have a four digit SIC code. The staff summarized the reference to major group code as defined in 40 Code of Federal Regulations, sec.51.165(a)(1)(ii). The adopted definition has been changed to reflect the CFR wording as closely as possible. TCC, Mobil, and Exxon stated that TACB reworded and removed certain phrases from the federal definition "commence," and requested adoption of the federal definition verbatim. TMOGA and EPNGC stated that the concept of making "binding agreements or contractual obligations to undertake a program of actual construction of the source" equivalent to physically commencing con- struction or modification is applicable to new electric utility units in Title IV of the FCAA Amendments, but it is not necessary nor appropriate to extend that applicability to all major source construction or modification in nonattainment areas. They recommended this part of the definition be deleted. Union Carbide Chemical and Plastics Company (Union Carbide) requested removal of the wording "or has entered into binding agreements or contractual obligations to undertake a program of actual construction of the source to be completed within a reasonable time," because contractual obligations for the construction also includes, in many cases, the design of the source. In these cases, a permit would be required prior to the engineering design, thus making the writing of a permit difficult or resulting in very generalized permits. One individual stated that the phrase "continuous program" needs to be defined so no subjective, case-by-case definition can be applied to subvert the meaning. The staff summarized portions of the wording in the Code of Federal Regulations. The phrase "binding agreements or contractual obligations to undertake a program of actual construction of the source" is stated in the proposal verbatim from the Code of Federal Regulations. A definition for a "continuous program" can not be added at this time because it was not proposed originally. The adopted definition has been changed to reflect the Code of Federal Regulations wording as closely as possible. TCC, Mobil, and Exxon suggested adoption of the definition of "construction" as proposed. Universal Foods (Universal) suggested that the definition be changed from "Any physical change or change in the method of operation which would result in a change in actual emissions" to one which would result in an increase of actual emissions. Maryland currently has similar wording which has caused some slowing of the permit approval process and include in their scope many projects which are beneficial to the environment and should be subject to much less stringent review. One individual suggested that surveying and land clearing should be part of the definition. The TACB proposed definition is essentially verbatim from 40 Code of Federal Regulations, sec.51.165(a)(1)(xviii). TACB has adopted the definition as proposed. Universal felt that the TACB "de minimis threshold" definition is much better than that currently under consideration at EPA; however, since many records are typically retained for only three years, it would be better if three years was the period for aggregating emissions. An individual stated that the major modification level should be in "tons per year" and not just "tons." The FCAA amendments, sec.182(c)(6), specified that the time period of interest was to be five years, including the calendar year of the increase. The staff has not changed the intent of Congress by shortening the time period to three years. The word "tons" after "major modification level" was incorrectly stated and the adopted language has been changed to "tons per year. " TCC, Mobil, and Exxon requested that TACB adopt the definition of "federally enforceable" as proposed, but clarify why the "executive director" was added to this definition. It appears that any limitation or condition enforceable by the TACB executive director will be considered federally enforceable. The EPA believes that the definition, as proposed, states that the executive director of TACB can enforce certain state limitations and conditions which have not been approved by the EPA. Such limitations and conditions are not enforceable by the EPA and do not fit within the concept of being federally enforceable. The EPA recommends that the words "or executive director" be deleted from the proposed definition. The staff agrees that the addition of "executive director" to the definition does not fit within the concept of being federally enforceable, and TACB has adopted the definition without the words "or executive director." TCC, Mobil, and Exxon stated that although the definition "fugitive emissions" is a rewording of the federal definition, it should be adopted as drafted since it appears to be functionally equivalent and is not critical to emission calculations under the NSR Program. One individual felt the word "reasonably" needed to be omitted from the definition. The individual argued that it served no useful purpose, except to act as a "weasel" word to provide case-by-case subjective interpretations that would change with the wind or political pressure or persuasion. The definition exists in the current version of the general rules and applies to the state program. The proposal added some wording which essentially incorporated the elements of 40 Code of Federal Regulations, sec.51. 165(a)(1) (ix) in the existing definition. The TACB has adopted the definition as proposed. Sierra stated that LAER was referenced in this section, but not defined. LAER is defined in sec.101.1 of the current version of the general rules. TCC, Mobil, and Exxon stated that the TACB has not included the entire federal list of sources in the definition "major facilities/stationary source" and should adopt the definition of major stationary source as contained in the Code of Federal Regulations. The proposal modified the existing definition in sec.101.1 to incorporate the different thresholds of a major source depending upon its nonattainment area classification, but a portion of the wording in the Code of Federal Regulations was summarized by the staff in the proposal. The adopted definition has been changed to reflect the Code of Federal Regulations wording as closely as possible. EPA recommended that TACB fashion its definition of "major modification" to conform to the federal definitions, or demonstrate in the public record that its definition is more stringent than, or at least as stringent as, the federal definition. TCC stated that the TACB definition does not include the exemptions that are listed in the EPA definitions such as routine maintenance and changes in operating hours. A portion of the wording in the Code of Federal Regulations was summarized by the staff in the proposal. The adopted definition has been changed to reflect the Code of Federal Regulations wording as closely as possible. TCC, Mobil, and Exxon suggested that there was a discrepancy in the federal Prevention of Significant Deterioration (PSD) and NSR definitions for the definition of "necessary preconstruction approvals or permits" which appears to be an error. They propose that the phrase "permits or approvals required under" be added before the word "federal" in the TACB proposed definition to be consistent with 40 Code of Federal Regulations, sec.52.21(b)(10). The PSD definition in 40 Code of Federal Regulations, sec.52.21(b)(10) contains the words "permits or approvals required under" while the NSR definition in 40 Code of Federal Regulations, sec.51.165(1)(xvii) does not. The staff agrees that the missing words are most likely an error and should be included in both places. TACB has adopted the proposal with the words "permits or approvals required under" added to this definition. TCC, Mobil, and Exxon stated that the TACB definition "net emissions increase" is to be applauded for its simplicity, but can not be adopted as proposed because this is a very complex and controversial portion of the federal NSR program. EPA stated that the definition, as proposed, only considers the increase from the project, but does not consider contemporaneous increases and decreases. A portion of the wording in the Code of Federal Regulations was summarized by the staff in the proposal. The staff suggests that the definition of "net emissions increase" should be clarified by including the requirements of 40 Code of Federal Regulations, sec.51.165(a)(1)(vi) and the definition of the "de minimis rule" in the FCAA, sec.182(c)(6) where applicable. The net emissions increase should include the increase in emissions from the project, and all contemporaneous and creditable increases and decreases. The adopted definition has been changed to reflect the Code of Federal Regulations wording as closely as possible. TCC, Mobil, and Exxon stated that the TACB paraphrased language in defining "reconstruction" from the federal New Source Performance Standard program, and to avoid confusion, TACB should restate the federal definition as given in 40 Code of Federal Regulations, sec.60.15. EPA suggested that the definition should provide that reconstruction will be deemed to have occurred if the fixed capital cost of new components (as accumulated from December 21, 1976) exceeds 50% of the fixed capital cost of a comparable entirely new source. The definition is essentially the same definition in 40 Code of Federal Regulations, sec.60.15. The phrase "as accumulated from December 21, 1976" has been added to the adopted definition. One individual felt that the words "component" and "new source" needed to be defined so that subjective judgement would not play a role in redefining these terms with every new permit. Definitions which were not proposed for the hearing can not be added at this time. The staff will consider the remaining suggested additions in subsequent rulemaking. TCC, Mobil, and Exxon stated that he TACB has removed portions of the federal definition "secondary emissions" which resulted in some confusion. They argued for incorporation of the full federal definition. The staff summarized portions of the Code of Federal Regulations definition in its proposal, however, the adopted definition has been changed to reflect the Code of Federal Regulations wording as closely as possible. TACB is an equal opportunity employer and does not discriminate on the basis of race, color, religion, sex, national origin, age, or disability in employment or in the provision of services, programs, or activities. In compliance with the Americans with Disabilities Act, this document may be requested in alternate formats by contacting the Air Quality Planning Program staff at (512) 908-1457, (512) 908- 1500 FAX or 1-800-RELAY-TX (TDD), or by writing or visiting at 12118 North IH-35, Park 35 Technology Center, Building A, Austin, Texas 78753. The amendment is adopted under the Texas Cean Air Act (TCAA), sec.382.017, Texas Health and Safety Code (Vernon 1990), which provides TACB with the authority to adopt rules consistent with the policy and purpose of the TCAA. sec.101.1. Definitions. Unless specifically defined in the Texas Clean Air Act (TCAA) or in the rules of the Board, the terms used by the board have the meanings commonly ascribed to them in the field of air pollution control. In addition to the terms which are defined by the TCAA, the following terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. Actual emissions (applies only to nonattainment area, new source review rules pursuant to Federal Clean Air Act provisions) -Actual emissions as of a particular date shall equal the average rate, in tons per year, at which the unit actually emitted the pollutant during a two-year period which precedes the particular date and which is representative of normal source operation. The reviewing authority shall allow the use of a different time period upon a determination that it is more representative of normal source operation. Actual emissions shall be calculated using the unit's actual operating hours, production rates, and types of materials processed, stored, or combusted during the selected time period. The reviewing authority may presume that the source-specific allowable emissions for the unit are equivalent to the actual emissions. For any emissions unit which has not begun normal operations on the particular date, actual emissions shall equal the potential to emit of the unit on that date. Allowable emissions (applies only to nonattainment area, new source review rules pursuant to Federal Clean Air Act provisions) -The emissions rate of a stationary source, calculated using the maximum rated capacity of the source (unless the source is subject to federally enforceable limits which restrict the operating rate, or hours of operation, or both), and the most stringent of the applicable standards set forth in 40 Code of Federal Regulations Part 60 or 61, any applicable State Implementation Plan emissions limitation including those with a future compliance date, or the emissions rate specified as a federally enforceable permit condition including those with a future compliance date. Begin actual construction (applies only to nonattainment area, new source review rules pursuant to Federal Clean Air Act provisions) -In general, initiation of physical on-site construction activities on an emissions unit which are of a permanent nature. Such activities include, but are not limited to, installation of building supports and foundations, laying of underground pipework and construction of permanent storage structures. With respect to a change in method of operation, this term refers to those on-site activities other than preparatory activities which mark the initiation of the change. Building, structure, facility, or installation (applies only to nonattainment area, new source review rules pursuant to Federal Clean Air Act provisions)-All of the pollutant-emitting activities which belong to the same industrial grouping, are located in one or more contiguous or adjacent properties, and are under the control of the same person (or persons under common control), except the activities of any vessel. Pollutant-emit- ting activities shall be considered as part of the same industrial grouping if they belong to the same "Major Group" (i.e., which have the same two-digit code) as described in the Standard Industrial Classification Manual, 1972, as amended by the 1977 supplement. Commence (applies only to nonattainment area, new source review rules pursuant to Federal Clean Air Act provisions)-As applied to construction of a major stationary source or major modification, means that the owner or operator has all necessary preconstruction approvals or permits and either has begun, or caused to begin, a continuous program of actual on-site construction of the source, to be completed within a reasonable time; or has entered into binding agreements or contractual obligations, which can not be canceled or modified without substantial loss to the owner or operator, to undertake a program of actual construction of the source to be completed within a reasonable time. Construction (applies only to nonattainment area, new source review rules pursuant to Federal Clean Air Act provisions)-Any physical change or change in the method of operation (including fabrication, erection, installation, demolition, or modification of an emissions unit) which would result in a change in actual emissions. De minimis threshold -(In regard to any proposed emissions increase in a specific nonattainment area), an emissions level, as determined by aggregating the proposed increase with all other creditable source emission increases and decreases during the previous five calendar years, including the calendar year of the proposed change, which equals the major modification level (in tons per year) for that specific nonattainment area. Table I, this section, specifies the various classifications of nonattainment along with the associated emission levels which designate a major modification for those classifications. Emissions unit -Any part of a stationary source which emits or would have the potential to emit any pollutant subject to regulation under the Federal Clean Air Act. Federally enforceable -All limitations and conditions which are enforceable by the administrator, including those requirements developed pursuant to 40 Code of Federal Regulations Parts 60 and 61, requirements within any applicable State Implementation Plan (SIP), any permit requirements established pursuant to 40 Code of Federal Regulations, sec.52.21 or under regulations approved pursuant to 40 Code of Federal Regulations Part 51, Subpart I, including operating permits issued under the United States Environmental Protection Agency-approved program that is incorporated into the SIP and that expressly requires adherence to any permit issued under such program. Fugitive emission -Any gaseous or particulate contaminant entering the atmosphere which could not reasonably pass through a stack, chimney, vent, or other functionally equivalent opening designed to direct or control its flow. Major facility/stationary source (applies only to nonattainment area, new source review rules pursuant to Federal Clean Air Act provisions)-Any facility/stationary source which emits, or has the potential to emit, the amount specified in the MAJOR SOURCE column of Table I of this section or more of any air contaminant (including volatile organic compounds) for which a National Ambient Air Quality Standard has been issued. Any physical change that would occur at a stationary source not qualifying as a major stationary source in Table I of this section, if the change would constitute a major stationary source by itself. A major stationary source that is major for volatile organic compounds shall be considered major for ozone. The fugitive emissions of a stationary source shall not be included in determining for any of the purposes of this definition whether it is a major stationary source, unless the source belongs to one of the categories of stationary sources listed in 40 Code of Federal Regulations, sec.51.165(a)(1) (iv)(C). Major modification (applies only to new source review rules pursuant to Federal Clean Air Act provisions)-Any physical change in, or change in the method of operation of a facility/stationary source that causes a net increase of its potential to emit volatile organic compounds (VOC) or any air contaminant for which a National Ambient Air Quality Standard (NAAQS) has been issued by the amount listed in the MAJOR SOURCE column of Table I of this section or a major facility/stationary source that would result in a net increase in its potential to emit VOC or any air contaminant for which a NAAQS has been issued by an amount equal to or greater than that specified in the MAJOR MODIFICATION column of Table I. Any net emissions increase that is considered significant for VOCs shall be considered significant for ozone. A physical change or change in the method of operation shall not include routine maintenance, repair, and replacement; use of an alternative fuel or raw material by reason of an order under the Energy Supply and Environmental Coordination Act of 1974, sec.2(a) and (b) (or any superseding legislation) or by reason of a natural gas curtailment plan pursuant to the Federal Power Act; use of an alternative fuel by reason of an order or rule of section 125 of the FCAA; use of an alternative fuel at a steam generating unit to the extent that the fuel is generated from municipal solid waste; use of an alternative fuel or raw material by a stationary source which the source was capable of accommodating before December 21, 1976 (unless such change would be prohibited under any federally enforceable permit condition established after December 21, 1976) or the source is approved to use under any permit issued under regulations approved pursuant to this section; an increase in the hours of operation or in the production rate (unless the change is prohibited under any federally enforceable permit condition which was established after December 21, 1976); or any change in ownership at a stationary source. [graphic] Necessary preconstruction approvals or permits (applies only to nonattainment area, new source review rules pursuant to Federal Clean Air Act provisions)-Those permits or approvals required under federal air quality control laws and regulations and those air quality control laws and regulations which are part of the applicable State Implementation Plan. Net emissions increase (applies only to nonattainment area, new source review rules pursuant to Federal Clean Air Act provisions)-Any emissions changes at the building, structure, facility, or installation in which the sum of any increase in actual emissions from a particular physical change or change in the method of operation at a stationary source, and any other increases and decreases in actual emissions at the source that are contemporaneous with the particular change and are otherwise creditable, exceeds zero. An increase or decrease in actual emissions is contemporaneous with the increase from the particular change only if it occurs before the date that the increase from the particular change occurs. An increase or decrease in actual emissions is creditable only if it occurs within a reasonable period to be specified by the reviewing authority, and the reviewing authority has not relied on it in issuing a permit for the source (under regulations approved during which the permit is in effect) when the increase in actual emissions from the particular change occurs. An increase in actual emissions is creditable only to the extent that the new level of actual emissions exceeds the old level. A decrease in actual emissions is creditable only to the extent that the old level of actual emission or the old level of allowable emissions, whichever is lower, exceeds the new level of actual emissions; it is federally enforceable at and after the time that actual construction on the particular change begins, the reviewing authority has not relied on it in issuing any permit, or the state has not relied on it in demonstrating attainment or reasonable further progress; it has approximately the same qualitative significance for public health and welfare as that attributed to the increase from the particular change. An increase that results from a physical change at a source occurs when the emissions unit on which construction occurred becomes operational and begins to emit a particular pollutant. Any replacement unit that requires shakedown becomes operational only after a reasonable shakedown period, not to exceed 180 days. Nonattainment area -An area which is designated "nonattainment" with respect to any air pollutant within the meaning of the Federal Clean Air Act, sec.107(d). Reconstruction (applies only to nonattainment area, new source review rules pursuant to Federal Clean Air Act provisions)-Will be presumed to have taken place where the fixed capital costs of the new component (as cumulated from December 21, 1976) exceeds 50% of the fixed capital cost of a comparable entirely new source. Secondary emissions (applies only to nonattainment area, new source review rules pursuant to Federal Clean Air Act provisions) -Emissions which would occur as a result of the construction or operation of a major stationary source or major modification, but do not come from the source or modification itself. Secondary emissions must be specific, well defined, quantifiable, and impact the same general area as the stationary source or modification which causes the secondary emissions. Secondary emissions include emissions from any offsite support facility which would not be constructed or increase its emissions, except as a result of the construction or operation of the major stationary source or major modification. Secondary emissions do not include any emissions which come directly from a mobile source such as emissions from the tail pipe of a motor vehicle, from a train, or from a vessel. Synthetic organic chemical manufacturing process-A process that produces, as intermediates or final products, one or more of the chemicals listed in Table II of this section. insert pg 2 insert pg 4 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 June 29, 1992. TRD-9208972 Lane Hartsock Deputy Director, Air Quality Planning Texas Air Control Board Effective date: November 15, 1992 Proposal publication date: January 31, 1992 For further information, please call: (512) 908-1451 Chapter 116. Control of Air Pollution by Permits for New Construction or Modification 31 TAC sec.116.3 The Texas Air Control Board (TACB) adopts an amendment to sec.116.3 of Regulation VI and the state implementation plan (SIP), with changes to the proposed text as published in the January 31, 1992, issue of the Texas Register (17 TexReg 834). The revisions respond to requirements of Title I of the Federal Clean Air Act (FCAA), concerning new source review for nonattainment areas. The revisions to sec.116.3, concerning consideration for granting permits to construct and operate, incorporate provisions in the amended FCAA which changed new source review requirements for new and modified sources in nonattainment areas. Public hearings were held in Houston on February 25, 1992, and in Austin on February 27, 1992, to consider the proposed revisions. Testimony was received from 62 commenters during the comment period which ended February 28, 1992. Commenters generally supported the proposal with changes. The following discussion addresses the comments which deal with specific provisions of the proposal. The United States Environmental Protection Agency was uncertain whether the proposed regulation addressed the requirement of the FCAA, sec.173(a)(5). EPA stated that this concern needs to be addressed for the public record. The FCAA paragraph provides that as a condition for issuing a permit to construct a major stationary source or major modification in a nonattainment area, the public record must contain an analysis of alternate sites, sizes, production processes, and environmental control techniques and demonstrate that the benefits of locating the source in a nonattainment area significantly outweigh the environmental and social costs imposed. Since this requirement was not in the proposal, it cannot be added for adoption at this time. The TACB will include this suggested revision in the next Regulation VI changes so that it can be considered by the November 15, 1992, deadline. EPA stated that sec.116.3(a)(9) seems to indicate that where the SIP for ozone nonattainment areas has not been approved by EPA, the major source or major modification may construct if there is a total net decrease in VOC emissions in the area. It is unclear where the FCAA would allow such construction to commence in the absence of an approved SIP. This paragraph is a holdover from previous FCAA requirements which have been superseded by the 1990 FCAA amendments and is, therefore, no longer relevant. This paragraph has been deleted. EPA stated that subparagraph (A) in each of sec.sec.116.3(a)(7), (10), and (11) should further specify that lowest achieveable emission rate (LAER) must be applied to each new emissions unit and to each existing emissions unit at which a net emissions increase will occur as the result of a physical change or change in the method of operation of the emissions unit. Fina stated that the proposed change would incorrectly require that all major modifications in serious ozone nonattainment areas comply with LAER. The current TACB regulations for permitting major sources or major modifications in nonattainment areas require the use of LAER. In serious nonattainment areas, the FCAA, sec.182(c)(7) and (8) allow modifications to sources which use a greater offset of 1.30 to 1 and alternative controls. For serious nonattainment areas, the staff recommends a minimum offset ratio of 1. 20 to 1 and LAER, or BACT in lieu of LAER if the source chooses to use an offset ratio of 1.30 to 1. In severe nonattainment areas, the FCAA, sec.182(d) (2), allows the minimum offset ratio to be 1.20 to 1 if the state chooses to require existing major sources of VOC or NO[sub]x[sub] in the area to use BACT. At the present, the state cannot make the demonstration that all existing major sources comply with BACT; therefore, the rule proposal included an offset ratio of 1.30 to 1 for severe areas. One individual stated that the phrase which begins "at any distance beyond the facility's property boundaries, unless the applicant demonstrates that the facility will be operated so as to safeguard public health and welfare and protect physical property and the environment" in sec.116.3(a)(14)(D) contains no criteria or definition so that a certain test will be applied to prove to TACB that this condition can be met. This subparagraph is unchanged, except for renumbering, from the existing regulation and is adopted as proposed. TACB is an equal opportunity employer and does not discriminate on the basis of race, color, religion, sex, national origin, age or disability in employment or in the provision of services, programs, or activities. In compliance with the Americans With Disabilities Act, this document may be requested in alternate formats by contacting the Air Quality Planning Program staff at (512) 908-1457, (512) 908-1500 FAX or 1-800-RELAY-TX (TDD), or by writing or visiting at 12118 North IH-35, Park 35 Technology Center, Building A, Austin, Texas 78753. The amendment is adopted under the Texas Clean Air Act (TCAA), sec.382.017 Texas Health and Safety Code (Vernon 1990), which provides TACB with the authority to adopt rules consistent with the policy and purposes of the TCAA. sec.116.3. Consideration for Granting Permits to Construct and Operate. (a) Permit to construct. In order to be granted a permit to construct, the owner or operator of the proposed facility shall submit information to the Texas Air Control Board (TACB) which will demonstrate that all of the following are met. (1) The emissions from the proposed facility will comply with all rules and regulations of TACB and with the intent of the Texas Clean Air Act (TCAA), including protection of the health and physical property of the people. (A) In considering the issuance of a permit for construction or modification of any facility within 3,000 feet or less of an elementary, junior high/middle, or senior high school, TACB shall consider any possible adverse short-term or longterm side effects that an air contaminant or nuisance odor from the facility may have on the individuals attending these school facilities. (B) Pursuant to the TCAA, sec.382.053, a permit to construct shall not be issued for a new lead smelting plant at a site located within 3,000 feet of the residence of any individual and at which lead smelting operations have not been conducted before August 31, 1987. This subparagraph does not apply to a modification of a lead smelting plant in operation on or before August 31, 1987, to a new lead smelting plant or modification of a plant with the capacity to produce not more than 200 pounds of lead per hour, or to a lead smelting plant that was located more than 3,000 feet from the nearest residence when the plant began operations. In this subparagraph, "lead smelting plant" means a facility operated as a smeltery for the processing of lead. (2) (No change.) (3) The proposed facility will utilize the best available control technology, with consideration given to the technical practicability and economic reasonableness of reducing or eliminating the emissions from the facility. (4) The emissions from the proposed facility will meet at least the requirements of any applicable new source performance standards promulgated by the United States Environmental Protection Agency (EPA) pursuant to authority granted under the Federal Clean Air Act (FCAA), sec.111, as amended. (5) The emissions from the proposed facility will meet at least the requirements of any applicable emission standard for hazardous air pollutants promulgated by EPA pursuant to authority granted under the FCAA, sec.112, as amended. (6) (No change.) (7) The owner or operator of a proposed new facility which is a major stationary source of volatile organic compound (VOC) emissions or emissions of oxides of nitrogen (NO [sub]x), or which is a facility that will undergo a major modification with respect to VOC or NO [sub]x. 92p emissions, and which is to be located in any area designated as nonattainment for ozone in accordance with the FCAA, sec.107, shall meet the additional requirements of subparagraphs (A)-(C) of this paragraph. Table I of sec.101.1 of this title (relating to Definitions) specifies the various classifications of nonattainment along with the associated emission levels which designate a major stationary source or major modification for those classifications. The de minimis threshold test must be applied to any proposed VOC or NO emissions increase in moderate, serious, and severe ozone nonattainment areas. The de minimis thresholds are the same as the major modification levels stated in Table I, but aggregated over the previous five-year period, including the calendar year of the proposed change. The past net increase must be evaluated even when the proposed increase alone is below the major modification level. Permit applications filed on or after November 15, 1992, shall comply with this paragraph. (A) The proposed facility will comply with the lowest achievable emissions rate (LAER) as defined in sec.101.1 of this title. LAER must be applied to each new emissions unit and to each existing emissions unit at which a net emissions increase will occur as a result of a physical change or change in the method of operation of the emissions unit. (B) (No change.) (C) The proposed facility will use the offset ratio for the appropriate nonattainment classification as shown in Table I of sec.101.1 of this title. For the purpose of satisfying the emissions offset reduction requirements of the FCAA, sec.173(a)(1)(A), the emissions offset ratio is the ratio of total actual reductions of VOC or NO emissions to total allowable emissions increases of such pollutants from the new source. (8) The owner or operator of a proposed new facility which is a major stationary source of VOC or NO [sub]x or which is a facility that will undergo a major modification with respect to VOC or NOx emissions, and which is located in a nonattainment county for ozone shall provide information concerning the expected emissions to enable the executive director to determine that by the time the facility is to commence operation, total allowable emissions from existing facilities, from the proposed facility, and from new or modified facilities which are not major sources in the area will be sufficiently less than the total emissions from existing sources allowed in the area under the applicable state implementation plan (SIP) as promulgated by EPA in the Code of Federal Regulations (CFR) at 40 CFR, Part 52, Subpart SS, prior to the application for the construction permit so as to represent reasonable further progress as defined in sec.101.1 of this title. Permit applications filed on or after November 15, 1992, shall comply with this paragraph. (9) The owner or operator of a proposed new facility to be located anywhere within the state that is a major stationary source of emissions of any air contaminant (other than VOC) for which a national ambient air quality standard has been issued, or is a facility that will undergo a major modification with respect to emissions of any air contaminant (other than VOC), must meet the following additional requirements if the ambient air quality impact of the source's emissions would exceed a de minimis impact level as defined in sec. 101.1 of this title in any area where the standard is exceeded or predicted to be exceeded. (A) The proposed facility will comply with LAER as defined in sec.101.1 of this title. LAER must be applied to each new emissions unit and to each existing emissions unit at which a net emissions increase will occur as a result of a physical change or change in the method of operation of the emissions unit. (B)-(C)(No change.) (10) The owner or operator of a proposed new facility in a designated nonattainment area for an air contaminant other than ozone, which will be a major stationary source or a major modification of an existing facility for that nonattainment air contaminant must meet the additional requirements of subparagraphs (A)-(D) of this paragraph regardless of the degree of impact of its emissions on ambient air quality. Table I of sec.101.1 of this title specifies the various classifications of nonattainment along with the associated emission levels which designate a major stationary source or major modification for those classifications. Permit applications filed on or after November 15, 1992, shall comply with this paragraph. (A) The proposed facility will comply with LAER as defined in sec.101.1 of this title for the nonattaining pollutants. LAER must be applied to each new emissions unit and to each existing emissions unit at which a net emissions increase will occur as a result of a physical change or change in the method of operation of the emissions unit. (B)-(C) (No change.) (D) The proposed facility will use the offset ratio for the appropriate nonattainment classification as shown in Table I. For the purpose of satisfying the emissions offset reduction requirements of the FCAA, sec.173(a) (1)(A), the emissions offset ratio is the ratio of total actual reductions of pollutant emissions to total allowable emissions increases of such pollutants from the new source. (11) The proposed facility shall comply with the Prevention of Significant Deterioration (PSD) of Air Quality regulations promulgated by the EPA in the CFR at 40 CFR, sec.52.21 as amended October 17, 1988, and the Definitions for Protection of Visibility promulgated at 40 CFR, sec.51.301, hereby incorporated by reference, except for the following paragraphs: 40 CFR, sec.52. 21(j), concerning control technology review; 40 CFR, sec.52.21(1), concerning air quality models; 40 CFR, sec.52.21(q), concerning public notification (provided, however, that a determination to issue or not issue a permit shall be made within one year after receipt of a complete permit application so long as a contested case hearing has not been called on the application); 40 CFR, sec.52.21(r)(2), concerning source obligation; 40 CFR, sec.52.21(s), concerning environmental impact statements; 40 CFR, sec.52.21(u), concerning delegation of authority; and 40 CFR, sec.52.21(w), concerning permit rescission. The term "Executive Director" shall replace the word "Administrator," except in 40 CFR, sec.52.21(b)(17), (f)(1)(v), (f)(3), (f)(4) (i), (g), and (t). "Administrator or Executive Director" shall replace "Administrator" in 40 CFR, sec.52.21(b)(3)(iii), and "Administrator and Executive Director" shall replace "Administrator" in 40 CFR, sec.52.21(p)(2). All estimates of ambient concentrations required under this paragraph shall be based on the applicable air quality models and modeling procedures specified in the EPA Guideline on Air Quality Models , as amended, or models and modeling procedures currently approved by EPA for use in the state program, and other specific provisions made in the state PSD SIP. If the air quality impact model approved by EPA or specified in the guideline is inappropriate, the model may be modified or another model substituted on a case-by-case basis, or a generic basis for the state program, where appropriate. Such a change shall be subject to notice and opportunity for public hearing and written approval of the administrator of the EPA. Copies of 40 CFR, sec.52.21 and 40 CFR, sec.51.301 are available upon request from TACB, 12118 North IH-35, Park 35 Technology Center, Austin, Texas 78753. (12) In evaluating air quality impacts under paragraphs (9) or (11) of this subsection, the owner or operator of a proposed new facility or modification of an existing facility shall not take credit for reductions in impact due to dispersion techniques as defined in the CFR. The relevant federal regulations are incorporated herein by reference, as follows: 40 CFR, sec.51.100(hh)-(kk) promulgated November 7, 1986; the definitions of "owner or operator," "emission limitation and emission standards," "stack," "a stack in existence," and "reconstruction," as given under 40 CFR, sec.51.100(f), (z), (ff), (gg), and 40 CFR 60, respectively; 40 CFR, sec.51.118(a), (b), and (c); and 40 CFR, sec.51.164. Copies of these sections of the CFR are available upon request from TACB, 12118 North IH-35, Park 35 Technology Center, Austin, Texas 78753. (13) Permits for hazardous waste management facilities shall not be issued if the facility is to be located in the vicinity of specified public access areas under the following circumstances. (A)-(F) (b) (No change.) (c) Emission reductions: offset. At the time of application for a construction permit in accordance with this chapter, any applicant who has effected air contaminant emission reductions may also apply to the executive director to use such emission reductions to offset emissions expected from the facility for which the permit is sought, provided that the following conditions are met: (1) the emission reductions are not required by any provision of the Texas SIP as promulgated by EPA in 40 CFR, Part 52, Subpart SS, nor by any other federal regulation under the FCAA, as amended, such as new source performance standards. Minimum offset ratios as specified in Table I of sec.101.1 of this title will be used in areas designated as nonattainment areas. Permit applications filed on or after November 15, 1992, shall comply with this paragraph. (2) (No change.) (d)-(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 June 29, 1992. TRD-9208974 Lane Hartsock Deputy Director, Air Quality Planning Texas Air Control Board Effective date: November 15, 1992 Proposal publication date: January 31, 1992 For further information, please call: (512) 908-1451 Chapter 116. Control of Air Pollution by Permits for New Construction or Modification 31 TAC sec.sec.116.4, 116.6, 116.11 The Texas Air Control Board (TACB) adopts amendments to sec.sec.116.4, 116. 6, and 116.11. Section 116.4 and sec.116.6 are adopted with changes to the proposed text as published in the January 28, 1992, issue of the Texas Register (17 TexReg 720). Section 116.11 is adopted without changes and will not be republished. Amendments to sec.116.4 clarify that a condition in a permit may restrict the use of standard exemptions at a facility. The revisions to sec.116.6 change statutory references to reflect legislative revisions to the Texas Clean Air Act (TCAA), change the reference date of the Standard Exemption List (SEL) to reflect revisions to several exemptions and the addition of a new exemption, alter wording to reflect the 1990 amendments to the Federal Clean Air Act (FCAA), include as a new paragraph restrictions on use of exemptions at a facility, and reorder the subparts of the section as a result of the new requirements. The revision to sec.116.11, concerning permit fees, increases the permit fee to be remitted to $75,000 if no estimate of project capital cost is included with the permit application. Public hearings were held in Houston on February 25, 1992, and in Austin on February 27, 1992, to consider proposed revisions to TACB Regulation VI and the General Rules. Testimony was received from 63 commenters during the comment period which ended February 28, 1992. The more general comments are addressed initially, followed by the comments which address specific provisions of each exemption. The City of Dallas Department of Health and Human Services (Dallas) suggested revisions to Standard Exemptions 17, 25, 75, 87, and 106. Dallas noted that its staff had witnessed situations where an operator of an insignificant source could not meet a standard exemption and either had to modify the process, apply for a permit, or discontinue operation. These standard exemptions were not proposed for change and, therefore, could not be acted upon at this time. However, the commenter's suggestions have been forwarded to the Permits Program and may be considered for future rulemaking. An individual felt the list should be revised every three years or less to upgrade control requirements to the best available control technology (BACT) or the lowest achievable emissions rate (LAER). Historically, the SEL has been revised at less than three-year intervals, and a continuation of this timing can be anticipated. Rather than establishing a formal schedule, the staff would prefer to initiate changes as the need arises and as resources are available. An individual was totally opposed to the entire SEL because of his assertions that the list is not truly limited to insignificant sources of air pollution and that no real standard exists as to how recordkeeping can be judged as sufficient regarding compliance with each standard exemption. The purpose of exemptions, as provided in the TCAA, is to exempt those facilities which will not make a significant contribution of air contaminants to the atmosphere. Such facilities must meet the special requirements of the applicable standard exemption(s) and must not otherwise violate any requirements of the TCAA or the FCAA. The special requirements have been developed by the TACB staff to ensure that the emissions are truly insignificant. The Delhi Gas Pipeline Corporation (Delhi), the Association of Texas Intrastate Natural Gas Pipelines (ATINGP), the Panhandle Eastern Corporation (Panhandle), and the Texas Chemical Council (TCC) requested that the text of any standard exemption proposal be published in the Texas Register in the same manner as a rule or regulation proposal. The practice of not publishing documents incorporated by reference is a Texas Register procedure, not a TACB staff decision. In order to offset this disadvantage, hearing notices, which are published, contain clear indications by number and/or title as to which exemptions are the subject of rulemaking. Additionally, the staff publishes a detailed discussion of each change and the specific language of each proposed new or revised exemption. Interested parties can easily obtain copies of this information through the TACB central or regional offices. Even though documents incorporated by reference are not printed in the Texas Register , any revisions are subjected to the same scrutiny and review in the rulemaking process as are the numbered/lettered rules. The TACB will continue to incorporate the SEL by reference. Union Carbide Chemical and Plastics Company requested removal of the last sentence of sec.116.4 which reads "A permit may contain condition(s) that preclude future use of standard exemptions at any existing or proposed facility under the same TACB Account Number." They stated that the use of standard exemptions should be limited by permit number, not the TACB account number, and should be chemical specific, not a blanket denial of all the standard exemptions. The 3M Environmental Engineering and Pollution Control Corporation (3M) requested that the TACB delete the statement since the SEL and corresponding requirements ensure that all sources requiring a permit are excluded from using standard exemptions. One individual stated that the last sentence must have the "may" changed to "will" to remove any doubt that incremental increases in air pollution in a particular area will not be allowed. TCC, ATINGP, Baker and Botts, the Greater Houston Partnership, the Texas Mid-Continent Oil and Gas Association (TMOGA), the Mobil Oil Corporation (Mobil), Exxon Chemical Americas, Valero Natural Gas Partners (Valero), and El Paso Natural Gas Company (EPNGC) felt that the proposed amendment to sec.116.4 would effectively eliminate use of the SEL, since most chemical plants in Texas are either subject to TACB permits or will be under Title V permits. They also stated that the proposed rule would effectively nullify Health and Safety Code sec.382.057, which authorizes exemptions, and they were concerned that there is no apparent restriction on the TACB authority to exercise this option. Mitchell Energy Corporation (Mitchell) and Mobil opposed the amendment out of a concern that such a condition, if included in the general permit regulations, could become a standard condition in every permit. They stated that this proposal would not decrease emissions, only delay the permit process, and reduce the flexibility that industry needs. Mobil stated that this section could be amended if the TACB was concerned about enforceability of standard exemptions and/or that their use could result in increased emissions above predicted effects screening levels. The commenter suggested that each standard exemption use be documented and submitted to the TACB, and that the TACB require a revised emissions inventory and modeling showing the emissions increase. Haltermann, Incorporated and Dixie Chemical Company (Dixie) felt that adoption of blanket provisions eliminating standard exemptions would not only be burdensome on the TACB staff and the regulated community, but would threaten the very existence of the specialty chemical business. These businesses engage in shortterm chemical processing projects with manufacturing companies. They have a TACB permit to process, store, and load specific compounds; however, they routinely use standard exemptions to process compounds not specifically authorized by the permit. Dixie stated that exemptions are needed for time savings since it takes twelve months for a new permit and six to 12 months for a permit amendment. Often, market pressures require such timely response to gain a production contract, and exemptions actually minimize air emissions by causing a company to take appropriate measures to meet exemption limitations. The proposed language which was added to sec.116.4 is not a change in current policy of the TACB. The intent of the staff is to state the existing policy in the regulation, not to institute a blanket denial of all standard exemptions or to operate in an unrestricted manner. The word "may" in the last sentence gives the Permits Program staff the flexibility required in reviewing permits, but does not mandate a blanket denial as would the word "will." However, in order to eliminate a possible misunderstanding of the staff intent, the TACB has adopted the following wording: "Upon a specific finding by the executive director that an increase of a particular pollutant could result in a significant impact on the environment or could cause the facility to become subject to review under 40 CFR 51.165 (Nonattainment) or 40 CFR 52.21 (Prevention of Significant Deterioration), the executive director may include a special permit condition which states that without prior approval by the executive director, the permittee may not use the authority of a standard exemption to construct an additional source at that facility which will result in a net emissions increase of this particular pollutant." There were no comments to the proposed changes in sec.116.11. Amoco Production Company (Amoco); Phillips Petroleum Company (Phillips); Southern Union Gas (Southern); Delhi; TCC; Caterpillar, Incorporated (Caterpillar); ATINGP; TMOGA; Compressor Systems, Incorporated; Lone Star Gas Company (Lone Star); Mitchell; Trident NGL, Incorporated (Trident); ARCO Oil and Gas Company (ARCO); Panhandle; Gas Compressor Association (GCA); Waukesha Engine Division of Dresser Industries (Waukesha); Dresser Industries; Emissions Plus, Incorporated (EPI); American Gauge Corporation; ENTEX; Production Operators, Incorporated (POI); Valero; EPNGC; Halliburton Resource Management (Halliburton), Tidewater Compression Service, Incorporated (Tidewater); an individual; Mobil; Houston Industrial Silencing; CHERCO Compressors, Incorporated; and Gemini Engine Company submitted comments concerning Standard Exemption 6. A general discussion and staff recommendations on major issues brought out in the testimony is followed by a discussion of comments received on specific topics. The most significant issues raised were: pipeline quality natural gas fuel is typically not readily available for field gas compressors; the use of standard United States Environmental Protection Agency (EPA) compliance test methods on an annual basis is economically burdensome; air-fuel ratio (AFR) controllers are not offered on all new low-emission lean-burn engines and are not always necessary; and a requirement for emission controls on relocated, previously uncontrolled, lean-burn engines is economically burdensome and still may not ensure that these engines meet the proposed emission standard. The staff considered each of these points and others raised in the testimony. On the issue of fuel quality, the staff agrees with commenters who stated that using sour gas is justified in remote sour gas fields where pipeline quality natural gas is not available. Using the cleanest fuel available is preferable from the standpoint of engine maintenance, so there is an economic incentive to avoid burning sour gas in a stationary engine. If sour gas is used as a fuel, the existing sec.116.6(a)(1) limit of 25 tons of sulfur dioxide (SO2) per year may be enforced by inspection of records of fuel sulfur content. In such cases, the staff has used quarterly analysis of field gas sulfur content to ensure compliance. Regarding annual standard EPA stack testing for nitrogen oxides (NO) and carbon monoxide (CO), the staff agrees that annual testing of affected engines can be expensive, but the staff continues to support a requirement for a periodic, clearly enforceable emission test. The need for testing exists because engine emission controls are subject to degradation over time, whether or not add-on emission controls are used. The selftesting of emissions using portable analyzers, proposed by numerous commenters, suffers from unresolved technical issues regarding the validity of wet-cell based analyzer test results. The standard compliance test methods also are typically conducted by independent testing firms, which eliminates the potential for bias that is inherent in self-evaluation using nonstandard test procedures. Two ways of reducing the cost of determining compliance have been adopted: reduce the frequency of the formal test for compliance determination from annual to biennial; and expand the range of allowable test methods to include less expensive test methods, such as EPA Reference Method 19 for determination of flow rate and California Air Resources Board Method 100 (adopted June 29, 1983) for NO [sub]x and oxygen (O [sub]x ), which are incorporated by reference in condition (b)(3)(C). The issue of AFR controls is discussed in later comments. Perhaps the most important issue raised by commenters concerned the proposal to require emission controls on engines which involve new installations (new construction) subject to Regulation VI, but use old equipment which has been relocated. The staff finds three reasons to promulgate an emission control requirement for these sources. First, the overall purpose of the construction permit approach is to allow for the gradual reduction of air emissions, as new BACT controlled sources replace older, dirtier sources. Second, the public is subject to reduced emission impacts from a new installation with well controlled engines compared to a similar new installation using old engines without emission controls. Third, the existing Standard Exemption 6, which requires no emission controls for any engine manufactured prior to September 23, 1982, encourages importation of old, dirty engines into Texas from other areas such as California, where engine emission standards are far more stringent, and New Mexico, where the time necessary to obtain a permit encourages keeping emissions from new construction below permit trigger levels. The staff believes that periodic reevaluation of the SEL, to ensure that it reflects the current purposes of the Permits Program, is appropriate. The testimony identified several reasonable concerns with the immediate imposition of a uniform emission limit for newly constructed gas-fired engines, without regard for date of manufacture. Standard Exemption 6, as proposed, potentially requires emission control and testing on a small fraction of the total population of engine facilities. For instance, a firm count of leased gas compressors from the now defunct Field Gas Compression Association (FGCA) indicates that, in Texas, fewer than 7.0% of the member-leased engines are rated greater than 500 horsepower (hp). The individual impact of the emission control proposal may be substantially greater to engine leasing companies whose equipment is more frequently relocated. Second, for technical reasons, although some old engines may be amenable to having their emissions substantially reduced, it is not practical for all such engines to meet the proposed NO emission standard of 2.0 grams per horsepower-hour (g/hp-hr). Rich-burn engines can meet the proposed limit with nonselective catalytic converter reduction (NSCR) technology with resulting emissions reductions which are very cost-effective. Relocated old lean-burn engines present more difficulty. Although any lean-burn engine could technically meet the proposed standard (in some cases, by rebuilding the engine to a low emission configuration and for any lean-burn, by using selective catalytic conversion), the cost, in some cases, may not be economically reasonable considering the remaining value of the engine and the present market value of the gas produced. There are many types of old lean-burn, gas-fired engines operating in Texas, some manufactured as long as fifty years ago. The majority of these engines are unlikely to be relocated, since they are sited at gas production plants or on pipelines. There are others, used in field gas production, which are relocated frequently. The staff presently does not have the resources to identify the most prevalent models of old lean-burn engines which normally are relocated and the specific emission controls available for these engines. Engines which reduce emissions by operating parameter adjustment are far more likely to exceed emission limits than engines which reduce emissions by rebuilding. Therefore, the staff believes that periodic emission checks and testing are even more important if the proposed emission requirements are relaxed. After further discussion and meeting with representatives of the gas production and transmission industry in Texas, the emission limits have been relaxed to levels which would allow, in many cases, operating parameter adjustments to be used to achieve emissions compliance. emissions contribute to the formation of ground-level ozone, visibility degradation, small particulate matter, and acid deposition. The majority of engine emissions occur in rural areas which meet ambient air quality standards for ozone and NO [sub]x . Environmental benefits from reducing NO emissions can be expected in several ways. Emission controls will result in measurable reductions in ambient concentrations within a few hundred feet of an engine, since the typical low stack height causes significantly elevated NO levels near the engine. Second, gradual reductions occurring throughout a region will improve values, such as visibility, which do not have a prescribed standard. Third, in urban areas currently exceeding the federal air quality standard for ozone, NO reductions may help lower ozone levels. Southern commented that nitrogen dioxide (NO [sub]x levels in Texas are well below the National Ambient Air Quality Standards (NAAQS). Southern is correct that the NAAQS for NO has not been exceeded anywhere in Texas. The Los Angeles air basin is the only area in the United States with monitored exceedances of the NO standard. Southern stated that natural gas fueled engines are not the source for perceived NO emissions problems in Texas. Halliburton compared gas-fired engine emissions favorably with such facilities as coal and oil-fired power generating plants. The staff disagrees. Natural gas fired engines may contribute over 30% of the total point source NO [sub]x emissions in Texas, which is comparable to the 40% contribution from the largest stationary source category, electric utility power plants. NO [sub]x. emissions per cubic foot of gas burned from reciprocating internal combustion (IC) engines are much higher than external combustion sources such as utility boilers. This is due to high flame temperatures caused by combustion air preheating on the compression stroke, low heat loss during combustion, and long residence time at high flame temperatures (particularly for slow-speed stationary engines) caused by low revolutions per minute. A 35% efficient engine controlled to 2.0 g/hp-hr of NO emits 0.6 pound NO/million British thermal unit (MMBtu), which is comparable to coal-fired utility boiler emissions and is ten times higher than controlled gas-fired boiler emissions. NO emissions in the natural gas production industry are generated primarily by natural gas compressor engines and turbines. The TACB computerized inventory of statewide emission sources indicates that 253,000 tons per year (TPY), or 19% of the total point source NO, is emitted from oil and gas production sources and transmission related sources under Standard Industrial Classification codes 1311, 1321, and 4922. However, this figure clearly and severely understates the total NO contribution of gas-fired engines because the TACB data base includes only a fraction of the gasfired engine emission sources. Within the urban ozone nonattainment areas, the inventory only includes NO emissions sources of more than 100 TPY, excluding those which are not also major sources of volatile organic compound (VOC) emissions. Outside the urban ozone nonattainment areas, the inventory only includes permitted sources which emit more than 250 tons of NO [sub]x per year. These sources are typically gas processing plants, not field gas or small pipeline engines; therefore, there is no complete inventory of all stationary engines. In 1991, Dale Steffes of the FGCA estimated there are 9,000 gas compressor engines rated less than 500 hp and 3,000 gas compressor engines rated more than 500 hp in Texas. Other engine uses include numerous and typically very small irrigation operations (50,000-100,000 engines in the 50-100 hp range operating approximately 3,500 hours per year, according to estimates from Southern), cogeneration and electric generation operations, and petrochemical and refining applications. Using estimates of the total population of natural gas fueled, natural gas compression engines in Texas from the FGCA, the oil and gas portion of the stationary engine population contributes approximately 25% of the total stationary source NO emissions in Texas. Considering all uses of stationary gas-fired engines, as much as 32% of the total stationary source NO [sub]x emissions in Texas derives from stationary gas-fired engines. Southern commented that the TACB is over-responding to certain aspects of the FCAA. Delhi expressed concern that the proposed rulemaking was an attempt to meet the 15% reduction requirement in nonattainment areas. The "Discussion of Proposed Revisions to Standard Exemption List, January 17, 1992" (copy to Southern on February 4, 1992), stated that the proposed changes to Standard Exemption 6 update the exemption to reflect controls similar to current BACT practice of the Permits Program. The adopted changes are not in response to the FCAA. Southern commented that liquid-fuel refineries and electric utilities will not be affected by the proposed changes. FCAA mandated rule changes regarding new or modified sources of NO [sub]x in Texas urban ozone nonattainment areas were proposed concurrently and adopted prior to this proposed rulemaking. Further rule changes to reduce existing source NO are underway as mandated by Section 182(f) of the 1990 FCAA. The staff disagrees that "VOC emissions are likely to play a greater role than NO in formation of ground level ozone." Both NO [sub]x and VOC emissions are necessary for the generation of ground-level ozone. Current models show that elimination of man-made NO would eliminate ozone, whereas elimination of man-made VOC could still result in exceedances of the ozone NAAQS in some areas, due to the presence in the atmosphere of naturally occurring VOC compounds. New or modified electric utility units are subject to BACT NO controls which, today, may include selective catalytic reduction (SCR) technology. Although technologically justifiable, the adopted Standard Exemption 6 does not rely on SCR as the basis for emission control of gas-fired engines. Southern and Tidewater questioned the requirement to register engines rated more than 240 hp, rather than 500 hp. No change has been adopted to the requirement to register engines. The requirement allows the TACB to evaluate the stated engine hp of engines near 500 hp and to track the engines in the 240-500 hp range, without requiring emission controls. Southern asked under what circumstances an engine could be located in a nonattainment area and how the modeling requirements of Standard Exemption 6 would apply. No changes to the modeling requirements have been adopted at this time. A requirement to model emissions other than NO [sub]x is at the discretion of the TACB. Ozone emissions (none), VOC emissions (low), particulate matter emissions (no emission factors), and SO 4. 42p emissions (low) from natural gas-fired engine operations often are so low that modeling of these air contaminants is unnecessary. The adopted revisions to sec.116.6 and the General Rules affect construction of engine facilities located in ozone nonattainment areas. With the reduction of emission rates in the definition of "major source," many previously exemptible new facilities (including engines) in the ozone nonattainment counties in Texas will be subject to permit, rather than exemption, requirements. LAER may also apply to those engines. Southern commented that the selection of lean-burn engines is still quite limited and that NSCR and prestratified charge (PSCR) technology are not well demonstrated. The majority of new, large stationary gas-fired engines sold in the United States are low emission engines. Southern provided the TACB staff emission summaries, without authorship, of the "published data for Caterpillar richburn engines equipped with catalytic converters." The staff was unable to find anyone at Caterpillar knowledgeable of the source of this information. Regardless of the data source, the 2-4.0% range of O content makes the point very effectively that NSCR converters must use an O-based sensor to operate properly. Automatic AFR control has been standard on automobile and NSCR converter controlled stationary engines for years. The TACB requires the use of an O [sub]x -based AFR controller to maintain O content in the 0-0.5% range. The optimum set point is often at 4, 000 parts per million (ppm) O. Although the 2.0 g/hp-hr NO limit only reflects an 80% reduction of NO [sub]x across the converter, the TACB has test data and other reports showing that greater than a 97% reduction is achievable for a properly operating gasfired engine with NSCR. Lists of engine types potentially retrofittable with NSCR, PSCR, and clean-burn technology are available upon request from the TACB staff. Southern asked whether BACT controls should be required outside of nonattainment areas. Delhi and ENTEX commented that the proposed emission controls are expensive and suggested that the proposed changes be limited to nonattainment areas. Lone Star and POI pointed to the TACB permit rule defining 250 TPY of NO [sub]x and CO per facility as insignificant as justification for not going forward with new emission control requirements. The TCAA requires a permit system in Texas. The cornerstone of the permit system is the application of BACT, as identified in sec.382.051(d)(1) of the TCAA, to limit air emissions from new or modified facilities which emit air contaminants. Standard Exemption 6, like the other 121 exemptions, is an optional exemption from permit review, based on the finding by the TACB that upon investigation, such facilities or types of facilities will not make a significant contribution of air contaminants to the atmosphere. The 250-TPY exemption for NO and CO was allowed at the request of the gas processing industry. The staff felt that concomitant with continuing to consider these levels "insignificant" the exemption should require the application of enforceable control measures. Southern commented that BACT control measures suggest "money is no object." Costs are central in the BACT determination. LAER technology, which requires technological practicability without balancing costs, is necessary for new or modified major sources in nonattainment areas. Reasonably achievable control technology (RACT) gives even more weight to economic issues than BACT and is appropriate to rules affecting an entire population of existing sources in a nonattainment area. Although the above is generally true, there are several ozone nonattainment counties in California outside the Los Angeles Basin in which RACT rules have been enacted requiring engine NO emissions limits of 0. 75 g/hp-hr for all existing rich-burn and less than 2.0 g/hp-hr for all existing lean-burn engines rated more than 50 hp. These existing source RACT rules (requiring retrofit controls) are considerably more stringent than the new source rules currently adopted by the TACB. Southern commented that the majority of gas-fired engines impacted by the proposed rules operate only seasonally. Information previously supplied to the TACB by Southern, shows clearly that the adopted rule exempts the vast majority of engines, including seasonally operated gas-fired engines, from any emission control requirement. These exempted units are small gas gathering engines and irrigation engines. Average capacity factors on engines rated more than 500 hp are not available, but have been estimated at 50% in Santa Barbara County, also an area of declining oil and gas reserves. The TACB must regulate facilities which operate less than 100% of the time at less than 100% full load, in order to reduce air emissions. Delhi commented that the staff discussion that was provided went beyond the scope of the Texas Register notice published on January 31, 1992. The "Discussion of Proposed Revisions to Standard Exemption List, January 17, 1992" is information for staff use, was not approved by the board, and does not constitute board decision making. Delhi commented that the proposed rule sets retroactive emission limits to existing sources. The rule as adopted is not a retroactive requirement. New construction refers to the construction of facilities not previously located at a site, therefore, relocated engines are subject to TACB Regulation VI and must obtain a permit or meet all the requirements of Standard Exemption 6. From the public viewpoint, locating an old dirty engine nearby is probably less acceptable than locating a new engine nearby which has had its emissions reduced by application of control measures. The staff believes the public should have the benefit of control measures applied to new facilities regardless of whether the equipment was manufactured recently or long ago. Delhi suggested, as an alternative to requiring emission controls upon new construction, requiring emission controls upon overhaul. The staff recognizes that such a change in the TACB practice might be more cost effective, but in order for it to achieve any emission reduction, there would need to be a change in the definition of overhaul to include routine overhauls. The current Standard Exemption 6 defines overhaul as exceeding 50% of the cost of a like or similar new unit. In practice, no engine overhaul is ever so extensive; therefore, a control requirement based on the current definition is tantamount to no controls. The commenter's suggestion may have merit, but would need much further study to determine if such a procedure could be developed within the context of general permit review. Delhi asked the staff for numbers to support the significance of uncontrolled engines being imported into Texas. The staff does not have information regarding the numbers of used engines which have been imported from regions of the country with more stringent emission limits (notably California) or from New Mexico where the requirement to obtain a permit for more than 25 TPY of any air contaminant has led to selection of new low emission engines for expedience. The staff believes that until the blanket exemption from emission control requirements for newly located old engines is ended, the importation of old dirty engines will remain economically attractive. Delhi commented that the removal of the exemption for temporary replacement engines is not addressed in Standard Exemptions 5 or 6. The staff agrees that provision for temporary replacement engines or turbines is needed and the language of the previous Standard Exemption 6 has been reinserted to allow for this. TMOGA requested confirmation that the intent of the reference to applicable requirements of EPA New Source Performance Standards (NSPS) Subpart GG was not to impose NSPS requirements on turbines other than those to which Subpart GG of the NSPS are applicable. The staff acknowledges that the intent of the reference to NSPS Subpart GG was not to extend its applicability, but rather to remind potential Standard Exemption 6 users of the need to comply with Subpart GG. The TCC suggested an exemption from modeling for overhauled engines that reduce emissions. Tidewater asked if a unit is located in a building or under a roof, whether the structure itself is considered an obstruction. As noted in the January 17, 1992 staff discussion, changes to the modeling requirements were not proposed with this rulemaking proposal. The TCC's recommendation and several others received after the close of the formal public comment period will be considered for future rulemaking. In addition to nearby structures, the building or cover in which an engine or turbine is located is a potential obstruction to windflow. An individual questioned whether the emission control technologies for engines have remained static for 11 years. The staff notes that the basis for proposing changes to Standard Exemption 6 was to reflect current BACT practice which incorporates recent developments in technology. Delhi, ATINGP, TMOGA, ARCO, Southern, ENTEX, and Valero commented that the proposed fuel sulfur limit restrictions are unnecessarily stringent and that many field gas compressors operate on field gas rather than pipeline-quality natural gas. Phillips pointed out that the proposed sulfur limit for oil is much less stringent than the proposed sulfur limits for gas fuels and recommended a gas fuel sulfur limit of 100 grains sulfur per 100 dry standard cubic feet (dscf) of gas. Valero commented that there was no mention in the staff discussion as to why the particular limits were proposed. TMOGA recommended deletion of the sulfur limit condition entirely. The staff agrees that the proposed requirement to limit gas fuel to pipeline quality natural gas with a maximum of five grains sulfur per 100 dscf or fuel gas with a maximum of 10 grains sulfur per 100 dscf was unnecessarily stringent. The proposed pipeline quality gas sulfur limits were based on "typical sales-gas specifications set by intrastate and interstate utility-company contracts," according to a June 26, 1978 article in The Oil and Gas Journal, and the plant fuel gas sulfur limit is the NSPS Subpart J limit for refinery fuel gas. These limits are not reflective of the field gas typically used in gas production. A change in wording has been adopted to allow the gas fuel sulfur content to be tailored to engine size, consistent with the current sec.116.6 general limit of 25 TPY of SO [sub]x from facilities constructed under a standard exemption. To enforce the 25-TPY limit when sour gas fuel is used, a provision has been adopted to require that quarterly values for sulfur content be recorded. Table 29 (required to provide the TACB supporting information with the exemption registration) will be modified to require an initial calculation of the potential emissions from the engine in cases where pipeline quality fuel is not proposed. In addition to making the 25 TPY SO[sub]2[sub] limit more practical to enforce, retaining the proposed paragraph puts the liquid fuel quality specification on a par with Standard Exemption 7. Amoco, Phillips, Delhi, TCC, ATINGP, TMOGA, EPNGC, Lone Star, Mitchell, Trident, ARCO, Panhandle, Valero, and Tidewater commented that EPA-approved stack sampling costs will be significant. Most commenters cited costs ranging from $2,000-$5,000 per engine test, depending on the number of engines tested, and implied that portable analyzers and/or stain tubes are sufficient for emissions checks. The staff agrees that the cost of the proposed annual sampling is significant. The proposed annual test has been replaced with a biennial compliance test to reduce costs. The staff did not have confidence in stain tubes or portable analyzers to yield reliable, accurate emissions information suitable for making emissions compliance determinations. The adopted compliance test requires the standard EPA point source emission measurement techniques for pollutant concentration of NO[sub]x[sub] and CO. These methods are known to be enforceable and accurate. The equipment necessary to meet the EPA standards typically includes a chemiluminescent analyzer for NO (requires a temperature-controlled environment, typically a mobile air-conditioned trailer) , an infrared analyzer for CO, and is usually operated by independent sampling firms. This independence reduces the chances for engine operator bias in the measurements. The TACB has seen no independent laboratory evaluation of the ability of portable instruments (which are typically based on a wet electrochemical cell analyzer) to meet the specifications of EPA Methods 10 and 20. The staff has reviewed information that indicates that the portable analyzers do not meet the NO [sub]x to NO 4. 42p response test of EPA Method 20. Failure to measure NO accurately (or at all) is a large shortcoming for reciprocating engine NO measurement because engines, unlike boilers and heaters, potentially emit a significant portion of total NO as NO. The staff also sees evidence that high concentrations of CO (typical of rich-burn IC engines) severely attenuate the instrument response to NO emissions. An other concern is the pressure pulsation typical of reciprocating engine exhaust which may produce inaccuracy in the measurement by its effect on the cell. There appears to be the possibility of a hysteresis or memory effect in the instrument reading when the time interval between measurements is short. The staff believes these major technical concerns with portable analyzers need to be addressed before the analyzers are recognized as being suitable for making compliance determinations in the broad context of rulemaking. There is a strong practical potential for portable emission analyzers which often are sold as being capable of measuring NO, CO, O [sub]x , and hydrocarbons (combustibles). Engineers in emissions research and the pollution control equipment industry have used them because they give an immediate in-the-field measurement. If the devices can be shown to be accurate within limits and become accepted by the TACB and EPA for IC engine emission compliance use, perhaps, in conjunction with enforceable standardized test procedures designed around the technology, the costs of determining air emissions compliance for combustion-related air contaminants will be greatly reduced. The potential exists for governmental regulators to assess stack emissions compliance directly, with little more expenditure of time and resources above the initial investment of $2,000-$6,000 per analyzer than the cost of a plant visit. POI suggested that EPA Method 19 would be an appropriate test method for exhaust flow rate measurement. The staff has identified two test method alternatives which offer some possibility of reducing test costs. California Air Resources Board Method 100 for NO, CO, and O contains some minor variations to EPA Method 10 and 20 and may allow minor cost savings for some testing firms. Exhaust flow rate is necessary to determine emission rate. EPA Reference Method 19 uses the fuel flow rate to indirectly calculate exhaust flow rate using F factors rather than the more traditional EPA Reference Method 2 which uses a pitot tube flow sampling procedure. The engine owner or operator may accommodate the installation of a fuel flow meter on the engine fuel line at the time of engine construction. If fuel flow is measurable, the exhaust flow calculation may be obtained by the F factor procedure of EPA Method 19 instead of the pitot tube flow sampling procedure of EPA Method 2. The F factor method is less expensive than the pitot tube method since it is simpler and faster. Amoco and Delhi suggested that portable analyzers are accurate enough to be used for compliance determinations. A survey of the TACB regional offices indicates widespread lack of confidence in the portable analyzers as a means of determining emission compliance. In four cases where a regional office found an engine not meeting the emission limit of the exemption, only one was based on portable analyzer results. In another case, the catalytic converter was found lying on the ground, and in the two others, the convertor was visibly not installed as represented. Portable analyzers are generally not considered a reliable compliance technique, and the self-reporting aspect of portables makes the technique less likely to result in an unbiased compliance determination. analyzer data to buttress their comments that the portables should be acceptable equivalents to EPA Reference Method testing. The test data that Amoco provided indicated that the portable analyzer was able to match in a side-by-side test the results of an analyzer to which it was compared. Although short-term reproducibility is an encouraging sign, this information alone is not sufficient to assess the inherent accuracy and reliability of the portable analyzer as a stand alone measurement device. Caterpillar suggested an exemption for several of their engine lines from the proposed emission checks of condition (b)(3)(B) on the basis that these engines either use operating parameters to maintain O accurately in the range necessary for NO [sub]x compliance, or they directly monitor O [sub]x as accurately as portable analyzers or stain tubes measure NO [sub]x . ARCO also suggested using O point=4.02p set=4.42p monitor output on engines equipped with an O sensor as an indicator of NO emissions compliance. Delhi, Lone Star, and Tidewater recommended quarterly emission checks as preferable to emission checks following engine maintenance. The intent of requiring emission checks following maintenance which may affect emissions was to maintain continuous compliance. The TACB has reworded the requirement to check NO [sub]x and CO following maintenance or changes in fuel quality, but only if there is a reasonable expectation (by the operator or the TACB) that emissions will increase above normal levels. The many different models and applications of engines make it impractical to develop specific criteria for requiring or exempting emission checks for every model and application or to define every change which may increase emissions. The adopted emission checks are simple, and the frequency of the checks should reflect the sensitivity of a particular engine to exceed its NO limit with changes in operating parameters. Newer engines capable of emissions compliance over the range of loads/speeds and resilient to air-fuel variations require fewer checks than older engines which may have a limited compliance operating range, do not use an AFR controller, or are operating under operating parameter adjustment to achieve emission compliance. The lack of specificity in the emission checks is also justified in that the checks are not meant to be the prime basis to determine compliance with the emission limits. The staff notes that standard compliance test procedures are considered preferable to portable analyzers to ensure emissions compliance following changes in fuel quality, O [sub]x sensor replacements, or other catalyst system maintenance. The adopted rule allows the use of "indicator of compliance" techniques, such as stain tubes or portable analyzers, for these tests, thus, reducing the potential cost impacts of the rule. The staff has estimated the cost of EPA emissions test procedures for gas-fired engines by using written cost estimates from sampling companies from Texas and California. California estimates were about $1,500 per engine tested compared to Texas estimates of $2,500 to $3,500 per engine tested and much of the testimony which cited costs in the $2,000 to $4,000 range. The staff believes that the annual and biennial testing required by California district rules tends to drive down the cost per engine tested. The number of engines potentially subject to the rule was estimated from the FGCA estimate of 3,000 field and gas plant engines and the GCA estimate of 1,000-1,200 field gas engines rated greater than 500 hp in Texas. The staff notes a comparison of the latter number to the exact count of 163 field gas engines rated greater than 500 hp in Texas owned by FGCA-member leasing companies, which in turn were estimated to represent two-thirds of the total leased engines in Texas, and in turn, one-third of the total leased and owner operated engines, for a total of 733. This compares to a TACB survey which indicates approximately 250 engines rated greater than 500 hp registered per year. The TACB survey also indicates that above 825 hp, about two-thirds of the engines are relocated engines manufactured prior to September 23, 1982. The TACB numbers suggest that the total number of engines becoming subject to the rule over ten years is closer to onethird of 2,500 or 833. Turnover of engines at gas plants is much less than in the field. Nonetheless, if 1,500 engines rated greater than 500 hp become affected by Standard Exemption 6 over the next 10 years, test costs would eventually reach 1,500 x $2,000 each biennium or $1.5 million per year. Delhi commented that it is unreasonable to require identical engines operating at a site to be tested. The staff disagrees. Experience shows that identical model units, operating in identical service, can have different emissions. Catalytic converter performance clearly varies over time. TMOGA, and others supporting TMOGA comments, commented that the proposed thirty-day period for accomplishing an initial stack test is more stringent than NSPS at 40 CFR 60.8, which allows 60 days after achieving maximum production rate, but no later than 180 days after initial startup. TMOGA recommended the TACB adopt the NSPS time frame. The length of time needed between source startup and the initial compliance test depends on the length of time required to start up and stabilize a new facility and to schedule a source sampling firm to conduct the test. A reciprocating engine facility of the size allowed by Standard Exemption 6 will need nowhere near the 180-day period which is sometimes necessary to bring a new power plant on line. The problem of scheduling source sampling is somewhat independent of the type of facility sampled; however, scheduling the test may be initiated after the decision is made to locate an engine at a site. The staff agrees that scheduling would be facilitated by allowing some additional time before sampling is required. A 60-day period is consistent with TACB practice for permitted engine testing of projects of the size that may be allowed by Standard Exemption 6, and an engine facility will normally be capable of operating at maximum load upon startup; therefore, the allowable time has been increased to 60 days for accomplishing the initial emission test at a new engine facility. TMOGA asked for clarification that the proposed requirement to determine emissions in the "as-found operating condition" was not meant to require deferral of normal maintenance or necessary repairs. The staff agrees that the proposal was not meant to require deferral of normal maintenance or necessary repairs. The intent was that the sampling should be representative of normal operating conditions. If testing were purposefully and routinely scheduled to immediately follow engine maintenance (especially maintenance which would be expected to reduce emissions with or without emission pretesting), this would not meet the intent of the "as-found operating condition" requirement. ATINGP and Lone Star commented that periodic testing should not be required for intermittent or standby operations. It was not the intent of the TACB staff that engines be operated merely to test them. An allowance for sampling every 15,000 hours of operation has been adopted in lieu of the biennial stack test. In order to enforce such a schedule, elapsed operating time meters are necessary to document hours of engine operation. The staff notes that intermittently operated engines used for portable, emergency, or standby operations are currently exempt from all permit requirements under Standard Exemption 5. ARCO proposed that the operator be allowed to choose any appropriate test method as long as it measures within acceptable accuracies. The staff supports this in general, however, in regard to developing new test methods, the determination of "appropriate" and "acceptable accuracy" should be done by an independent, qualified engineering laboratory. Delhi commented that annual compliance emission testing is more stringent than current requirements for large NO [sub]x sources such as power plants. Since 1971, new power plants have been required to install continuous emissions monitors (CEM) for NO, a more expensive means of determining compliance than an annual emission test. Title IV of the 1990 FCAA requires virtually all power plants to install emissions monitors as well. The quality assurance of the monitors will require annual stack testing in addition to continuous monitoring. The current practice of the TACB Permits Program is to require NO [sub]x CEMS for new boiler facilities rated more than 100 MMBtu/hr heat input. A boiler of this size must meet the TACB BACT guideline of 0.06 pound NO [sub]x /MMBtu and may emit no more than 26 TPY of NO. A biennial stack sampling requirement for engines is not unreasonable in comparison to new boiler facilities with similar emissions. Caterpillar and Waukesha commented that their carburetted, four-stroke lean-burn engines do not require an automatic AFR controller to maintain emissions compliance, unless the fuel heating value varies significantly. Caterpillar stated that a variation within 5.0% of the design lower heating value is acceptable, and from additional discussion with Waukesha, 50 British thermal unit (Btu) from the design lower heating value is acceptable. The Waukesha criterion is between 5.0% and 6.0% variation for a typical 900 Btu/dscf natural gas. The AFR controller wording has been revised to require AFR control specifically if the fuel heating value varies more than 50 Btu/dscf from the design lower heating value of the fuel. TMOGA requested exemption from the condition of requiring an automatic AFR controller if the fuel varies more than 50 Btu from the design lower heating value for "upset conditions" on engines located immediately downstream of a gas processing plant, if the cause of the fuel variation is due to short-term upsets at the plant. The purpose of requiring the AFR controller is to address this situation. The situation has occurred in which an engine was tested, and found to be out of emission compliance while the engine was operating satisfactorily on rich gas fuel and moving gas out of the plant to the pipeline. Upsets which still allow continued production should be minimized. An intent of the adopted rule is to increase the likelihood that the facilities operate in compliance, since the TACB has limited resources to devote to engine emission compliance. Phillips suggested revising AFR controller requirements to allow for future technologies which may achieve the same results. The staff agrees that rules should reflect best technology, but disagrees that removing necessary requirements for current technology is the best way to accomplish this. The staff is receptive to any well-developed rule proposals which may result in more cost-effective emissions reductions. TMOGA, and EPNGC by reference, commented that the proposed AFR requirement could require AFR controllers on engines with built-in AFR controllers. They also suggested that the language allow for AFR controllers or "other proven technology." TMOGA's first comment may reflect the lack of a definition of AFR controller. The staff considers built-in AFR controllers which are not based on exhaust O control to be AFR controllers. Rule language has been adopted to require AFR controllers only in situations where AFR controllers have been identified to be necessary for emissions compliance and may not otherwise be installed. Mitchell, POI, and Caterpillar commented that the staff discussion underestimated the cost of O based AFR controllers. POI also commented that AFR controller performance is not adequate to maintain optimum AFR on a continuous basis. Tidewater commented that remote field sites need battery power to operate AFR controllers. The staff agrees that the staff discussion presented with the original proposal may have underestimated AFR controller costs. The cost data was a documentable example meant to be illustrative of AFR controller cost. Lockable cases have been necessary to prevent battery theft in some remote locations without electricity. The staff is familiar with several cases of rich-burn engines unable to achieve the expected emission reductions using a catalytic converter which could be attributed to difficulty in AFR control. The AFR control problem, also alluded to in some California engine NO rule staff discussions, is usually due to the poor maintenance condition of the engine. Add-on technology, such as NSCR, intrinsically takes more effort to maintain compliance than process modifications such as low-emission, lean-burn technology. However, the add-on technology is demonstrated and very effective at reducing emissions when operated properly. The higher cost estimates presented by Mitchell, POI, and Caterpillar do not materially affect the Permits Program staff evaluation that, if necessary to maintain emission limits, AFR controllers reflect BACT. Tidewater commented that some two-cycle, 600 hp gas compressor engines could not be controlled readily with AFR controllers. The two-cycle engine type that Tidewater refers to is an older, relatively low efficiency design. The adopted language does not require these engines to use an AFR controller unless it would be installed at a site where the fuel gas would be expected to vary more than 50 Btu/dscf from the typical value. If the heating value of the fuel changes to a new design value, which may result in an increase in emissions, the owner or operator of the engine would be required to make emission checks following such occurrence, as required by condition (b)(3)(B). Caterpillar and Waukesha commented that the proposed definition of engine hp rating is confusing because it allows two different approaches, one based on standard conditions and the other on site conditions. TMOGA, EPNGC by reference, Lone Star, Waukesha, and EPI commented that the engine hp rating should be based on the maximum speed rating of the driven equipment. EPI commented that hp ratings should also take into account re-rating of engines through combustion or ancillary equipment modifications, such as applying the PSCR system. TMOGA commented that it is appropriate to take into account maximum potential load when that load is lower than the engine manufacturer's rated full load. Lone Star proposed an alternate definition of hp rating, based on the on-site driven equipment maximum speed, except for the reference to maximum continuous load rating being based on Diesel Equipment Manufacturers Association uniform performance standards. The need to define hp here was solely for making the determination of any applicable emission limit, with different limits set at 500 hp and 825 hp. It is appropriate to take into account the maximum potential load. This is consistent with TACB Permits practice to accept derates which, for example, would require the owner or operator to change out the driven equipment in order to eliminate the hp restriction. Such a change would be a modification to the engine. Differences exist among manufacturers as to how they rate load capability. The staff believes the lack of uniformity among engine manufacturer hp ratings is a marketing standards issue, which is not crucial to the working of Standard Exemption 6. The manufacturer has an incentive to rate a given engine at maximum hp for a given speed. The adopted definition, based on the engine manufacturer hp rating, prevents the engine user from underestimating the hp rating in an attempt to avoid emission control. The new definition eliminates hp rating adjustment to site reference ambient conditions, which is fine tuning compared to the larger relaxation of allowing hp rating according to any on-site driven equipment speed limitation. The hp rating definition discussed in the previous paragraph has been adopted. The staff doubts that EPI would be impacted by the definition as adopted, as an engine rated above 500 hp still needs emissions control. Mobil stated that the proposal would require overhauled engines to meet the proposed limit. Modified engines are also subject to Regulation VI. Normal maintenance, rebuilding, or reconditioning costs in excess of 50% of the cost of a new, similar, or complete replacement engine or turbine is considered a new facility. In practice, this level of overhaul never occurs and is not how engines come into new source review. However, engine changes resulting in a greater hp output capability constitute modification if, prior to considering emission controls, there is an increase in the potential to emit. Mobil commented that a 2.0 g/hp-hr NO [sub]x emission limit based on engine modification is not possible for two-stroke engines. The staff disagrees with this statement. For example, the original clean-burn engine development by Cooper Industries in the late 1970s was done on two-stroke engines and achieved emissions of 1.5 g/hp-hr of NO [sub]x . The Staff Discussion could have clarified that a retrofit is not available in every case. The staff also notes that the TACB does not endorse any manufacturer or engine rebuilder. The responsibility remains with the engine owner or operator to comply with the emission limit. SCR technology is available for any lean-burn engine to meet the originally proposed standards, although the cost of maintenance for typically remotely-located engine facilities usually makes this option economically unreasonable for the gas production industry. TMOGA, Lone Star, Mitchell, and Tidewater commented on the cost and technical difficulty of two-stroke engines to meet the proposed emission limit. The staff has considered the specific information provided by Tidewater on the practicality of achieving a 5.0 g/hp-hr of NO limit on certain low-emission rebuilt two-stroke engines. Currently, these engines would require SCR to meet a 5.0 g/hp-hr NO [sub]x limit under all operating conditions. The staff did not consider the costs and operator maintenance required of SCR control to be reasonable for the typical remote, economically marginal, casinghead gas compression application. The staff has adopted an emission limit of 8.0 g/hp-hr of NO [sub]x for two-stroke engines manufactured prior to the applicable date of the adopted Standard Exemption 6, for engines which would not have been subject to the 5.0 g/hp-hr of NO limit of the previous Standard Exemption 6. TMOGA, ATINGP, Lone Star, Mitchell, Trident, and Valero suggested limiting the scope of applicability of the proposed control requirements. The staff recognizes that there is a wide range of types and emission capabilities of existing engines used in the natural gas production industry. Emission control limitations have been adopted that would allow a more gradual phase of emissions reductions than originally proposed. The adopted language includes maintaining the current 5.0 g/hp-hr NO mission limit for any lean-burn engines rated 825 hp or greater and manufactured within the period that the current exemption is applicable; a somewhat higher emission limit of between 5.0 and 8. 0 g/hp-hr of NO for old 4-stroke lean-burn engines that would be subject to emission controls for the first time; and, as discussed in the previous paragraph, an 8.0 g/hp-hr NO limit for old two-stroke engines not previously subject to emission limit under Standard Exemption 6. The information provided by Lone Star supports the staff position that the adopted emission limits for lean-burn engines will be more cost effective than the original proposal. The adopted Standard Exemption 6 limits any rich-burn engine to 2.0 g/hp-hr of NO [sub]x over the engine operating range. This limit, which also reflects the Permits Staff BACT practice after 1987, is not more stringent than the originally proposed language because any rich-burn engine controlled with a nonselective catalytic converter and AFR controller which meets a 2.0 g/hp-hr NO [sub]x emission limit at the manufacturer rated full load and speed, will meet the limit over the range of operating conditions. The adopted emission limit also benefits the PSCR-controlled engine, which may operate now over its operating range to meet a 2.0 g/hp-hr NO [sub]x limit. The original proposal, to meet the 2.0 g/hphr NO] limit at the manufacturer rated full load and speed, was impracticable for this technology which entails a derate from full rated hp. Mobil commented that most gas processing plants in the state which do not use turbines, use two-stroke compressor engines in the 800-2,200 hp range, and that, upon investigation, the fiscal impact of requiring emission control will be significant. The staff notes that the majority of compressor engines used in gas plants are located on a permanent basis and will not typically become subject to the adopted standards. As previously noted, a relaxation of the standards for lean-burn engines has been adopted. Delhi commented that the capital cost of the proposed rule would be $2 million and operating costs would be $200,000 annually. Delhi provided no breakdown of costs and emission reductions for their equipment to allow the staff to estimate cost effectiveness. The staff experience has been that, in case-by-case BACT evaluation of engine emission controls, the calculated cost effectiveness for engine rebuilding to low-emission configuration has been reasonable when compared to a guideline of $2,000 per annual ton of NO reduction. Delhi and Southern stated that the proposed rule discriminates against gas fuel by requiring a more stringent standard than liquid fuel fired engines. Performance standard-based air emission regulations reflect technological capability and economic reasonableness. Emissions capabilities vary by type of equipment. Without SCR, diesel engines are unable to achieve a 2.0 g NO [sub]x /hp-hr limit. In Texas, stationary diesel engines are used almost exclusively as sources of standby power; e.g., emergency power backup generators and fire water pump engines. With operational schedules typically less than 100 hours per year, SCR would not be economically reasonable for new diesel engine facilities. If the staff becomes aware of any base-load diesel engine applications in Texas, a reevaluation of the emission limits for diesels will be considered. The staff notes that the suggestion was not made to make diesel and gas-fired engine limits equivalent to electric motor driven equipment, which are zero emitters. Delhi, ATINGP, TMOGA, EPNGC by reference, Waukesha, and POI commented that the proposed 2.0 g/hp-hr NOx limit at full speed and load, versus 5. 0 g/hp-hr of NO [sub]x at other conditions, was confusing. The intent was not to make the 2.0 g/hp-hr NO [sub]x limit hypothetical only. The intent was to reflect the Permits Staff post-1987 BACT practice which recognizes the inability of some slow-speed engines to meet the 2.0 g/hp-hr NO limit under high torque and reduced speed conditions. The staff has limited a lean-burn engine manufactured after the effective date of the proposed exemption, operating simultaneously at greater than 80% torque and reduced speed, to 5.0 g/hp-hr of NO [sub]x . Similar relaxations are built into the other proposed limits, except that the previous Standard Exemption 6 limit for any engine rated 825 hp or greater has been maintained for engines that were manufactured within the time frame during which this limit has been applicable. Southern commented that the proposed emission limits are unrealistic at partial load conditions. This comment is unclear regarding the data which causes concern for partially loaded engines. The concern with lean-burn engines operating with higher g/hp-hr emissions at high torque and reduced speed has been addressed with higher emission limits. Lightly loaded richburn engines may more appropriately use PSCR technology rather than NSCR. Phillips provided cost estimates of the Standard Exemption 6 rule impact on their rich-burn engines. POI expressed concern with the economic reasonableness of requiring emissions control on rich-burn engines rated greater than 500 hp. The staff considers the cost estimates for putting catalytic converters on Phillips operated rich-burn engines very realistic. Annual costs for Phillips will diminish as their fleet of relocated engines becomes controlled. The cost effectiveness of a catalytic converter and AFR controller installed on an 825 hp White-Superior 8G825 engine, based on actual operation at 585 hp is $172 per ton of NO [sub]x reduction. Rich-burn NSCR technology applied to a gas-fired engine is one of the most cost effective NO reduction techniques available anywhere. Although the staff does not currently set a specific dollar-per-ton limit on cost effectiveness, $2, 000 per ton has been used in the past. Assumptions in the estimate include the following: operation at cross-over (AFR set to produce 10 grams of NO and 10 g/hp-hr of CO), a catalyst life of three years, amortized controller cost over ten years, and $4,000 test cost over two years. The cost effectiveness estimate would be much lower if the uncontrolled engine was operated at the manufacturer recommended (best fuel economy) setting (15 g/hp-hr of NO point=4. 02p set=4.42p ]) and full rated load of 825 hp. Fuel savings resulting from use of the AFR controller are also not considered. Some rich-burn engine operators, although not required to install catalysts, have installed AFR controllers as a money-saving device to improve fuel economy. POI asked what the reported CO emission rate should be on Table 29 of the Standard Exemption registration. Specific CO emission limits for Standard Exemption 6 have not been adopted. The general sec.116.6 limit of 250 TPY applies. During the staff discussions with industry after the close of the formal comment period, the staff received a comment which was pertinent to NO emissions limits for gas turbines. Solar Turbines Incorporated commented that a 2.0 g/hp-hr NO emission limit for gas turbines will not be achievable over the range of ambient operating conditions until the introduction of their low NO[sub]x[sub] combustor designs. Although many small gas turbines already meet the proposed 2.0 g/hp-hr NO limit, upon reviewing the available information, not all such turbines do. Turbine emissions from the majority of small turbine models do not exceed 3.0 g/hp-hr of NO [sub]x . In 1994, low-NO [sub]x emissions combustors are expected to be available for small gas turbines to meet limits in the range of 0.75 g/hp-hr of NO or less. A gas turbine limit of 3.0 g/hp-hr of NO [sub]x has been adopted for now and the emission limits will be re-evaluated after new emissions technology becomes available. The TCC requested that condition (a) in Standard Exemption 7 be expanded to allow emissions of combustion products from air emission vents, as well as fuel combustion, by allowing the use of boilers, heaters, etc. as control devices so long as a 98% combustion efficiency is maintained and no more than the emissions levels of Standard Exemption 118 are emitted. The TCC agreed with the addition of condition (b)(4). The TCC requested a rewording of condition (c) to improve clarity by moving the phrase "containing 0.3% by weight sulphur" ahead of the phrase "being a petroleum distillate oil." The staff believes that most boilers, heaters, ovens, etc. are not suitable abatement devices which can maintain a 98% combustion efficiency and emissions below the levels of Standard Exemption 118. Experience has demonstrated that these devices are not "incinerators" which can not meet combustion efficiency and emission limits. When waste streams are burned beyond the confines of other exemptions, such as Standard Exemption 88, the staff believes that permits should be required. The staff agrees that the suggested rewording of condition (c) improves the clarity of the condition and the alternative wording has been adopted. Phillips stated that condition (a) in Standard Exemption 61 should be amended to include other emission control systems which are safer than combustion and comparable in efficiency. Phillips also stated that liquid phase separation having a partial pressure greater than 1.5 pounds per square inch absolute (psia) also should be exempt if the VOC gases are contained and combusted or controlled by a device achieving a minimum 95% reduction of emissions. The staff agrees that other emission control systems should be included in condition (a) as alternatives to combustion control systems. Alternative wording has been adopted which allows any abatement system meeting the requirements of Standard Exemption 68(e) and scrubbing systems for ammonia or acid gas emissions. Further, the staff agrees with Phillips that liquid phase separation having a partial pressure greater than 1.5 psia should also be exempt if the VOC gases are contained and combusted, or controlled by a device achieving a minimum 95% reduction of emissions, and wording has been adopted that reflects this exemption. The TCC stated that in condition (a), the word "biological" should be changed to the word "anaerobic," and "activated sludge wastewater treatment processes" should be added as a separate item. The TCC also felt that cooling towers should be exempted in condition (b). The staff agrees. The word "biological" has been changed to "anaerobic" and the line item "activated sludge wastewater treatment processes" has been added. However, the staff does not agree that all cooling towers should be exempt; but, cooling towers could be exempted if VOC or other air contaminants are not stripped to the atmosphere. The requirement for cooling towers has been limited to those cases in which VOC or other air contaminants are not stripped to the atmosphere. TPS Technologies, Inc. (TPSTI) commented that all aeration or landfarming of petroleum-contaminated soils should be prohibited in the State of Texas, and that Standard Exemption 68 should only pertain to equipment or processes with air pollution control devices capable of 99% collection, capture, and/or destruction efficiencies. TPSTI also stated that large scale, off-site aeration operations should be banned as an environmental hazard and a danger to public health. The commenter contended that since these sites qualify under TACB's definitions as an emission "source" and as a "process," and are required to undergo construction and installation of high density polyethylene liners, they should be classified as "facilities" requiring an air permit and BACT. It is not the intent of the staff to use this standard exemption to address aeration or landfarming of petroleum-contaminated soils. The primary purpose of Standard Exemption 68 is to allow on-site decontamination of petroleum contaminated soil and water, typically at a service station with an underground storage tank leak. The staff believes that 99% efficiency is too stringent considering cost and technical feasibility. TPSTI commented that they are faced with an enormous and potentially insurmountable competitive disadvantage by large scale, off-site aeration operations which aerate (landfarm) petroleumcontaminated soil without the requirement for either an air permit or a VOC capture/control device. Texas Soil Recycling, Inc. (Texas Soil) supported the proposed revisions to Standard Exemption 68, specifically because they were fair, economically obtainable, and environmentally safe. The Texas Soil permit cost 10% of one month's revenue, and, at this cost, they contended that there was little reason facilities receiving off-site soils should not be required to obtain a permit. It was not the intent of the TACB to place a firm who wishes to abate emissions at a competitive disadvantage. In the current situation, however, the staff does not believe that it can require operations, such as landfarming and other open field soils aeration, to obtain a permit if there has been no "construction" of stationary sources. The staff has recommended that separate regulation development concerning this situation be pursued, especially if the soil aerators are creating a nuisance problem. Southwest Thermal agreed that additional monitoring, controls, and recordkeeping are necessary to ensure compliance with the new maximum allowable emission limits. Therefore, they suggested that all units operating under Standard Exemption 68 be required to have on-line monitoring systems to constantly monitor and record VOC, CO, NO, and oxides of sulfur and that such records be kept on site and available for inspection at all times for a period of two years. If the commenter means CEMs, the costs will be very high for such small, portable operations. CEMs for VOC (or a specific chemical) , NO, or SO cost in excess of $50,000 $100,000 each, therefore, the staff believes that it is not economically reasonable for these temporary operations to install CEMs. A frequent VOC breakthrough check is adequate for a carbon adsorption system. The staff has determined that daily VOC checks with a flame ionization detector instrument were too frequent and, therefore, too costly for these temporary operations. The staff has changed the VOC breakthrough check in condition (e)(4)(A) to a weekly requirement, but has not added a CEM requirement to this exemption. Texas Soil stated that there are currently many plants operating statewide using Standard Exemption 68 which are receiving offsite soils. In addition, the current exemption allows temporary facilities to operate within 1,000 feet of residences without public notification or significant sampling requirements. However, some soil treatment firms have improperly defined "temporary" and have leased buildings and set up permanent facilities at locations which contain no on-site contamination. Therefore, Texas Soil recommended that TACB require registration of mobile plants and restrict treatment to on-site materials only. The issue of temporary facilities which have leased buildings and set up permanent facilities at locations which do not contain on-site contamination is an enforcement issue which must be dealt with on a case-by-case basis. The adopted Standard Exemption 68, allows only facilities on the site of the occurrence of the contamination to be eligible for the exemption. Staff discussions have revealed that the proposal, as written, prohibits benzene emissions within 100 feet of an off-site receptor. Since benzene emissions will be insignificant based on the adopted control measures, protection from benzene exposure is ensured without the 100 foot limit. Regarding the issue of facilities being sited without public notice, standard exemptions do not require public notice. Any operation which wishes to use Standard Exemption 68 must register in accordance with the proposed condition (f), and operations are restricted to on-site materials in accordance with the proposed condition (a). The staff has deleted the reference to the 100 foot distance requirement in Standard Exemption 118(b) from condition (b). Southwest Thermal stated that the use of a properly registered or permitted warehouse for the accumulation of contaminated soil has the positive aspects of removing contaminated soil (particularly petroleum storage tanks) from the site on a timely basis, reducing pollution from run-off, reducing business interruption and, therefore, improving economics, and even remediating the smallest quantities of contaminated soil instead of disposing in a landfill. The staff has no objections to storing contaminated soil in warehouses. However, because warehouses can be very near residences, could have much odor potential, and will almost certainly involve significant truck traffic, the staff believes such facilities should be reviewed under permits. Therefore, the adopted language does not allow warehouse operations to use Standard Exemption 68. Texas Soil replied to the oral testimony of Southwest Thermal who stated that offering storage of contaminated soils for future treatment was environmentally advantageous and that the Texas Water Commission (TWC) registration was sufficient regulation for this application. Texas Soil suggested that it is environmentally advantageous, but TWC registration requires no air monitoring, emission controls, or public notification. Therefore, they recommended that these fixed facilities be permitted by TACB. The staff believes that if such a site is not a "facility," the TACB can not require permitting and control under Regulation VI. If the site is a "facility, " then it must comply with the conditions of the proposed Standard Exemption 68 or get a permit. Under a permit or an exemption, the emissions will be minimized. Public notice would be required for any permit and public notice is required under the procedures leading to consideration of this standard exemption. Southwest Thermal proposed a revision to condition (a) which would allow soil and water remediation at an off-site facility. As identified earlier, it is not the intent of the TACB that commercial operations be exempted. The exemption is only intended for facilities treating the soil at the site of the original contamination. Commercial operations that involve processing large quantities of soil and large amounts of truck traffic should obtain a permit in accordance with Regulation VI. The staff has not adopted the suggested revision to condition (f). Southwest Thermal stated that the maximum allowable emissions portion of the proposal does not consider the through-put capabilities of the thermal remediation unit for the emissions created in production. Therefore, a small and less efficient thermal remediation unit can possibly make the maximum allowable emission per hour and be emitting cumulative emissions significantly higher than a highly-efficient, large capacity unit. They propose that a viable alternative would be to establish a maximum allowable VOC emission limit of 0.02 pound per ton (or greater capacity) per hour. The staff believes that the best technology should be applied to the commercial facilities, and for this and other reasons, requires commercial facilities to be reviewed under permit. However, because the emissions potential at each spill site is very small and temporary, the staff believes that meeting the criteria of the proposed standard exemption is adequate to address emission controls for on-site remediation operations. For TACB to require maximum expenditure of dollars on state-of-the-art technology for a relatively small or non-toxic emission would be economically unreasonable. Therefore, a maximum allowable VOC emission limit of 0.02 pound per ton per hour has not been adopted. One individual expressed concern that, under condition (b), the TACB appears to think that only benzene is dangerous enough to control under Standard Exemption 118 regarding wastewater facilities. There are many other toxic compounds (butadiene, toluene, and xylene) which need the stronger control that Standard Exemption 118 requires. The individual also did not understand the difference under condition (a) of soil being treated on-site or trucked in from another site. The commenter argued that the same amounts and types of air pollution are generated and must be controlled equally. Benzene is the most toxic and the most volatile of the toxic components of concern. The TACB staff recognizes that gasoline compounds, other than benzene, are also toxic. However, the staff experience has demonstrated that where benzene is controlled, the other gasoline components are also controlled to even safer levels. Because condition (b) is restricted to "petroleum" chemicals, the control for toluene, xylene, ethylbenzene, etc., will be automatically controlled when benzene is controlled. Stronger controls on compounds other than benzene have not been adopted. The staff acknowledges considerable difference between treating soil on-site and trucking soil and treating off-site. In almost every case, the amount of VOC emissions removed from the on-site treatment of the spill is very small, sometimes only a few hundred pounds of VOC. Therefore, when treated on-site, there is little potential for emissions impacts. More importantly, the on-site treatment will be temporary. Off-site treatment is completely different in that the quantities of soil treated at a commercial facility may be very large with significant emissions potential, and probably will operate over a period of years. One individual stated that, in condition (e)(1), no destruction efficiency is required for vapors burned in a direct-flame combustion device. A destruction efficiency specification was not intended by the staff. For an incinerator, this efficiency is typically in excess of 99% if the flame is obvious and the temperatures are maintained. There is a need to scrutinize the catalytic unit with an efficiency specification because these units historically do not destroy vapors as reliably as do incinerators or boilers. A destruction efficiency for directflame combustion devices has not been adopted. The TCC suggested that condition (e)(3) be revised to allow a concentration alternative to the 90% destruction demonstration requirement, and the duplicate word "records" be removed from the last sentence. One individual stated that condition (e)(3) only has a 90% destruction of vapors requirement, however, BACT is closer to 95-99% according to vendor advertisements. TPSTI suggested that even the use of a flare or the 90% destruction efficiency suggested for catalytic oxidizers is not adequate for the protection of Texas air resources. The staff believes that a concentration alternative is not needed where the control efficiency is specified or an emission limit applies. Such an alternative would make the exemption more complex and would not provide an additional benefit in air pollution control. On-site inspections of the actual abatement system will rely on checks of the operating parameters to assure effective operation. The operating parameters will be represented in the registration for the exemption in accordance with condition (f). Condition (e) (3) has been adopted without adding a concentration alternative. However, the redundant word "records" has been removed. The staff believed that with a small emissions rate, a 90% destruction efficiency is adequate to protect public health, and the efficiency has been adopted as proposed. TCC stated that, in condition (e)(4)(B), the certified gas mixture of 0 parts per million by volume (ppmv) = 10% is not possible to prepare, and should be changed to a non-zero ppm such that the tolerance is meaningful. The tolerances for the calibration gas were stated incorrectly in the proposal. The correct tolerances should be 10 ppmv 2.0% and 100 ppmv 2.0%. The staff has inserted wording to indicate the correct tolerances. TCC suggested that condition (e)(4)(C) be reworded to replace the word "occurs" with the words "is measured". The staff agrees with the wording change and the word "occurs" has been replaced with the words "is measured." TCC requested the TACB to elaborate on the concept of "expected uncontrolled emissions" and to give guidance as to the types of operations or events that would be included under such a heading. The staff agrees that the term "expected uncontrolled emissions" is somewhat vague, and the last sentence of condition (f) has been changed to "The registration shall contain specific information concerning the basis (measured or calculated) for the expected emissions from the facility. The registration shall also explain details as to why the emission control system can be expected to perform as represented." The City of Dallas opposed the proposed removal of the existing condition in Standard Exemptions 71 and 93 for open bodied vehicle dust control. The requirement for open bodied vehicle dust control was inadvertently deleted and has been reinserted into the adopted language. The Houston Area Ready Mix Concrete Association and the Texas Aggregates and Concrete Association were opposed to the word "related" in the new proposed condition (g) in Standard Exemption 71, and condition (j) in Standard Exemption 93, and suggested that the word "related" be deleted. Pioneer Concrete of Texas, Allstar Redi-Mix, Town and Country Concrete, and C.O.D. Concrete contended that the proposed Standard Exemptions 71 and 93 will give a contractor or supplier an unfair advantage over commercial ready mix concrete producers. The staff agrees that the word "related" is misleading and might appear to allow unfair competition by a temporary concrete contractor or supplier. The word "related" has been deleted. TCC requested that the TACB combine Standard Exemptions 71 and 93. Although there is a similarity between the two exemptions, Standard Exemption 71 was designed for permanent concrete plants with tighter controls, and Standard Exemption 93 was designed for concrete plants temporarily located at job sites. Some temporary concrete plants can meet the tighter controls of Standard Exemption 71 and, therefore, they should be able to take advantage of the exemption. The two exemptions should remain separate to give flexibility to the regulated industries. An individual stated that the phrase "maximum control of dust emissions" should be defined and wanted to know what would constitute a violation of this requirement. The phrase "maximum control of dust emissions" is commonly understood by field compliance personnel at each TACB regional office who are responsible for enforcement of compliance with this requirement. The term "maximum control" has not been further defined in this exemption. The City of Dallas recommended that a condition be added to Standard Exemption 76 to require pilot plants to be registered with a PI-7 form. Registration of pilot plants is not needed because most pilot plants typically are very small sources with insignificant emissions. Most pilot plants need to change products and, therefore, raw materials, very often and on short notice. Historically, pilot plants have not been a significant source of public complaints or emission problems. Therefore, the staff believes that as long as a pilot plant meets the conditions of this exemption, there is no need to use public resources to track them through PI-7 form registration. Phillips requested that the 5 million pounds per year design production capacity limit be removed. The Owens-Corning Fiberglass Corporation (Owens-Corning) stated that the size of the facility should not necessarily be the main factor, but rather the total emissions, as size may be required to replicate a production process. Product development groups within the corporation are being located at the production facilities to more closely replicate the operation of a pilot plant to actual production processes. Owens-Corning also believes that realistic timing for a pilot plant operation, for a specific product from initial screening trials to a production viable process, can be 18-24 months. The commenter stated that a production volume/time limit combined condition is a more realistic approach to maximize development and yet meet environmental objectives. The staff believes that true pilot plants are very small and do not produce more than a few million pounds of product per year for market testing. However, the staff also believes that some so called "pilot plants" may be, in fact, commercial production units which conduct production campaigns of several items per year. It was never intended to exempt commercial operations from permitting. The staff also believes that production/time formulas will only complicate this exemption. For this reason, the 5 million pound per year limit has been adopted as proposed. TCC supported the changes to this exemption as worded in the proposal, especially the allowance for small emissions of nontoxic materials, such as CO and methane. 3M suggested the following statement be added to reflect the use of individual pieces of equipment for development of several different products or processes: "This five-year limit on pilot plant activity applies to equipment devoted to development of one specific product or process; therefore, that equipment can be subsequently used for development of other process(es) or product(s), setting a new time limit for its use." One individual suggested that three years is sufficient time to determine whether something is going to work. The intent of proposed condition (c) is not to limit the use of equipment to a five-year period; therefore, the staff agrees that the pilot plant equipment should be able to be used after the five-year limit expires, provided that it is used in a separate pilot plant application. 3M wording has been added to condition (c). Regarding the three versus five-year limit, the staff believes that although a significant number of pilot plants can complete their task in three years, many pilot plants need a five-year period in which to complete a project. Some of the market testing can require several years. The five year time limit has been adopted as proposed. One individual stated that the phrase "recreational area" used in Standard Exemption 76 and others is not defined and wanted to know if this term was limited to a designated recreational area. Also, the commenter asked if areas which are not publicly owned can be considered recreational areas due to traditional use. The term "recreational area" has been used by the TACB staff for many years without difficulty. In the staff interpretation, "recreational area" applies to any area where the general public can congregate for recreation, whether on company property or offsite. It has been determined, for example, that a softball field used by the general public on a company plant site is a "recreational area." The language has been adopted as proposed with no further definition. The Texas Hospital Association (THA), Driscoll Foundation Children's Hospital (Driscoll), Good Shepherd Medical Center (Good Shepherd), Parkland Memorial Hospital, and St. Paul Medical Center (St. Paul) stated that the costs of meeting proposed Standard Exemption 89 range from a low of $7,000 to a high of $180,000 per hospital. The commenters believe this is an unnecessary burden on most healthcare facilities which would jeopardize the ability of Texas hospitals to continue in the mission of providing the opportunity for safe, affordable, and accessible health care. St. Paul stated that emission control devices, such as scrubbers, have the additional expenses of dealing with the resultant hazardous materials, which can be very costly. The intent of the staff during the development of this proposal was to provide a way for those hospitals which are truly insignificant sources of ethylene oxide (EtO) emissions to be able to use Standard Exemption 89 and avoid the high cost of a permit and resultant control measures. However, the results of modelling performed by the staff will not allow any loosening of the proposed exemption conditions without raising concern that significant concentration of Eto will occur. Recent developments in the closed-loop EtO recovery systems indicate that the cost for emission control devices is being reduced to reasonable levels. For example, there are vendors who are marketing closed-loop systems which will recover both the EtO and the diluent gas, if the diluent is a chlorofluorocarbon (CFC) or a hydrochlorofluorocarbon (HCFC). A closed-loop system would meet the proposed standard exemption by complying with condition (c)(2). Additionally, the closed-loop system does not produce a hazardous material which needs to be disposed of as a hazardous waste as when a scrubber system is used. A recent THA study of member hospitals indicated that none of the hospitals providing data currently meet the existing or proposed language of Standard Exemption 89. THA stated that their review of EtO regulations in several other states reveals that the TACB proposal would make EtO regulations in Texas the most stringent in the nation. Good Shepherd opposed these rules as being too stringent with little or no positive environmental impact. One individual was concerned that the property line allowable for EtO will be over three times the screening level. The individual also was opposed to TACB allowing CFC or other ozone destroying chemicals to be used in such sterilizing facilities, and was appalled that TACB would allow some discharge of EtO with no controls as allowed under proposed condition (c)(1). The staff received copies of EtO regulations from the states of New York, Rhode Island, and California, and the staff disagrees that the Texas exemption is the most stringent in the nation. The issue at hand is the requirement to apply for and receive a permit for a toxic air pollutant in accordance with sec.116.1 of Regulation VI. The purpose of Standard Exemption 89 is to allow those hospitals which are insignificant sources of EtO a means to avoid the time and expense of acquiring a permit. Use of the exemption, however, necessitates that the sources apply control measures to their emissions. If the source is not an insignificant source, then the operator must apply for a permit and have control measures specified on a case-by-case basis. For those sources which can qualify for this exemption, the application of control measures to the emissions source may reduce emissions impacts at the property line from over 3,000 micrograms per cubic meter to less than 60 micrograms per cubic meter, depending on the individual site. The screening level for EtO is 18 micrograms per cubic meter. The individual commenter must bear in mind that the screening level is not a concentration standard, but rather a guideline for staff use. The staff intends to continue work on this issue as new and improved technology develops. Regarding the use of CFC as a diluent gas, the industry is rapidly converting the diluent gas to HCFC which is not as reactive in depleting stratospheric ozone. In addition, the industry is exploring other diluent gases which perform as well as CFC, in addition to developing closed loop recovery systems which minimize the loss of CFC to the atmosphere. Good Shepherd requested that TACB postpone the approval and implementation of this exemption. THA and St. Paul requested TACB withdraw the proposed revision of Standard Exemption 89 until all issues are addressed. If this requires regulatory revision outside the scope of Standard Exemption 89, the THA requested rulemaking for such a revision. The staff believes that a delay in the approval and implementation of this exemption would not be in the best interest of the general public. The adopted changes to Standard Exemption 89 are more flexible than the previous standard exemption, and will allow additional hospitals the ability to meet this exemption. The staff will consider future rulemaking in an effort to totally resolve the situation. THA and St. Paul recommended that TACB set air quality standards for EtO sterilizers, that hospitals report emissions and compliance information to the TACB, that noncompliant hospitals make necessary modifications, and that TACB monitor air quality to ensure continued compliance. THA and St. Paul suggested that one approach to an air quality standard is to use the Occupational Safety and Health Administration time-weighted average of no more than 1 ppm of EtO over an eight hour period, or excursion limits of 5 ppm during any one 15 minute period. The THA and St. Paul also recommended raising the annual allowable EtO quantity per sterilizer to qualify for exemption, and suggested that the TACB create a regulation similar to the tiered control system used in California. In the tiered system, the greater the quantity, the greater the control, and the shorter the phase-in period. THA and St. Paul also recommended a minimum phase-in period of 18 months for hospitals to achieve compliance with any standards ultimately adopted. Driscoll urged a freeze of two years be considered in order to give hospitals time to retrofit or purchase new equipment. One individual requested that under condition (e), the phrase "and kept in good working order" be added to ensure proper operation and maintenance. The staff agrees that each of these suggested approaches to regulating EtO has merit and the agency will analyze each approach in future rulemaking. The staff intends to make use of the knowledge and experience of the regulated industry in addition to the control equipment manufacturers. Regarding the requests for delay in the implementation of Standard Exemption 89, an addition to condition (h) has been adopted to allow existing sources which use greater than four pounds per year but less than 100 pounds per year, and which can use this exemption, until May 31, 1994 to implement the appropriate control measures. Language has also been adopted that allows existing sources which use greater than 100 pounds but less than 2000 pounds per year, until November 30, 1993 to implement the appropriate control measures. Phillips supported the requirement in Standard Exemption 100 that venting of sweet, commercial grade natural gas pipelines, exempted from (conditions (a) and (b)), be conducted in a manner that does not endanger nearby facilities. The TCC also supported the proposed changes to this exemption. One individual felt that the phrase "venting is done in a manner that does not endanger nearby facilities" needs definition to clearly delineate the test which must be met to fulfill this condition. The staff agrees that clarification is needed and wording has been adopted that identifies areas where an ignition source may exist or where accidental ignition of the venting gas may increase risk of fire at nearby tanks or other facilities. Composite Technology Engine Components (CTEC) requested the TACB to allow Standard Exemption 123 interaction with Standard Exemption 106 by including wording similar to Standard Exemption 106 which would allow the exemption of chemicals not listed or referenced in Table 118A. Since Standard Exemption 123 is modeled on Standard Exemption 118, it should provide at least as much flexibility as Standard Exemption 118 now does. The staff has identified no benefit in giving Standard Exemption 123 all the provisions of Standard Exemption 118, because Standard Exemption 123 was designed for a specific industry and allows more emissions than Standard Exemption 118. Condition (a) of Standard Exemption 123 has been reworded to allow the commenter use of Standard Exemptions 106 and 118. CTEC requested that TACB allow Standard Exemption 123 by modeling. The commenter proposed that if an operation at an aerospace equipment and parts manufacturing plant is specifically addressed in another exemption, and the plant operation substantially complies complies with that other exemption, and the plant produces appropriate dispersion modeling results demonstrating that emissions are less than the Effects Screening Level for the chemicals of concern, then, the operation should be exempt under Standard Exemption 123. The staff believes that due to the lack of a modeling protocol, allowing Standard Exemption 123 by dispersion modelling would be inappropriate at this time. The equation described in condition (d) for the emissions limit, based upon the distance from the emissions point to the nearest off-site receptor, should accomplish the same result as a dispersion model. CTEC requested that TACB clarify reporting requirements and proposed a modification to condition (e) to reflect the concept that a TACB form PI-7 is a notification and should allow for flexibility in process changes. The second paragraph in condition (e) should read that, in the case of a future exemption, a plant is not "requesting" emissions, rather the plant is "projecting" emissions. CTEC suggested that the reporting requirement be limited to exempt processing operations. The staff agrees that the TACB form PI-7 is a notification of projected emissions, not a request for emissions. The wording "shall include all emission sources" in condition (e) has been changed to "shall include all process emission sources," and the existing wording "requested maximum allowable" has been changed to "projected maximum allowable." The staff believes that, in order to determine whether or not a source meets the exemption criteria, the operator must consider total emissions. The language has been adopted as proposed such that emissions reporting is not restricted to only process operations. One individual opposed this exemption because emission limits can be easily exceeded via fugitive losses. The commenter also suggested that the 100 foot distance limit is not sufficient for such a plant since some of the pollutants that are emitted can travel 100 feet and cause problems. The commenter requested that the phrase "Material and solvent usage record shall be maintained in sufficient detail to document compliance with this standard exemption" be defined so investigators, the public, and the company know what is expected. The staff believes that the recordkeeping requirement of Standard Exemption 123 is sufficient to allow the investigator to determine the actual emissions and, therefore, verify the exemption quantities. The equation described in condition (d) for the emissions limit, based upon the distance from the emissions point to the nearest off-site receptor, will account for the 100 foot distance limit by reducing the allowable emissions for that emissions point accordingly. Finally, the staff believes that the phrase "Material and solvent usage record shall be maintained in sufficient detail to document compliance with this standard exemption" is a standard phrase which is well understood by TACB field personnel and the regulated community. These portions of Standard Exemption 123 have been adopted as proposed. The TACB is an equal opportunity employer and does not discriminate on the basis of race, color, religion, sex, national origin, age, or disability in employment or in the provision of services, programs, or activities. In compliance with the Americans With Disabilities Act, this document may be requested in alternate formats by contacting the Air Quality Planning Program staff at (512) 908-1457, (512) 9081500 GAX or 1-800-RELAY-TX (TDD), or by writing or visiting at 12118 North IH-35, Park 35 Technology Center, Building A, Austin, Texas 78753. The amendments are adopted under the Texas Clean Air Act (TCAA), sec.382.017 Texas Health and Safety Code (Vernon 1990), which provides the TACB with the authority to adopt rules consistent with the policy and purpose of the TCAA. sec.116.4. Special Conditions. Permits to construct and operate, special permits, and exemptions may contain general and special conditions. The holders of exemptions, construction and operating permits, and special permits shall comply with any and all such conditions. Upon a specific finding by the executive director that an increase of a particular pollutant could result in a significant impact on the environment or could cause the facility to become subject to review under 40 CFR 51.165 (Nonattainment) or 40 CFR 52. 21 (Prevention of Significant Deterioration), the executive director may include a special permit condition which states that without prior approval by the executive director, the permittee may not use the authority of a standard exemption to construct an additional source at that facility which will result in a net emissions increase of this particular pollutant. sec.116.6. Exempted Facilities. (a) Pursuant to the Texas Clean Air Act (TCAA), sec.382.057, the facilities or types of facilities listed in the Standard Exemption List, dated June 18, 1992, as filed in the Secretary of State's Office and herein adopted by reference, are exempt from the permit requirements of the TCAA, sec.382.0518, because such facilities will not make a significant contribution of air contaminants to the atmosphere; provided, however, that: (1) total actual emissions authorized under standard exemption from the proposed facility shall not exceed 250 tons per year of carbon monoxide or nitrogen oxides, or 25 tons per year of volatile organic compounds (VOC) or sulfur oxides or inhalable particulate matter, or 25 tons per year of any other air contaminant except carbon dioxide, water, nitrogen, methane, ethane, hydrogen, and oxygen; (2) total actual emissions authorized under standard exemptions from the property where the proposed facility is to be located shall not exceed 250 tons per year of carbon monoxide or nitrogen oxides, or 25 tons per year of VOC or sulfur oxides or inhalable particulate matter, or 25 tons per year of any other air contaminant except carbon dioxide, water, nitrogen, methane, ethane, hydrogen, and oxygen, unless at least one facility at such property has been subject to public notification and comment as required by sec.116.10 of this title (relating to Public Notification and Comment Procedure); (3) construction or modification of the facility shall be commenced prior to the effective date of a revision of the Standard Exemption List under which the construction or modification would no longer be exempt; (4) proposed facility shall comply with the applicable provisions of sec.111 and sec.112, and the new source review requirements of Part C and Part D, of the Federal Clean Air Act (FCAA) and regulations promulgated thereunder; (5) there are no permits under the same Texas Air Control Board (TACB) Account Number that contain a condition or conditions precluding use of the standard exemption or standard exemptions. (b) Notwithstanding the provisions of this section, any facility which constitutes a major source, or any modification which constitutes a major modification under the FCAA, as amended by the FCAA Amendments of 1990, and regulations promulgated thereunder shall be subject to the requirements of sec. 116.3 of this title (relating to Consideration for Granting Permits to Construct and Operate) rather than this section; (c) No person shall circumvent by artificial limitations the requirements of sec.116.1 of this title (relating to Permit Requirements). (d) The emissions from the facility shall comply with all rules and regulations of the TACB and with the intent of the TCAA, including protection of health and property of the public and all emissions control equipment shall be maintained in good condition and operated properly during operation of the facility. (e) Copies of the current Standard Exemption List are available from the TACB Air Quality Planning Annex, located at 12118 North IH-35, Park 35 Technology Center, Building A, Austin, Texas 78753, and at all TACB regional offices. 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 June 29, 1992. TRD-9208973 Lane Hartsock Deputy Director, Air Quality Planning Texas Air Control Board Effective date: July 20, 1992 Proposal publication date: January 28, 1992 For further information, please call: (512) 908-1451 Part XIV. Texas Board of Irrigators Chapter 421. Introductory Provisions General Provisions The Texas Board of Irrigators adopts amendments to sec. sec.421.1, 421.36, and 421.39, concerning introductory provisions, without changes to the proposed text as published in the May 8, 1992, issue of the Texas Register (17 TexReg 3356). These adopted rules are identical to the emergency rules that were published in the January 31, 1992, issue of the Texas Register (17 TexReg 761) except for the correction of a grammatical error in the definition of water conservation in sec.421.1 (concerning definitions). These amendments are adopted under Texas Civil Statutes, Article 8751, sec.7. These amendments are adopted in order to implement certain provisions of Texas Senate Bill 544, 72nd Legislature (1991), which went into effect on September 1, 1991, and became Texas Civil Statutes, Article 8751. These amendments are adopted in order to define the duties and responsibilities of officers and employees of the board as well as to provide guidelines for maintaining official open records. No comments were received regarding adoption of the amendments. 31 TAC sec.421.1 The amendment is adopted under Texas Civil Statutes, Article 8751, sec.7, which provide the Texas Board of Irrigators with the authority to adopt rules necessary to carry out its powers and duties under Texas Civil Statutes, Article 8751. 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 June 29, 1992. TRD-9208948 Joyce Watson Executive Secretary Texas Board of Irrigators Effective date: July 20, 1992 Proposal publication date: May 8, 1992 For further information, please call: (512) 463-8069 General Provisions Affecting Board 31 TAC sec.421.36, sec.421.39 The amendments are adopted under Texas Civil Statutes, Article 8751, sec.7, which provide the Texas Board of Irrigators with the authority to adopt rules necessary to carry out its powers and duties under Texas Civil Statutes, Article 8751. 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 June 29, 1992. TRD-9208947 Joyce Watson Executive Secretary Texas Board of Irrigators Effective date: July 20, 1992 Proposal publication date: May 8, 1992 For further information, please call: (512) 463-8069 Part XIV. Texas Board of Irrigators Chapter 423. Registration of Irrigators and Installers Application for Registration The Texas Board of Irrigators adopts amendments to sec. sec.423.1, 423.4, 423.7, 423.10, 423.13, 423.19, 423.22, 423.41, 423.50, and 423.56, concerning application for registration to become a licensed irrigator or installer, without changes to the proposed text as published in the May 8, 1992, issue of the Texas Register (17 TexReg 3358). These adopted rules are identical to the emergency rules that were published in the January 31, 1992, issue of the Texas Register (17 TexReg 763). These amendments are adopted under Texas Civil Statutes, Article 8751, sec.7. These amendments are adopted adopted in order to implement certain provisions of Texas Senate Bill 544, 72nd Legislature (1991), which went into effect on September 1, 1991, and became Texas Civil Statutes, Article 8751. These amendments are in order to delineate eligibility requirements and procedures for those applying for certificates of registration. No comments were received regarding adoption of the amendments. 31 TAC sec.sec.423.1, 423.4, 423.7, 423.10, 423.13, 423.19, 423. 22 The amendments are adopted under Texas Civil Statutes, Article 8751, sec.7, which provide the Texas Board of Irrigators with the authority to adopt rules necessary to carry out its powers and duties under Texas Civil Statutes, Article 8751. 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 June 29, 1992. TRD-9208946 Joyce Watson Executive Secretary Texas board of Irrigators Effective date: July 20, 1992 Proposal publication date: May 8, 1992 For further information, please call: (512) 463-8069 Examinations 31 TAC sec.sec.423.41, 423.50, 423.56 The amendments are adopted under Texas Civil Statutes, Article 8751, sec.7, which provide the Texas Board of Irrigators with the authority to adopt rules necessary to carry out its powers and duties under Texas Civil Statutes, Article 8751. 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 June 29, 1992. TRD-9208945 Joyce Watson Executive Secretary Texas board of Irrigators Effective date: July 20, 1992 Proposal publication date: May 8, 1992 For further information, please call: (512) 463-8069 Chapter 425. Certificate of Registration and Seal Certificate of Registration The Texas Board of Irrigators adopts amendments to sec. sec.425.16, 425.19, 425.22, 425.25, and 425.41, concerning certificates of registration, without changes to the proposed text as published in the May 8, 1992, issue of the Texas Register (17 TexReg 3360). These adopted rules are identical to the emergency rules that were published in the January 31, 1992, issue of the Texas Register (17 TexReg 764). These amendments are adopted under Texas Civil Statutes, Article 8751, sec.7. These amendments are adopted in order to implement certain provisions of Texas Senate Bill 544, 72nd Legislature (1991), which went into effect on September 1, 1991, and became Texas Civil Statutes, Article 8751. These amendments are adopted in order to provide guidelines for the expiration of certificates of registration, the renewal of certificates of registration, and the penalty for failure to renew a certificate of registration. No comments were received regarding adoption of the amendments. 31 TAC sec.sec.425.16, 425.19, 425.22, 425.25 The amendments are adopted under Texas Civil Statutes, Article 8751, sec.7, which provide the Texas Board of Irrigators with the authority to adopt rules necessary to carry out its powers and duties under Texas Civil Statutes, Article 8751. 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 June 29, 1992. TRD-9208944 Joyce Watson Executive Secretary Texas board of Irrigators Effective date: July 20, 1992 Proposal publication date: May 8, 1992 For further information, please call: (512) 463-8069 Seal 31 TAC sec.425.41 The amendment is adopted under Texas Civil Statutes, Article 8751, sec.7, which provide the Texas Board of Irrigators with the authority to adopt rules necessary to carry out its powers and duties under Texas Civil Statutes, Article 8751. 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 June 29, 1992. TRD-9208943 Joyce Watson Executive Secretary Texas board of Irrigators Effective date: July 20, 1992 Proposal publication date: May 8, 1992 For further information, please call: (512) 463-8069 Chapter 427. Water Supply Connections Standards for Connections to Potable Water Supplies 31 TAC sec.sec.427.2, 427.4, 427.6, 427.8 The Texas Board of Irrigators adopts new sec.sec.427.2, 427.3, 427.6, and 427.8, an amendment to 427.4, and the repeal of 427.10, concerning standards for connections to potable water supplies, without changes to the proposed text as published in the May 8, 1992, issue of the Texas Register (17 TexReg 3361). These adopted rules are identical to the emergency rules that were published in the January 31, 1992, issue of the Texas Register (17 TexReg 766) except for the correction of a grammatical error in the explanation of minimum industry standards for depth coverage of piping in sec.427.8(e) (concerning minimum industry standards for irrigators/installers) and a new sec.427.3 (concerning water conservation). These new sections are adopted under Texas Civil Statutes, Article 8751, sec. 7. These amendments and new sections are adopted in order to implement certain provisions of Texas Senate Bill 544, 72nd Legislature (1991), which went into effect on September 1, 1991, and became Texas Civil Statutes, Article 8751. These amendments and new sections are adopted in order to provide guidelines for: local inspection of irrigation systems; the type of backflow prevention device to install; and minimum industry standards for irrigators and installers. No comments were received regarding adoption of the sections. The amendment new sections are adopted under Texas Civil Statutes, Article 8751, sec.7, which provide the Texas Board of Irrigators with the authority to adopt rules necessary to carry out its powers and duties under Texas Civil Statutes, Article 8751. 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 June 29, 1992. TRD-9208942 Joyce Watson Executive Secretary Texas board of Irrigators Effective date: July 20, 1992 Proposal publication date: May 8, 1992 For further information, please call: (512) 463-8069 31 TAC sec.427.10 The repeal is adopted under Texas Civil Statutes, Article 8751, sec.7, which provide the Texas Board of Irrigators with the authority to adopt rules necessary to carry out its powers and duties under Texas Civil Statutes, Article 8751. 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 June 29, 1992. TRD-9208941 Joyce Watson Executive Secretary Texas board of Irrigators Effective date: July 20, 1992 Proposal publication date: May 8, 1992 For further information, please call: (512) 463-8069 Chapter 429. Violation of Statute or Board Rule Complaint Process The Texas Board of Irrigators adopts the repeal of sec. sec.429.1, 429.13, 429. 16, 429.19, 429.22, and 429.41; new sec.sec.429.1-429.3, 429.5, 429.11, and 429. 13-429.19; and amendments to sec.sec.429.4, 429.7, 429.10, 429.44, 429.51, 429.53, and 429.55, concerning the processing of a complaint filed with the board against an irrigator or installer, the investigation of a complaint, informal resolution of a complaint, revocation of registration by the board, civil penalties to be assessed by a court, and action by the attorney general to recover civil penalties and pursue injunctive relief; the steps taken to file a complaint with the board against an irrigator or installer, setting complaint on board agenda for further investigation, board consideration of and action on complaints, referral of complaints by the board to hearings before the Texas Water Commission, referral of probable violations to the board by board members, and the Texas Water Commission's authority to revoke the registration of a licensed irrigator or installer; and the board's issuance of enforcement orders, hearings with respect to alleged violations of the Licensed Irrigators Act or of any order of the board, the steps taken to file a complaint with the board against an irrigator or installer, policies allowing the public to speak on issues under the board's jurisdiction, notice of complaint status, the hearing request and enforcement report, the procedures for notice, hearing, action, and appeal of alleged violations of Texas Civil Statutes, Article 8751, or a rule of the board. The amendments, repeals, and new sections are adopted without changes to the proposed text as published in the May 8, 1992, issue of the Texas Register (17 TexReg 3363). These adopted rules are identical to the emergency rules that were published in the January 31, 1992, issue of the Texas Register (17 TexReg 768) except for the correction of grammatical errors in sec.429.11 (concerning notice of complaint status), sec.429.13(b)(2) (concerning hearing request and enforcement report), sec.429.17(b) (concerning board consideration of complaint; board action on complaint), sec.429.51(a) (concerning civil penalty) ; and the addition of sec.429.5 (concerning public comment). These amendments, repeals, and new sections are adopted under Texas Civil Statutes, Article 8751, sec.7. These amendments are adopted in order to implement certain provisions of Texas Senate Bill 544, 72nd Legislature (1991), which went into effect on September 1, 1991, and became Texas Civil Statutes, Article 8751. These amendments, repeals, and new rules are adopted in order to provide guidelines for making complaints to the Board of Irrigators, investigating complaints, and resolving complaints through either informal resolution or a formal hearing. In the May 8, 1992, issue of the Texas Register (17 TexReg 3363), in the first sentence of the preamble it is stated that the Board of Irrigators proposes a new sec.429.41 where in fact the Board of Irrigators proposed the repeal of sec.429.41. No comments were received regarding adoption of the sections. 31 TAC sec.sec.429.1, 429.13, 429.16, 429.19, 429.22 The repeals are adopted under Texas Civil Statutes, Article 8751, sec.7, which provide the Texas Board of Irrigators with the authority to adopt rules necessary to carry out its powers and duties under Texas Civil Statutes, Article 8751. 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 June 29, 1992. TRD-9208939 Joyce Watson Executive Secretary Texas board of Irrigators Effective date: July 20, 1992 Proposal publication date: May 8, 1992 For further information, please call: (512) 463-8069 31 TAC sec.sec.429.1-429.5, 429.7, 429.10, 429.11, 429.13-429.19 The amendments and new sections are adopted under Texas Civil Statutes, Article 8751, sec.7, which provide the Texas Board of Irrigators with the authority to adopt rules necessary to carry out its powers and duties under Texas Civil Statutes, Article 8751. 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 June 29, 1992. TRD-9208940 Joyce Watson Executive Secretary Texas board of Irrigators Effective date: July 20, 1992 Proposal publication date: May 8, 1992 For further information, please call: (512) 463-8069 Revocation of Registration 31 TAC sec.429.41 The repeal is adopted under Texas Civil Statutes, Article 8751, sec.7, which provide the Texas Board of Irrigators with the authority to adopt rules necessary to carry out its powers and duties under Texas Civil Statutes, Article 8751. 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 June 29, 1992. TRD-9208938 Joyce Watson Executive Secretary Texas board of Irrigators Effective date: July 20, 1992 Proposal publication date: May 8, 1992 For further information, please call: (512) 463-8069 31 TAC sec.429.44 The amendment is adopted under Texas Civil Statutes, Article 8751, sec.7, which provide the Texas Board of Irrigators with the authority to adopt rules necessary to carry out its powers and duties under Texas Civil Statutes, Article 8751. 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 June 29, 1992. TRD-9208937 Joyce Watson Executive Secretary Texas board of Irrigators Effective date: July 20, 1992 Proposal publication date: May 8, 1992 For further information, please call: (512) 463-8069 Penalty 31 TAC sec.sec.429.51, 429.53, 429.55 The amendments are adopted under Texas Civil Statutes, Article 8751, sec.7, which provide the Texas Board of Irrigators with the authority to adopt rules necessary to carry out its powers and duties under Texas Civil Statutes, Article 8751. 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 June 29, 1992. TRD-9208936 Joyce Watson Executive Secretary Texas board of Irrigators Effective date: July 20, 1992 Proposal publication date: May 8, 1992 For further information, please call: (512) 463-8069 Chapter 431. Standards of Conduct Subchapter A. Licensed Irrigator and Installer Standards 31 TAC sec.sec.431.1-431.6 The Texas Board of Irrigators adopts amendments to sec. sec.431.1-431.6, concerning the standards of conduct for licensed irrigators or installers, without changes to the proposed text as published in the May 8, 1992, issue of the Texas Register (17 TexReg 3367). These adopted rules are identical to the emergency rules that were published in the January 31, 1992, issue of the Texas Register (17 TexReg 772). These amendments are adopted under Texas Civil Statutes, Article 8751, sec.7. These amendments are adopted in order to: add installers as a group that is governed by 31 TAC Chapters 421, 423, 425, 427, 429, and 431; provide guidelines for advertising by irrigators and installers; and provide consumers with information regarding regulation of irrigation in Texas. No comments were received regarding adoption of the amendments. The amendments are adopted under Texas Civil Statutes, Article 8751, sec.7, which provide the Texas Board of Irrigators with the authority to adopt rules necessary to carry out its powers and duties under Texas Civil Statutes, Article 8751. 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 June 29, 1992. TRD-9208935 Joyce Watson Executive Secretary Texas board of Irrigators Effective date: July 20, 1992 Proposal publication date: May 8, 1992 For further information, please call: (512) 463-8069 TITLE 34. PUBLIC FINANCE Part I. Comptroller of Public Accounts Chapter 9. Property Tax Administration Subchapter C. Appraisal District Administration 34 TAC sec.9.401 The Comptroller of Public Accounts adopts new sec.9.401, concerning the application form for a charitable organization property tax exemption, with changes to the proposed text as published in the February 11, 1992, issue of the Texas Register (17 TexReg 1216). The new section is necessary because the 72nd Legislature, 1991, First Called Session, added a new function to the type of charitable activities that may qualify for the exemption. In addition, the legislature transferred responsibility for adopting property tax rules to the comptroller, effective November 24, 1991. The new section establishes requirements for the contents of a charitable organization property tax exemption application form and adopts by reference a model application form. Both changes occur in subsection (b). Paragraph (5) shows the addition of the word "if" at the beginning of the paragraph for clarity. The second change is to paragraph (14) and changes the Tax Code cite to sec.11.18(d)(15). No comments were received regarding adoption of the new section. The new section is adopted under the Tax Code, sec.11.43 and sec.11.44, which provides the comptroller with the authority to prescribe the contents of property tax exemption applications and contents of the notice of exemption requirements. sec.9.401. Exemption Applications for Charitable Organizations. (a) All appraisal offices shall prepare applications for charitable organization exemptions and make them available to the public. (b) Each application form shall provide spaces for the applicant to indicate the following information: (1) the name and address of the person who completes the application form; (2) the capacity in which the person who completes the form serves the organization; (3) the name of the organization and its mailing address; (4) whether the organization is operated by an individual, an association, a corporation, a foundation, or a trust; (5) if the organization is a corporation that does not provide a function specified in the Tax Code, sec.11.18(d)(1), (2), (8), (9), (12), or (16), whether the corporation is a nonprofit corporation; (6) the real and personal property upon which the exemption is claimed; (7) whether the organization owns the property on which the exemption is claimed; (8) for each parcel of real property, the legal description of the property, the primary use of the property, whether the property is reasonably necessary in performing the organization's functions, any other uses of the property, and all parties other than the applicant organization which have used the property in the year preceding the application; (9) for each item of personal property, the nature and location of the item; (10) whether the organization is organized exclusively to perform religious, charitable, scientific, literary, and educational functions; (11) whether the organization is organized exclusively to engage in and does exclusively engage in one or more of the functions listed in the Tax Code, sec. 11.18(d)(1)-(17), and which functions the organization engages in; (12) all financial transactions for the preceding year which involved sale of an interest in the organization for gain, transfers of property between the organization and persons having an interest in the organization, and loans between the organization and persons having an interest in the organization; (13) whether the organization operates, or its charter permits it to operate, in a manner which permits the accrual of profits or distribution of any form of private gain; and (14) where the applicant indicates that it engages in functions listed in the Tax Code, sec.11. 18(d)(15), the following additional information: (A) whether the organization is governed by a volunteer board of directors; (B) whether the organization is affiliated with a state or national organization that authorizes, approves, or sanctions volunteer charitable fund raising organizations; (C) whether the organization qualifies for exemption under the Internal Revenue Code, sec.501(c)(3), as amended; and (D) whether the organization distributes contributions to at least five other associations, each of which is governed by a volunteer board of directors, qualifies for exemption under the Internal Revenue Code, sec.501(c) (3), receives a majority of its annual revenues from gifts and government grants, and provides services without regard to the recipient's ability to pay. (c) The appraisal office shall indicate on the application form that the applicant must attach a copy of the charter, bylaws, or other documents adopted by the organization to govern its affairs. (d) With respect to the documents described in subsection (c) of this section, the application shall contain spaces for the applicant to indicate: (1) whether the documents pledge the organization's assets for use in performing its charitable functions and the page and paragraph number of such language; (2) whether the documents require that upon dissolution of the organization that the organization's assets be transferred to a similar organization which is qualified for exemption under the Internal Revenue Code, sec.501(c)(3), as amended, or to the State of Texas; (3) whether Internal Revenue Service regulations require that the documents provide for transfer of the organization's assets upon dissolution first to its members and then immediately from its members to a similar organization qualified for exemption under the Internal Revenue Code, sec.501(c)(3), as amended, or to the State of Texas. (e) All applications shall require the applicant to sign and date the application and indicate in what capacity he represents the organization. (f) All applications shall include the following affirmation, above the signature and date spaces and below the spaces for information required by subsections (b)-(d) of this section: "By signing this application, you designate the property described in the attached schedules A & B as the property against which the exemption for charitable organizations may be claimed in this appraisal district. You certify that this information is true and correct to the best of your knowledge and belief." (g) All applications shall include the following statement in boldface type beneath the space for the signature and date: Under the Texas Penal Code, sec. 37.10, if you make a false statement on this application, you could receive a jail term of up to one year and a fine of up to $2,000, or a prison term of two to 10 years and a fine of up to $5,000. (h) If the chief appraiser routinely requires supporting documentation for any charitable exemption, the appraisal office shall note the types of documentation required on the application. (i) All applications shall contain the following statement: "This application covers property you owned on January 1 of this year. You must file the completed application between January 1 and May 1 of this year. Be sure to attach any additional documents requested. If the chief appraiser grants the exemption, you do not have to reapply every year. You must reapply if the chief appraiser requires you to do so, or if you want the exemption to apply to property not listed in this application. However, you have a duty to notify the chief appraiser in writing if and when your right to this exemption ends." (j) The Comptroller of Public Accounts adopts by reference Form 11.18, Application for Charitable Organization Property Tax Exemption. Copies of the form are available for public inspection at the Office of the Secretary of State, Texas Register Section, or may be obtained from the Comptroller of Public Accounts, Property Tax Division, 4301 Westbank Drive, Building B, Suite 100, Austin, Texas 78746-6565. 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 June 26, 1992. TRD-9208861 Martin Cherry Chief, General Law Section Comptroller of Public Accounts Effective date: July 17, 1992 Proposal publication date: February 11, 1992 For further information, please call: (512) 463-4028 34 TAC sec.9.402 The Comptroller of Public Accounts adopts new sec.9.402, concerning the application forms for special use appraisals, without changes to the proposed text as published in the February 11, 1992, issue of the Texas Register (17 TexReg 1216). The new section is necessary because the 72nd Legislature, 1991, First Called Session, added a new use to the types of uses that qualify as an agricultural use of land. In addition, the legislature transferred responsibility for adopting property tax rules to the comptroller, effective November 24, 1991. The new section adopts by reference a model application form for each available special use appraisal. A change was made in citing the statutory authority in the preamble to the new section. No comments were received regarding adoption of the new section. The new section is adopted under the Tax Code, sec.sec.23.43, 23.54, 23.75, 23. 85, and 23.95, which provides the comptroller with the authority to prescribe the content of application for special appraisal. 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 June 26, 1992. TRD-9208862 Martin Cherry Chief, General Law Section Comptroller of Public Accounts Effective date: July 17, 1992 Proposal publication date: February 11, 1992 For further information, please call: (512) 463-4028 34 TAC sec.9.403 The Comptroller of Public Accounts adopts new sec.9.403, concerning the application forms for a miscellaneous property tax exemptions, without changes to the proposed text as published in the February 11, 1992, issue of the Texas Register (17 TexReg 1217). The new section is necessary because the 72nd Legislature, 1991, First Called Session, created three new property tax exemptions. In addition, the legislature transferred responsibility for adopting property tax rules to the comptroller, effective November 24, 1991. The new section establishes general requirements for miscellaneous property tax exemption forms and adopts 11 property tax exemption application forms by reference. No comments were received regarding adoption of the new section. The new section is adopted under the Tax Code, sec.11.43 and sec.11.44, which provides the comptroller with the authority to prescribe the contents of each exemption application form and the notice of exemption application 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 June 26, 1992. TRD-9208863 Martin Cherry Chief, General Law Section Comptroller of Public Accounts Effective date: July 17, 1992 Proposal publication date: February 11, 1992 For further information, please call: (512) 463-4028 34 TAC sec.9.404 The Comptroller of Public Accounts adopts new sec.9.404, concerning the application form for a property tax exemption for goods exported from Texas, without changes to the proposed text as published in the February 11, 1992, issue of the Texas Register (17 TexReg 1217). The new section is necessary because the 72nd Legislature, 1991, First Called Session, changed the qualification requirements for exemption. In addition, the legislature transferred responsibility for adopting property tax rules to the comptroller, effective November 24, 1991. The new section prescribes the contents of the application form for exemption of goods exported from Texas, and adopts the form by reference. No comments were received regarding adoption of the new section. The new section is adopted under the Tax Code, sec.11.43 and sec.11.44, which provides the comptroller with the authority to prescribe the contents of property tax exemption applications and contents of the notice of exemption 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 June 26, 1992. TRD-9208864 Martin Cherry Chief, General Law Section Comptroller of Public Accounts Effective date: July 17, 1992 Proposal publication date: February 11, 1992 For further information, please call: (512) 463-4028 34 TAC sec.9.405 The Comptroller of Public Accounts adopts new sec.9.405, concerning the application form for a residence homestead property tax exemption, without changes to the proposed text as published in the February 11, 1992, issue of the Texas Register (17 TexReg 1217). The new section is necessary because the 72nd Legislature, 1991, First Called Session, transferred responsibility for adopting property tax rules to the comptroller, effective November 24, 1991. The new section establishes requirements for the contents of a residence homestead property tax exemption application form and adopts by reference a model application form. No comments were received regarding adoption of the new section. The new section is adopted under the Tax Code, sec.11.43 and sec.11.44, which provides the comptroller with the authority to prescribe the contents of property tax exemption applications and contents of the notice of exemption 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 June 26, 1992. TRD-9208865 Martin Cherry Chief, General Law Section Comptroller of Public Accounts Effective date: July 17, 1992 Proposal publication date: February 11, 1992 For further information, please call: (512) 463-4028 Subchapter D. Appraisal Review Board 34 TAC sec.9.801 The Comptroller of Public Accounts adopts new sec.9.801, concerning notice of protest, without changes to the proposed text as published in the February 11, 1992, issue of the Texas Register (17 TexReg 1218). The new section is necessary because the 72nd Legislature, 1991, First Called Session, added elements of information required on a notice of protest form. In addition, the legislature transferred responsibility for adopting property tax rules to the comptroller, effective November 24, 1991. The new section establishes requirements for a notice of protect form, including a provision giving the property owner an opportunity to request a copy of the appraisal review board's hearing procedures. No comments were received regarding adoption of the new section. The new section is adopted under the Tax Code, sec.5.07, which provides the comptroller with the authority to prescribe the contents of all forms necessary for the administration of the property tax system, and sec.41.44, which provides the comptroller with the authority to prescribe the contents of a form for notice of protest. 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 June 26, 1992. TRD-9208866 Martin Cherry Chief, General Law Section Comptroller of Public Accounts Effective date: July 17, 1992 Proposal publication date: February 11, 1992 For further information, please call: (512) 463-4028 34 TAC sec.9.802 The Comptroller of Public Accounts adopts new sec.9.802, concerning the affidavit to be signed by an appraisal review member hearing a property owner's protest, without changes to the proposed text as published in the February 11, 1992, issue of the Texas Register (17 TexReg 1218). The new section is necessary because the 72nd Legislature, 1991, First Called Session, required this affidavit of appraisal review board members. In addition, the legislature transferred responsibility for adopting property tax rules to the comptroller, effective November 24, 1991. The new section prescribes the contents of the appraisal review board member's affidavit stating that the member has not communicated with another person concerning the property under protest or any matter related to the property owner's protest. No comments were received regarding adoption of the new section. The new section is adopted under the Tax Code, sec.5.07, which provides the comptroller with the authority to prescribe the contents of all forms necessary for the administration of the property tax system. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 26, 1992. TRD-9208867 Martin Cherry Chief, General Law Section Comptroller of Public Accounts Effective date: July 17, 1992 Proposal publication date: February 11, 1992 For further information, please call: (512) 463-4028 Subchapter E. Tax Office Administration 34 TAC sec.9.1001 The Comptroller of Public Accounts adopts new sec.9.1001, concerning the property tax receipts, without changes to the proposed text as published in the February 11, 1992, issue of the Texas Register (17 TexReg 1218). The new section is necessary because the 72nd Legislature, 1991, First Called Session, added two elements of information required on a property tax receipt. In addition, the legislature transferred responsibility for adopting property tax rules to the comptroller, effective November 24, 1991. The new section establishes requirements for the current and delinquent property tax receipts, including a provision requiring that the receipt show the tax rate and taxable value for the property for each year for which the receipt is requested. No comments were received regarding adoption of the new section. The new section is adopted under the Tax Code, sec.31.075, which provides the comptroller with the authority to prescribe the description of property required on a property tax receipt. 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 June 26, 1992. TRD-9208868 Martin Cherry Chief, General Law Section Comptroller of Public Accounts Effective date: July 17, 1992 Proposal publication date: February 11, 1992 For further information, please call: (512) 463-4028 TITLE 37. PUBLIC SAFETY AND CORRECTIONS Part III. Texas Youth Commission Chapter 85. Admission and Placement Commitment and Reception 37 TAC sec.85.3 The Texas Youth Commission (TYC) adopts an amendment to sec.85.3, without changes to the proposed text as published in the May 26, 1992, issue of the Texas Register (17 TexReg 3832). The amendment to the section will bring about more accurate information in agency rules. The section concerns the admission process of youth in the custody of the agency. A reference to judge is being changed to committing court. No comments were received regarding adoption of the amendment. The amendment is adopted under the Human Resources Code, sec.61.071, which provides the Texas Youth Commission with the authority to examine and make a study of each child and to establish rules governing the study. 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 June 26, 1992. TRD-9208922 Ron Jackson Executive Director Texas Youth Commission Effective date: July 20, 1992 Proposal publication date: May 26, 1992 For further information, please call: (512) 483-5244 Part II. Texas Youth Commission Chapter 91. Discipline and Control Due Process Hearings Procedures 37 TAC sec.91.33 The Texas Youth Commission (TYC) adopts an amendment to sec.91.33, with changes to the proposed text as published in the May 19, 1992, issue of the Texas Register (17 TexReg 3720). The amendment to the section will bring about more timely and efficient administrative procedures in the scheduling and reviewing of the hearings, as well as assurance that the youth will receive documentation of the results. The amendment provides instructions for the primary service worker to schedule hearings and requires that the youth be given a copy of the hearing manager's report of a Level II hearing. The change to the proposed text states that a delay of more than seven days in scheduling the hearing of a youth in the custody of TYC must be justified by documentation of circumstances which made it unavoidable to schedule the hearing earlier. The amendment is adopted under the Human Resources Code, sec.61.034, which provides the Texas Youth Commission with the authority to make rules appropriate to the proper accomplishment of its functions. sec.91.3. Level II Hearing Procedure. (a) (No change.) (b) Rules. (1) The primary service worker shall call the institutional facility administrator or regional director to schedule the hearing as soon as practical but not later than seven days, excluding weekends and holidays, after the alleged violation. A delay-of more than seven days in scheduling the hearing must be justified by documentation of circumstances which made it impossible, impractical, or inappropriate to schedule the hearing earlier. (2) The institutional facility administrator or regional director responsible for the program to which the youth is currently assigned appoints an impartial staff member to act as hearing manager. (3) The hearing manager shall be a Texas Youth Commission (TYC) staff member who is trained to function as a hearing manager and has not previously participated in a Level II hearing for the youth. (A) If the youth is currently assigned to an institution, the hearing manager shall be someone not directly responsible for supervising the youth. (B) If the youth is currently assigned to a halfway house, the hearing manager shall not be a member of the halfway house staff. (C) If the youth is currently assigned to a contract program, the hearing manager shall not be the TYC casemanager assigned to that program. (D) If the youth is currently assigned to his or her home, the hearing manager shall not be the parole officer assigned to the youth's case. (4) The youth's primary service worker shall be responsible for assembling all evidence and giving all notices required for the hearing. (5) The youth shall be given written notice of his rights not less than 24 hours prior to the hearing. The youth's rights are: (A) the right to remain silent; (B) the right to be assisted by an advocate at the hearing; (C) the right to confront and cross-examine adverse witnesses who testify at the hearing; (D) the right to contest adverse evidence admitted at the hearing; (E) the right to call readily available witnesses and present readily available evidence on his own behalf at the hearing; and (F) the right to appeal from the results of the hearing. (6) The youth shall be given written notice of the reasons for calling the hearing, the proposed action to be taken, and the evidence to be relied upon not less than 24 hours prior to the hearing. (7) Reasonable efforts shall be made to notify the youth's parent(s) of the time and place of the hearing not less than 24 hours prior to the hearing. (8) The hearing shall consist of two parts: fact-finding and disposition, and shall be held where the youth resides unless the hearing manager determines that some other site is more appropriate. (9) The youth shall be assisted by an informed and responsible advocate appointed by the hearing manager. Whenever practical, the advocate shall be a person chosen by the youth. (10) The hearing shall be tape recorded and the recording shall be the official record of the hearing. Tape recording shall be preserved for six months following the hearing. (11) The youth shall be present during the hearing unless he waives his presence or his behavior prevents the hearing from proceeding in an orderly and expeditious fashion. (A) A waiver of the youth's presence shall be in writing and signed by the youth and his advocate. (B) If the youth waives his presence, the hearing may be conducted by teleconference. (C) If a youth is excluded for behavioral reasons, those reasons shall be documented in the hearing record. (12) All credible evidence may be considered, irrespective of its form. (13) A victim who appears as a witness should be provided a waiting area where he is not likely to come in contact with the youth except during the hearing. (14) Witnesses need not take an oath prior to testifying. (15) The hearing manager, primary service worker, and advocate may question each witness in turn. The primary service worker and advocate may offer summation statements. (16) The standard of proof for all disputed issues is a preponderance of the evidence. "Preponderance of the evidence" means whether the credible evidence makes it more likely than not that a particular proposition is true. (17) After announcing his findings of fact, the hearing manager shall proceed to disposition to determine whether the action proposed by staff is appropriate under TYC policy. (A) A hearing manager's decision that a youth be transferred is final. (B) A hearing manager's decision to assign a minimum length of stay is final subject to approval by the executive director or designee. If, subsequent to the assignment of a minimum length of stay, the executive director disapproves the assignment, neither the assignment nor a transfer may then occur. (18) The hearing manager shall prepare the Hearing Manager's Report of a Level II Hearing, CCF-170 of his findings which includes grounds for the hearing and evidence relied upon and the decision. (19) The youth is informed of his/her right to appeal to the executive director. The pendency of an appeal shall not preclude implementation of the hearing manager's dispositional decision. (20) A copy of the report (CCF-170), is given to the youth immediately following the close of the hearing. (21) A copy of the report is placed in the masterfile only if the reasons for the hearing are found, i.e., it is proven that the youth violated the rules. If the reasons for the hearing are not found, all references to the disciplinary action are removed from the youth's masterfile. (22) The hearing manager's report is reviewed by the institutional superintendent or regional director, as are all disciplinary reports, to assure consistency in the application of policy. (23) Copies of all Hearing Manager's Report of a Level II Hearing, CCF-170 are maintained by the institutional superintendent and regional director. 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 June 24, 1992. TRD-9208829 Ron Jackson Executive Director Texas Youth Commission Effective date: July 17, 1992 Proposal publication date: May 19, 1992 For further information, please call: (512) 483-5244 Chapter 93. General Provisions Records, Reports, Forms 37 TAC sec.93.57, sec.93.59 The Texas Youth Commission (TYC) adopts amendments to sec.93.57 and sec.93. 59, concerning records, reports, forms, without changes to the proposed text as published in the May 26, 1992, issue of the Texas Register (17 TexReg 3833). The amendments to the sections will bring about needed information readily available to a TYC program receiving a new youth. The sections concern access to youth records and youth masterfile records. In sec.93.57 corrections in terms are being made. In sec.93.59, the amendment states that the masterfile will be moved with a youth or by UPS following a youth's movement to a different TYC program. No comments were received regarding adoption of the amendments. The amendments are adopted under the Human Resources Code, sec.61.073, which provides the Texas Youth Commission with the authority to keep written records on each child. 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 June 26, 1992. TRD-9208923 Ron Jackson Executive Director Texas Youth Commission Effective date: July 20, 1992 Proposal publication date: May 26, 1992 For further information, please call: (512) 483-5244 TITLE 40. SOCIAL SERVICES AND ASSISTANCE Part I. Texas Department of Human Services Chapter 19. Long-Term Care Nursing Facility Requirements for Licensure and Medicaid Certification Subchapter S. Reimbursement Methodology for Nursing Facilities 40 TAC sec.19.1807 The Texas Department of Human Services (DHS) adopts an amendment to sec.19. 1807, concerning rate setting methodology, without changes to the proposed text as published in the May 22, 1992, issue of the Texas Register (17 TexReg 3777). The justification for the amendment is to comply with the Omnibus Budget Reconciliation Act of 1990 (OBRA '90) and federal regulations issued September 26, 1991, by the Health Care Financing Administration (HCFA). OBRA '90 and the HCFA regulations require DHS to reimburse individuals directly for costs they incur in completing a nurse aide training and competency evaluation program prior to nursing facility employment. The individual must be employed within 12 months of testing. The basis for reimbursement requires that the individual be employed for at least six months in a nursing facility to receive full reimbursement and at least three months to receive partial reimbursement. The amendment will function by ensuring an improved level of competency of nurse aides employed in nursing facilities as a result of state reimbursement for training costs. No comments were received regarding adoption of the amendment. The amendment is adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 26, 1992. TRD-9208843 Nancy Murphy Agency Liaison, Policy and Document Support Texas Department of Human Services Effective date: August 1, 1992 Proposal publication date: May 22, 1992 For further information, please call: (512) 450-3765 Part IX. Texas Department on Aging Chapter 255. Statutes and Regulations Policies and Procedures 40 TAC sec.255.39 The Texas Department on Aging adopts amendments to sec.255.39 concerning funding allocation formula for retired senior volunteer projects, without changes to the proposed text as published in the April 28, 1992, issue of the Texas Register (17 TexReg 3051). This section establishes the method for allocating state general revenue to the Retired Senior Volunteer Program (RSVP) projects in Texas. This section will permit Retired Senior Volunteer Programs to understand the basis on which state general revenue is awarded to each project. Favorable comments from three correspondents were received by the department. These correspondents expressed support especially for not using number of volunteers and volunteer hours as criteria to receive the funding needed, and the provision that no project will receive more than it's required match as determined at the start of the state fiscal year. Three correspondents from one RSVP project opposed to the funding formula as proposed believe that the formula does not give credit to programs which are successful in recruiting volunteers; that undue weight is given to the total square miles in each project's service area; and that emphasis is given to providing match money to those projects which are unwilling or unable to raise money on their own. Commenting in favor of the amendment were the East Texas Human Development Corporation, Texas Tech University RSVP Project, and Panhandle Community Services. Commenting against the amendment were Senior Community Services, Inc., San Antonio RSVP Project, and Senator Cyndi Taylor Krier. The department recognizes the effect this formula may have on a few of the RSVP projects but continues to support the proposed rule for adoption because of the benefits it will provide to the majority of the projects. The amendment is adopted under the Human Resources Code, Chapter 101, which provides the Texas Department on Aging with the authority to promulgate rules governing the operation 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 June 23, 1992. TRD-9208768 Mary Sapp Executive Director Texas Department on Aging Effective date: July 15, 1992 Proposal publication date: April 28, 1992 For further information, please call: (512) 444-2727 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 State Board of Insurance adopted on June 24, 1992, a filing by the Western Surety Company of Sioux Falls, South Dakota, of revisions to the standard and uniform Notary Public Errors and Omissions Policy. In accordance with the provisions of the Insurance Code, Article 5.97, the text of the filing has been filed in the Office of the Chief Clerk of the Department of Insurance. The filing has been available for public inspection for 15 days, and a public hearing has not been requested by any party. The policy revisions incorporate previously board approved amendatory language into the policy. The revisions add policy wording required by the Insurance Code, Articles 21.56, relating to notice of settlement of liability claims and 21.49-2D relating to cancellation and nonrenewal of certain policies. The revisions also amend the complaint notice to comply with the provisions of 28 TAC sec.1.601 relating to toll-free telephone numbers and information and complaint procedures. There are no rate consequences to the adopted form revisions. This notice is filed pursuant to the Insurance Code, Article 5.97, which exempts board action on this filing from the requirements of the Administrative Procedure and Texas Register 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 June 29, 1992. TRD-9208971 Linda K. von Quintus-Dorn Chief Clerk Texas Department of Insurance Effective date: July 18, 1992 For further information, please call: (512) 463-6327