Adopted Sections An agency may take final action on a section 30 days after a proposal has been published in the Texas Register. The section becomes effective 20 days after the agency files the correct document with the Texas Register, unless a later date is specified or unless a federal statute or regulation requires implementation of the action on shorter notice. If an agency adopts the section without any changes to the proposed text, only the preamble of the notice and statement of legal authority will be published. If an agency adopts the section with changes to the proposed text, the proposal will be republished with the changes. TITLE 1. ADMINISTRATION Part III. Office of the Attorney General Chapter 59. Collections 1 TAC sec.59.2, sec.59.3 The Office of the Attorney General of Texas (OAG) adopts new sec.59.2 and sec.59.3. Section 59.2 is adopted with changes to the proposed text as published in the September 15, 1992, issue of the Texas Register (17 TexReg 6347). Section 59.3 is adopted without changes and will not be republished. The new sections establish guidelines relating to the process by which state agencies collect delinquent obligations owed to the agencies, and how those obligations are reported to the Attorney General. Section 59.2 helps agencies to develop collection strategies and to foster referral of collection matters to the Attorney General where these relationships do not currently exist. Section 59.3 states requirements pertaining to the form and content of agency reports on delinquent obligations owed to the agency as well as when these reports are required. The comments received pertaining to sec.59.2 were as follows. The OAG should amend sec.59.2(b)(1), (8) to provide guidelines for agency determinations that accounts are uncollectible without requiring the OAG to decide whether they are acceptable. The OAG disagrees. The factors to be considered by the agency in determining uncollectability are stated in sec.59.2(b)(8). OAG approval is not required for every set of guidelines adopted by agencies, but are subject to OAG review pursuant to this provision. The OAG should amend the rule to avoid shifting the burden of collection duties and responsibilities without providing a concomitant financial mechanism for recovering costs necessitated by the shift. The OAG disagrees. As stated in the preamble to the rule, existing collection procedures and relationships with the OAG are not supplanted. The rule establishes minimum guidelines in accordance with Texas Civil Statutes, Article 6252-5e. No collection duties and responsibilities are shifted. The rule imposes minimum guidelines to prevent inappropriate agency referrals to the OAG. The guidelines as they relate to existing procedures are in large part directory and do not necessitate any additional funding to secure compliance. The OAG should amend or delete sec.59.2(b)(4) because the value of the OAG's services is arguable if the effect of filing a lien causes the debtor to pay. The OAG disagrees that the section should be deleted. This provision merely requires agencies to assert liens that have been provided by law and provides that liens should not be released without the approval of the attorney representing the agency in the matter. In areas where ambiguous lien provisions currently exist, agencies are encouraged to work with the OAG to clarify statutory provisions and to agree on procedures to address this concern. The OAG should amend or delete sec.59.2(b)(6)(B) because it does not consider practices already instituted by other state agencies. The OAG disagrees. The preamble acknowledges that the rule is by definition general in nature and that modifications with particular agencies may be appropriate. The OAG should amend or delete sec.59.2(b)(6)(C) because it requires significant legal work by agency attorneys, especially in bankruptcy and probate matters. The OAG disagrees. The rule is directory with respect to bankruptcy and probate proceedings, except to mandate that agencies maintain records of bankruptcy filings, dismissals and discharge orders. Presumably, non-legal staff are capable of maintaining the bankruptcy information by including the appropriate notices in the agency's file pertaining to the matter. Any additional expense associated with these minimum requirements is justified by the agencies' pre- existing duty to avoid violating federal bankruptcy law. Moreover, additional expense, if any, would be offset by savings associated with closing accounts that are: uncollectible as a matter of law; or stayed from collection. The OAG should amend the rule to provide that all collection contracts with a state agency require that any disputes arising under the contract be submitted to a court of competent jurisdiction in Texas unless any other venue is statutorily mandated, in which case the specific venue statute will apply. The OAG agrees. This provision is now contained in sec.59.2(c)(3)(C)(vii). The OAG should require fidelity or performance bonds in compliance with statutory or regulatory requirements specific to the type of obligation to be collected. The OAG agrees that agencies should comply with federal and state requirements pertaining to requiring fidelity or performance bonds for certain obligations, but believes that to include this specific provision would go beyond the purview of the general guidelines required by Texas Civil Statutes, Article 6252-5e, sec.2(a). The OAG should require agencies to include a contractual provision in any contract pertaining to the collection of a delinquent obligation by outside collection firm prohibiting litigation on accounts referred without a specific authorization by the agency and the OAG. The OAG agrees. This provision is now contained in sec.59.2(c)(3)(C)(i), with the modification that litigation on the delinquent account is prohibited unless the collection agency obtains specific written authorization from the agency and complies with the requirements of this rule. The OAG should require agencies to include a contractual provision in any contract with an outside collection firm pertaining to the collection of a delinquent obligation requiring the firm to place any funds collected in an interest bearing account with amounts collected plus interest, less collections costs, payable to the agency on a monthly basis or by direct deposit to the agency's account on a weekly basis with the agency billing once a month; in either case a listing of accounts and amounts collected per account should be submitted to the agency upon deposit of the funds. The OAG agrees. This provision is now contained in sec.59.2(c)(3)(C)(ii). The OAG should require agencies to include a contractual provision in any contract pertaining to the collection of a delinquent obligation by an outside collection firm that the agency may recall any account without charge. The OAG agrees. This provision is now contained in sec.59.2(c)(3)(C)(iv). The OAG should require agencies to include a contractual provision in any contract pertaining to the collection of a delinquent obligation by an outside collection firm that the firm may not settle or compromise the account for less than the full amount owed (including collection costs where authorized by statute or terms of the obligation) without written authority from the agency. The OAG agrees. This provision is now contained in sec.59.2(c)(3)(C)(v). The OAG should require agency debt collection contracts with outside collection firms to provide that the firm is not an agent of the agency, but is an independent contractor; and providing further that the firm shall indemnify the agency for any loss incurred by its violation of state and federal debt collection statutes or by the negligence of the firm, its employees or agents. The OAG agrees. This provision is now contained in sec.59.2(c)(3)(C)(vi). The OAG should require agencies to include a contractual provision in any contract pertaining to the collection of a delinquent obligation by an outside collection firm that the firm immediately refer any bankruptcy notice to the agency. The OAG agrees. This provision is now contained in sec.59.2(c)(3)(C)(iii), with the further stipulation that the collection firm refer the notice within three working days of receipt. The OAG should amend sec.59.2(b)(4) requiring the agency to file a lien in the county where the debtor's principal place of business, or, where appropriate, the debtor's residence, is located. The commenter recommended that the phrase "or in such other county as may be required by law" be added in order to cover additional statutory lien requirements, such as the Texas Property Code, sec.55.001, et seq (Vernon 1984). The OAG agrees. The phrase is now contained in sec.59.2(b)(4). Comments on the proposed rules were received by the Office of Railroad Commission of Texas, and the University of Texas System. The new sections are adopted under Texas Civil Statutes, Article 6252-5e, sec.2, which provide the Office of the Attorney General with the authority to adopt uniform guidelines relating to the process by which state agencies collect delinquent obligations owed to the agencies, and to adopt specific reporting procedures for agencies to report uncollected debt to the OAG. sec.59.2. Collection Process: Uniform Guidelines and Referral of Delinquent Collections. (a) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise. (1) Attorney General-The Office of the Attorney General of Texas, acting through the Collections Division of the agency. (2) Debtor-Any person or entity liable or potentially liable for an obligation owed to a state agency or against whom a claim or demand for payment has been made. (3) Delinquent-Payment is past due by law or by customary business practice, and all conditions precedent to payment have occurred or been performed. (4) Make demand-To deliver or cause to be delivered by United States Mail, first class, a writing setting forth the nature and amount of the obligation owed to the agency. A writing making demand is a "demand letter". (5) Obligation-A debt, judgment, claim, account, fee, fine, tax, penalty, interest, loan, charge, or grant. (6) Security-Any right to have property owned by an entity with an obligation to a state agency sold or forfeited in satisfaction of the obligation; and any instrument granting a cause of action in favor of the State of Texas and/or the agency against another entity and/or that entity's property, such as a bond, letter of credit, or other collateral that has been pledged to the agency to secure an obligation. (7) State agency-Any agency, board, commission, institution, or other unit of state government. (b) Uniform guidelines for state agencies in collecting delinquent obligations. (1) A state agency shall adopt procedures to establish and determine the liability of each person responsible for the obligation, whether that liability can be established by statutory or common law. Agency records shall contain and reflect the identity of all persons liable on the obligation or any part thereof. All agency collection procedures shall apply to every debtor, subject to reasonable tolerances established by the agency. (See paragraph 8 of this subsection). (2) A state agency shall adopt procedures to ensure that agency records reflect the correct physical address of the debtor's place of business, and, where applicable, the debtor's residence. Where a fiduciary or trust relationship exists between the agency (or the state) as principal and the debtor as trustee, an accurate physical address shall be maintained. A post office box address should not be used. Agency records may reflect a post office box where it is impractical to obtain a physical address, or where the post office box address is in addition to a correct physical address maintained on the agency's books and records. (3) All demand letters should be mailed in an envelope bearing the notation "address correction requested" in conformity with 39 Code of Federal Regulations sec.265(d). If an address correction is provided by the United States Postal Service, the demand letter should be re-sent to that address prior to the referral procedures described herein. Demand should be made upon every debtor prior to referral of the account to the Attorney General. The final demand letter should include a notation, where practical, that a copy is being sent to the Attorney General. (4) Where state law gives the agency the right to record a lien securing the obligation, the agency shall cause to be filed a lien in the appropriate records of the county where the debtor's principal place of business, or, where appropriate, the debtor's residence, is located or in such county as may be required by law. The lien shall be filed as soon as the obligation becomes delinquent or as soon as is practicable. After referral, any lien securing the indebtedness may not be released, except on full payment of the obligation, without the approval of the attorney representing the agency in the matter. (5) Where practicable, agencies shall maintain individual collection histories of each account in order to document attempted contacts with the debtor, the substance of communications with the debtor, efforts to locate the debtor and his assets, and other information pertinent to collection of the delinquent account. (6) Prior to referral of the obligation to the Attorney General, the agency shall: (A) verify the debtor's address and telephone number; (B) transmit no more than two demand letters to the debtor at the debtor's verified address. The first demand letter should be sent no later than 30 days after the obligation becomes delinquent. The second demand letter should be sent no sooner than 30 days, but not more than 60 days, after the first demand letter. Where agency procedures, statutory mandates, or the requirements of this section indicate that a lawsuit on the account may be filed by the Attorney General, the demand letters shall so indicate; (C) verify that the obligation is not uncollectible. Agencies shall adopt procedures to ensure that referred obligations are not uncollectible. By way of example, the following illustrations apply. (i) Bankruptcy. Agencies should prepare and timely file a proof of claim in the bankruptcy case of each debtor, subject to reasonable tolerances adopted by the agency. Copies of all such proofs of claims filed should be sent to the Attorney General absent the granting of a variance. Agencies shall maintain records of notices of bankruptcy filings, dismissals and discharge orders received from the United States bankruptcy courts to enable the agency to ascertain whether the collection of the claim is subject to the automatic stay provisions of the bankruptcy code or whether the debt has been discharged. Agencies may seek the assistance of the Attorney General in bankruptcy collection matters where necessary, including the filing of a notice of appearance and preparation of a proof of claim. (ii) Limitations. If the obligation is subject to an applicable limitations provision that would prevent collection as a matter of law, the obligation should not be referred unless circumstances indicate that limitations has been tolled or is otherwise inapplicable. (iii) Corporations. If a corporation has been dissolved, is in liquidation under Chapter 7 of the United States Bankruptcy Code, has forfeited its corporate privileges or charter, or, in the case of a foreign corporation, had its Certificate of Authority revoked, the obligation should not be referred unless circumstances indicate that the account is nonetheless collectible. (iv) Out-of-state debtors. If the debtor is an individual and is located out- of-state, or outside the United States, the matter should not be referred unless a determination is made that the domestication of a Texas judgment in the foreign forum would more likely than not result in collection of the obligation, or that the expenditure of agency funds to retain foreign counsel to domesticate the judgment and proceed with collection attempts is justified. (v) Deceased debtors. If the debtor is deceased, agencies should file a claim in each probate proceeding administering the decedent's estate. If such probate proceeding has concluded and there are no remaining assets of the decedent available for distribution, the delinquent obligation should be classified as uncollectible and not be referred. In cases where a probate administration is pending, or where no administration has been opened, all referred obligations should include an explanation of any circumstances indicating that the decedent has assets available to apply toward satisfaction of the obligation. (vi) Indicia of inability to pay. Where circumstances demonstrate a permanent inability of a debtor to pay or make payments toward the obligation, the obligations should not be referred. (7) Not later the 30th day after the date a state agency determines that normal agency collection procedures for an obligation owed to the agency have failed, the agency shall report the uncollected and delinquent obligation to the Attorney General for further collection efforts as hereinafter provided. (8) Agencies shall adopt reasonable tolerances, subject to review by the Attorney General, below which an obligation shall not be referred. Factors to be considered in establishing tolerances include the size of the debt; the existence of any security; the likelihood of collection through passive means such as the filing of a lien where applicable; expense to the agency and to the Attorney General in attempting to collect the obligation; and the availability of resources both within the agency and within the Office of the Attorney General to devote to the collection of the obligation. (9) An agency should utilize the "warrant hold" procedures of the Comptroller of Public Accounts authorized by the Texas Government Code, sec.403.055 to ensure that no treasury warrants are issued to debtors until the debt is paid. (c) Referral to attorneys. (1) Suit on the obligation by in-house attorneys. (A) Agencies seeking to use in-house attorneys to collect delinquent obligations through court proceedings must submit a written request to the Attorney General. Upon the written approval of the Attorney General, a state agency may bring suit upon a delinquent obligation through an attorney serving as a full-time employee of the agency. Where circumstances make it impractical to secure Attorney General approval for every delinquent obligation upon which a lawsuit is to be filed, a state agency may apply to the Attorney General for an authorization to bring suit on particular types of obligations through attorneys employed full-time by the agency. Such authorization, if given, must be renewed at the beginning of each fiscal year. A state agency shall comply with reporting requirements that the Attorney General may adopt pursuant to Texas Civil Statutes, Article 6252-5e. (B) After an obligation is referred to agency attorneys employed as in-house counsel, the obligation shall be reduced to judgment against all entities legally responsible for the obligation where: the lawsuit and judgment will make collection of the obligation more likely; and the expenditure of agency resources in recovering judgment on the obligation is justified. (C) Where authorized by law, the agency shall plead for and recover attorney's fees, investigative costs, and court costs in addition to the obligation. (D) Every judgment taken on a delinquent obligation should be abstracted and recorded by the agency in every county where the debtor: owns real property; operates an active business; is likely to inherit real property; owns any mineral interest; or has maintained a residence for more than one year. (2) Referral to the Attorney General. (A) Agencies are encouraged to explore the exchange of accounts with the Attorney General by computer tape or other electronic data transfer and to discuss any variances as may be appropriate. The agency and the Attorney General may agree upon an exchange of certain minimum account information necessary for collection efforts by the Attorney General. (B) Agencies may refer individual accounts to the Attorney General after the procedures set forth in subsection (a)(6)-(8) of this section. Individual accounts referred to the Attorney General should include by the following: (i) copies of all correspondence between the agency and the debtor; (ii) a log sheet (see subsection (a)(5) of this section) documenting all attempted contacts with the debtor and the result of such attempts; (iii) a record of all payments made by the debtor and, where practicable, copies of all checks tendered as payment; (iv) any information pertaining to the debtor's residence and his assets; and (v) copies of any permit application, security, or instrument giving rise to the obligation. (C) Delinquent accounts upon which a bond or other security is held shall be referred to the Attorney General no later than 60 days after becoming delinquent. All such accounts where the principal has filed for relief under federal bankruptcy laws shall be referred immediately, since collection of the security may obviate the need to file a claim or to appear in the bankruptcy case. (D) The Attorney General may decide that a particular obligation or class of obligations may be assigned after referral to the appropriate division within the Office of the Attorney General. (3) Referral to collection firms or private attorneys. (A) Prior approval of attorney general. No agency may contract with, retain, or employ any person other than a full time employee of the agency to collect a delinquent obligation without prior written approval of the Attorney General. Any existing arrangements must receive the written approval of the Attorney General to be renewed or extended in any fashion. (i) Approval of contract with private firm or attorney. Prior to contracting with, retaining, or employing a person other than a full-time employee of the agency to collect a delinquent obligation, an agency must submit a proposal to the Attorney General requesting the Attorney General to collect the obligation(s). Any agency contracting with any person other than a full-time employee of the agency for the collection of a delinquent obligation must submit the proposed contract to the Attorney General for written approval. The proposal must disclose any fee that the agency proposes to pay the private collection firm or attorney. The Attorney General may elect to undertake representation of the agency on the same or similar terms as contained in the proposed contract. If the Attorney General declines or is unable to perform the services requested, the Attorney General may approve the contract. If the Attorney General decides that the agency has not complied with this subsection, the Attorney General may: (I) decline to approve the contract; or (II) require the agency to submit or resubmit a proposal to the Attorney General for collection of the obligation in accordance with this subsection. (ii) If the Attorney General fails to act as set forth in subsection (a) of this section within 60 days of receipt of the proposed contract or receipt of additional information requested, the Attorney General is deemed to have approved the contract in accordance with this rule. (B) Requirements of proposed contracts with private persons presented for Attorney General approval. All contracts for collection of delinquent obligations must contain or be supported by a proposal containing the following: (i) a description of the obligations to be collected sufficient to enable the Attorney General to determine what measures are necessary to attempt to collect the obligation(s); (ii) explicit terms of the basis of any fee or payment for the collection of the obligation(s); (iii) a description of the individual accounts to be collected in the following respects: (I) the total number of delinquent accounts; (II) the dollar range; (III) the total dollar amount; (IV) a summary of the collection efforts previously made by the agency; and (V) the legal basis of the delinquent obligations to be collected. (C) Suggested requirements of proposed contracts with private persons presented for Attorney General approval. All contracts for collection of delinquent obligations should contain provisions stating the following: (i) that litigation on the delinquent account is prohibited unless the private person obtains specific written authorization from the agency and complies with the requirements of this rule; (ii) that the person is required to place any funds collected in an interest bearing account with amounts collected, plus interest, less collections costs, payable to the agency on a monthly basis or by direct deposit to the agency's account on a weekly basis with the agency billing once a month; in either case a listing of the accounts and amounts collected per account should be submitted to the agency upon deposit of the funds; (iii) that the person refer any bankruptcy notice to the agency within three working days of receipt; (iv) that the agency may recall any account without charge; (v) that the person may not settle or compromise the account for less than the full amount owed (including collection costs where authorized by statute of terms of the obligation) without written authority from the agency; (vi) that the person is not an agent of the agency but is an independent contractor; and providing further that the person will indemnify the agency for any loss incurred by his violation of state and federal debt collection statutes or by the negligence of the person, his employees or agents; (vii) that any dispute arising under the contract be submitted to a court of competent jurisdiction in Texas, unless any other venue is statutorily mandated, in which case the specific venue statute will apply. 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 November 20, 1992. TRD-9215621 Jerry Benedict Assistant Attorney General of Texas Office of the Attorney General Effective date: December 11, 1992 Proposal publication date: September 15, 1992 For further information, please call: (512) 463-2009 TITLE 4. AGRICULTURE Part II. Texas Animal Health Commission Chapter 31. Anthrax 4 TAC sec.31.1 The Texas Animal Health Commission adopts the repeal of sec.31.1, concerning anthrax, without changes to the proposed text as published in the September 18, 1992, issue of the Texas Register (17 TexReg 6405). This rule was repealed to allow a new rule to be adopted which sets forth diagnosis, quarantine, and disposal procedures for animals and premises affected with anthrax. No comments were received regarding adoption of the repeal. The repeal is adopted under the Agriculture Code, Texas Civil Statutes, Chapter 161, 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 November 20, 1992. TRD-9215642 Terry Beals, DVM Executive Director Texas Animal Health Commission Effective date: December 18, 1992 Proposal publication date: September 18, 1992 For further information, please call: (512) 479-6697 4 TAC sec.sec.31.1-31.3 The Texas Animal Health Commission (TAHC) adopts new sec. sec.31.1-31.3, concerning anthrax, without changes to the proposed text as published in the September 18, 1992, issue of the Texas Register (17 TexReg 6405). These rules are necessary to protect an owner's livestock from the disease anthrax. Veterinarians must follow specific procedures for submitting specimens from animals suspected to have anthrax; animals and premises are quarantined for anthrax when laboratory confirmation of the disease has been made. TAHC informs the owner of caretaker of the procedures that must be followed to treat, vaccinate, or dispose of infected or exposed animals and premises. Quarantines are released by TAHC after the herd has been vaccinated with an approved product, and after proper disposal of carcasses; when an animal has been diagnosed with anthrax it must be disposed of by burning it until it is thoroughly consumed with fire. No comments were received regarding adoption of the new sections. The new sections are adopted under the Agriculture Code, Texas Civil Statutes, Chapter 161, 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 November 20, 1992. TRD-9215641 Terry Beals, DVM Executive Director Texas Animal Health Commission Effective date: December 18, 1992 Proposal publication date: September 18, 1992 For further information, please call: (512) 479-6697 Chapter 32. Hearing and Appeal Procedures 4 TAC sec.sec.32.1-32.8 The Texas Animal Health Commission adopts the repeal of sec.sec.32.1-32.8, concerning hearing and appeal procedures, without changes to the proposed text as published in the September 22, 1992, issue of the Texas Register (17 TexReg 6521). These sections were repealed in order to remove old and outdated language and to reorganize and renumber the rules. No comments were received regarding adoption of the repeals. The repeals are adopted under the Agriculture Code, Texas Civil Statutes, Chapter 161, 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 November 20, 1992. TRD-9215644 Terry Beals, DVM Executive Director Texas Animal Health Commission Effective date: December 18, 1992 Proposal publication date: September 22, 1992 For further information, please call: (512) 479-6697 4 TAC sec.sec.32.1-32.6 The Texas Animal Health Commission adopts new sec.sec.32.1-32.6, concerning hearing and appeal procedures, without changes to the proposed text as published in the September 22, 1992, issue of the Texas Register (17 TexReg 6521). In order to better serve the public, these rules are necessary to provide guidelines for a person to appeal an adverse decision or order rendered by the Executive Director and Commission. A person who appeals an adverse decision or order of the commission will have a hearing before a hearing officer pursuant to the Administrative Procedure and Texas Register Act, Texas Civil Statutes, Article 6252-13f. Provisions have been made and are clearly set forth for continuances and postponements; subpoenas, depositions and witnesses; decisions and orders, and transcripts of hearings. No comments were received regarding adoption of the new sections. The new sections are adopted under the Agriculture Code, Texas Civil Statutes, Chapter 161, 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 November 20, 1992. TRD-9215643 Terry Beals, DVM Executive Director Texas Animal Health Commission Effective date: December 18, 1992 Proposal publication date: September 22, 1992 For further information, please call: (512) 479-6697 Chapter 34. Veterinary Biologics 4 TAC sec.34.1, sec.34.2 The Texas Animal Health Commission adopts the repeal of sec.34.1 and sec.34. 2, concerning veterinary biologics, without changes to the proposed text as published in the September 18, 1992, issue of the Texas Register (17 TexReg 6405). These sections were repealed in order to remove old and outdated language and to reorganize and renumber new rules. The new rules provide for definitions. Veterinary biologic companies who desire to market any veterinary biological product in the state, both restricted and nonrestricted must first obtain written approval from the executive director of the agency. No comments were received regarding adoption of the repeals. The repeals are adopted under the Agriculture Code, Texas Civil Statutes, Chapter 161, 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 November 20, 1992. TRD-9215646 Terry Beals, DVM Executive Director Texas Animal Health Commission Effective date: December 18, 1992 Proposal publication date: September 18, 1992 For further information, please call: (512) 479-6697 The Texas Animal Health Commission adopts new sec.34.1 and sec.34.2, concerning veterinary biologics, without changes to the proposed text as published in the September 18, 1992, issue of the Texas Register (17 TexReg 6406). These rules are necessary as the commission must determine the effectiveness of veterinary biologics and whether or not they would be beneficial to the livestock producers in this state. Frequent and numerous requests are received from biological firms requesting permission to market their products in this state. Definitions of terms, words, and phrases are defined for the benefit of the reader. Veterinary biologic companies who desire permission to market any veterinary biological product in this state, both restricted and nonrestricted, are required to secure written approval from the executive director of this agency. Restricted veterinary biologics may be purchased, administered, or used pursuant to specific criteria. No comments were received regarding adoption of the new sections. The new sections are adopted under the Agriculture Code, Texas Civil Statutes, Chapter 161, 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 November 20, 1992. TRD-9215645 Terry Beals, DVM Executive Director Texas Animal Health Commission Effective date: December 18, 1992 Proposal publication date: September 18, 1992 For further information, please call: (512) 479-6697 Chapter 35. Brucellosis Subchapter A. Eradication of Brucellosis in Cattle 4 TAC sec.35.4 The Texas Animal Health Commission adopts an amendment to sec.35.4, concerning entry and change of ownership of cattle, without changes to the proposed text as published in the September 22, 1992, issue of the Texas Register (17 TexReg 6522). The amendment is necessary to require all cattle entering the state from a foreign country which does not have a comparable brucellosis status for cattle, be vaccinated and tested for brucellosis. All sexually intact female cattle entering Texas from a foreign country must be placed under hold order and vaccinated after arrival, unless they were vaccinated prior to entry, or they are entering the state for slaughter, or quarantined feedlot purposes. Additionally, all sexually intact female cattle, whether vaccinated or not, and bulls will be held under quarantine for a retest for brucellosis in 60 to 180 days after arrival unless they are entering the state for slaughter or feeding in a quarantined feedlot, or are from a country with a comparable brucellosis status. The releasing test for female cattle can be done no sooner than 30 days after the animal had its first calf. An entry permit, issued by the commission, is required for entry of all cattle from a foreign country; steers and spayed heifers from Mexico must be identified with an "M" brand; spayed heifers must be identified with a spayed brand also. No comments were received regarding adoption of the amendment. The amendment is adopted under the Agriculture Code, Texas Civil Statutes, Chapters 161 and 163, 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 November 20, 1992. TRD-9215647 Terry Beals, DVM Executive Director Texas Animal Health Commission Effective date: December 18, 1992 Proposal publication date: September 22, 1992 For further information, please call: (512) 479-6697 Chapter 41. Fever Ticks 4 TAC sec.41.2 The Texas Animal Health Commission adopts an amendment to sec.41.2, concerning quarantine line; defining and establishing tick eradication areas, without changes to the proposed text as published in the September 18, 1992, issue of the Texas Register (17 TexReg 6407). The amendment is necessary to expand the quarantine line in Webb County to include the Tasita Pasture of the Las Minas Ranch. The quarantine line in Webb County has been expanded to include additional land in order to better protect livestock and premises from possible spread of fever ticks. No comments were received regarding adoption of the amendment. The amendment is adopted under the Agriculture Code, Texas Civil Statutes, Chapters 161 and 167, 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 November 20, 1992. TRD-9215648 Terry Beals, DVM Executive Director Texas Animal Health Commission Effective date: December 18, 1992 Proposal publication date: September 18, 1992 For further information, please call: (512) 479-6697 Chapter 43. Tuberculosis Subchapter A. Cattle 4 TAC sec.43.2 The Texas Animal Health Commission adopts an amendment to sec.43.2, concerning interstate movement requirements, without changes to the proposed text as published in the September 18, 1992, issue of the Texas Register (17 TexReg 6407). The amendment is necessary to require a tuberculosis test on all cattle entering this state from a foreign country and without a tuberculosis status comparable to Texas. A tuberculosis test is required for all sexually intact cattle 60 to 180 days following entry into Texas from a foreign country that does not have a recognized Tuberculosis status comparable to Texas. Cattle entering Texas destined to slaughter or to a quarantined feedlot are exempt. 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 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 November 20, 1992. TRD-9215649 Terry Beals, DVM Executive Director Texas Animal Health Commission Effective date: December 18, 1992 Proposal publication date: September 18, 1992 For further information, please call: (512) 479-6697 Chapter 47. Requirements and Standards for Approved Personnel 4 TAC sec.sec.47.1-47.6 The Texas Animal Health Commission adopts the repeal of sec.sec.47.1-47.6, concerning requirements and standards for approved personnel, without changes to the proposed text as published in the September 18, 1992, issue of the Texas Register (17 TexReg 6408). These rules were repealed to allow new rules to be adopted which set forth general requirements and standards for personnel who work in the Texas Bovine Brucellosis Program. No comments were received regarding adoption of the repeals. The repeals are adopted under the Agriculture Code, Texas Civil Statutes, Chapter 161, 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 November 20, 1992. TRD-9215651 Terry Beals, DVM Executive Director Texas Animal Health Commission Effective date: December 18, 1992 Proposal publication date: September 18, 1992 For further information, please call: (512) 479-6697 The Texas Animal Health Commission adopts new sec.sec.47.1-47.6, concerning requirements and standards for approved personnel. Section 47.2 is adopted with changes to the proposed text as published in the September 18, 1992, issue of the Texas Register (17 TexReg 6408). Sections 47.1, 47.3-47.6 are adopted without changes and will not be republished. A formatting change was made in sec.47.2(c) by changing subsection (c)(1) and (2) to subsection (d) . These rules are necessary to set general requirements and standards for personnel who work in the Texas Bovine Brucellosis Program; to set requirements for brucellosis testing; brucellosis calfhood vaccination; suspension or revocation of approved personnel status and the manner in which approved status can be restored. Procedures are clearly detailed on: standards of personnel working in the Texas Bovine Brucellosis Program pertaining to collecting and submission of blood samples and performing the card test and vaccination of cattle; approved personnel must strictly follow procedures for use of brucellosis vaccine and make sure each vaccinated heifer is identified by tattoo and official vaccination eartag and that the vaccination information is recorded on the health certificate for each animal. Approved personnel may be suspended, or have their status revoked when it has been determination that specific violations of regulations has occurred; restoration of approved personnel status can be made if the applicant meets all prerequisites for initial approval. No comments were received regarding adoption of the new sections. The new sections are adopted under the Agriculture Code, Texas Civil Statutes, Chapter 161, which provides the commission with the authority to adopt rules and sets forth the duties of this commission to control disease. sec.47.2. General Requirements. This regulation sets the standards for personnel who perform work in the Texas Bovine Brucellosis Program pursuant to the Texas Agriculture Code, sec.163.064. Personnel may perform bovine brucellosis work in Texas as follows. (1) Collecting and submitting blood samples. Only approved personnel may collect and submit blood samples. Approved personnel and employees of approved veterinarians may apply official eartags and backtags and record individual identification on the test record. (2) Performing the card test. Only approved personnel who hold valid card test permits may conduct the card test. (3) Vaccinating. Only approved personnel may calfhood vaccinate eligible heifers for brucellosis. Approved personnel and employees of approved veterinarians may affix vaccination eartags and record vaccinations on the vaccination certificate. Only Texas Animal Health Commission (TAHC) veterinarians and inspectors and USDA Veterinary Medical Officers and Animal Health Technicians may adult vaccinate cattle for brucellosis. (4) An approved veterinarian's technician or other employee must work under the direct supervision of an approved veterinarian while performing brucellosis work as permitted herein. The approved veterinarian is responsible for assuring that approved veterinarian's technicians and other employees working under his/her supervision comply with all TAHC regulations. 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 November 20, 1992. TRD-9215650 Terry Beals, DVM Executive Director Texas Animal Health Commission Effective date: December 18, 1992 Proposal publication date: September 18, 1992 For further information, please call: (512) 479-6697 Chapter 53. Livestock Markets 4 TAC sec.53.1 The Texas Animal Health Commission adopts the repeal of sec.53.1, concerning livestock markets, without changes to the proposed text as published in the September 18, 1992, issue of the Texas Register (17 TexReg 6411). This rule was repealed to allow the adoption of a new rule which provides the livestock industry and public with information concerning requirements for operating livestock markets; criteria for releasing animals at the market; quarantine of livestock showing evidence of infection of exposure to infectious, contagious, or communicable disease, and identification of cattle, sows, and boars. No comments were received regarding adoption of the repeal. The repeal is adopted under the Agriculture Code, Texas Civil Statutes, Chapter 161, 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 November 20, 1992. TRD-9215653 Terry Beals, DVM Executive Director Texas Animal Health Commission Effective date: December 18, 1992 Proposal publication date: September 18, 1992 For further information, please call: (512) 479-4497 Chapter 53. Market Regulation 4 TAC sec.sec.53.1-53.5 The Texas Animal Health Commission (TAHC) adopts new sec. sec.53.1-53.5, concerning market regulation, without changes to the proposed text as published in the September 18, 1992, issue of the Texas Register (17 TexReg 6411). These rules are necessary to provide the livestock industry and public with information concerning requirements for operating livestock markets. A livestock market must furnish facilities which should include, but not be limited to, at least one cattle chute; a clean and disinfected sales area, scales, and alleyways; work-space for the TAHC representative and suitable laboratory space if a laboratory is not located in close proximity; and arrange for the services of a veterinarian approved by TAHC and accredited by USDA to perform brucellosis work. All livestock consigned from the market must be inspected, examined, and tested before they are released; all livestock which show evidence of infection with, or exposure to brucellosis, or any other infectious, contagious or communicable disease and feral swine must be placed in quarantined pens; consignments of sows and boars over six months of age and cattle that are tested must be properly identified; proper records of all transactions must be kept for two years on all cattle and swine consigned for sale through a market. No comments were received regarding adoption of the new sections. The new sections are adopted under the Agriculture Code, Texas Civil Statutes, Chapter 161, 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 November 20, 1992. TRD-9215652 Terry Beals, DVM Executive Director Texas Animal Health Commission Effective date: December 18, 1992 Proposal publication date: September 18, 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 poultry, without changes to the proposed text as published in the September 22, 1992, issue of the Texas Register (17 TexReg 6523). The amendment is necessary to remove the reference to Arkansas Infectious Bronchitis area as it is no longer required. The poultry industry has requested use of Mycoplasma gallisepticum vaccine in chickens and turkeys to prevent a chronic respiratory disease. Since Arkansas Infectious Bronchitis vaccine can now be used state-wide without restriction there is no longer a need for a designated area where the vaccine can be used. Mycoplasma gallisepticum vaccine can be used in flocks where a confirmed diagnosis of the disease has been made by an approved laboratory. A written permit from the commission is required for use of the vaccine. The disease causes chronic respiratory disease of chickens and infectious sinusitis in turkeys. 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 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 November 20, 1992. TRD-9215654 Terry Beals, DVM Executive Director Texas Animal Health Commission Effective date: December 18, 1992 Proposal publication date: September 22, 1992 For further information, please call: (512) 479-6697 Chapter 59. General Practice and Procedures 4 TAC sec.59.1 The Texas Animal Health Commission adopts an amendment to sec.59.1, concerning definitions, without changes to the proposed text as published in the September 18, 1992, issue of the Texas Register (17 TexReg 6412). There is no new language in this amendment. The only change made to the rule is in punctuation of the definitions. There are no changes to the text, only punctuation. 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 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 November 20, 1992. TRD-9215655 Terry Beals, DVM Executive Director Texas Animal Health Commission Effective date: December 18, 1992 Proposal publication date: September 18, 1992 For further information, please call: (512) 479-6697 4 TAC sec.59.2 The Texas Animal Health Commission adopts an amendment to sec.59.2, concerning definitions, without changes to the proposed text as published in the September 18, 1992, issue of the Texas Register (17 TexReg 6412). The amendment is necessary to clarify the intent of the rule. The rule was amended for clarification purposes only. The executive director, because of individual hardship to a herd owner, may vary or waive any provision of commission rules, provided the waiver is not in conflict with sound epidemiologic principles. Individual hardship means unforeseen circumstances that affect the owner's operation and are beyond the owner's control. 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 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 November 20, 1992. TRD-9215656 Terry Beals, DVM Executive Director Texas Animal Health Commission Effective date: December 18, 1992 Proposal publication date: September 18, 1992 For further information, please call: (512) 479-6697 4 TAC sec.59.3 The Texas Animal Health Commission adopts the repeal of sec.59.3, concerning designation of commission vice chairman, without changes to the proposed text as published in the September 22, 1992, issue of the Texas Register (17 TexReg 6524). The rule was repealed to allow the adoption of a new rule which has been reorganized. No comments were received regarding adopting of the repeal. The repeal is adopted under the Agriculture Code, Texas Civil Statutes, Chapter 161, 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 November 20, 1992. TRD-9215658 Terry Beals, DVM Executive Director Texas Animal Health Commission Effective date: December 18, 1992 Proposal publication date: September 22, 1992 For further information, please call: (512) 479-6697 The Texas Animal Health Commission adopts new sec.59.3, concerning designation of commission vice chair and ad hoc chair, without changes to the proposed text as published in the September 22, 1992, issue of the Texas Register (17 TexReg 6524). The rule is necessary to designate a Commission Vice Chair and ad hoc chair. The vice chair acts for the chair when the chair is absent or unavailable; an ad hoc chair may act in the event neither the chair nor the vice chair are available to act. The vice chair and ad hoc chair both have the same powers and authority as those of the chair. No comments were received regarding adoption of the new section. The new section is adopted under the Agriculture Code, Texas Civil Statutes, Chapter 161, which provides the commission with 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 November 20, 1992. TRD-9215657 Terry Beals, DVM Executive Director Texas Animal Health Commission Effective date: December 18, 1992 Proposal publication date: September 22, 1992 For further information, please call: (512) 479-6697 4 TAC sec.sec.59.4 The Texas Animal Health Commission adopts the repeal of sec.59.4, concerning cooperation with the Texas Department of Public Safety, without changes to the proposed text as published in the September 22, 1992, issue of the Texas Register (17 TexReg 6524). The rule was repealed. A new rule which has been reorganized has been proposed to replace it. No comments were received regarding adoption of the repeal. The repeal is adopted under the Agriculture Code, Texas Civil Statutes, Chapter 161, 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 November 20, 1992. TRD-9215660 Terry Beals, DVM Executive Director Texas Animal Health Commission Effective date: December 18, 1992 Proposal publication date: September 22, 1992 For further information, please call: (512) 479-6697 The Texas Animal Health Commission adopts new sec.59.4, concerning cooperation with the Texas Department of Public Safety, without changes to the proposed text as published in the September 22, 1992, issue of the Texas Register (17 TexReg 6524). This rule is necessary to provide information to the Texas Department of Public Safety regarding health papers for animals and enforcement of entry requirements. This agency cooperates with the Texas Department of Public Safety (TDPS) regarding movement of livestock by providing information concerning health papers and permits required for entry of livestocks into Texas; this agency investigates possible entry violations reported to it by the TDPS. No comments were received regarding adoption of the new section. The new section is adopted under the Agriculture Code, Texas Civil Statutes, Chapter 161, 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 November 20, 1992. TRD-9215659 Terry Beals, DVM Executive Director Texas Animal Health Commission Effective date: December 18, 1992 Proposal publication date: September 22, 1992 For further information, please call: (512) 479-6697 TITLE 16. ECONOMIC REGULATION Part VIII. Texas Racing Commission Chapter 303. General Provisions Subchapter A. Organization of the Commission 16 TAC sec.303.4 The Texas Racing Commission adopts an amendment to sec.303.4, concerning meetings, without changes to the proposed text as published in the September 15, 1992, issue of the Texas Register (17 TexReg 6351). The amendment is adopted to ensure that the commission operates efficiently and effectively. The amendment establishes the procedure for placing an item on the agenda for commission meetings. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 179e, sec.3.02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; and Texas Civil Statutes, Article 6252-13a, sec.4, which authorizes the commission to adopt rules of practice for all formal and informal procedures. 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 November 9, 1992. TRD-9215506 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: December 10, 1992 Proposal publication date: September 15, 1992 For further information, please call: (512) 794-8461 Subchapter B. Powers and Duties of the Commission 16 TAC sec.303.43 The Texas Racing Commission adopts new sec.303.43, concerning allocation of live race dates for Class 1 racetracks, with changes to the proposed text as published in the September 15, 1992, issue of the Texas Register (17 TexReg 6351). The new section is adopted to ensure that the economic benefits from pari- mutuel racing are maximized. The new section provides that the commission will not grant overlapping race dates for Class 1 racetracks for the same breed of a horse. The changes from the proposed text authorize 17 weeks of quarter horse racing except as otherwise agreed to by the appropriate breed registries, sets a minimum number of race days per week, and authorizes a racetrack to "return" undesired race weeks to the commission for allocation to another racetrack. On November 4, 1992, at the request of over 50 individuals, a public hearing was held regarding the proposed section. Seven people provided testimony, each of whom represented a racetrack regulated by the commission or an organization involved in the pari-mutuel racing industry in Texas. In addition, several people testified to the commission at its regular meeting on November 9, 1992. Written comments on the proposed section were received from one individual and from the Texas Thoroughbred Breeders Association (TTBA), and Texas Quarter Horse Association (TQHA), Bandera Downs, and Retama Park Association. Retama, TTBA, and the individual commenter, as well as five of the seven individuals testifying on November 4 were in favor of the section generally. The individual filing written comments suggested, as well as TQHA, that the section be revised to provide for 17 weeks of quarter horse racing. The commission agrees with this comment and the section was revised accordingly. Bandera Downs suggested that the section be revised to ensure Class 2 racetracks would receive some of the optimum dates in the racing year, e.g. March through Labor Day. The commission disagrees with the comment in that the purpose of the section is to address race dates for Class 1 racetracks and a guarantee of particular race dates for particular racetracks is inappropriate in this section. TQHA also suggested in their written comments that the commission wait to adopt this section. The commission disagrees with the comment in that part of the purpose of the section is to assist the Class 1 racetracks which have been licensed but not yet built to obtain financing for the racetrack construction as quickly as possible. Delaying final adoption of the section will not serve that purpose. The amendment is adopted under Texas Civil Statutes, Article 179e, sec.3.02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; and sec.8.01, which authorizes the commission to allocate race dates to horse racetracks. sec.303.43. Allocation of Live Race Dates for Class 1 Racetracks. (a) The commission may not grant overlapping live race dates for the same breed of horse at Class 1 racetracks unless the overlapping is agreed to in writing by the affected Class 1 racetracks. (b) For any year in which there are less than three Class 1 racetracks in Texas holding final non-appealable licenses, the commission shall allocate to each such racetrack at least 17 consecutive weeks of live thoroughbred racing, at least 17 consecutive weeks of live quarter horse racing, unless otherwise agreed to by the appropriate breed registry. Each week of live racing shall consist of a minimum of four consecutive race days. If a Class 1 racetrack informs the commission in writing that it does not desire the full number of weeks of racing for either breed, the commission may allocate the extra weeks to another racetrack. 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 November 9, 1992. TRD-9215505 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: December 10, 1992 Proposal publication date: September 15, 1992 For further information, please call: (512) 794-8461 Chapter 309. Operation of Racetracks Subchapter B. Horse Racetracks Facilities for Horses 16 TAC sec.309.149 The Texas Racing Commission adopts an amendment to sec.309.149, concerning pre-race holding area, without changes to the proposed text as published in the September 15, 1992, issue of the Texas Register (17 TexReg 6351). The amendment is adopted to ensure that pari-mutuel racing is safe for the participants and is of utmost integrity. The amendment deletes the requirement that the pre-race holding area at a racetrack be located adjacent to the paddock. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 179e, sec.3.02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; under sec.6.06, which authorizes the commission to adopt rules relating to the operation of racetracks. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on November 9, 1992. TRD-9215511 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: December 10, 1992 Proposal publication date: September 15, 1992 For further information, please call: (512) 794-8461 16 TAC sec.309.151 The Texas Racing Commission adopts an amendment to sec.309.151, concerning test barn, without changes to the proposed text as published in the September 15, 1992, issue of the Texas Register (17 TexReg 6352). The amendment is adopted to ensure that pari-mutuel racing is safe for the participants and is of utmost integrity. The amendment deletes the requirement that the test barn be located adjacent to the paddock. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 179e, sec.3.02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; under sec.6.06, which authorizes the commission to adopt rules relating to the operation of racetracks. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on November 9, 1992. TRD-9215502 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: December 10, 1992 Proposal publication date: September 15, 1992 For further information, please call: (512) 794-8461 Facilities for Employees 16 TAC sec.309.181 The Texas Racing Commission adopts an amendment to sec.309.181, concerning commission veterinarian's office, without changes to the proposed text as published in the September 15, 1992, issue of the Texas Register (17 TexReg 6352). The amendment is adopted to ensure that pari-mutuel racing is safe for the participants and is of utmost integrity. The amendment deletes the requirement that the commission veterinarian office be located adjacent to the paddock. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 179e, sec.3.02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; under sec.6.06, which authorizes the commission to adopt rules relating to the operation of racetracks. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on November 9, 1992. TRD-9215510 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: December 10, 1992 Proposal publication date: September 15, 1992 For further information, please call: (512) 794-8461 Chapter 313. Officials and Rules of Horse Racing Subchapter A. Officials Duties of Stewards 16 TAC sec.313.21 The Texas Racing Commission adopts an amendment to sec.313.21, concerning eligibility for appointment, without changes to the proposed text as published in the September 15, 1992, issue of the Texas Register (17 TexReg 6352). The amendment is adopted to ensure that the officials supervising pari-mutuel racing are highly qualified. The amendment clarifies the vision requirements to serve as a steward. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 179e, sec.3.02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; under sec.3.07, which authorizes the commission to adopt rules relating to the examination of stewards. 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 November 9, 1992. TRD-9215503 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: December 10, 1992 Proposal publication date: September 15, 1992 For further information, please call: (512) 794-8461 Chapter 319. Veterinary Practices and Drug Testing Subchapter A. General Provisions 16 TAC sec.319.14 The Texas Racing Commission adopts an amendment to sec.319.14, concerning possession of controlled substances, without changes to the proposed text as published in the September 15, 1992, issue of the Texas Register (17 TexReg 6352). The amendment is adopted to ensure that the commission's rules are consistent with the appropriate statutes. The amendment changes the statutory citation to the Texas Controlled Substances Act. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 179e, sec.3.02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; and sec.14.03, which authorizes the commission to adopt rules prohibiting the illegal influencing of a race. 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 November 9, 1992. TRD-9215509 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: December 10, 1992 Proposal publication date: September 15, 1992 For further information, please call: (512) 794-8461 Chapter 321. Pari-mutuel Wagering Subchapter B. Distribution of Pari-mutuel Pools 16 TAC sec.321.117 The Texas Racing Commission adopts an amendment to sec.321.117, concerning tri-superfecta, without changes to the proposed text as published in the September 15, 1992, issue of the Texas Register (17 TexReg 6353). The amendment is adopted to ensure that pari-mutuel wagering is conducted in a manner that is of the utmost integrity and is profitable for the state. The amendment authorizes racetracks to offer a tri-superfecta wager on two nonconsecutive races. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 179e, sec.3.02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; and sec.11.01, which authorizes the commission to adopt rules to regulate pari-mutuel wagering. 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 November 9, 1992. TRD-9215508 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: December 10, 1992 Proposal publication date: September 15, 1992 For further information, please call: (512) 794-8461 Subchapter C. Simulcast Wagering Simulcasting at Horse Racetracks 16 TAC sec.321.235 The Texas Racing Commission adopts an amendment to sec.321.235, concerning priority of signals, without changes to the proposed text as published in the September 15, 1992, issue of the Texas Register (17 TexReg 6353). The amendment is adopted to ensure that high-quality wagering opportunities are available throughout the state at all times. The amendment authorizes a Class 1 or 2 racetrack to receive a simulcast signal from any Class 1 racetrack in Texas that is conducting live races. Written comments were received regarding the proposal from Bandera Downs and the Texas Horsemen's Benevolent and Protective Association Committee at Bandera Downs. The commenters suggest that the proposal will permit a Class 1 racetrack in the same market area as Bandera Downs to conduct wagering on simulcast races at the same time that Bandera Downs is conducting live racing. According to the commenters, such a situation would negatively affect the attendance and wagering at Bandera Downs and cause economic hardship to Bandera Downs and the horsemen who participate in live racing at the racetrack. The commission disagrees with the comments in that the authority to conduct wagering on simulcast races is subject to commission approval of the simulcasting contract and the agreement of the statewide horsemen's organization. This should provide adequate safeguards for all markets in the state. The amendment is adopted under Texas Civil Statutes, Article 179e, sec.3.02, which authorizes the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; and sec.11.011, which authorizes the commission to adopt rules relating to wagering on simulcast races. 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 November 9, 1992. TRD-9215507 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: December 10, 1992 Proposal publication date: September 15, 1992 For further information, please call: (512) 794-8461 TITLE 19. EDUCATION Part II. Texas Education Agency Chapter 61. School Districts Subchapter A. Operations 19 TAC sec.61.21 The Texas Education Agency (TEA) adopts an amendment to sec.61.21, concerning year-round schools, without changes to the proposed text as published in the September 22, 1992, issue of the Texas Register (17 TexReg 6528). The amendment is necessary to implement changes introduced in Senate Bill 351 and House Bill 2885. This legislation changed the number of days required for student attendance, the number of in-service/preparation days, and established a certain number of hours of required in-service training. No comments were received regarding adoption of the amendment. The amendment is adopted under the Texas Education Code, sec.sec.21.008-21. 010, which authorize the State Board of Education to promulgate rules under which a school district may operate its school year-round. 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 November 20, 1992. TRD-9215587 Criss Cloudt Director of Policy Planning and Evaluation Texas Education Agency Effective date: December 11, 1992 Proposal publication date: September 22, 1992 For further information, please call: (512) 463-9701 Chapter 69. Proprietary Schools and Veterans Education Subchapter A. General Provisions 19 TAC sec.69.3 The Texas Education Agency (TEA) adopts the repeal of sec.69.3, concerning the memorandum of understanding for regulation of proprietary schools, without changes to the proposed text as published in the September 22, 1992, issue of the Texas Register (17 TexReg 6529). Chapter 69 formerly included rules governing proprietary schools and veterans education. Those rules are currently located in Chapter 175. Due to an administrative error, sec.69.3 duplicates exactly the language of sec.175.3. The repeal corrects this problem. No comments were received regarding adoption of the repeal. The repeal is adopted under the Texas Education Code, Chapter 32, which authorizes the State Board Of Education to promulgate rules necessary for carrying out the provisions of the Texas Proprietary School 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 November 20, 1992. TRD-9215586 Criss Cloudt Director of Policy Planning and Evaluation Texas Education Agency Effective date: December 11, 1992 Proposal publication date: September 22, 1992 For further information, please call: (512) 463-9701 Chapter 141. Teacher Certification Subchapter B. Certificate Issuance Procedures 19 TAC sec.141.26 The Texas Education Agency (TEA) adopts an amendment to sec.141.26, concerning the schedule of fees for certification services, without changes to the proposed text as published in the October 6, 1992, issue of the Texas Register (17 TexReg 6847). sec.The section is necessary to fund enhanced certification services. The amendments increase the fees charged for certification services performed by the central education agency and regional education service centers. An individual commented against the proposed fee increase for paraprofessional certificates and questioned the need to retain certification requirements for paraprofessionals. The agency disagrees with the comments because paraprofessional organizations have voiced support for certification. Enhanced certification services necessitate the fee increase. The amendment is adopted under the Texas Education Code, sec.13.032(h), which authorizes the State Board of Education to fix and require payment of a fee as a condition to the issuance of a teaching certificate. 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 November 20, 1992. TRD-9215585 Criss Cloudt Director of Policy Planning and Evaluation Texas Education Agency Effective date: December 11, 1992 Proposal publication date: October 6, 1992 For further information, please call: (512) 463-9701 19 TAC sec.141.27 The Texas Education Agency (TEA) adopts an amendment to sec.141.27, concerning teacher certification, with changes to the proposed text as published in the September 22, 1992, issue of the Texas Register (17 TexReg 6530). The section is necessary to increase the number of certified professional educators available to public schools. The amendments provide more flexibility for Texas certified, degreed teachers seeking additional areas of certification by eliminating the admission prerequisite of previous teaching experience for required internships. The changes in subsection (f) remove the requirement that experience in lieu of an internship must be earned on a permit. They also authorize previous classroom teaching to waive the internship requirement, provided the experience was creditable for salary increment purposes and earned at the grade level and in the subject or assignment area sought. The changes in subsection (g) require a teacher seeking certification based on previous experience to be recommended by an employing superintendent. No public comments were received regarding adoption of the amendment. The amendment is adopted under the Texas Education Code, sec.13.0321, which authorizes the State Board of Education to promulgate rules prescribing qualifications for a certified teacher to gain additional certification to teach at a grade level or in a subject area not covered by the teacher's certificate. sec.141.27. Issuance of Certificates Based on Examination. (a) -(e) (No change.) (f) The internship. (1) The intern shall be provided time within the instructional day to observe the supervising teacher and other experienced teachers in the subject or at the level for which certification is sought. (2) The intern, regardless of career ladder assignment level, must receive two appraisals. (3) Internship shall begin no later than October 1 and extend through the last day of instruction. (4) A teacher who has completed a year of classroom teaching experience, creditable for salary increment purposes as defined in Chapter 121 of this title (relating to Public School Finance-Personnel), in the subject or assignment area and at the grade level of the certificate sought is exempt from the internship requirement. (g) Recommendation for additional certification. (1) To be eligible for certification in a subject area or at a level for which an internship is required, the intern must receive appraisals from two appraisers, verification of successful completion of the internship, and a recommendation from the employing superintendent. (2) To be eligible for certification based on creditable experience in lieu of an internship, the teacher must have verification of the experience, evidence of a valid classroom teaching certificate at the time the experience was earned, and recommendation from the employing superintendent. 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 November 20, 1992. TRD-9215584 Criss Cloudt Director of Policy Planning and Evaluation Texas Education Agency Effective date: December 11, 1992 Proposal publication date: September 22, 1992 For further information, please call: (512) 463-9701 Chapter 176. Driver Training Schools Subchapter B. Minimum Standards for Operation of Texas Driver Training Schools 19 TAC sec.176.33 The Texas Education Agency (TEA) adopts amendments to sec.176.33, concerning driver training schools, without changes to the proposed text as published in the September 22, 1992, issue of the Texas Register (17 TexReg 6531). The amendments are necessary to maintain the level of staffing required to provide minimum supervisory assistance to driver training schools. The amendments increase the fee for the uniform certificate of completion purchased by schools offering driving safety courses. The Driver Training School Advisory Commission commented in favor of the amendments. The amendments are proposed under the Texas Civil Statutes, Article 4413(29c), sec.4 and sec.13, which authorize the commissioner of education, with approval of the State Board of Education, to increase certain fees related to driver training schools, including the fee for the uniform certificate of completion purchased by schools offering driving safety courses. sec.176.33. Application Fees and Other Charges. (a)-(c) (No change.) (d) License, application, and registration fees shall be collected by the commissioner and deposited with the state treasurer in accordance with the following schedule: (1)-(15) (No change.) (16) fee for certificate of course completion is $1.10. 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 November 20, 1992. TRD-9215583 Criss Cloudt Director of Policy Planning and Evaluation Texas Education Agency Effective date: December 11, 1992 Proposal publication date: September 22, 1992 For further information, please call: (512) 463-9701 TITLE 22. EXAMINING BOARDS Part XXII. Texas State Board of Public Accountancy Chapter 501. Professional Conduct Other Responsibilities and Practices 22 TAC sec.501.47 The Texas State Board of Public Accountancy adopts an amendment to sec.501. 47, concerning firm names, without changes to the proposed text as published in the September 22, 1992, issue of the Texas Register (17 TexReg 6533). The amendment is necessary in order to ensure that the names of CPA firms do not imply that firms are experts or specialists in certain fields, and to prevent firm names from implying expertise related to certain geographical areas. The amendment will restrict the firm names that are permitted to register with the board. An individual commented that he was of the opinion that a "truthful description regarding geographical area or type of services offered would not only not be misleading to the public, but would be descriptive to the public." The board disagrees with the comment because it believes that a geographical description in the firm name could mislead the public into believing that the firm has an expertise peculiar to the area. The board also believes that descriptive words indicating type of service imply an expertise or speciality in the area when they are included in the firm name. The board does not recognize specialties; therefore, the implication is misleading. The amendment is adopted under Texas Civil Statutes, Article 41a-1, sec.6(a), which provide the Texas State Board of Public Accountancy with the authority to promulgate rules relating to firm names. 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 November 18, 1992. TRD-9215548 William Treacy Executive Director Texas State Board of Public Accountancy Effective date: December 10, 1992 Proposal publication date: September 22, 1992 For further information, please call: (512) 450-7066 TITLE 28. INSURANCE Part II. Texas Workers' Compensation Commission Chapter 120. Employers 28 TAC sec.120.2 The Texas Workers' Compensation Commission adopts amendments to sec.120.2 concerning employers' report of injury, with changes to the proposed text as published in the May 26, 1992 issue of the Texas Register (17 TexReg 3821). The change involved addition of a definition of "knowledge" which ties employer reporting to a time-certain event. The amendment establishes the same reporting requirements for all employers, whether they have purchased workers' compensation insurance or not and it is necessary to assure that occupational diseases are reported at the earliest time possible. Comments opposed to the amendment of sec.120.2 were received from Shell Oil Company; Southwestern Bell Telephone; Baylor University Medical Center; and Exxon Company, U.S.A. Opposed to the requirement that employers report occupational diseases, "of which they have knowledge," because it exceeds the statutory authority of the Commission and would violate the patient-physician confidentiality doctrine. The commission disagrees. The Act requires employer reporting in two different places. First, sec.5.05 which requires reporting of occupational diseases reported by the employee. Additionally, sec.7.03(b) requires employers to report occupational diseases based on their knowledge of the disease. This requirement in sec.7.03(b) applies to employers, whether covered or not, based on the schedule in sec.7.01. The commission does have the statutory authority to require employers to report occupational diseases of which they have knowledge and the requirement to report to the commission an occupational disease which the employer has knowledge of through its doctor does not exceed the commission's statutory authority or violate the confidential relationship between the physician and patient. The rule doesn't deal with the circumstance of an employer who employs a doctor who examines employees following any exposure or incident when the doctor advises the employee to ignore the incident. The commission agrees. The rule is clarified to address the employer's responsibility when a doctor employed by the employer diagnoses an occupational disease. The rule does not clarify the requirements for filing reports when the disease is not claimed to be related to the work. The commission disagrees. The rule requires employers to report occupational diseases. Diseases and other conditions arising outside the work and without connection to the work are not reported by the employer. However, if the employer is aware, through medical report or through some other means, that the employee has a disease which arose from the work, whether the employee claims a relationship or not, the employer must report. Opposed to the proposed amendment since it poses a potential breach of the medical confidentiality between employer's physicians and the employees whom they examine. It is conceivable that a company physician could diagnose an occupational disease that an employee would not wish to disclose to a public agency or to others. For example, many individuals would not want to disclose having AIDS, hepatitis, tuberculosis, or stress-related illness all of which potentially could be occupational diseases compensable under Texas Workers' Compensation law. Once a disease is reported under sec.120.2, the employee's privacy cannot be guaranteed. The commission disagrees. If the employee suffers from a disease as a result of exposure to occupational hazards, the employee is entitled to benefits subject to the Texas Workers' Compensation Act. Those benefits cannot be guaranteed without reporting the disease. Failing to report such an occupational disease is a significant disservice to the employee. The new section is proposed under Texas Civil Statutes, Article 8308-2.09(a) , which authorizes the commission to adopt rules necessary to administer the Act, Texas Civil Statutes, Article 8308-2.11(f), which allows the executive director to establish the form, manner, and procedure for transmission of information to the commission, and Texas Civil Statutes, Article 8308-7.03(b), which requires the commission to promulgate rules and prescribe the form and manner of employer reports. sec.120.2. Employer's Report of Injury. (a) The employer shall file a written report for each death, each occupational disease of which the employer has knowledge, and each injury that results in more than one day's absence from work for the injured employee. As used in this section, "knowledge" means receipt of written or verbal information regarding diagnosis of an occupational disease, or the diagnosis of an occupational disease through direct examination or testing by a doctor employed by the employer. (b) The report shall be filed as the Employer's First Report of Injury Form TWCC 1 prescribed by the commission. (c) The report shall be filed with the commission and the carrier, with a copy sent to the employee's mailing address, not later than the eighth day after the receipt of notice of occupational disease, or the employee's first day of absence from work due to injury or death. For purposes of this section, a report is filed when personally delivered, or postmarked. (d) If a report has not been received by the commission or the carrier, the employer has the burden of proving that the report was filed within the required time frame. The employer has the burden of proving that good cause exists if the employer failed to file the report. (e) An employer who fails to file the report without good cause may be assessed an administrative penalty not to exceed $500. An employer who fails to file the report without good cause waives the right to reimbursement of voluntary benefits even if no administrative penalty is assessed. 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 November 20, 1992. TRD-9215604 Susan Cory General Counsel Texas Workers' Compensation Commission Effective date: January 1, 1993 Proposal publication date: May 26, 1992 For further information, please call: (512) 440-3592 28 TAC sec.120.3 The Texas Workers' Compensation Commission adopts new sec.120.3 concerning employers' supplemental report of injury, with changes to the proposed text as published in the May 26, 1992, issue of the Texas Register (17 TexReg 3822). The changes were: in subsection (a) where a time frame for application was inserted, moving that provision from former subsection (b)(2); in subsection (b) where the requirements that had been in (b)(2) and (c)(2) were incorporated and modified to require the employer to supply the report to the injured worker at the same time the report is provided to the carrier; in subsections (b)(1) and (2) which were deleted; in subsection (c) where the requirements that were in (b)(1) and (c)(1) are combined and the employer required to provide notice to the injured employee; addition of a new subsection (d) establishing a burden of proof requirement. This new section establishes supplemental reporting requirements for employers, sets the conditions under which those reports are required, and identifies where those supplemental reports must be filed. Comments recommending changes to sec.120.3 were received from: Texas Association of Business; TUElectric; Levi Strauss & Co.; Brown & Root, Inc.; and the Alliance of American Insurers. Those comments and the commission responses are as follows: Personal time off which causes a fluctuation in earnings should be reported along with the reason for the time being taken. The commission disagrees. The rule should require reporting only fluctuations related to the injury. Subsection (d) is burdensome for employers with rotating shifts that pay shift differential. It should be simplified to require filing the TWCC-6 only when post-injury weekly earnings deviate 10% or more from pre-injury weekly earnings. The commission disagrees. The carrier must adjust benefits for every deviation resulting from the injury, not just those of a specific magnitude. The reference to layoff should be in subsection (b). The commission disagrees. Recommended changes to subsection (b) will remove the requirement to provide a reason for the fluctuation. The rule, as written, doesn't establish whether earnings refers to take-home pay. If so, it will require employers to report all fluctuations caused by changes in tax deductions, insurance premiums, union dues, child support and other deductions from net pay. This rule assumes that all post-injury fluctuations are due to the injury but there are a number of fluctuations based on personal reasons. The commission agrees. If take-home pay is the basis of comparison there will be a great many fluctuations that need to be reported. However, the rule is clarified to reflect that only fluctuations resulting from the injury should be reported. Subsection (b)(3) requires filing after a termination or resignation regardless of any connection between the action and the injury. Also, it is not clear whether this applies to all workers or just those entitled to income benefits at the time of the termination or resignation. The rule should be modified. The commission agrees. The rule is clarified to incorporate a connection to the injury and specify which workers are covered. Subsections (c) and (e) as presently written appear to prohibit use of telephonic transmission (Fax) to file the report. Rule should be changed to allow this form of filing. The commission disagrees. Identifying a violation of the rule and prosecuting a penalty is expedited by conventional delivery services, so telephonic transmission will not be included as an option at this time. The Commission should establish a reasonable period during which resignations and terminations must be reported and include it in this rule. The commission agrees. The rule will require this report only during the employee's temporary income benefit period. The rule needs to be changed to provide for reporting the injured employee's return to work. The commission agrees. The rule is revised to reflect return to work in subsection (c)(1). This rule implies a requirement to report intermittent or subsequent periods of disability but it needs to be clearly spelled out in the rule. The commission agrees. Subsection (c)(2), is clarified to address this concern. The reporting time required by sec.129.4(c) (10 days) is in conflict with the time required in (c)(2) of this rule and should be resolved. The commission agrees. Subsection (b) dealing with adjustments to temporary income benefits correctly reflects a reporting requirement "within 10 days". The rule should be consistent in identifying where the report must be sent. The commission agrees. The rule will be changed to require reporting to the carrier and to the injured employee. The new section is adopted under Texas Civil Statutes, Article 8308, sec.2. 09(a) which authorizes the commission to adopt rules necessary to administer the Act, Texas Civil Statutes, Article 8308, sec.5.05(c) which allows the commission to promulgate rules regarding subsequent reports by the employer, and Texas Civil Statutes, Article 8308, sec.2.11(f) which allows the executive director to establish the form, manner, and procedure for transmission of information to the commission. sec.120.3. Employer's Supplemental Report of Injury. (a) As used in this section, the term "employer" means the employer for whom the employee was working when injured and the filing requirements apply during the time the employee is entitled to temporary income benefits. (b) As provided in sec.129.4 of this title (relating to Adjustment of Temporary Income Benefit Amount), the employer shall file form TWCC-6, Supplemental Report of Injury, with the employer's carrier and the injured employee within 10 days after the end of each pay period in which the injured employee has a change in earnings as a result of the injury or within 10 days after the employee resigns or is terminated. (c) For injuries requiring a form TWCC-1 to be filed, the employer shall file form TWCC-6, Supplemental Report of Injury, with the employer's carrier and the injured employee by first class mail or personal delivery within three days after: (1) the injured employee returns to work; or (2) the injured employee, after returning to work, experiences an additional day(s) of disability as a result of the injury. (d) If a report required by this section has not been received by the carrier, the employer has the burden of proving that the report was filed within the required time frame. The employer has the burden of proving that good cause exists if the employer failed to file the report. (e) Failure to comply with the requirements of this section, without good cause, is a Class D administrative violation, subject to a penalty not to exceed $500. 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 November 20, 1992. TRD-9215602 Susan Cory General Counsel Texas Workers' Compensation Commission Effective date: January 1, 1993 Proposal publication date: May 26, 1992 For further information, please call: (512) 440-3592 TITLE 31. NATURAL RESOURCES AND CONSERVATION Part II. Texas Parks and Wildlife Department Chapter 55. Law Enforcement Subchapter D. Operation Game Thief Fund 31 TAC sec.55.112 The Operation Game Thief Committee adopts an amendment to sec.55.112, concerning the Operation Game Thief Fund, without changes to the proposed text as published in the August 11, 1992, issue of the Texas Register (17 TexReg 5617). The rule was adopted on an emergency basis November 4, 1992. The amendment authorizes the Operation Game Thief Committee more authority in implementing rules and establishing procedures for the payment of rewards and maintaining records in the Operation Game Thief Program. The section is adopted to comply with the provisions of House Bill 1195 which was passed by the 70th Legislature. The Committee adopted on a permanent basis the amendment to the Operation Game Thief Regulations that is consistent with the Legislature's intent and purpose of the Operation Game Thief Program. The amendment will maximize the funds available for rewards to eligible applicants thereby increasing the protection of wildlife and fisheries resources. No comments were received regarding adoption of the amendment. The amendment is adopted under the Texas Parks and Wildlife Code, Chapter 12, Subchapter C, which provides the Operation Game Thief Committee with the authority to adopt rules for the implementation of the Operation Game Thief Program. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on November 19, 1992. TRD-9215554 Paul M. Shinkawa Director, Legal Services Texas Parks and Wildlife Department Effective date: December 10, 1992 Proposal publication date: August 11, 1992 For further information, please call: (512) 389-4433 Part III. Texas Air Control Board Chapter 114. Control of Air Pollution from Motor Vehicles 31 TAC sec.114.21 The Texas Air Control Board (TACB) adopts new sec.114.21, with changes to the proposed text as published in the June 5, 1992, issue of the Texas Register (17 TexReg 4067). The new sec.114.21, concerning Employer Trip Reduction (ETR) Program, provides guidelines for individual employers in the Houston/Galveston area to comply with the requirements of an ETR program as established by the 1990 Federal Clean Air Act (FCAA) Amendments. The new section specifies guidelines and rules that govern the implementation, operation, and evaluation of the ETR program for all employers of 100 or more employees in the Houston/Galveston severe ozone nonattainment area. In addition, the TACB adopts a revision to the State Implementation Plan (SIP) which contains ETR program design, implementation, evaluation, and compliance details. Public hearings were held in Houston on June 30, 1992. Testimony was received from 42 commenters during the comment period which ended at 4 p.m., July 8, 1992. Exxon Company, U.S.A. (Exxon); Mitchell Energy & Development Corporation (Mitchell Energy); the City of Missouri City; Conoco, Inc. (Conoco); Lonestar Chapter of the Sierra Club (Sierra Club); United States Environmental Protection Agency (EPA); Greater Houston Partnership (GHP); Occidental Chemical Corporation (Occidental Chemical); Enfuels Corporation (Enfuels); Shell Oil Company (Shell); Texas Retailers Association; Greater Fort Bend Economic Development Council (GFBEDC); Coastal States Management Corporation (Coastal States); and McDonnell Douglas expressed general support for the development of a cost-effective, flexible ETR program and other mobile source control programs to reduce vehicle emissions and satisfy FCAA requirements. Sonat Exploration, Retail Grocers Association of Houston (Retail Grocers), and Lubrizol Corporation (Lubrizol) expressed general opposition to the proposed program. The following commenters suggested changes to the proposal: Houston-Galveston Area Council (H-GAC); Houston Light & Power (HL&P); Valero Refining Company (Valero); Enron Corporation, Enjet, Inc.; Continental Airlines (Continental); Rohm and Haas Texas, Inc. Anheuser-Busch, Inc. (AnheuserBusch); Chevron Corporation (Chevron); Rice University; Everitt and Company; Amoco Oil Company (Amoco); S & B Engineers and Constructors, Ltd. (S & B Engineers); Hewlett-Packard Company (Hewlett- Packard); Westchase Business Council; Sonat Exploration; West Houston Association (WHA); Raymond R. Betz Interests, Inc. (Betz Interests); Harris County Pollution Control Department (HCPCD); Katy Independent School District (Katy ISD); and Camco International, Inc. (Camco). The more general comments are addressed initially, followed by the comments on specific issues. Several commenters requested clarification regarding the types of vehicles to be included in the ETR program and the determination of the number of vehicles to use in the computation of the average passenger occupancy (APO) for an employer. HL&P requested that the vehicle definition be altered to read "a highway vehicle powered by an internal combustion engine which fires diesel or gasoline with fewer than nine seating positions for adult passengers." EPA suggested that the TACB define the term "vehicle." H-GAC contended that the definition of APO should read "... divided by the number of vehicles in which those employees report to work between 6 and 10 a.m." to clarify that vehicles of employees arriving outside the relevant period are not considered in the calculation. Valero commented that the formula for counting the number of vehicles in which employees report to work is not clear in cases where multiple employers are using common vehicles. The commenter recommended a formula which allocates to the employers a fraction of the one vehicle. Also, Valero questioned the accounting of an employee who uses transit regularly, but uses a single occupancy vehicle (SOV) to reach the transit stop. H-GAC suggested that motorcycles be counted as vehicles. In developing direction for employers regarding determination of the APO, the staff realizes the need to clarify that the formula for calculating APO only refers to employees and vehicles arriving at the site between the hours of 6 a.m. and 10 a.m., Monday through Friday. A method of accounting for employees arriving at work in rideshare vehicles will be addressed on the forms provided by the TACB. Employees who use transit regularly, but use a SOV to reach the transit stop may need to report the proportion of the total distance of their trip to work during which they drive an SOV and the proportion in which they ride-share. While this information may not directly impact the APO calculation, it will be necessary to determine air quality benefits. Vehicles included in the ETR program are defined as motor vehicles, including motorcycles, that are used for commuting during the peak morning period. However, in order to clarify how rideshare vehicles, alternative fuel vehicles, compressed workweeks, or other incentives are counted in the calculation of APO, the staff has added a new definition titled "vehicle equivalent (VE)." VE is the calculated fraction of a motor vehicle used by each employee in a commuting trip for purposes of estimating the benefits of trip reduction measures. For example, an SOV would be counted as 1.0 VE per employee; a carpool with four passengers would be counted as 0.25 VE per employee; and an employee using transit service would be counted as zero VE. The impact of compressed workweeks, alternative fuel conversions, telecommuting, or other transportation control measures will be calculated in VEs in accordance with procedures and formulas provided by the TACB. While the proposal included EPA's draft definition of a vehicle, it appears more appropriate to use a VE of zero for a bus or a van carrying more than eight employees, rather than to define a vehicle based on the number of seating positions. Under EPA's draft guidance, a van with 15 seats, regardless of the number of actual occupants, could be counted incorrectly as a zero vehicle for purposes of assessing APO. By defining vehicle equivalents, the special definition for vehicles can be deleted from the SIP and sec.114.21. While not in response to a comment, special vehicles used by disabled persons to commute to work will be assigned a VE of zero for purposes of calculating VE. There were numerous comments regarding adjustments for alternative/clean fuel vehicles. H-GAC and HL&P suggested that the definition of vehicles, SOV, and alternative means of commuting consistently address the use of alternative fuel vehicles. HL&P requested that a specific reference to alternative fuel vehicles be added to the SIP. Conoco suggested the following language be added to the SIP: "The employer will be allowed credits for vehicles using clean fuels in the calculation of the vehicles used by employees for the commute to work. The employer will be allowed to accept a standard credit amount established by the TACB or petition for an alternative credit amount based on current emissions data." Enron and Enjet expressed similar positions. The Sierra Club suggested that the use of clean fuel, a low emission vehicle, or a zero emission vehicle should be equivalent to one more passenger per vehicle. Continental stated that zero emission vehicles should be credited. Enfuels supported the use of alternative fuels to reduce vehicle emissions. Enfuels suggested that actual vehicle-specific test data should be used and that a validated conversion using the appropriate technology, making allowance for degradation over time, should be given greater credit than unvalidated, poor- performing types of conversions. HL&P suggested that the sec.114.21, the SIP, and TACB guidance should include incentives for employers to use or to encourage their employees to use cost- effective alternative fuel vehicles, and that an alternative fuel vehicle would count as a zero vehicle for purposes of calculating the APO. One individual commented that credits should not be allowed for vehicles with bi-fuel type systems, since exclusive use of the alternative fuel cannot be guaranteed. Shell said that an option should be included for the employer's voluntary use of alternative fuel vehicles. Rohm and Haas requested the inclusion of a credit system which rewards the use of clean fuels in fleet vehicles. Enjet argued that, without such a credit for alternative fuels, employers will receive an anti-business message. Enjet suggested that fuel use can be tracked with the modern electronic refueling pumps in order to estimate credits for use by employers. These credits may eventually be available for resale to other employers or as emission offsets. EPA commented that the TACB has the flexibility to apply a factor for clean fuel commuting vehicles which reflect their lower emission levels if they are certified by a government authority as being substantially lower emitting in actual use than vehicles generally purchased in the area. Anheuser-Busch, requested that credits be allowed for all alternative fuel vehicles used in conducting business. The TACB is interested in encouraging the use of alternative fuels and clean vehicles based on measured reductions in emissions and is currently working with EPA toward this end. It appears that determination of a VE based on anticipated emission reductions would be appropriate. However, EPA has not yet released guidance explaining how the emissions reductions are to be calculated. When the EPA's guidance is issued, a more accurate determination can be made regarding appropriate VEs for alternative fuels used in the calculation of the APO for the ETR program. Since bi-fueled vehicles are able to use standard gasoline, they should receive an adjusted VE of less than 1.0 only if the vehicle operator can verify the ongoing use of the alternative fuel. The staff agrees with the commenter in acknowledging the need for a method to verify alternative fuel usage. There will be credits for fleet vehicles in other programs required by the 1990 FCAA. Therefore, the staff recommends that VEs of less than 1.0 for alternative fuel vehicles are only appropriate if the vehicle is used by the employee for the commuter trip and reports to the worksite between 6 a.m. and 10 a.m. VEs for alternative fuel vehicles will be provided on the APO survey form showing how to calculate the number of vehicles arriving at the site using the most appropriate adjustments based on the type of alternative fuel used. Verification must be provided to show that the alternative fuel vehicle actually meets applicable TACB/EPA guidelines regarding acceptable technology and actual fuel use. The definitions of employee and employer are so closely linked that the comments and responses for both are discussed together. Most of the comments regarding employees were to request exemptions for special circumstances, such as contract, temporary, field, part-time, or roving employees and rotating shifts. Conoco; Chevron; GHP; Rice University; Shell; H-GAC; Exxon; Mitchell Energy; Everitt and Company; Amoco; S & B Engineers; and McDonnell Douglas questioned the inclusion of temporary and contract workers who arrive at the worksite, but are paid by another entity. Chevron commented that they do not track these individuals in any data base and, therefore, would find accurate counting and surveying unusually burdensome. Chevron requested a minimum threshold for a temporary employee of 90 days. GHP, Shell, and H-GAC requested that temporary workers be excluded if they are employed at the worksite for less than 10 out of 30 days of the month. However, Exxon indicated that at many worksites employers do not have any method of maintaining lists of individual contractors and temporary employees working 10 or more days per 30-day period. Exxon also stated that contractors and temporary employees cannot practically be included in employee counts since employers have limited control over these employees. Conoco, Chevron, GHP, Shell, Exxon, Mitchell Energy, Valero, Continental, Enron, and McDonnell Douglas commented that contract workers should be totally excluded from the ETR program. Amoco suggested that exclusions be limited to the short-term contract work force employed for fewer than 180 days. Valero suggested, as an alternative, that the owner/employer could require compliance with this regulation in its contract with the contractor/ employer. Mitchell Energy and McDonnell Douglas stated that the definition should be limited strictly to full-time employees arriving at the site. Enron suggested that the definition include all full-time or regular part-time employees who work more than six months in a single calendar year. Chevron contended that field workers who are paid by the site employer, but spend less than 40% of their time at the permanent worksite, should be excluded from the definition. S & B Engineers stated that the current definition is too cumbersome for a business which does not have a standard worksite. The Texas Retailers Association commented that retailers should be exempt from ETR requirements because retail store employees work nonstandard schedules organized around peak shopping times which are outside of the peak traffic times. Furthermore, retailers have numerous part-time employees who work only four hours per day. Rice University enumerated the difficulties experienced due to numerous graduate students who are part-time employees. Shell commented that rotating shift workers should be exempt or only be included on a fractional basis. EPA stated that the TACB has the flexibility to establish a de minimis level for "temporary capacity." However, temporary or contract workers who report to a worksite over the de minimis level must be counted as employees. Continental said that the definition of employee does not work for the airlines, which have flight crews that work a full month in 10 days or less. The staff notes that, in such cases, if fewer than 33 employees arrive within the 6 a.m. to 10 a.m. period, the employer may qualify for the de minimis exemption from the ETR program; otherwise, the employer must participate. The staff recognizes that various employers wish to exclude nonstandard employees such as temporary, contract, part-time, field, roving, and rotating shift workers from the definition of employee. While all employees who regularly report to the worksite should be counted in the employee definition, the staff recognizes the need for consideration of the feasibility of parttime and temporary employee participation. It should be noted, however, that all non- standard workers covered by the definition of employee who do not arrive at the worksite between the hours of 6 a.m. and 10 a.m., Monday through Friday, will not be required to take part in the employee APO survey or ETR measures and incentives. While it may be difficult for a temporary employee to participate in an alternative to the SOV mode if employed for less than one month, temporary employees can be expected to take part in the ETR program after one month. While contract employees may not be on the direct payroll of the employer, they are under the control of the employer, are indirectly paid by the employer, and regularly arrive at the employer's worksite. Therefore, these contract employees should be included in the definition. Provisions for compliance with the ETR plan should either be implemented by the contracting employer or included as a requirement in applicable contract provisions. The staff understands the concerns regarding the inclusion of all part-time employees. Preliminary indications from EPA suggest that 80 hours per 28-day period may be used as an exemption level for part-time employees. This equates to half-time for a normal five-day workweek. If extended to apply to a typical 30 or 31-day calendar month, an equivalent of 88 hours would be considered half- time. This criteria should be more compatible with most employer's records and, therefore, may be more appropriate than 80 hours per 28 days for part-time employees. The exemption for part-time employees working less than 88 hours per month is justified to avoid the possibility of causing a restriction in the part-time job market. Unnecessarily limiting part-time employment would make it difficult for students and other individuals to pursue their non-employment responsibilities. In addition, the staff recognizes that, due to the differences in start/end times, it is more difficult for part-time workers to participate in rideshare programs and take advantage of many other ETR incentives. However, employees who work more than 88 hours per month contribute significantly to overall vehicle emissions resulting from travel to the worksite during peak travel hours. Many field and roving workers, such as sales or service representatives, while paid by the employer, actually work wherever their business takes them. While field workers who report to the specified worksite at least 88 hours per month should be included in the definition of employee, field workers who work directly from home and report physically to the worksite less than 88 hours per month should not be included in the employee count. Field workers or roving employees who are counted within the definition of employee, but do not report to the worksite between the hours of 6 a.m. and 10 a.m. would not be included in the employee APO survey or ETR measures and incentives. If fewer than 33 such employees report to the worksite during this period, then the employer may qualify for a de miminis exemption from the ETR program. Rotating shift workers who report regularly to the specified worksite should be included in the definition of employee. The staff appreciates the problems associated with groups of employees who may have different commuting habits and work different shifts over a rotating schedule. The staff also recognizes that evaluation of a single shift arriving at the worksite between the hours of 6 a.m. and 10 a.m. during the survey week may not accurately reflect the typical APO of the facility. The staff suggests that the employer could additionally survey other employees as they rotate to the morning peak travel period to determine their commuting modes. The additional data may be used to calculate the resulting overall APO. Employers may find it helpful to consider the trip reduction program in their operating procedures. For example, consideration could be given to potential rideshare compatibility when assigning employees to shifts. Therefore, the staff has changed the wording in the definition of employee regarding "10 or more days per 30-day period" to "88 or more hours per month," thus, giving employers more flexibility in identifying those employees excluded from the employee count. Also the staff has changed the definition of employee to include all people who regularly report for work at the specified worksite as defined in this section whether they are paid directly by the employer or through contract. Temporary employees who are assigned to a worksite for more than one month or part-time employees who are assigned to a worksite for more than 88 hours per month, excluding Saturdays and Sundays, are included in the initial employee count, but will only be included in APO survey or programs if they arrive during the morning peak travel period. Rohm and Haas said that the definition of employee should include the time of arrival between the hours of 6 a.m. and 10 a.m. The time of arrival is not included in the employee definition as suggested by Rohm and Haas because all employees at a worksite must be considered in determining applicability of the requirements. Valero objected to not counting employees who drop off children at day care as carpoolers in the ETR program, particularly when they are allowed access to high occupancy vehicle (HOV) lanes. A child delivered to a day care facility or a child who rides with an employee to an on-site child care program is not an employee and cannot be counted toward an increase in APO, regardless of HOV lane access. Stopping en route at a day care center does not preclude the employee/parent from carpooling with other employees or participating in other ETR incentives. The Texas Retailers Association commented that the peak travel period in Houston should be defined as between 6 a.m. and 9 a.m. They contended that, based on major radio stations' morning reports and city traffic restriction signs, the peak driving time is between 6:45 a.m. 8 a.m. Coastal States said that the peak travel period should be changed to between 7:30 a.m. and 9 a.m. HL&P questioned whether the peak travel period applies to employees traveling to work between 6 a.m. and 10 a.m. or to employees who start work at 6 a.m. and thus travel to work before 6 a.m. The intent of the peak hour specification is to reduce morning traffic congestion and the adverse effect that this congestion has on vehicle emissions. The TACB staff consulted H-GAC regarding the peak travel period the Houston area. Based on 1990 census information, H-GAC reported that peak hours for traffic in the Houston area are between 5:30 a.m. and 9:30 a.m., which is consistent with the EPA guidance for the definition for peak hours. EPA has defined the target population of commuters to be employees who regularly start work or arrive at their worksite between 6 a.m. and 10 a.m. The proposed peak travel period appears appropriate and clarifies that it is the intent of the ETR program to include those employees who regularly start work or arrive at their worksite between 6 a.m. and 10 a.m. The proposal included an innovative approach toward the issue of Average Vehicle Occupancy (AVO) zones. In order to avoid undue restrictions on the economic growth or to prevent unnecessary competition between different portions of the metropolitan area, local officials requested that the TACB not designate separate AVO zones. However, different target APO areas were recommended in recognition of the relative availability of commuting alternatives in more densely populated or commercialized areas. Two alternative proposals for target areas were discussed at the hearing. The H-GAC, Sierra Club, Exxon, and GHP recommended a one-zone/ two-target APO area approach: Harris County and adjacent "urbanized areas of economic importance, such as The Woodlands, Sugarland, and the South Shore Harbor," with a target APO of 1.47; and the balance of the nonattainment area/AVO zone outside of Harris County with a target APO of 1.41. The weighted average of these two target APOs would result in compliance with an areawide increase in 25% over the AVO. GHP commented that, since the real estate market is so sensitive, the one- zone/three-target area approach included in the proposal would establish and encourage an unlevel playing field, where businesses would choose to locate out of the downtown area or over the county line where the AVO is lower. GHP contended that the two-target area approach would not have the same unintended market consequences. Hewlett-Packard, GFBEDC, Missouri City, and Mitchell Energy commented that the one-zone/three-target proposal is more equitable. Mitchell Energy stated that the two-area proposal completely fails to take into account the existing and planned transit system and would essentially create a hidden subsidy for central business district development. Missouri City said that under the two-target area plan, it would have a greater burden than the City of Houston or Harris County since Missouri City and Fort Bend County have less employment, no public transit, and contribute less to the area's pollution problem. One individual suggested an alternative of two-target areas with the following target APOs: 1.68 for the downtown area and 1.46 for the rest of the nonattainment area. Anheuser-Busch said that the APO targets must take into account the employee's access to public transportation serving the employer's worksite. EPA has determined that the TACB may revise zones and/or target areas presented in this proposal based on public comment. However, if target areas are different from the initial proposal, the final recommendations must demonstrate that the region can achieve a 25% increase in APO over the AVO without contradicting the approach or supporting rationale of the initial proposal. In recognition of the recommendation of the H-GAC as the designated metropolitan planning organization representing the local constituency, the TACB staff recommended the one-zone/two-target areas option that was approved by the H-GAC Board and has revised the SIP as follows: Harris County, plus the urbanized area of economic importance, as defined by H-GAC with a target APO of 1.47; and the remainder of the counties in the Houston-Galveston nonattainment area with a target APO of 1.41. The TACB staff believes that since the concept of VE has been introduced, it is necessary to modify the definition of AVO as follows: The AVO for the nonattainment area or zone is the baseline average number of employees per individual vehicle or VE throughout the nonattainment area or zone, which has been measured for the year of the SIP submittal. The AVO applies to all commuting trips in the nonattainment area or zone between the employees' homes and the worksites in the peak travel period between 6 a.m. and 10 a.m., Monday through Friday. All employees, including those who work for employers with fewer than 100 employees and who commute to work during the morning peak travel period, are included in the calculation. The baseline AVO equals the number of employees reporting to or arriving at the worksite between 6 a.m. and 10 a.m., Monday through Friday inclusive, and divided by the number of vehicles or VEs in which these employees report over that five-day period. There were comments on both the definition and the determination of the Average Passenger Occupancy (APO) and on APO credits. EPA commented that the TACB needs to define or modify the following terms: APO, initial APO, projected APO, and target APO. The staff agrees that clarification of these terms may lessen confusion and has included the following definitions: Average Passenger Occupancy (APO) applies to the average number of employees in individual vehicles or VEs reporting to or arriving at a specific employer's worksite during the morning peak travel period, Monday through Friday inclusive, during a typical workweek. The APO equals the number of employees reporting to a worksite between 6 a.m. and 10 a.m. divided by the number of vehicles or VEs in which these employees report to work (minus APO credits, if appropriate). The initial and annual surveys must be conducted during a typical workweek for the applicable business. The typical workweek should not contain a holiday or be affected by a holiday. During this week, the employer should not offer special rideshare incentives that are not offered during a typical week. The following types of APO determinations may be applicable: initial APO for an employer is established by the initial employer survey and reflects the baseline average number of employees in individual vehicles or VEs arriving or reporting to the worksite during the morning peak travel period; projected APO for the employer is calculated by dividing the number of projected employees expected in the compliance year divided by the projected VEs to be used in the commute trip in that same year; target APO is the specified APO that each employer must achieve by the compliance deadline, which is two years after the plan submittal deadline. Target APOs have been designated in the SIP for specified geographical subareas within the ozone nonattainment area, such that the weighted average of all the target APOs will achieve an overall APO of at least 25% greater than the AVO for the entire ozone nonattainment area. The word "credit" is used by some commenters in a broad manner to include factors other than VEs which may reduce emissions that may be credited toward compliance with the APO requirements. Conoco, Westchase Business Council, Mitchell Energy, Sonat Exploration, Amoco, WHA, Everitt and Company, Shell, Valero, Betz Interests, and Continental requested the inclusion of vehicle miles traveled (VMT) in the equation which defines APO. Sonat Exploration, Betz Interests, and WHA pointed out that a short commute will result in less emissions than a long commute with the same number of passengers; therefore, a 60-mile commute should not be treated in the same way as a one-mile commute. Mitchell Energy commented that an employer whose employees attain an average for miles traveled which is below the average for the nonattainment area should be credited with achieving all or a portion of the 25% target reduction in APO. Everitt and Company, Westchase Business Council, WHA, Betz Interests, and Mitchell Energy requested that credit be given to employers who either provide incentives for employees to live close to work or relocate to be close to their employees. Westchase Business Council, Betz Interests, and WHA requested that an account be taken of employees who drive to a park-and-ride location and, then, carpool or vanpool to work. Rohm and Haas suggested that the definition of APO include a "de minimis miles traveled" that would exempt employees who live a short distance from the worksite. Amoco proposed the addition of new language to read: "Upon the Executive Director's approval, an ETR plan may contain a method for adjusting the employer's APO to represent actual commuting distances." Shell requested that the TACB develop standard survey questions that ask for each segment of a day's commute, the mode used, and the length of the segment. Shell contended that such a standardized survey would provide sufficient information for the TACB to calculate VMT reductions necessary for the demonstration of compliance with the APO target. The amendments to the 1990 FCAA mandate that affected employers increase their APO by no less than a 25% increase above the AVO for the nonattainment area than was submitted at the time of the SIP revision. Although no specific goals for VMT are stated, the staff recognizes that emission differences between short and long trips should be considered. Cold start emissions also account for a large proportion of total vehicle emissions and may be reduced by some alternative commuting choices. Calculations of AVO and APO, however, can not directly be adjusted to include VMT or cold starts since these calculations are based on AVO and APO as defined in the FCAA. Reporting the distance traveled to work in the annual employee survey is appropriate for determining the relationship between APO increases, VMT, and cold start reductions and the resulting emission reductions. Allowing employers to demonstrate equivalency to the target APO emission reductions based on VMT or cold start reduction may be considered at some later date. However, before allowing for these reductions, emissions data must be gathered and analyzed in the nonattainment area to determine the average emissions correlated with such factors as the area's average VMT, the number of cold starts, and the composition of the vehicles in the area's fleet. A number of commenters requested clarification regarding the role of other incentives in APO calculations. While these measures do not directly reduce trips, they influence ridesharing. Some commenters requested credit for providing particular incentives. The Texas Retailers Association supported the fact that the proposal does not mandate that employers implement specific measures to increase APO, but Coastal States was concerned about the employers' having choices over selecting alternative incentives to best conform to the employees' life-styles. Amoco, HL&P, and Continental commented that credit should be given in the calculation of worksite APO for the utilization of flextime, compressed workweeks, and the provision of specific incentives. HL&P requested credits for cutting its three eight-hour shifts to two 12-hour shifts working two weeks on and one week off and is concerned that the survey administered over a five-day period may not recognize the "substantial trip reduction made by the 12-hour shifts." S & B Engineers said that public transport is of little use to suburban locations. The company has been vanpooling since 1977 and requests credit for this in the ETR plan. APO benefits should be available for employees who work flextime and compressed workweeks. The TACB staff will provide VE adjustments for commuter vehicle reductions to be used in the APO calculation of the worksite. Employers who have already provided specific incentives will be able to apply those benefits since they will already have a higher worksite APO relative to the target APO, thus requiring less additional effort to achieve the established target. All the comments indicate that different situations exist at different worksites. The ETR program allows for these different situations by giving the employer the freedom to be creative in encouraging other ways of reducing the number of vehicles in which employees arrive at the site between the hours of 6 a.m. and 10 a.m. A survey to ascertain employee attitudes toward various transportation modes and an understanding of the site's opportunities and barriers to the use of particular incentives should be used by the employer to provide indicators of ways in which the target APO and target number of vehicle reductions can be accomplished. The staff does not intend to prejudge, credit, or differentiate between the effectiveness of different incentives. The evaluation of an incentive relates to its effectiveness in trip reduction or APO increase. Retail Grocers are opposed to the guaranteed ride home provision. It appears this commenter has made the assumption that a ride home must be provided for every employee every day, rather than guaranteed only in an emergency. The guaranteed ride home program was a suggestion by EPA to illustrate a possible program that could be used for emergencies to encourage employees to rideshare. It was not intended to be a requirement. HCPCD and one individual said that there should be no banking of credits. HCPCD said that it is a mistake to believe that reduction in emissions in one year will somehow benefit air pollution conditions at a later time. HCPCD requested that the definition of APO credit be completely deleted, as this has no air pollution benefit. The commenter suggested that subsection (b) of sec.114.21, then, should read: "All employers with 100 employees or more at a single worksite in any county referenced in subjection (j) of this section shall implement programs, incentives, or other measures as necessary to achieve an APO at least 25% greater than the AVO established for the nonattainment area or geographic AVO zone where the worksite or worksites are located," thus deleting all reference to banking and use of APO credits. APO credits are intended to achieve the following goals: encourage employers to exceed the minimum APO target with a corresponding increase in emissions reductions; encourage early compliance before the plan submission deadlines; provide for flexibility of emissions reduction methods; and leave open the possibility of using APO vehicle credits as part of the marketable credits program currently being investigated by the TACB. However, the staff believes that the APO credit, as defined and shown in the equation used to determine APO, is confusing and needs to be clarified. APO credit means the excess reduction in the number of vehicles or VEs arriving at the worksite beyond the target number of vehicles or VEs (computed from the target APO) accumulated in the previous year. Therefore, APO credit for an employer is defined as the number of vehicles or VEs below that necessary to achieve the target APO. Chevron, H-GAC, Amoco, Mitchell Energy, and Coastal States supported banking of credits. Chevron requested clarification of the life of a credit and suggested that APO credits be retained indefinitely. Mitchell Energy also requested that APO credits not be limited to a one-year period. Valero asked if credits submitted in a plan in 1993 would be available on the anniversary date of plan approval as opposed to November 15, 1996. The commenter contended that delaying credit availability would amount to a penalty for early submission. The staff understands HCPCD's concern, but believes that employers should be encouraged to reduce trips as soon as possible. As cleaner cars become available, overall emissions per vehicle will be reduced, offsetting the emissions of the banked credit. Employers should be allowed to bank these credits for one year on the next reporting period, since a longer period could be counter-productive to sustained trip reductions and detrimental to the overall emissions reductions aims of the ETR program. Giving more than one year weakens the effectiveness of the ETR program. However, it is possible for the employer to maintain a positive balance of vehicle credits or a VE balance each year as adjustments in the annual APO calculation. Credit availability will commence on the anniversary of the date of achievement of the target APO. Some commenters requested an APO credit trading program because some employers may not be able to achieve the target APO, while others may exceed it. Hewlett- Packard, Conoco, GHP, Occidental Chemical, Shell, Texas Retailers Association, H-GAC, AnheuserBusch, Amoco, and Coastal States approved of trading of APO credits both within companies having multiple worksites and between companies (at a discount factor not greater than 10%) in the nonattainment area. Continental supported trading APO credits within a company and between other companies with no discounting. Shell requested that trading be allowed within a company across different APO target areas if there are separate plans for each of the sites within APO target area. Enron supported the idea of trading credits, but suggested that this idea be expanded to include other alternatives. Enron also suggested that companies should have the ability to sell credits to other companies or bank those credits for future use in the event of business upsizing, downsizing, or relocating to other parts of the city. The TACB currently has an EPA grant to study the possibility of developing a market in emission reduction credits. This investigation includes the possibility of trading emission reductions obtained from the ETR program. The number of vehicles below the maximum allowed in order to meet the employer's target APO weighted by average VMT by the employees at that worksite could provide an appropriate emission credit to be traded. The staff is aware, however, that any system that is developed must be capable of maintaining the integrity of the overall aim of reduction in vehicle emissions. Such a system, therefore, may be an item for future rulemaking when it can be based on emission testing and when a monitoring/tracking system is available. The staff has deleted references to discounts in relation to the definition of APO credits in both sec.114.21 and in the SIP, because discounts only apply to trading credit which is not being considered at this time. S & B Engineers suggested deleting "other information as requested by the TACB or the EPA" in the proposed registration requirements. The TACB must retain the flexibility to request reasonable additional information in order to effectively monitor, assess, and enforce the ETR program. Such information will be clearly indicated on report forms supplied by the TACB. However, including the EPA in this requirement appears neither necessary nor appropriate. Mitchell Energy commented that the terminology and requirements of the registration provision should be amended to read "highest ranking official with direct management responsibility for the worksite" as an alternate for the chief executive officer (CEO). EPA commented that staff should clarify that it is the TACB's intent to require two names, the Employee Training Coordinator (ETC) and either the CEO or the highest ranking company official at the worksite. Mitchell Energy also requested that the rule specify whether the ETC is responsible for signing the registration. The staff agrees with Mitchell Energy that it is unnecessary to specify the CEO as a separate alternative, because if he or she is on the site in question, then he or she is the highest ranking official. Registration does require identification of two names, the ETC and the highest ranking official with direct management responsibility at the worksite. However, the rule has been amended to clarify that registration requires only the signature of the highest ranking official with direct responsibility for the worksite, since only that person is ultimately responsible for meeting the requirements of the regulation. While not in response to a comment, the staff has determined that registration of individual worksites may be monitored more easily by using the TACB account number, rather than the permit number. A number of commenters requested that the information required by the TACB in the ETR plan components be limited. Hewlett-Packard, Chevron, GHP, Occidental Chemical, H-GAC, and HL&P requested that the information required from the employer by the TACB be simplified and include less detail regarding the worksite, budget, employer incentives, implementation dates, and tracking methods. Continental said that there should be a limit on other information the TACB could request. Exxon stated that information required by the TACB should be limited to the following: name of the designated and trained ETC, location and description of each affected worksite, designated AVO zone and target APO for each worksite, initial APO for each worksite, trip reduction measures and incentives to be implemented, projected APO based on targeted employee participation, timeline of implementation and interim progress reports, and description of the "progress report mechanism." HL&P requested that specifics of employer demonstration and achievement of compliance should not be required for initial plan submittal. In the event that an employer does not attain compliance, it could then be appropriate to require the employer to elaborate on projected achievement of future compliance. Chevron commented that the calculation of person-trip and VMT reduction should only be required at the time of the employee survey. EPA suggested that sec.114.21(j)(3) explicitly state "approvable" ETR plans must be submitted. However, it should be recognized that the TACB approval of these ETR plans does not prejudge the effectiveness of the employer's measures or incentives. The intention of the staff is to minimize the information required to be submitted for plan approval and for annual compliance reporting. Employers not already in compliance by the submission deadlines must provide adequate information to enable minimum review of incentives. However, those employers who are already in compliance by the submission deadlines will be allowed to document their actual APO rather than provide more detailed plan components. The staff agrees that some of the information specified in the proposal may not be necessary. Detailed employee and site information and comprehensive analyses of all transportation measure options, as examples, may not always be needed. However, the TACB must specify that enough information be obtained to satisfy the FCAA requirements for submission of a compliance plan which "shall convincingly demonstrate compliance with the requirements...(of the act)." Language in subsection (j), as proposed, specifies that "approvable" plans be submitted. However, such approval does not exempt the employer from the requirement to achieve the target APO. Section 114.21 and the SIP have been revised to eliminate detail and to request only such information as necessary to allow for the future determination of the reduction in vehicle emissions. This information will be crucial to allow the ETR program to be used as a transportation control measure that will count toward VMT offset and for the future possibility of trading emission credits. Due to eliminating detailed plan requirements, the staff has rewritten the definition of vehicle miles traveled to improve clarity and applicability. Hewlett-Packard commented that information regarding the employee's job classification and home address should not be released to the TACB. The proposal does not require information to be submitted that would identify particular employees or employee information. However, the employer would be expected to be able to correlate the survey information with specific employees for recordkeeping and tracking the APO. Mitchell Energy requested that the terminology and requirements of the certification provision be amended so that the highest ranking official with direct management responsibility for the worksite should be cited as an alternative to the CEO. Mitchell Energy also requested that the rules specify whether the ETC is the person responsible for preparing the plan and signing the certification. The staff agrees with Mitchell Energy that the wording in the SIP should be changed to require certification only by the highest ranking official with direct management responsibility for the worksite since this will include the CEO if he or she is on site. The requirement for the ETC to sign the certification of the plan has been deleted, since, ultimately only the highest ranking official has direct responsibility for compliance with sec.114.21. Some employers requested clarification regarding submission of single plans for a single worksite and requested to be exempt entirely from the plan requirements. Katy ISD requested that school buildings on the same property be considered as a single site. Amoco commented that separate and distinct, but adjacent operations under the ownership of a single parent corporation should not be considered a single worksite. Exxon asked whether the management at any worksite where employees of different operating companies which are owned by the same corporation may choose to either file plans for each of those companies at that worksite or may choose to file a single plan for the corporation at that worksite. Valero commented that it consists of two distinct corporate entities, affiliates of the same parent, but with separate CEOs. When the companies are aggregated they are in excess of 100 employees, yet each has fewer than 100 employees separately. EPA's interim guidelines state that several subsidiaries or units that occupy the same worksite and report to one common governing board or governing entity are to be considered as one employer. Thus, if two schools, for example, an elementary and a junior high, operate on one worksite and are accountable to the same ISD, they will be considered as one employer operating from one worksite for the purposes of this program. Similarly, multiple companies under a single corporate structure or parent company with a combined total of over 100 employees at one worksite would be required to develop and implement a single ETR program. However, multiple companies under mutual control, each with over 100 employees at one worksite, may have the option of filing combined or separate plans. Many employers may need to make changes to their operating procedures to be able to achieve their target APO. Nothing in the rule stipulates that the same incentives must be implemented at each school or company on the single site. Schools should note that this program only covers paid employees of a school, not volunteers or students. NASA suggested that, in situations where there are multiple employers at one worksite, each employer with 100 or more employees working on a single worksite be individually responsible for compliance with the ETR plans. The TACB staff agrees with NASA that the rule is intended to require each employer with over 100 or more employees at a single worksite to submit a plan even if the worksite is common to several employers and even if there is a contractual relationship to the employer that manages the worksite. H-GAC suggested that the definition of worksite include any properties that would touch if intervening public or private roadways or rights-of-way were removed. Enron added that this definition should include campus-like facilities, facilities within a single complex of office buildings, and leased office space within buildings that are reasonably close to one another. The staff believes that the proposed definition of "worksite" sufficiently communicates these concepts. However, the language regarding location in the nonattainment area is unnecessary and has been deleted. A number of large employers, each with multiple worksites, requested the opportunity to submit one plan for all commonly owned worksites. Hewlett- Packard, Conoco, GHP, Occidental Chemical, Shell, Exxon, Chevron, Katy ISD, McDonnell Douglas, S & B Engineers, and HL&P expressed a need to be able to designate multiple facilities within one AVO zone or APO target area as a single worksite and, therefore, submit only one plan for the multiple worksites. HL&P and Continental requested that the TACB recognize the burden this proposed regulation will place on companies of their size by allowing for preparation of a single plan with minimal submission requirements. EPA commented that it appears from the TACB regulation that an employer with multiple worksites cannot use excess APO to be applied toward compliance with the APO target at another worksite. Under EPA's draft guidance, the state has the flexibility to allow for APO trading as long as ETR plans are submitted for each worksite. HCPCD suggested that sec.114.21(j) be revised to allow employers with multiple worksites to demonstrate compliance with the overall APO target. They suggested that the subsection read "All affected employers within counties specified in this subsection shall be required to submit approvable ETR programs and to demonstrate compliance with the APO target." HCPCD also requested that sec.114.21(d) be revised to read: "This plan shall convincingly demonstrate the employer's commitment and strategies for achieving the required APO target at each affected worksite or the overall employer APO target when an employer has multiple worksites." HCPCD further requested that the definition of APO be changed to state "...applies to the average number of passengers in individual vehicles arriving at a specific employer's worksite or worksites during the morning travel period...." The staff recognizes that these comments all address the question of the acceptability of one plan for multiple worksites. The rule has been changed to allow an employer with multiple worksites, in a single APO target area, to submit one plan for all the worksites and to add a new subsection regarding combined plans. Only employers with an official having management authority to make binding commitments for all of the worksites in question should be eligible to submit a combined plan. While such a plan may be signed by an officer who resides outside the nonattainment area, a local management contact for all the sites must be specified to facilitate effective coordination and compliance efforts. The staff advises that if these multiple worksites are situated in more than one APO target area, then the employer must use the higher (or highest) of the APO targets for all sites. Otherwise, a combined plan could only be allowed for sites within the same APO target area. In addition, since, in the APO calculation, the relationship between the number of employees and the target number of vehicles is not linear, it is not appropriate to allow a direct averaging of all worksites' APOs. The employer must anticipate the vehicle reductions needed at each site and, therefore, must submit survey information and appropriate incentives or programs at each site. Some parts of the plan, however, can be combined, such as the commitment letter, monitoring strategies reports, recordkeeping, marketing materials, and other common program elements. The employer would also have a choice regarding demonstration of compliance with the APO target. For example, each site could individually meet the target APO, or the employer could calculate a combined APO based on the total number of employees arriving at all of the sites between 6 a.m. and 10 a.m., Monday through Friday, divided by the total number of VEs in which these employees arrive at or report to all of the worksites. The staff has made changes to the proposed sec.114.21 and SIP to accommodate the described combined plan. One change made is that affected employers must list certain information required in the proposed rule for each site. Other information may be aggregated for all the sites in the combined plan. The staff believes that it would be more appropriate to establish specific requirements for multiple worksites rather than to add the word "worksites" to the basic APO definition. The staff also has changed the rule to read "target APO," as requested by HCPCD, rather than "APO increase for each worksite," because target APO more clearly describes the intent of the regulation. Relating to worksite considerations, the staff points out that where the employer has fewer than 100 employees at each of a number of separate worksites within the nonattainment zone, the employer will not be expected to aggregate the employee numbers from each site to create a total number of employees over 100, thereby bringing the employer into the ETR program. Chevron stated that the phased submission of plans from May to November 1994 places the larger employer at a disadvantage because of the greater number of employees that have to be considered when formulating a plan. Therefore, Chevron recommended that the phased-in deadlines be dropped altogether from the regulation and that the submittal deadline for all employers be November 15, 1994. Staggered submission dates are necessary for the administration and timely review of 2,400 anticipated plans. Larger employers have adequate time and resources to evaluate alternative measures and incentives in order to submit plans beginning in May 1994. While GHP supported early education and planning by employers, it recommended that any references in the SIP to early submission of ETR plans prior to 1994 be omitted. The staff agrees that employers may need until the submittal date to prepare their plans. In addition, the TACB staff does not expect to have funding that would allow for administrative review of the ETR plans before May 1994. Therefore, the SIP has been changed to delete references to early submission of plans. Mitchell Energy requested that the submission deadline for new plans for employers who increase the number of their employees to over 100 or relocate into the nonattainment area be extended from 120 days to one year. One individual asked what happens when a company shrinks below 100 employees. The staff recognizes that relocation and preparation of an ETR plan is time consuming. The ETR program should neither overburden companies already undergoing change nor discourage new businesses from locating in the area. The staff, therefore, concurs that the deadline for plan submission for employers who increase the number of their employees to over 100 or relocate into the nonattainment area should be extended from 120 days to one year. Affected employers would then have two years from submittal of an approvable plan to meet the APO compliance target. Employers who fall below 100 employees must submit documentation to the TACB about their change in status. H-GAC, Hewlett-Packard, Conoco, and Chevron stated that an employer who could demonstrate compliance should not be required to submit an updated plan. If the annual survey documents compliance, an employer may only need to reevaluate the current ETR plan to determine if it is adequate to ensure continued compliance. If so, the employer need only submit a new commitment letter for the continuation of the plan. The staff emphasizes, however, that if, after documenting compliance, an employer falls below the target APO and fails to comply with sec.114.21, the employer may be subject to penalties and must submit a revised plan which again demonstrates compliance. H-GAC recommended that exemptions and extensions be stated explicitly or not allowed at all. The commenter suggested that the TACB could grant temporary extensions of time for any provisions of this ETR program if qualifying findings, such as a "good faith effort" to meet the requirements, can be made. One individual thought that exceptions should not be allowed. The staff agrees with H-GAC's comment that all exemptions should be stated explicitly and is also aware of the danger in allowing too many exemptions to a mandatory program. The staff has made revisions to the definitions of "APO," "employee," and "peak travel time" to reduce confusion and describe all exemptions in both the rule and the SIP. The only exemptions are: temporary employees who spend less than one month at the worksite; part-time employees working less than 88 hours per month; and employers with fewer than 33 employees arriving at the worksite between the hours of 6 a.m. and 10 a.m., Monday through Friday. Providing an extension for plan submittal and other reports is not appropriate because the FCAA clearly specifies these deadlines. Enforcement discretion may be exercised by the TACB in recognition of ongoing good faith efforts to comply with ETR requirements. Appropriate wording has been added to sec.114.21(j). Continental said that there should be a time limit within which the TACB must approve or disapprove plans. The staff's goal is to approve or disapprove plans within 60 days of receipt. The staff will review these plans as quickly as possible and will work with each company to ensure timely approval of all plans. However, approval of an ETR plan or failure to approve an ETR plan by the TACB does not absolve an employer of the responsibility or liability for complying with the applicable APO target. EPA suggested that a time limit be established for resubmission of a plan that has been disapproved by the TACB. The staff recognizes that some plan submissions may be found incomplete or unacceptable. Under such circumstances, the employer will be notified as soon as possible and may be provided a reasonable length of time to respond with supplemental information. While the provision of additional time to clarify specific case-by-case questions or concerns may be a reasonable administrative practice, inclusion of a specified period in the rule may encourage partial plan submittals and extended submission schedules. Therefore, an "approvable" plan must be submitted by the established deadline in order to avoid potential violations. H-GAC endorsed a 90-day deadline for employers to resubmit plans to the TACB after notification that their target APO was not met by November 15, 1996, or subsequent deadlines. The TACB staff does not intend to send notification letters, because the employers already are required to report the status of the ETR plan implementation and to resubmit a revised plan, if necessary, two years after the plan submission deadline. The staff agrees that it would be reasonable to allow 60 days after the applicable compliance date for the employer to revise and resubmit a plan to achieve compliance. Appropriate language has been added to sec.114.21(h)(2)(B). The date of the submission of the revised plan would not change the next compliance date. The next reporting period would remain the anniversary of the original plan submission deadline. Failure to document compliance in this status report may subject the employer to penalties. Several commenters requested for a clarification of the ETC's role and requirements. EPA requested that the role of the ETC be clearly defined. In addition, there were a number of comments regarding the requirements for ETC training. Mitchell Energy asked the staff to clarify whether the ETC must sign the certification. To allow the employer the option of contractor-provided services, the staff intends for the ETC to be an individual appointed by the employer to be responsible for the preparation of the ETR plan, for marketing trip reduction measures to employees for implementation, for recording and monitoring the applicable control measures at each worksite, and for reporting requirements. The ETC will not be required to sign the ETR plan certification. Language has been included within the rule and SIP to clarify this intent. Shell, Occidental Chemical, HL&P, and Katy ISD requested that a single ETC be allowed for multiple worksites rather than one ETC on each site. Valero requested modification of the requirement that employers have a dedicated staff member who acts only as an ETC. It may not be necessary in all cases for an ETC to be dedicated solely to working on the ETR program. Since there will be different staffing needs for each employer depending on the number of sites, the nature of the business, and the skills of employees, an employer should have flexibility over the use of resources. Some ETCs may be able to handle more than one employer's ETR plan, as well as more than one worksite. Therefore, the staff wishes to clarify that a trained ETC is required to be designated for each site and has deleted language which implies that an ETC must be physically located at a particular worksite. Coastal States opposed being required to designate an ETC. Anheuser-Busch stated that worksites that meet the APO target requirements should be exempted from the requirement to have trained ETCs. The ETC duties may not be as extensive for employers that have already met their target APO as for those which are not in compliance. However, there will continue to be survey and reporting requirements which a qualified ETC will need to satisfy. Anheuser-Busch also stated that the TACB should provide the necessary initial training for ETCs at worksites which are below target. Rohm and Haas asked whether the ETC has to be certified, who grants certification, and how long certification lasts. H-GAC suggested that there be periodic recertification every two or three years. One individual suggested that 10 hours of retraining for ETC certification be required every two years. While the ETC is required to attend basic training from a TACB certified training provider, the staff did not intend to imply "certification" of ETCs. "Certification" was used in the SIP in relation to certifying trainers to teach ETC courses. The information on ETR is rapidly changing, and improved information is expected to become available as other state programs are developed and evaluated. The staff does not believe that the length of time between training updates should be designated by regulation. South Coast Air Quality Management District (SCAQMD) requires their ETCs to have annual update courses. However, the TACB staff believes that it may be as appropriate for these updates to take the form of workshops, symposia, video presentations, or written materials in order to recognize on-the-job experience and to promote flexibility. Therefore, the staff has added to the rule a requirement for evidence of attendance at a basic ETC training course approved by the TACB. In addition, the staff has added language in the rule to clarify "adequate training" as follows: "ETC training at a minimum, must include: a basic, comprehensive training course administered by a TACB-certified training provider; and ongoing activities recognized by the TACB as necessary to maintain expertise in ETR program administration. Annual verification of participation in relevant workshops, conferences, symposia, or other activities, must be submitted to the TACB." Likewise, appropriate changes to the SIP have been made. Training courses and updates will be coordinated by the TACB and be provided either by the TACB or by other organizations approved by the TACB. For clarification, the staff did not specify the length and time for recertification of ETC training providers. It appears more appropriate to handle this issue administratively through annual review of training provider performance. The comments regarding the annual survey for determination of the APO included requests for substitution of a random sample for the required response rate of at least 75% and requests for clarification of timing of the survey performance. Hewlett-Packard, Sierra Club, Chevron, GHP, Rice University, Shell, Rohm and Haas, Exxon, Anheuser-Busch, Coastal States, Enron, and HL&P requested authorization to use a statistically significant random sample when surveying employees to calculate the APO. Hewlett-Packard, Rohm and Haas, and Anheuser- Busch said that the 75% response rate for the survey of all employees arriving at the worksite between the hours of 6 a.m. and 10 a.m. was too high. Anheuser- Busch said that to get a 75% response, some employers will have to offer financial or material incentives. Chevron and Hewlett-Packard commented that it was erroneous to assume that non-respondents are traveling to work in SOVs. The Sierra Club and one individual commented that the 75% response rate was reasonable and should be retained. EPA said that for very large work forces, the TACB may allow a random subset of employees to be selected for surveying, as long as the response rate requirements applicable to a regular survey likewise are applied to the sample. The purpose of the employee survey is to accurately determine the APO and travel characteristics of the employees arriving at the worksite between the hours of 6 a.m. and 10 a.m., Monday through Friday, so that at a future date actual emission reductions resulting from the ETR program can be calculated. Consultation with Dr. John C. Dougherty, IV, of the LBJ School of Public Affairs at the University of Texas at Austin, confirms that demonstration of a significant confidence level using a sample for the baseline survey would be difficult. In addition, the overall integrity of such sample surveys could be difficult to guarantee. Ventura County and SCAQMD in California both report that, while they have had similar requests, they have had very little difficulty in obtaining 100% response rates even from very large employers. Both agencies report that tracking an employee's transportation mode is not much different from tracking an employee's work attendance. The TACB staff supports the 75% minimum response rate for surveys of all employees arriving at the worksite between the hours of 6 a.m. and 10 a.m., Monday through Friday, with non-respondents being counted as SOVs. While it would be desirable to obtain 100% response rate on the employee surveys, this may not be realistic for all companies. Some minimum response rate for the survey is needed to ensure a value accounting and to avoid a falsely skewed high rate of response from rideshare participants with a corresponding failure of employees to report use of SOVs. The TACB staff believes that the 75% response rate is appropriate. If an employer can document a response rate of 90% or greater, non-respondents will not be counted as arriving SOVs. The remaining 10% will be assumed to have the same relative distribution of ridership as demonstrated in the survey. Rice University commented that their faculty works at home during academic breaks. Therefore, the University should be permitted to include seasons which give maximum APO, such as summer work at home. EPA commented that the TACB needs to specify the requirements for conducting the employee survey. EPA stated that the phrase "conducted in accordance with TACB guidance" is ambiguous. EPA said that the TACB may want to specify such items as the content and/or the timing of the survey. The staff agrees that more explanation of the survey is needed to avoid ambiguity. Potential confusion may be reduced by stating that employers will be required to submit the results of the annual survey and plan information on forms provided by the TACB. Direction and assistance regarding detailed implementation of the survey will be provided to employers along with the survey forms. In addition, the administration of the survey and completion of plan forms will be covered in the basic training of the ETC. The survey should be conducted during a typical week for that employer's business. For example, a school should conduct the survey during the school year, not the summer vacation. The survey should be performed on five consecutive days, Monday through Friday inclusive, and during a week that contains no holidays and is not preceded or followed by a holiday. During the survey week, in order to maintain the validity of the survey, the employer is advised not to provide special incentives or conduct promotional activities for employees. There were several comments regarding performance tracking including: recordkeeping, auditing, and reporting. H-GAC requested that the TACB develop a simple standardized machine-readable format for employer surveys and that the TACB calculate the employer's APO from that data. The TACB staff intends to provide standardized survey forms (with appropriate directions) on which each employer can obtain, calculate, and report data and plans. The TACB does not have the resources necessary to process the data obtained from each individual employee survey for the employers. HCPCD suggested that the first sentence of sec.114.21(f) be modified to allow records to be maintained "at a central location within the nonattainment area or geographic AVO zone in the case of multiple worksites." The staff concurs and has made this change. The Sierra Club and one individual argued that records should be kept for at least five years. Two years of information appears adequate to assess compliance with the ETR requirements. The employee surveys must be conducted annually and plans must be reviewed and resubmitted every two years. This timeframe is also consistent with other TACB recordkeeping requirements. H-GAC suggested that tracking be limited to methods to assess progress toward meeting the AVO goal. Hewlett-Packard expressed concern about recordkeeping and quality assurance requirements. H-GAC, Exxon, and S & B Engineers commented that recordkeeping should be limited to the minimum necessary to demonstrate results and compliance. S & B Engineers requested that the words "...but are not limited to..." be deleted from the last sentence of sec.114.21(f). Chevron commented that calculation of person trips and VMT reduction should only be required at the time of the employee survey. The staff does not plan to request unnecessary information or recordkeeping. The TACB does need to request any information necessary to administer the ETR program and to determine emission reductions. The staff points out that, while employers are required only to report to the TACB after the annual employee survey, employers would need to calculate the APO more frequently or devise another method to continuously monitor the effectiveness of their program and make adjustments if needed to reach the target APO. McDonnell Douglas expressed concern about recordkeeping that requires accounting of budget allocations or expenditures for each measure and incentives offered to employees. The commenter asserted that this may cause the erroneous conclusion that those who spend less on an ETR program are not as committed. The staff understands McDonnell Douglas' concern that the amount spent on a measure should not be construed as being an indicator either of the level of commitment to the program or, necessarily, the potential success of the measure. Such information, however, will be useful in determining the cost-effectiveness of ETR program measures and in determining that an appropriate level of funding is being expended on selected measures. Hewlett-Packard objected to an "unannounced" audit process. Chevron said that the term "periodic" is vague and implies additional compliance dates which are not clarified in the rule. Chevron added that audits should be used to track those who demonstrate compliance with the target APO, thus doing away with the need for plan resubmission. One commenter indicated a need for a strong audit program, possibly four times per year. The TACB has a responsibility to enforce the Texas Clean Air Act (TCAA) and the amendments to the FCAA. The audit is necessary to ensure the quality and integrity of plans, reports, and records. Therefore, the TACB must retain the right to visit any employer to assess adherence to the approved plan and to ensure continued compliance. The audit would be similar to current compliance inspections performed by the TACB which include about 25% unannounced visits. It is not appropriate to set a specific number of times per year or a goal for the number of inspections per year. The staff believes that audit surveys of employers is an important quality assurance tool. Hewlett-Packard stated that milestone surveys should be conducted every two years, once the employer is in compliance, and if the employer is not yet in compliance, the survey should be annual. The GHP, however, stated that an annual employee survey for all employers was acceptable. Rohm and Haas asked whether a 75% response was required on the annual milestone survey. H-GAC commented that employers should be required only to conduct annual surveys to provide the data necessary to calculate APO for each employer, regional AVO, and the regional VMT reduction. An annual employee survey for all employers is necessary so that employers can ascertain that they are still in compliance with the target APO. For reasons previously stated, a 75% response rate for a survey of all employees during the peak travel period will be required for the annual survey. Several commenters expressed concerns or questions regarding the requirement to achieve the target APO of 25% over the area's AVO by the 1996 compliances dates. In relation to the compliance requirement, there was concern regarding the penalties and enforcement consequences for failure to comply. GHP, Texas Retailers Association, Exxon, HL&P, and Valero commented that an employer should not be considered in violation of the regulation for failure to achieve the APO target as long as an approvable plan has been submitted and implemented according to the schedule. GHP pointed out that this would be consistent with EPA enforcement practices which do not impose sanctions on areas for failure to reach attainment if plans are implemented as approved. GHP recommended that employers not be penalized if they can show "good faith efforts" toward compliance and that employers not be punished if they have made significant progress toward achieving their goals. McDonnell Douglas was concerned that the Texas ETR plan is performance-based rather than actionbased like California. They requested that the TACB consider efforts to educate the work force in assessing an employer's progress toward achieving the target APO, since this program will require changing people's behavior. Hewlett-Packard expressed concern that the penalties may be large and excessive and disagreed with "enforceable implementation" or "enforceable dates." Chevron said that penalty fees should only be considered if an employer does not comply with requirements, such as registration with the TACB, completion of employee surveys, and plan submission. Chevron also commented that a schedule of violation and associated penalty amounts need to be detailed and included in the rule. They also expressed concern about enforceable implementation of milestone dates for the annual survey, trip reduction measures, and incentives. H-GAC suggested that an employer should be found in violation of the ETR plan and subject to administrative and civil penalties only if the employer fails to submit the required documents, falls short of achieving the initial 1996 target or annual target (after 1996), or fails to implement and carry out its ETR plan. Continental argued that compliance with the 1.46 AVO by November 1996 is not realistic. Based on California experience, after two years, Houston would only have a 1.23 AVO. The commenter stated that Continental, along with many other Los Angeles corporations, now believes that transportation demand measures, such as the ETR plan, alone will not achieve the target APO increase. In addition, Continental commented that the "alternate transportation mode preference survey" is going to be useless for the first two years until employees are educated. Camco contended that, although the ETR program is a reasonable solution to the ozone problem, it is not achievable, because there are no suitable alternative transportation modes in the Houston area. S & B Engineers stated that the rule, as proposed, is far too cumbersome due to the nature of S & B Engineers' engineering business. The FCAA requires employers to have an APO higher than the AVO by 25% by 1996. The staff feels that in order to convincingly demonstrate to EPA that compliance with the target APO can be achieved, aggressive enforcement requirements are essential. The TACB staff understands that achievement of the target APO will be difficult, will require changes in the behavior and commuting modes of employees and employers in the nonattainment areas, and will require implementation of transportation programs and other support activities in the nonattainment area. Three of the reasons why California may not have achieved higher trip reduction results were: the administrative agencies and employers were creating ETR programs and related support activities for the first time; employers understood they would not be penalized for failing to reach the target APO; and the focus of the program was on "intensive plan review" rather than performance. The staff also realizes that the 25% increase in APO is an ambitious target, but that by placing our emphasis on outreach, education, and performance rather than on the intensive plan review, greater success is possible. The staff has considered these comments and will assist in supporting employers' efforts to educate their employees and to shift to alternate transportation commuting modes. If the TACB does not implement a program of intensive plan review or require specific incentives for all employers that have been approved by EPA, then the TACB is required to include in the regulation a program of "financial penalties large enough to result in a significant prospective incentive for the employer to design and implement an effective initial compliance plan of its own." The staff feels that the penalties for failure to comply with TACB rules that are described in the Texas Health and Safety Code are appropriate. The Board may consider good faith efforts in determining specific penalty amounts. Such a good faith effort may include ongoing internal monitoring of plan measures and incentives and their relative effectiveness and the immediate initiation of additional measures when shortfalls are identified. Documentation of prior efforts to remedy plan deficiencies may result in reduced or deferred penalties for failure to achieve the targets. Experience from other states indicates that extensive plan review does not encourage employers to comply. Such an approach takes an inordinate amount of time, effort, and resources focusing on the administrative process, rather than the desired outcome of reducing commuter travel and vehicle emissions. Amoco recommended that all compliance requirements be eliminated. EPA commented on inconsistency regarding compliance deadlines and stated that, in some places, the regulations cite two years following the initial submission deadline, others cite November 1996. EPA suggested that the TACB specify that the deadline refers to two years after the initial ETR plan submission deadline. While the TACB does not expect employers to submit ETR plans or compliance reports prior to the established deadlines, compliance with all emission reduction measures is encouraged as soon as practicable. However, violations will not be determined until after the established deadlines. The staff recognizes the need to ensure that all regulatory compliance and reporting dates are consistent throughout the regulations and associated SIP revisions. EPA said that the TACB should reiterate in this section that employers who fail to meet the target APO are still in violation of this rule, even if they submit a revised ETR plan. The staff agrees with EPA's comment that employers who fail to meet the target APO are still in violation of this rule, until they achieve compliance with the target APO, even after they have submitted a revised plan. However, sec.114.21(h) requires employers to produce a demonstration of compliance with the target APO. In the absence of such a demonstration, an employer is assumed to be in violation of the rule, whether or not a revised ETR plan is submitted. EPA's suggested change would be redundant to the provisions of the rule. EPA commented that the TACB needs to include a schedule in the SIP for implementing each major program element, e.g., plan review process, tracking and auditing procedure, quality assurance measures, training and certification, and public information program. The staff will use the following ETR program implementation schedule: development of public information program: January 1993; development of training provider certification program: November 1993; development of plan review procedures: March 1994; development of quality assurance measures: May 1994; development of tracking and auditing procedures: November 1994. The ETR program implementation is contingent upon adequate funding, which must be appropriated by the Texas Legislature in 1993. Before September 1993, the TACB can commit only current resources to submit work plans for major program elements and to work closely with the H-GAC to develop an employer survey, preliminary plan forms, and information/education programs and materials. Commenters expressed concerns about the costs of the ETR program both for employer compliance and for program administration. Several commenters suggested that the TACB cost projections in the preamble to the proposed sec.114.21 were too low. GHP questioned the cost-effectiveness of the "seemingly high-dollar, federally-mandated program" and urged the TACB to gather and evaluate data on the actual program costs. GHP requested that the cost assessments to the program include both the cost to employers and the cost to the administrative agencies. The data should be provided to the public for evaluation of the ETR program as an ozone control strategy. Coastal States expressed concern about the cost they would incur trying to encourage employees to change driving habits. They encouraged the TACB to minimize the costs and to implement a rule no more stringent than those mandated by the FCAA. S & B Engineers stated that the cost to the companies was grossly underestimated. Amoco commented that, while they recognized that the ETR program is federally mandated, one must consider the cost benefit ratio of the employer cost with the benefit received for each dollar spent on program implementation. For example, Amoco projected the cost to implement the ETR program to be several thousand dollars per ton more than the reasonably available control technology for nitrogen oxides and best available control technology for volatile organic compounds. Enjet stated that without any alternative or credit exemptions, employers' financial burdens will be doubled since they must: fund the ETR program; and fund the capital costs of alternative fuel vehicles and/or refueling equipment of the "Texas Plan." Enjet also strongly suggested that only one mandate or the other be implemented by employers. Continental commented that the $30 per employee estimate is misleading, false, and really not based on the California experience. Continental claimed that a draft of a study of California's ETR regulations is estimating costs at $50 to $200 per employee per year. The Sierra Club commented that the costs of the ETR program appeared to be reasonable. Katy ISD expressed a need to avoid the experience of California as reported by Continental. Rice University voiced concern regarding the significant cost to implement the revisions as proposed, indicated confusion regarding implementation, and objected to the uncalculated bureaucratic cost to administer the program. The staff recognizes the difficulty of properly accounting for employers' costs and agrees with the need to keep both TACB and employers' costs down to the minimum required to successfully meet the aims of this federally-mandated ETR program and to achieve efficient emission reductions. Information taken from "The Regulation XV Trip Reduction Program Summary of Research" by Genevieve Giuliano of the University of Southern California and Martin Wachs of the University of California, Los Angeles, (dated July 6, 1992), shows costs ranging from $12 to $263 per peak employee per year. The staff points out that with such a wide range in the costs, it is difficult to estimate the actual costs to employers. Some available information suggested that, in many cases, employers may even realize a net cost savings as a result of lower parking costs or other related benefits. There were several comments regarding public outreach and education. H-GAC stressed that a program of outreach and information is critical to the success of ETR. One individual felt that there was not enough commitment to public information from the TACB, H-GAC, and EPA. Coastal States requested TACB's assistance in providing information and methods to employers to assist them in decision making as they develop an ETR program. Katy ISD said that notification to the school districts was lacking. As the largest employers, they wish to be singled out for notification through the Texas Education Agency. One individual felt that there was a need for more and better organized public participation in the ETR program, particularly with regard to the Regional Air Quality Planning Committee meetings held by H-GAC. The individual stated that greater efforts should be made to hold these meetings in the evenings. The TACB staff concurs with the need for public education and public involvement. However, these suggestions may be addressed administratively and do not require a change in the rule or the SIP. One individual requested that there be public access to employers ETR plans and that "continued compliance" be defined. Reports and plans submitted to the agency are public record and, thus, are available to the public, unless they contain information which is clearly marked "confidential." The term "continued compliance" means that the employer is required to continue to meet the target APO every year after the deadline. Amoco expressed concern that the employer may be subject to worker's compensation claims from employees injured while riding to work in a company sponsored carpool or from other parties injured in traffic accidents involving company-sponsored or encouraged transportation arrangements. The commenter requested that new language be added to read: "Nothing in this section shall be construed to assign liability for personal injury or property damage associated with vehicles operated to facilitate compliance with this section to any party other than the owner or operator of that vehicle." The staff discussed Amoco's concerns with the Texas Workers Compensation Commission who said that such a section in the rule would be unnecessary. In the case of vanpools, the owner of the van carries the insurance. If the employer owned the van, then the employer would be responsible for the vehicle insurance. Whether the van is leased by the employees from an external organization or from the employer, in the event of an accident, a workers' compensation claim could not be made against the employer because the employee is riding in the van on a voluntary basis outside of work hours. A workers' compensation claim could only be made if the duties of the employee's job required that the employee ride in the van during work hours. If the employer owned the van and leased it to the employee vanpool, any claim arising from an accident would be against the employer's vehicle insurance. The following error and corrections were noted by commenters. EPA suggested that subsection (g) be switched with subsection (j) so that the initial plan submission schedule is presented before the reporting deadlines. EPA also noted that plan submission deadlines should be consistent throughout sec.114.21 and SIP. Both HCPCD and Mitchell Energy recommended correction of subsection (j) paragraph (1) to show that employers in Harris County, instead of "Houston County," are subject to the program. The clear intent of the proposed rule is to require ETR plans for employers in Harris County rather than in Houston County. Other suggested corrections and clarifications appear appropriate. Furthermore, the staff has identified other nonsubstantive editorial changes to clarify the requirements of the SIP revisions and rule language. One individual stated that falsifying and failing to maintain records and failure to attain the appropriate target APO must be considered a violation of TACB Regulation IV, Control of Air Pollution From Motor Vehicles. The staff believes that it is generally understood that falsifying and failing to maintain required records are considered to be violations of the regulation. Camco stated that Houston needs a light-rail system, while Katy ISD suggested that mass transit be subsidized by high taxes on superclean diesel and gasoline. S & B Engineers said that the TACB should concentrate on putting additional regulations and tight schedules on the governments of cities and counties in Texas to provide the needs of an efficient public transportation system in such highly polluted areas. One individual commented that the additives to unleaded gasoline contribute to one of the most objectionable forms of smog and that large amounts of air pollutants usually associated with auto emissions come from natural sources. The commenter added that petrochemical and chemical industries along the Houston Ship Channel are routinely issued variances by the TACB and EPA, yet drivers who are within legal vehicle emission standards are now about to be punished by these regulatory agencies as if they have done something wrong. Lubrizol argued that the chemical industry is already undertaking considerable expense to reduce the emissions within its direct control and that the chemical industry should not be responsible for its employees. McDonnell Douglas expressed concern that traffic control measures will be confused with air pollution control. In some cases, apparent solutions to traffic congestion (e.g., park and ride) do not contribute to reduced air emissions. The company urged the TACB to adopt only measures with significant measurable and enforceable emissions benefits. Coastal States suggested that the employer be granted incentives by the state and various metropolitan transit authorities. While the staff recognizes the validity of many of these comments, they are beyond the scope of this rulemaking. Automobiles account for a considerable amount of the emissions attributable to ozone nonattainment in the Houston/Galveston area. The FCAA mandates this program to assist with the mandated emission reductions in the Houston/Galveston nonattainment area. 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 FAX, or 1-800-RELAY-TX (TDD), or by writing or visiting at 12124 Park 35 Circle, Austin, Texas 78753. The new sections are adopted under the 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 purposes of the TCAA. sec.114.21. Employer Trip Reduction Program. (a) 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 words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise. (1) Average passenger occupancy (APO)-Applies to the average number of employees per vehicle equivalent arriving at a specific employer's worksite during the morning peak travel period and equals the number of employees reporting to a worksite between 6 a.m and 10 a.m., Monday through Friday, divided by the number of vehicle equivalents in which employees report to work minus the APO credit. APO determinations may include: (A) initial APO based on employee commuting information obtained from the initial employee survey conducted during the preparation of the employer trip reduction (ETR) plan submitted in accordance with subsection (j) of this section; and (B) projected APO based on employee commuting information projected by the employer considering the effects of all anticipated ETR measures and incentives as of the target APO compliance deadlines established in subsection (j) of this section. (2) APO credit-The number of vehicle equivalents less than that needed to achieve the target APO for an employer for the previous year. The APO credit equals the number of vehicle equivalents used in calculating the target APO minus the actual number of vehicle equivalents measured in the survey. (3) Average vehicle occupancy (AVO)-The baseline number of employees per vehicle equivalents throughout the nonattainment area or a zone within the nonattainment area which has been measured for the year of the state implementation plan submission. The AVO applies to all commuting trips in the area between home and the worksite during the defined peak travel period of 6 a.m. to 10 a.m., Monday through Friday. Therefore, all commuters, including those who work for employers with less than 100 employees and who commute during the peak travel period, are included in this calculation. (4) AVO zones-Delineations of portions of the nonattainment area that have similar modes of transportation and land use patterns. (5) Employee-Any person, excluding volunteers, employed by a firm, person(s), business, educational institution, nonprofit agency or corporation, government department or agency, or other entity. Employee includes: (A) any person, whether paid directly by the employer or through contract with the employer, who regularly reports to work or is assigned to a specific worksite; (B) any temporary employee assigned to a worksite for more than one month; and (C) any part-time employee assigned to a worksite for more than 88 hours per month, excluding Saturday and Sunday. (6) Employer-Any person(s), firm, business, educational institution, government department or agency, nonprofit agency or corporation, or other entity which employs, by direct payroll or through contract, 100 or more persons at a single worksite. Entities under a common regulating body are considered a single employer and will require a single plan if they occupy a common worksite, unless each entity has 100 or more employees. Unassociated companies occupying a common worksite will require individual plans. (7) Peak travel period-The time between 6 a.m. and 10 a.m., Monday through Friday. (8) Target APO-The specified APO that each employer must achieve by the compliance deadlines, which are two years after the plan submission deadlines established in subsection (j) of this section. Target APOs have been designated in the state implementation plan for specified geographic subareas within the ozone nonattainment area, such that the weighted average of all target APOs will achieve an overall APO of at least 25% greater than the AVO for the entire ozone nonattainment area. (9) Vehicle equivalent-The calculated fraction of a motor vehicle used by each employee for commuting during the peak travel period. For example: a single occupancy vehicle equals a 1.0 vehicle equivalent; a carpool with four employees equals a 0.25 vehicle equivalent; and an employee using transit service or a special vehicle for a disabled employee equals a zero vehicle equivalent. The vehicle equivalents for other trip reduction strategies, such as compressed workweeks, alternative fuel vehicles, telecommuting, or other measures will be calculated in accordance with procedures and formulas provided by the Texas Air Control Board (TACB). (10) Work-related trips-Trips between home and the worksite, including any stops enroute to work during the peak travel period. (11) Worksite-A building or a group of buildings which are in actual physical contact or separated only by a private or public roadway or other private or public right-of-way and which are owned or operated by the same employer or by employers under common control as described under the employer definition. (b) All employers with 100 or more employees at a single worksite located in any county referenced in subsection (j) of this section shall implement programs, incentives, or other measures as necessary to achieve the applicable target APO for the geographic AVO zone or subarea where the employer is located. APO credits may be banked and used by the employer to offset a shortfall during the following year if: (1) the APO that is measured in the survey is greater than the target APO; and (2) the employer establishes a verifiable recordkeeping methodology to track APO credits, which has been submitted with the ETR plan referenced in subsection (d) of this section and approved by the TACB. (c) All employers affected by this section shall register with the TACB and shall provide and update the following information by September 1 of each year beginning in 1993: (1) the employer's name, mailing address, local street address, and telephone number; (2) the name and title of the highest ranking official with direct responsibility for the local management of the worksite and the designated employee transportation coordinator (ETC); (3) the type of business or industry and the associated Standard Industrial Classification code, if applicable; (4) the number of employees located at the worksite, the work shift schedules, and the number of employees reporting to work between 6 a.m. and 10 a.m., Monday through Friday; (5) the TACB account number(s), if applicable; and (6) other information as requested by the TACB staff. (d) All employers affected by this section shall submit an approvable ETR plan and related information to the TACB on forms provided by the TACB or in a format approved by the TACB in accordance with the schedules referenced in subsection (j) of this section. This plan shall convincingly demonstrate the employer's commitment and strategies for achieving the required target APO at each affected worksite by the established compliance date. The plan shall include, but shall not be limited to, the following information: (1) the name of the designated, trained ETC, as required by subsection (e) of this section, who is responsible for the preparation of the plan and the implementation, operation, and monitoring of the applicable ETR measures and incentives at each worksite. Verification of initial training, as required by subsection (e) of this section, must also be documented; (2) the location and the type of business being conducted at each affected worksite; (3) the associated initial APO for each worksite; (4) the associated target APO for each worksite; and (5) the results of the initial employee survey on forms provided by the TACB or in a format approved by the TACB. (A) The survey shall be conducted in accordance with the following criteria: (i) all employees arriving at the worksite during the peak travel period must be included in the survey; (ii) the survey must cover five consecutive days, Monday through Friday inclusive, representing a typical week for the employer's business. The survey week should not include public holidays during or bordering the weekend on either side of the selected week nor include special rideshare promotions; and (iii) a response rate of 75% or higher of all employees arriving during the peak travel period must be achieved for each worksite. All non-respondents shall be considered arriving in a single occupancy vehicle, unless the response rate is 90% or greater for which the surveyed ratio will be considered for all employees. (B) The survey results must include, but shall not be limited to, the following: (i) the initial APO; (ii) current commuter behavior, including data such as vehicle miles traveled, number of coldstarts, portions of commuter trips traveled in single occupancy vehicles, and other information necessary to estimate vehicle emissions; and (iii) alternative transportation mode preferences; (6) a description of the trip reduction measures and incentives scheduled to be implemented at each worksite. While implementation of these specific measures and incentives is not required, the employer must implement, monitor, and periodically modify, if necessary, adequate measures and incentives to ensure that the applicable target APO is achieved by the compliance date specified in subsection (j) of this section; (7) a mechanism to ensure the proper tracking and evaluation of the effectiveness of selected trip reduction measures and incentives; (8) an enforceable certification signed by the highest ranking official with direct management responsibility for the worksite which will: (A) attest to the completeness, accuracy, and reliability of the plan contents; (B) verify that the measures and incentives to be implemented have been evaluated and are designed to ensure compliance with the appropriate target APO and schedules; and (C) commit to the full and timely implementation of all provisions of the plan, including the on-going evaluation and adjustment of ETR measures and incentives as necessary to achieve the applicable target APO by the compliance deadlines established in subsection (j) of this section; (9) combined ETR plans may be submitted by employers which have a single official with management responsibility for multiple worksites with more than 100 employees each. Combined plans must comply with the following conditions. (A) Compliance may be demonstrated either: (i) for the specific target APO for each individual worksite; or (ii) for the combined worksites by dividing the total number of employees arriving at all worksites during the peak travel period by the total number of associated vehicle equivalents for all worksites. The target APO for the combined plan shall be determined as the highest target APO at any single worksite included in the plan. (B) Information specified in paragraphs (2), (3), (4), (5), and (6) of this subsection must be submitted separately for each worksite. (C) Information specified in paragraphs (1) and (7) of this subsection may be aggregated and submitted for all worksites. (D) The certification specified in paragraph (8) of this subsection must be applicable for all worksites included in the combined plan; and (10) employers who can demonstrate compliance with the target APO by the ETR plan submission deadlines established in subsection (j) of this section must submit a complete ETR plan, with the exception of information specified in paragraphs (6) and (7) of this subsection and need not commit to any additional measures or incentives. (e) All employers affected by this section shall designate an ETC responsible for the proper development and implementation of the ETR programs. The employer must provide adequate training, resources, and other support to this designated ETC, as necessary, to ensure the proper administration, monitoring, technical review, reporting, and promotion of selected trip reduction measures and incentives. Adequate training of the designated ETC shall be documented in the ETR plan and in subsequent annual or biennial reports, as specified in subsection (h)(2) of this section, and shall include, but shall not be limited to, the following: (1) an initial comprehensive training course approved by the TACB and administered by a TACB certified training provider; and (2) on-going training activities, such as relevant workshops, conferences, symposia, or other events recognized by the TACB, as necessary to maintain expertise in ETR plan administration and trip reduction measures. (f) All employers affected by this section shall provide information, including written material, to all employees regarding the requirements of the ETR program, the measures and incentives being offered by the employer, and the air quality and financial benefits of individual participation. (g) All employers affected by this section shall maintain complete and accurate records at the worksite or other central location within the nonattainment area for at least two years and shall make such records available to representatives of the TACB, the United States Environmental Protection Agency, or local air pollution control agencies having jurisdiction in the area, upon request. These records shall include, but are not limited to, the following: (1) the contents and results of employee surveys, market analyses, transportation studies, or other information gathering efforts; (2) a full description of all measures and incentives offered to employees and the associated employee response; (3) an accounting of the budget allocations and expenditures for each measure and incentive offered to employees; (4) the statistics on the operation or coordination of employer-owned or contracted transportation services, such as vanpools or subscription buses; (5) a copy of all publications, newsletters, brochures, or other examples of marketing, promotional, or educational activities conducted to encourage employee participation; (6) documentation of on-going ETC training activities, as required by subsection (e) of this section; and (7) other information associated with the development, implementation, evaluation, or modification of the ETR program. (h) Each employer affected by this section shall evaluate the implementation of the ETR program and submit the following reports to the TACB: (1) no later than one year following the initial submission deadline, review each of the measures and incentives implemented and submit a report reflecting the status of each measure and an estimate of the progress toward achieving the applicable target APO; and (2) no later than two years following the initial submission deadline, provide a demonstration of compliance with the target APO. (A) Employers who successfully demonstrate compliance with the target APO must review; update, if necessary; and resubmit to the TACB a plan to achieve continued compliance every two years. Employee surveys must be performed annually, and the results must be submitted to the TACB on forms provided by the TACB or in a format approved by the TACB. (B) Employers who cannot demonstrate compliance with the target APO must revise and resubmit to the TACB within 60 days of the applicable compliance deadline established in subsection (j) of this section a plan to achieve compliance. The employer must continue to submit a revised plan every year until compliance with the target APO is achieved. (i) Employers affected by this section may qualify for a de minimis exemption from the requirements of this section by applying to the executive director of the TACB and documenting in writing that fewer than 33 employees report to work between 6 a.m. and 10 a.m., Monday through Friday. (j) All affected employers within counties specified in this subsection shall be required to submit approvable ETR plans and to demonstrate compliance with the target APO for each worksite. (1) Employers in Brazoria, Chambers, Fort Bend, Galveston, Harris, Liberty, Montgomery, and Waller Counties shall be required to comply with these requirements. (2) Employers whose employment increases to 100 or more employees or which move into the nonattainment area, an AVO zone, or a geographic subarea with a higher target APO after the scheduled deadlines, must comply with the following schedule: (A) register as specified by subsection (c) of this section; (B) submit an ETR plan within one year; and (C) demonstrate compliance with the applicable target APO within two years after the deadline for plan submission established by subparagraph (B) of this paragraph. (3) ETR plans must be submitted to the TACB in accordance with the following schedule: (A) for employers with 400 and greater employees, no later than May 15, 1994; (B) for employers with 200 to 399 employees, no later than July 15, 1994; (C) for employers with 150 to 199 employees, no later than September 15, 1994; and (D) for employers with 100 to 149 employees, no later than November 15, 1994. (4) All employers must achieve final compliance with the target APO as soon as practicable, but no later than two years after the applicable ETR plan submission deadlines in paragraph (3) of this subsection. In formulating an enforcement policy, the board may consider any good faith effort made by the employer to achieve compliance. 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 November 18, 1992. TRD-9215608 Lane Hartsock Deputy Director, Air Quality Planning Texas Air Control Board Effective date: December 11, 1992 Proposal publication date: June 5, 1992 For further information, please call: (512) 908-1457 Chapter 116. Control of Air Pollution By Permits For New Construction or Modification 31 TAC sec.sec.116.3, 116.12, 116.14 The Texas Air Control Board (TACB) adopts amendments to sec.116.3, and sec.116.12, and new sec.116.14, with changes to the proposed text as published in the July 3, 1992, issue of the Texas Register (17 TexReg 4729). Amendments to sec.116.1, concerning Permit Requirements, have been withdrawn. Amendments to sec.116.3, concerning Consideration for Granting Permits to Construct and Operate, will require an alternative site analysis. A new paragraph has been added to sec.116.3 to allow a rocket motor or engine test facility to offset emission increases by alternative or innovative means. Amendments to sec.116.12, concerning Review and Continuance of Operating Permits, remove references to operating permits, replace references to "continuance" with "renewal," establish a five-year renewal period as of December 1, 1991, and change the fee schedule to eliminate alternative methods of fees determination. A sentence has been added to sec.116.12(a) which exempts a permit holder from increased fees or other penalties resulting from failure to submit a renewal application by the due date when the tardiness can be attributed to military service outside the State of Texas. The new sec.116.14, concerning Compliance History Requirements, specifies the components of the compliance history and responsibilities of the applicant and the TACB staff in compiling the compliance history. A public hearing was held in Austin on July 28, 1992, to consider the proposal. Written testimony was received from 19 commenters during the comment period which ended July 30, 1992. Oral testimony was presented by two commenters. Most of the comments addressed the specific changes proposed and covered a variety of issues. Dow Chemical Company (Dow), Texas Chemical Council; and DuPont, Gulf Coast Regional Manufacturing Services (DuPont) supported the revisions. The City of Dallas Department of Health and Human Services (Dallas); Enserch Processing, Incorporated (Enserch); Eastman Chemical Company, Texas Eastman Division; U.S. Environmental Protection Agency (EPA), Region 6; Gas Processors Association (GPA); Lone Star Gas Company (Lone Star); Marathon Oil Company, Texas Refining Division; Mitchell Energy Corporation; Rhone-Poulenc Basic Chemicals Company (Rhone-Poulenc); Sierra Club, Lone Star Chapter (Sierra Club); Compliance History Task Force (Task Force); Texas General Land Office; Texas MidContinent Oil and Gas Association (TMOGA); and Valero Natural Gas Partners, L.P. (Valero) generally supported the revisions with minor changes. Comments by the Task Force were supported by Dow and DuPont. The following discussion initially addresses the more general comments and then addresses the comments which apply to specific parts of the regulation. The TACB has withdrawn the proposed revisions to sec.116.1 and sec.116.3(b), regarding operations certification, to allow for further development of the changes and consideration in future rulemaking. Suggestions were made by the regulated community for workshops that will clarify the purpose and use of Alternative Site Analysis. The Sierra Club agreed and requested to be invited to any workshop that the TACB sponsors regarding Alternative Site Analysis. The staff will plan to conduct workshops on Alternative Site Analysis and announce these meetings to the public and the regulated community. Regarding the proposed revisions to sec.116.3, Dallas, TMOGA, GPA, and an individual commented that sec.116.3(a)(7)(D) and sec.116.3(a)(10)(E), regarding the Federal Clean Air Act (FCAA) Amendments for an alternative site analysis in nonattainment areas, are vague and undefined. The staff developed this language in response to the FCAA, sec.173 which requires businesses to submit the analysis of alternative sites as part of the permitting process. Future permit workshops will include information for the regulated community which will describe, in detail, the proper method to comply with this requirement. Section 116.3(a)(7)(D) and sec.116.3(a)(10)(E) has been revised to expand and clarify the language for site analysis. EPA commented that sec.116.3(a)(10)(E) requires that the alternative site be a part of the public record, but not part of the permit application. EPA suggested that the wording clearly state that alternative site analysis is to be reviewed by the TACB as part of the permit application. Section 116.3(a)(10) (E) has been revised to reflect that the alternative site analysis shall be submitted to the TACB for review as part of the permit application. Two individuals commented on sec.116.3(c)(3), regarding the offsetting of emissions from rocket motors or engine test facilities, and expressed concern that the TACB would allow avoidance of offsets in a nonattainment area for ozone regardless of the type of facility. The proposed language responds to the FCAA, sec.173(e)(1)-(4) in which the permitting authority of a state is required to allow a source to offset emission increases from rocket engine and motor firing and cleaning related to such firing, by alternative or innovative means. This exception to the offset requirement is limited to a narrowly defined category and cannot be extended to other facilities. Dallas and an individual commented on sec.116.12(b)(2), recommending that applicable notices of violation (NOVs) include those issued by the TACB or a local air pollution control agency if the NOV resulted from a TACB regulation or permit violation. The staff agrees with this recommendation. The new sec.116.14, concerning Compliance History Requirements, will require the review of any NOVs and administrative and/or criminal violations as they pertain to the permitting process. The definition of "compliance proceeding," included in sec.116.14(a), specifies that NOVs include those issued by the TACB as well as other agencies. An individual objected to the use of the word "substantial" in sec.116.12(b) (2) as it applies to the compliance review of permit renewal applications because it is vague and undefined. The staff agrees that the word "substantial" is not specific enough to fully describe the meaning of the paragraph. Section 116.14, concerning Compliance History Requirements, provides additional terms to further describe "substantial compliance" as used in sec.116.12(b)(2). Valero, Lone Star, and Enserch opposed sec.116.12(b)(2) which allows the consideration of NOVs in the review of compliance histories, because they may be issued by less experienced inspectors who may not fully understand the regulations and may issue NOVs when no violations exist. They contended that no permit holder should be denied a permit under such conditions or be denied due process of law. In addition, Lone Star and Enserch expressed concern with the use of the term "substantial compliance with the provisions of the Texas Clean Air Act (TCAA)" and the fact that the regulated community has not had a chance to comment on this matter. However, Lone Star and Enserch agreed with the requirements set forth in the compliance history requirements in sec.116.14. The staff agrees with the commenters that a permit holder should not be denied a permit under such circumstances nor denied due process of law. The compliance history review identified in sec.116.12(b)(2) has been part of the renewal process since the initiation of renewals in 1986. The original sec.116. 12(b)(2) was reviewed by the TACB Legal Staff, was presented at public hearings for comment, and was adopted by the TACB. The proposed modifications to sec.116.12(b)(2) change only the term "continuance" to "renewal" to comply with the new requirements of the FCAA, Title V for renewals. An individual objected to having permits extend beyond the expiration dates specified in the permit, as described in sec.116.12(f), and to the perceived failure of the TACB to use this condition as an enforcement tool. The staff disagrees with the comment regarding the expiration of permits. There are circumstances, such as contested hearings, or the lack of required data, that are beyond the control of the permit holder or the agency. Such cases would warrant a limited extension. The TACB does not use the expiration of permits as an enforcement tool. In situations resulting in delays, the TACB has provisions in sec.116.3(f) and sec.116.14(h) to void permits. Dallas commented on sec.116.12(h)(2) and suggested that "Any permit scheduled for renewal before December 1, 1991, shall be renewed for a period of 15 years" be changed to "Any permit scheduled for renewal and continuance before December 1, 1991, shall be renewed for a period of 15 years" since there are no renewals before December 1, 1991. The staff included language concerning renewals before December 1, 1991, to advise permit holders that are still on a 15-year permit cycle of the new five- year renewals and how they will be affected. Also, the staff has removed all references to the word "continuance" to comply with the Title V requirements of renewing permits instead of continuing the terms of the expired permit. GPA and TMOGA expressed concern regarding the possibility of a permit expiring due to the applicant not being able to submit a "completed" application within 90 days after receiving notification. The TACB concurs and has changed "completed application" to "application" in the first sentence of sec.116.12(h). Additional submittals needed to complete the application can be made during the review process. GPA and TMOGA recommended adding the words "and not previously renewed" to sec.116.12(h)(1) and "Except as provided in paragraph (1) of this subsection" to sec.116.12(h)(4) to clarify the schedule for permit expiration. The staff agrees with the commenters. The rule has been rewritten to clarify expiration of permits and renewal schedules. TMOGA suggested that operations with numerous locations and the same functional supervision be considered as a unit without referencing other parts of the whole operation; i.e., pipeline operations should be considered as a unit, while refinery operations should be considered separately for permitting purposes. The staff recognizes the complexity of operations which have several levels of processes and functional supervision. Therefore, the agency will consider the permits of an operation on a case-by-case basis. Sierra Club and an individual commented on sec.116.14(a) and stated that adjudicated decisions and compliance proceedings, as defined in the proposed rules, do not necessarily cover all instances of compliance problems. The staff agrees that the definitions of adjudicated decisions and compliance proceedings are restrictive to a certain extent. It should be noted that those records constitute the foundation for the data in the compliance histories and applicants should be held accountable for violations for which they have been found guilty by a court or an administrative agency. Although adjudicated decisions and court proceedings do not cover all circumstances and conditions, they provide a significant amount of information relevant to the permit review process. Potential situations that could occur are considered in the investigation phase by a permit engineer before a permit is issued. Additional information regarding compliance history, while potentially relevant, generally is not warranted in view of the significantly increased resources that would be needed to develop that information. The proposed rule is consistent with the recommendation of the task force and the proposed language will be retained. Rhone-Poulenc commented on sec.116.14(a)(1)(C) and expressed concern about inclusion of a pending order of any court or administrative agency in the permit review process. The staff supports inclusion of pending judicial orders in the permitting process. Pending orders address compliance issues and can affect the permit review. The applicant will have full opportunity to address the impact of the pending order on the review of the permit and can comment regarding the lack of finality or any other associated issue. Sierra Club commented on sec.116.14(c) and recommended that the amount of emission reductions required for exemption from compliance history requirements should be increased from 10% to 50%. The intent of the 10% rule is to exempt those projects which demonstrate a net reduction. A requirement for a reduction of 50% would extensively exceed the TCAA intent of demonstrating a net reduction. The language has been retained as proposed. Sierra Club commented further on sec.116.14(c) and suggested that a potential administrative problem for the TACB would be the determination of a true emissions reduction versus a paper reduction. The word "actual" before "emissions" has been added in sec.116.14(c) to clarify the intent. An individual commented on sec.116.14(c) and suggested that exemptions from compliance history are detrimental to the intent of the rule. The exemption from compliance history review in sec.116.14(c) provides an incentive for reduced emissions. This exemption does not relieve the permit applicant from any responsibilities or requirements of the permit. The exemption segment has been retained to give additional incentives for net reductions in air pollution. Sierra Club commented that because the TACB permits, until recently, have been on a 15-year continuance schedule, the rules should require compilation of a compliance history greater than five years (preferably 10 years) for facilities which have not undergone permit renewal for five years previous to the new renewal application. The staff disagrees that a change to a longer review period is necessary. The TCAA, sec.382.0518, specifies a review of five years of compliance data. Additionally, the five-year compliance history review is consistent with the transition to a five-year renewal period as set forth by the FCAA. GPA commented on sec.116.14(f). GPA agreed with the public notice provision of compliance histories, but recommended an amendment to sec.116.10(a), concerning Public Notice, to inform the permit applicant of the requirement. The staff agrees with the recommendation. However, the recommended change is beyond the scope of this rulemaking. Three commenters, GPA, Lone Star, and Enserch, commented that the use of the word "may" in the statute clearly reflects that the Legislature intended to allow the TACB to review compliance history not to mandate that a compliance history, be compiled and reviewed in connection with every permit renewal. In addition, the commenters stated that sec.116.14 is undefined and will cause an unnecessary burden on the regulated community. The TCAA specifically authorizes the TACB to "consider any adjudicated decision on compliance proceeding within the five years before the date on which the application was filed that addressed the applicant's past performance and compliance with the laws of this State, another State, the United States governing air contaminants, or with the terms of any permit or order issued by the Board." The staff maintains that its interpretation to consider compliance histories is consistent with TCAA language and is aligned with the recommendations submitted by the Compliance History Task Force. The staff has carefully reviewed each section of the TCAA to ensure that all compliance information obtained is pertinent and directed toward those issues which pertain to governing air contaminants and to making informed decisions regarding new permits, permit modifications, or renewals. The staff agrees that not all permit applications should have a compliance review and provisions for exemptions in sec.116.14(c) have been adopted as proposed. TMOGA commented on sec.116.14(b) and expressed concern that the TACB would be required to investigate a large portion of "similar facilities" to comply with the regulation. The staff agrees that sec.116.14(b) implies that there is an indefinite number of "similar facilities" to investigate in multilocation facilities; however, all permits are processed on a case-by-case basis. The TACB would investigate only the number of facilities required to comply with the regulation. Valero and GPA expressed concern regarding the manner in which the compliance history will be used. The commenters stated that compliance history should only be used by the TACB to deny the granting of a permit, amendment, or renewal if an applicant's compliance history shows a recurring pattern of conduct which demonstrates a consistent disregard for compliance with permit requirements and a consistent failure to correct violations. GPA also stated that the TACB should advise an applicant that it intends to deny a permit, amendment, or renewal on that basis and that the applicant should be given an opportunity to respond to the TACB. The staff agrees that permit applicants should not be denied due process of law. The Compliance History Task Force has recommended a manner in which the compliance history should be used by the permit staff in reaching decisions to grant or deny a permit. Staff action and responsibilities were not part of the current proposal, but have been considered as a separate issue by the TACB. The Compliance History Task Force recommendation will be used as guidance for the permitting process instead of being included in the rule. The Compliance History Task Force recommended that language in sec.116.14(d) contain rules which address the information the TACB should not include in the compliance history review. The Compliance History Task Force also recommended that some restrictions include a limit as to the period under consideration, the severity of the violations, and the economic impact of such violations. The staff agrees that there are instances in which pursuing and considering unrestricted procedures can be counterproductive to improvement of air quality or use of limited resources. A new paragraph (4) has been added to sec.116.14(d) , concerning the contents of the compliance history, to address the information which shall not be included in the compilation of the compliance history for applicants applying for a new permit, a renewal, or a modification of an existing permit. In compliance with the Americans With Disabilities Act, this document may be requested in alternate formats by contacting 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 12124 Park 35 Circle, Austin, Texas 78753. The amendments and new section are adopted under the 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. (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)-(6)(em>>(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 point=4.52p [sub]x emissions, and which is to be located in any area designated as nonattainment for ozone in accordance with the Federal Clean Air Act (FCAA), sec.107, shall meet the additional requirements of subparagraphs (A)-(D) 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 [sub]x 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)-(C) (No change.) (D) In accordance with the FCAA, the permit application must contain an analysis of alternative sites, sizes, production processes, and control techniques for the proposed source and that benefits of the proposed location and source configuration significantly outweigh the environmental and social costs of that location. (8)-(9) (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)-(E) of this paragraph regardless of the degree of impact of its emissions on ambient air quality. Table I of sec.101.1 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)-(D) (No change.) (E) In accordance with the FCAA, the permit application must contain an analysis of alternative sites, sizes, production processes, and control techniques for the proposed source and that benefits of the proposed location and source configuration significantly outweigh the environmental and social costs of that location. (11)-(13) (No change.) (b) Permit to operate. In order to be granted a permit to operate, the owner of the facility shall demonstrate that: (1) the facility is complying with the rules and regulations of TACB and the intent of the TCAA; (2) the facility has been constructed and is being operated in accordance with the requirements for and conditions contained in the permit to construct; (3) the facility is being operated in accordance with any applicable new source performance standards promulgated by the Environmental Protection Agency (EPA) pursuant to authority granted under the FCAA, sec.111 as amended; (4) the facility is being operated in accordance with any applicable National Emission Standard for Hazardous Air Pollutants promulgated by EPA pursuant to authority granted under the FCAA, sec.112 as amended. (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)-(2) (No change.) (3) emissions increases from rocket engine and motor firing, and cleaning related to such firing, at an existing or modified major source shall be allowed to be offset by alternative or innovative means provided the following conditions are met. (A) Any modification proposed is solely for the purpose of expanding the testing of rocket engines or motors at an existing source permitted to test such engines as of November 15, 1990. (B) The source demonstrates to the satisfaction of TACB that it has used all reasonable means to obtain and utilize offsets, as determined on an annual basis, for the emissions increases beyond allowable levels, that all available offsets are being used, and that sufficient offsets are not available to the source. (C) The source has obtained a written finding from the Department of Defense, Department of Transportation, National Aeronautics and Space Administration, or other appropriate federal agency, that the testing of rocket motors or engines at the facility is required for a program essential to the national security. (D) The source will comply with an alternative measure, imposed by TACB, designed to offset any emission increases beyond permitted levels not directly offset by the source. In lieu of imposing any alternative offset measures, TACB may impose an emissions fee to be paid which shall be an amount no greater than 1.5 times the average cost of stationary source control measures adopted in that area during the previous three years. (d)-(f) (No change.) sec.116.12. Review and Renewal of Permits. (a) Application for review and renewal of permit. The Texas Air Control Board (TACB) shall provide written notice to the holder of a permit that the permit is scheduled for review. Such notice will be provided by certified or registered United States Mail no less than 180 days prior to the expiration of the permit. The notice shall specify the procedure for filing an application for review and the information to be included in the application. The application shall be completed by the holder of the permit and returned to TACB within 90 days of receipt of the notice. Pursuant to Chapter 691, House Bill 1393 (72nd Legislature), TACB shall exempt a holder of a permit from any increased fee or other penalty for failure to renew the permit if the individual establishes, to the satisfaction of TACB, that the failure to renew in a timely manner occurred because the individual was on active duty in the United States Armed Forces serving outside the State of Texas. (b) Permit renewal requirements. (1) In order to be granted a permit renewal, the owner or operator of the facility shall submit information in support of the application which demonstrates that: (A) (No change.) (B) the facility is being operated in accordance with all requirements and conditions of the existing permit, including representations in the application for the permit and subsequent amendments, and any previously granted renewal; (C)-(F) (No change.) (2) TACB shall review the compliance history of the facility in consideration of granting a permit renewal. Upon request of the executive director, the application shall include additional information which demonstrates the extent to which specified notices of violation (NOVs) relate to the facility. In order for the permit to be renewed, the application shall include information demonstrating that, notwithstanding such NOVs, the facility is or has been in substantial compliance with the provisions of the Texas Clean Air Act (TCAA) and the terms of the existing permit. If the facility has a history which demonstrates failure to maintain substantial compliance with the provisions of the TCAA or the terms of the existing permit, the renewal shall not be granted. If the facility has any unresolved nonclerical violations of TACB rules, the renewal shall not be granted, unless the facility is brought into compliance or is complying with the terms of an applicable board order or court order prior to the expiration of the permit as identified in subsection (h) of this section. (c) Public notification and comment procedures. The executive director shall mail a written notification to the permit holder within 30 days of receipt of a completed application for permit review and renewal as determined by the executive director of TACB. The notification will acknowledge receipt of the application and require the applicant to provide public notice of the application for permit renewal according to sec.116.10(a)(3)-(5) of this title (relating to Public Notification and Comment Procedure). All requirements pertaining to signs and public notification in sec.116.10(a)(3)-(5) of this title and to public comments in sec.116.10(b) of this title which apply to proposed construction, proposed facilities, and permit applications shall apply likewise to proposed renewals, existing facilities, and renewal applications. The sign heading required under sec.116.10(a)(5)(A)(ii) of this title shall read "PROPOSED RENEWAL OF AIR QUALITY PERMIT." When newspaper notices are published in accordance with sec.116.10(a)(3) and (4) of this title, the applicant for permit renewal shall furnish a copy of such notices and dates of publication to TACB in Austin and all local air pollution control agencies with jurisdiction in the county in which the facility is located. Along with such notices furnished to TACB, the applicant shall certify that the signs required by sec.116.10(a)(5) of this title have been posted in accordance with the provisions of that paragraph. (d) Renewal of permit. Subsequent to review, the executive director shall renew a permit if it is determined the facility meets the requirements of subsections (b) and (c) of this section. The executive director shall notify the permit holder in writing of the decision regarding renewal. If the permit cannot be renewed, the executive director shall forward, with the notice, a report which describes the basis for the determination. If denial is based on failure to meet the requirements of subsection (b)(1) of this section, the executive director's report shall establish a schedule for compliance with the renewal requirements. The report shall be forwarded to the permit holder no later than 180 days after TACB receives a completed application. The permit shall be renewed if the requirements are met according to the schedule specified in the report and the executive director shall notify the permit holder in writing of the permit renewal. However, if denial is based on failure to maintain substantial compliance with the provisions of the TCAA or the terms of the existing permit pursuant to subsection (b)(2) of this section, the renewal denial shall be final, and the Executive Director shall notify the permit holder in writing of the denial. (e) (No change.) (f) Effective date of existing permit. An existing permit shall remain effective until it is renewed, or until the deadline specified in the executive director's report to the permit holder, or until a date specified in any Board order entered following a contested case hearing held pursuant to subsection (e) of this section. An existing permit shall remain in effect during the course of a contested case hearing if the hearing proceeds beyond the permit expiration as identified in subsection (h) of this section. (g) Fee for review of permit. The holder of a permit to be reviewed for renewal by TACB shall remit a fee with each renewal application, pursuant to the TCAA, sec.3.29(a), based on the total annual allowable emissions from the permitted facility for which the renewal is being sought, as applied to the following table: [graphic] *To calculate the fee, multiply the number of tons in excess of the lower limit of the appropriate category by the incremental fee, then add this amount to the base fee. For example, if total emissions of all air contaminants are 50 tons per year, the total fee would be $1,615 (base fee of $965, plus incremental fee of $25 x 26 tons or $650). This fee shall be due and payable at the time application for review and renewal is filed with TACB in response to written notice from TACB consistent with subsection (a) of this section. No fee will be accepted before the permit holder has been notified by TACB that the permit is scheduled for review. The basis for fees is the schedule in effect at the time the application is filed. All permit review fees shall be remitted by check or money order payable to the Texas Air Control Board, located at 12124 Park 35 Circle, Austin, Texas 78753. Required fees must be received before the agency will consider an application to be complete. (h) Failure to apply for review and renewal. A permit holder that fails to submit an application for review and renewal within 90 days after receiving notification from TACB pursuant to subsection (a) of this section, will cause the subject permit to expire, unless the time period for the submission of the application is extended by the Executive Director of TACB. Permits are subject to the following renewal schedule: (1) Any permit issued before December 1, 1991, is subject for review 15 years after the date of issuance. (2) Any permit issued on or after December 1, 1991, is subject for review every five years after the date of issuance. sec.116.14. Compliance History Requirements. (a) 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 words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise. (1) Adjudicated decision-Any conviction, final order, judgment, or decree as follows: (A) a criminal conviction of the applicant in any court for violation of any law of this state, another state, or of the United States governing air contaminants; (B) a final order, judgment, or decree of any court or administrative agency, or agreement entered into settlement of any legal or administrative action brought in a court or administrative agency, addressing: (i) the applicant's past performance or compliance with the laws and rules of this state, another state, or of the United States governing air contaminants; or (ii) the terms of any permit or order issued by the board; or (C) an order of any court or administrative agency, whether final or not, respecting air contaminants for the facility that is the subject of the permit application. (2) Compliance event-An adjudicated decision or compliance proceeding as defined in this subsection. (3) Compliance history-The record of an applicant's observance of air pollution control laws and rules of the State of Texas, other states, and of the United States. Except as provided in subsection (e) of this section, the history shall be for the five-year period prior to the date on which the application for issuance, amendment, or renewal is filed. The compliance history shall include all compliance events, as defined in this subsection. (4) Compliance proceeding-A notice of violation issued by TACB or other agency for which TACB has recommended formal enforcement action and has notified the applicant of such recommendation. (5) Existing site-A plant property that is not a new site. (6) New site-A plant property having an operating history less than five years in length as of the date of application. (7) Public notice-The public notice of application for a permit as required by sec.116.10(a) of this title (relating to Public Notification and Comment Procedure). (b) Applicability of compliance history requirements. (1) Except as provided in subsection (c) of this section, as part of its construction permit review, or the review of an amendment, or renewal of an existing permit, TACB shall compile the following information: (A) for a new facility at an existing site or for an amendment or renewal of an existing permit, the compliance history for the existing site; (B) for a new facility at a new site, compliance history on similar facilities, if any, owned or operated by the applicant in Texas. TACB may require the applicant to indicate which facilities the applicant considers to be similar. (2) For a facility at a new site, if the applicant does not own or operate a similar facility in Texas, the applicant shall provide TACB with a compliance history for similar facilities owned or operated by the applicant in other states. (c) Compliance history exemptions. TACB shall not be required to compile a compliance history where the total increased actual emissions of any specific contaminant (specific substance, e.g., benzene, arsenic, etc.) from the facility or site will be accompanied by greater than a 1.1 to 1 reduction of the same specific air contaminant (specific substance, e.g., benzene, arsenic, etc.) from the facility or site. (d) Contents of compliance history. (1) The compliance history shall include a listing of all adjudicated decisions and compliance proceedings, as defined in this section, involving the facility that is the subject of the permit application. (2) If the applicant has no compliance history in the United States, then the applicant shall provide TACB with a compliance history for any similar facilities owned or operated by: (A) a person who is presently an officer, director, or agent of the applicant; (B) a parent corporation, subsidiary, or predecessor in interest of the applicant; (C) one who owns 20% or more of the applicant, whether directly, as a shareholder, partner, beneficiary, or otherwise; or (D) one who controls the applicant or has the ability to direct the conduct of the applicant. (3) The compliance history shall include the following compliance events and associated information: (A) for Texas facilities: (i) criminal convictions known to TACB and civil orders, judgments, and decrees identified by stating: (I) the style of the case; (II) the tribunal issuing the conviction or judgment; (III) the docket number and the date of action; and (IV) the general nature of the alleged violation; (ii) administrative enforcement orders identified by stating: (I) the name or style of action; (II) the agency issuing the order; (III) the docket number and the date of the order; and (IV) the general nature of the alleged violation; (iii) compliance proceedings identified by stating: (I) the name or style of action; and (II) the general nature of the alleged violation; (B) for United States facilities outside Texas: (i) criminal convictions and civil judgments identified by stating: (I) the style of the case; (II) the tribunal issuing the conviction or judgmentl (III) the docket number and date of action; and (IV) the general nature of the alleged violation; (ii) administrative enforcement orders identified by stating: (I) the name or style of action; (II) the agency issuing the order; (III) the docket number and the date of the order; and (IV) the general nature of the alleged violation; (iii) for notices of violation issued by the United States Environmental Protection Agency (EPA): (I) the name of the action; (II) the EPA identification number and date of notice; and (III) the general nature of the alleged violation. (4) In compiling the applicant's compliance history pursuant to subsection (b) of this section TACB shall not include the following: (A) violations of fugitive emission monitoring and recordkeeping requirements imposed either by sec.101.20(1) and (2) of this title (relating to Compliance with Environmental Protection Agency Standards); (B) state implementation plan requirements applicable to major sources in nonattainment areas where: (i) violations occurring after the effective date of this rule have been the subject of a TACB administrative enforcement action and the board classified those violations as not being subject to compliance history review; or (ii) violations occurring during five years preceding the effective date of this rule that have been the subject of TACB administrative enforcement action in which: (I) TACB did not classify those violations as either major seriousness or major impact for the purpose of administrative review; and (II) the board assessed a total administrative penalty of less than $20,000 for any of those violations. (5) TACB may request an analysis of the significance of any of the compliance events identified in the compliance history and their relevance to the facility that is the subject of the application. TACB request shall list specific compliance events requiring such an analysis. (e) Effective dates. The requirements of this section apply only to applications filed on or after the effective date of this section. For applications filed before June 1, 1993, neither TACB nor the applicant is required to include compliance events occurring before June 1, 1988. For applications filed on or after June 1, 1993, neither TACB nor the applicant is required to include compliance events occurring more than five years prior to the date on which the application is filed. (f) Public notice of existence of compliance history. When public notice is required pursuant to sec.116.10(a) of this title, the applicant shall include the following statement in the notice: "The facility's compliance file, if any exists, is available for public review in the regional office of TACB." (g) No derogation of existing rights and procedures. Nothing in this subsection shall diminish the rights of any party in a contested case hearing to raise any issue authorized by the Texas Health and Safety Code, sec.382. 0518(c), nor diminish the rights of any person to request and obtain compliance history information from TACB. Nothing in this subsection shall limit the authority of the board to request and consider any other information that is relevant to the application under the law. Nothing in this subsection shall create any right in third parties which did not exist before the effective date of this subsection. (h) Voidance of permit applications. If an applicant does not submit data within 180 days, as requested, TACB will void the permit application. The applicant will also forfeit the fees associated with the permit application. A new permit application shall be required for further consideration by TACB. 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 November 16, 1992. TRD-9215526 Lane Hartsock Deputy Director, Air Quality Planning Texas Air Control Board Effective date: December 9, 1992 Proposal publication date: July 3, 1992 For further information, please call: (512) 908-1451 Part IX. Texas Water Commission Chapter 330. Municipal Solid Waste Subchapter A. General Information 31 TAC sec.330.5 The Texas Water Commission (TWC) adopts sec.330.5, concerning general information, with changes to the proposed text as published in the October 16, 1992, issue of the Texas Register (17 TexReg 7154). The definition of "fleet operator" has been changed in the adopted section. The adopted section implements the provisions of Senate Bill 1340, 72nd Legislature 1991, which created the WTRF program. WTRF rules were adopted by the Texas Department of Health (TDH) on December 7, 1991 (16 TexReg 7503). On March 1, 1992, TWC assumed jurisdiction over the WTRF program from TDH pursuant to Senate Bill 2, 72nd Legislature, 1991. The WTRF program as implemented by TWC would oversee the clean-up of the State's illegal tire dump sites as well as provide management of the approximately 17 million new waste tires anticipated to be produced by the citizens of Texas annually. Implementation of the WTRF program is intended to clean-up illegal tire dump sites and manage newly generated waste tires pose a peril to the public health, safety, and welfare of the citizens and environment of the State of Texas because of the continuous threat of diseases from vector breeding, vermin infestation, and the fire hazard created from the stockpiling of whole used or scrap tires. A comment was submitted by Mitchell Energy and Development Corporation suggesting a wording change to the definition of "fleet operator" to mean "an individual or company that owns or operates more than 15 vehicles at one location and generates 30 or more whole used or scrap tires at one location per quarter." TWC disagrees with the commenter because qualifying fleet operator by location can allow more than 15 vehicles or greater than 30 whole used or scrap tires per business per quarter. This commenter also requested a clarification on the exemption for fleet operators. TWC agrees with the commenter and changes the definition of "fleet operator" by replacing "or" with "and" thus a fleet operator will not have to register as a generator when the fleet operator contracts with a wholesale or retail dealer of tires to perform all tire changing services on the fleet operator's vehicles. The amendment is adopted under the Texas Water Code (Vernon 1992), sec.5.103, which provides the Texas Water Commission with the authority to adopt any rules necessary to carry out the powers and duties under the provisions of the Texas Water Code and other laws of this state, and the Texas Solid Waste Disposal Act (the Act), Texas Health and Safety Code, Chapter 361 (Vernon 1992) , sec.361.484, which provides the Texas Water Commission with the authority to promulgate rules reasonably necessary to implement the WTRF program. sec.330.5. Definitions. The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. Other definitions, pertinent to specific sections, are contained within the appropriate sections. Commission-Texas Water Commission. Executive director -Executive Director of the Texas Water Commission. Facility-All contiguous land, and structures, other appurtenances, and improvements on the land, used for processing, storage, recycling, reuse, energy recovery, or disposal of whole used or scrap tires or shredded tire pieces. Fixed tire shredder -A piece of equipment used to split, shred, or quarter tires which is stationary or bolted in place and cannot be transported from one area to another. Fleet operator -An individual or company that owns or operates more than 15 vehicles and generates 30 or more whole used or scrap tires per quarter. Mobile tire shredder-A piece of equipment used to split, quarter, or shred tires which is mounted on wheels or is skid-mounted and is hauled from one location to another. Monthly cumulative closure cost estimate-The closure cost estimate that is the basis for the financial assurance to be provided at the beginning of any month. It is the sum of the closure cost estimates for the beginning inventory of shredded tire equivalents, the beginning inventory of whole tires generated out of state, the disabling of any processing equipment, the estimate of tire equivalents to be shred during the month, and the estimate of whole tires generated out of state to be received during the month. Operator-The person responsible for the overall operation of the facility. Owner-The person who owns the facility or part of a facility. Recalculated monthly cumulative closure cost estimate -The monthly cumulative closure cost estimate recalculated using the latest cost factor for shredded tire equivalents approved by the Executive Director. Recyclable material -Material that has been recovered or diverted from the solid waste stream for purposes of reuse, recycling, energy recovery, or reclamation, a substantial portion of which is consistently used in the manufacture of products which may otherwise be produced using raw or virgin materials. Recyclable material is not solid waste. However, recyclable material may become solid waste at such time, if any, as it is abandoned or disposed of rather than recycled, whereupon it will be solid waste with respect only to the party actually abandoning or disposing of the material. Registration closure cost estimate-The closure cost estimate provided in the registration application which, once approved by the Executive Director, identifies the maximum number of out-of-state generated whole tires and shredded tire equivalents that may be stored at the facility, the approved cost factor for shredded tire equivalents, and the disabling of any processing equipment. Shredded tire piece-A particle of a used or scrap tire that has been split, quartered, or shredded. Tire generator -An individual or company that is a retailer or wholesaler of new or good used tires, a fleet operator, a manufactures, a retreaded, or that accepts whole used or scrap tires for storage. Tire piece-A portion of a waste tire such as the sidewall, tread, bead, etc. generally though not necessarily disposed of by a business that uses some other part of the waste tire to make a product. The discarded portion of the waste tire, whether located on a PEL site, a generator site, or a special authorization site can be shredded for reimbursement from the WTRF and shall be expected to be addressed in any PEL site clean-up plan. Waste tire-A scrap tire that has been disposed of and can no longer be used for the purpose for which it was originally intended. Waste tire facility -An registered facility at which whole used or scrap tires or tire pieces are collected and shredded for delivery to a waste tire storage facility, a permitted waste tire monofill, or a facility that recycles, reuses, or recovers the energy from the shredded tire pieces. Waste tire processor -A registered mobile facility at which whole used or scrap tires or tire pieces are split, shredded, or quartered tires for delivery to a waste tire storage facility, a permitted waste tire monofill or a facility that recycles, reuses, or recovers the energy from shredded tire pieces. Waste tire recycling fund (WTRF)-The fund into which tire fees collected on new tires that are sold in Texas are deposited. Waste tire storage facility-A registered facility at which whole used or scrap tires or shredded tire pieces are collected and stored (before being offered as material) to facilitate the future removal of useful materials for recycling, reuse, or energy recovery. Waste tire transporter -A registered individual or company that collects and transports whole used or scrap tires, or tire pieces or shredded tire pieces for storage, processing, or disposal. Weighed tire-A unit of weight for shredded whole used or scrap tires that is equal to 18.7 pounds. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on October 23, 1992. TRD-9215632 Mary Ruth Holder Director, Legal Division Texas Water Commission Effective date: December 14, 1992 Proposal publication date: October 16, 1992 For further information, please call: (512) 463-8069 Subchapter R. Management of Whole Used or Scrap Tires The Texas Water Commission (TWC) adopts the repeal of sec. sec.330.801-330. 802, 330.804-330.863, 330.865, and adopts new sec.sec.330.801-330.802, 330. 805- 330.818, 330.821-330.828, 330.831-330.849, 330.851-330.857, 330.861-330. 878, 330.885-330.888, and 330.889, concerning the waste tire recycling fund program. Sections 330.802, 330.805, 330.807, 330.808, 330.809, 330.811, 330. 814, 330.824, 330.831, 330.835, 330.845, 330.851, 330.868, 330.871, and 330. 872 are adopted with changes to the proposed text as published in the October 16, 1992, issue of the Texas Register (17 TexReg 7156). Sections 330. 801, 330.806, 330.810, 330.812, 330.813, 330.815-330.818, 330.821-330.823, 330. 825-330.828, 330.832-330.834, 330.836-330.840, 330.841-330.844, 330.846-330. 849, 330.852- 330.857, 330.861-330.867, 330.869-330.870, 330.873-330.878, 330. 885-330.888, and 330.889 are adopted without changes and will not be republished. The TWC received numerous comments requesting changes be made to the Senate Bill 1340. Some of the legislation addressing these changes were not restated in the proposed rules, therefore the TWC cannot respond to those comments in the context of these rules. Such changes may be addressed during a future legislative session. In addition, the TWC received several comments in support of various sections of the rules. Comments on the proposed rules were received from the following groups and associations: Akin, Gump, Hauer, and Feld L.L.P., Brazos Electric Cooperative, Environmental Recovery and Recycling, Inc., EnviroTech Industries, Gibson Recycling, McElroy & Sullivan L.L.P., McGinnis, Lockridge and Kilgore, Mitchell Energy and Development Corp., Phillips Tire Cutting, Southern Tire Recyclers, Inc., Texas Motor Transportation Association, Texas Tire Dealers and Retreaders Association, Tiregator, Inc., Tire Recyclers, Inc., Tire Recycling, Inc., United States Rubber Reclaiming, Inc., Waste Management of Texas, Inc., Waste Recovery, Inc. and Woods Brothers Industries, Inc. The Waste Tire Recycling Fund (WTRF) was created pursuant to Senate Bill 1340. The intent of the WTRF was to fund the clean up of existing illegal waste tire dumps throughout the state and to insure no new illegal dumps were created by collecting new waste tires free-of-charge at the point of generation. The issue and concerns associated with the elimination of illegal waste tire dumps across the state has existed for many years. Tire dumps pose an imminent peril to the public health, safety, and welfare of citizens and the environment in the State of Texas. The adopted rules will insure the Texas Water Commission's ability to adequately administer the Waste Tire Recycling Fund Program and facilitate clean up of illegal waste tire dumps. The adopted rules will also improve management and oversight of the regulated community operating under the fund and seeking reimbursement from the fund. The rules will clarify existing confusion regarding program guidance and incorporate extensive modifications that have been made since the program was first implemented on April 1, 1992. The adopted rules also contain sections addressing financial assurance requirements to insure funds exist to clean up a processing site or storage site in the event the owner/operator is financially incapable of performing the clean up independently. The Texas Water Commission received one comment on sec.330.802(a) requesting to modify the proposed language to clarify that the regulations are applicable to whole used or scrap tires which are classified as municipal solid waste and do not encompass those whole used or scrap tires which are classified as industrial solid waste. The TWC agrees and will change sec.330.802(a) to specify the exclusion of tires which are classified as industrial solid waste. The Texas Water Commission received one comment on sec.330.802(b) requesting that the TWC limit reimbursement eligibility to those tires with a rim diameter between 12 and less than 26 inches. The legislation does not specify those tires that are eligible for reimbursement, therefore the TWC is required to reimburse for the shredding of any tire provided those shreds are less than nine square inches in size. This change would require new legislation and is not within the scope of these adopted rules. The TWC received two comments on sec.330.802(c) asking that the rule be clarified to eliminate confusion about which used tires must be manifested. The TWC agrees and sec.330.802(c) will be changed to specify that all discarded used tires will be subject to manifesting. A discarded used tire is a tire that has already been used for the purpose for which it was originally created. The TWC received one comment on sec.330.802(f) requesting to delete the prohibition on disposing of large, non-farm use tires in landfills. The TWC disagrees with the commentor because a major objective of the program is to reduce waste going to landfills. Further, disposal of large, non-farm use tires in landfills is counter-productive to one of the mandates of Senate Bill 1340 which is to ultimately reduce the amount of municipal solid waste going to landfills. Therefore, the prohibition on landfill disposal of large, non-farm use tires is not deleted and the TWC declines to change this section. The TWC received one comment on sec.330.802(g) requesting that the TWC disallow payment from the WTRF for the shredding of oversize tires. Current legislation authorizes the eligibility for any tire shredded to receive reimbursement as long as the shreds are less than nine square inches in size. The TWC believes that the commentor's request would require legislative change and is not within the scope of these adopted rules. The TWC received one comment on sec.330.805(a) suggesting that the definition of a generator be referenced back to sec.330.5 instead of restating the definition. The TWC believes that the definition contained in sec.330.805(a) adds sufficient clarity to the provision and will not be changed. The TWC received three comments on sec.330.805(b) suggesting that the TWC modify the proposed language to allow the waste tire generator the flexibility of designating or not designating the destination of the waste tires. The TWC is in partial agreement with the commentor and will change sec.330.805(b) from "...shall designate," to, "...may designate," to allow greater flexibility. However, the TWC disagrees with the commentor's request to allow the generator greater flexibility in asking the transporter where the waste tires will be delivered. The TWC believes the knowledge of the ultimate destination of the waste tire is a necessary tool for the purpose of tracking and monitoring whole used and scrap tires in the WTRF program. The TWC received one comment on sec.330.806 requesting that the term "regularly dispose" be quantified. However, because there are a variety of conditions that the executive director must evaluate to determine whether a generator should obtain a registration number, such as, the destination of the tires, type of tires involved and the conditions of disposal, the TWC will not change sec.330.806 to quantify the term. The TWC received one comment on sec.330.806 and sec.330.807 requesting that the TWC clarify the definition of fleet operator. The intent of the rules is to not require generator registration for fleet operators that do not perform the function of tire replacement at their business location but rather contract with a tire store for replacement and disposal of the tires off-site. Since the TWC believes that this interpretation exists in the proposed rules, there is no need to change sec.330.806 and sec.330.807 of the rules to address this commentor. The TWC received one comment on sec.330.807(b)(5) requesting that the TWC regulate the payment of generator tires by the waste tire processors. The TWC believes that the commentor's request is outside the scope of these rules and requires a legislative change. The TWC received one comment on sec.330.807(b)(7) requesting that the TWC remove the requirement in the generator section of the manifest to include the name of the responsible party processing and storing the waste tires. The TWC agrees with the commentor and sec.330.807(b)(7) will be changed to remove the requirement that requires inclusion of the responsible party processing and storing the waste tires on the manifest form. The TWC received one comment on sec.330.808(a) requesting that the TWC reword the subsection to include vector control requirements for both controlled and uncontrolled piles in sec.330.808(a), rather than repeating the requirement in sec.330.808(c). The TWC believes that the language contained in sec.330.808(a) is necessary to provide clarity to the section. Therefore sec.330. 808(a) will not be changed. The TWC received one comment on sec.330.808(c) and sec.330.838(a) requesting that the maximum number of 1,500 for storage of whole tires in an trailer be increased so as to not hamper the efficiency of the regulated community. The TWC disagrees with the commentor and will not change sec.330.808(c) and sec.330. 838(a) because the 1,500 waste tire limitation pertains to generator storage (VIII-WT facilities) and is necessary to ensure that excessive numbers of waste tires are not accumulated prior to shipment to the processing facility. Additionally, the tire transporter or mobile tire processor is not limited to 1,500 waste tires when transporting such tires from the generator site to the processing site. The TWC received one comment on sec.330.808(c) requesting clarification of the rules in this section to eliminate the confusion as to the eligibility of generator waste tires. The TWC believes that sec.330.876(d) provides clarity as to the eligibility of generator waste tires, therefore, no rule change is necessary. The TWC received eight comments on sec.330.808(d) requesting that the TWC allow the accumulation of waste tires in on-site trailers to occur from several businesses. The TWC is in partial agreement with the commentors and sec.330.808(d) is changed to allow generators that own or operate multiple places of the same business to consolidate their accumulated waste tires at one location. However, because of the difficulties involved in the manifest tracking of these accumulated waste tires, which is the primary tool that enables WTRF auditing, the TWC will not allow waste tires from generators of different places of businesses to consolidate their tires in one trailer. Rules addressing waste tire transfer stations are currently under consideration by the TWC. The TWC received three comments on sec.330.809(a) requesting that the TWC eliminate the requirement that the generator initiate the waste tire manifest. The TWC disagrees with the commentors and will not change the rules because the cradle-to-grave manifest system required by the rules allows the tracking and monitoring activities necessary for program auditing and the assurance that fund reimbursements are made on actual tires received from the generator. The TWC received one comment on 330.809(b) concerning the implication that the word "may" applies to the generator's responsibility to initiate the manifest. The TWC agrees with the commentor and will change sec.330.809(b) by striking the language "...and initiate the required manifest for each shipment" at the end of the sentence to clarify that the generator may designate the destination of the whole used or scrap tires. The TWC received one comment on sec.330.809(c) requesting that the TWC clarify the language regarding when a generator without a transporter registration may and may not transport his/her tires. The TWC agrees with the need to clarify this portion of the proposed rules and changes sec.330.809(c) to clarify the instances when the generator must obtain a transporter registration from the TWC. The TWC received two comments on sec.330.809(d) requesting that the TWC clarify the language explaining which generators are eligible for free-of-charge collection and transportation of waste tires from the point of generation. The TWC agrees with the commentor and will change sec.330.809(d) of the rules to state that only wholesale and retail dealers of new tires are eligible for free collection and transportation of their waste tires off site. The TWC believes that this change comports to the legislative requirements of Senate Bill 1340. The TWC received one comment on sec.330.809(e) requesting that the TWC delete the recordkeeping requirements for non-discarded tires sent back to the manufacturer for adjustment. The TWC disagrees with the request due to the recordkeeping needs of the program to document the origin of scrap tires for which reimbursement may be requested. The TWC received one comment on sec.330.809(f) requesting that the TWC eliminate the allowance for more stringent local ordinances. The TWC disagrees with commentor and will not change the rules to eliminate sec.330.809(f) because the TWC is required by law, to allow local governing bodies to implement standards more stringent and not in conflict with those required by state rules and regulations. The TWC received one comment on sec.330.812 requesting that the TWC combine databases with the Texas Railroad Commission to obtain transporter information (specifically capacity, number and type of vehicles used for the transportation of tires). The TWC disagrees with the commentor and will not change sec.330.812 because this involves merging two separate agency programs and separate regulatory authority. This type of database manipulation would require an extensive coordination between agencies. The TWC received two comments on sec.330.812(g) requesting that the TWC eliminate the exemption from registration for transport vehicles owned and operated by municipalities, counties or agencies. The TWC disagrees with the commentors and will not change sec.330.812(g) because the TWC believes without this exemption the burden of registering of a transport vehicle owned and operated by a municipality, county or agency would fall on taxpayers. The TWC received one comment on sec.330.814 requesting that the TWC require transporter identification numbers and letters to be at least two inches in height as required under Texas Civil Statutes, Article 6701b-1, sec.2(b). The TWC agrees with the commentor and will change sec.330.814 to conform with the trucking industry law which requires markings that are not less than two inches high. The TWC received six comments on sec.330.814 requesting the TWC eliminate the requirement for a tarp covering a load of waste tires or shredded tire pieces during transit. The TWC is in partial agreement with the commentors and will change sec.330.814 to allow the transport of waste tires without a tarp when the waste tires are not in excess of the sidewall height of the transporting vehicle, however, shredded tire pieces will require a covering tarp when in transit. The TWC received one comment on sec.330.815(a) requesting that processors who are also transporters be allowed to design their own manifest form. Under sec.330.807(b) it is the generator's responsibility to initiate the manifest form or other similar documentation approved by the executive director. Since sec.330.807(b) currently allows processors who are also transporters to design their own manifest form, the TWC will not change sec.330.815(a). The TWC received one comment on sec.330.815(a)(2) requesting clarification as to the manner in which information about transporter registrations may be obtained from the TWC. The TWC disagrees with the commentor and will not change sec.330.815(a)(2). The TWC believes that it is not the objective of the rules to describe the specific methods by which information can be obtained from the TWC. Such information can be obtained under the Texas Open Records Act, Texas Civil Statutes, Article 6252-17a (Vernon Supplement 1992). The TWC received one comment on sec.330.817(b) requesting that the TWC collect transporter registration fees upon initial registration. The TWC disagrees with the commentor and will not change sec.330.817(b) because it is more accurate to collect fees based on the actual number of tires transported, rather than an estimated number of tires transported. The TWC received one comment on sec.330.817 requesting that the TWC not charge a transportation fee for the transportation of retreaded/recapped tires. The TWC agrees with the commentor, however, sec.330.817 currently requires a transporter registration number (which includes a fee) for the transportation of whole, used or scrap tires. Under these rules, tires that can be salvaged and used for another purpose, retreaded or sold as a good used vehicle tire are not subject to the requirements of this subchapter except as noted in sec.330.889 (relating to the Beneficial Use of Whole Used or Scrap Tires). The TWC received one comment on sec.330.817(c) requesting that the TWC invert the transporter fee schedule so those individuals that transported more waste tires annually pay a smaller annual registration fee, while those transporters that hauled fewer tires annually pay a greater annual fee. The TWC disagrees with commentor and will not change sec.330.817(c) because the TWC believes that the graduated payment schedule allows some relief for small or part-time transporters who do not depend on the transportation of waste tires as a sole source of livelihood. The TWC received one comment on sec.330.821(e) requesting that the TWC change the rule to require registration for mobile processors that are not seeking reimbursement from the WTRF. The TWC will not change sec.330.821(e) because these rules only address the administration of the WTRF. Mobile tire processors or waste tire facilities not seeking reimbursement are not subject to these WTRF rules and are not required to be registered. The TWC received one comment on sec.330.824(b) requesting that the TWC eliminate the monthly calibration requirement on scales used by a processor to determine shredded tire weight for reimbursement from the WTRF. The TWC disagrees with the commentor and will not change sec.330.824(b) because the TWC must be assured that the scale used by the processor to determine shredded tire weight is accurate for reimbursement purposes. Also, since the TWC has authorized a variety of makes and types of scales for use at the processing facility to allow greater flexibility for the processor, the requirement for frequent calibration will insure accuracy of measurement. The TWC received one comment on sec.330.825(b)(1) requesting that the manifest include a place for the processor to sign as the responsible party receiving the tires. There is no change necessary since sec.330.825(b)(1) already requires the processor to sign the manifest and record the date and time of delivery. The manifest currently in use also includes a signature line for the processor and a space for the date and time of deposit of the tires. The TWC received one comment on sec.330.825(b)(9) pointing out that much of the information on the Monthly Operations Report is applicable to storage sites, not mobile processors. The TWC believes that information required on the Monthly Operations Report relates to both mobile processor and storage site registrations. This information is necessary for adequate program tracking, therefore sec.330.825(b)(9) will not be changed. The TWC received seven comments on sec.sec.330.827(b) and (d), 330.841(c), 330.842(c), 330.843, and 330.848(b)(1) requesting to change the rule to allow reimbursement for resource recovery other than shredding the tires to a size not larger than nine square inches. The commentor's request is not within the scope of these rules, as such, a change would require legislative action. The TWC received one comment on sec.330.827(b)(2) requesting to add language specifying the use of tire shreds as part of a drainage layer at a permitted municipal landfill as recycling. The TWC disagrees with the commentor and will not change sec.330.827(b)(2) because pursuant to this rule, the TWC will evaluate recycling uses on an individual case-by-case basis. Also, landfills must obtain permission under TWC landfill permit rules for the use of tire shreds as part of a drainage layer. The TWC received two comments on sec.330.831 and sec.330.841 requesting to combine the registrations for storage facilities and fixed processors. The TWC disagrees with the commentors and will not change sec.330.831 and sec.330.841 because registrations must remain separate to allow registration for a storage facility without a fixed processor. The TWC received four comments on sec.330.831(a) and sec.330.832(b). Two comments requested that the TWC eliminate the use of a monofill as an authorized means of shredded tire storage. Two other comments were in agreement with the rule as proposed. The two comments requesting to eliminate the use of a monofill as an authorized means of shredded tire storage is not within the scope of these rules and such a change would involve resorting to the legislative process. The TWC received one comment on sec.330.831(b)(8) asking to eliminate the requirement for a registered engineer seal on waste tire storage facility applications. The TWC disagrees with the commentor and will not change sec.330. 831(b)(8) because the technical nature of facility design, specification and operation requires an engineer's expertise and approval. The TWC received two comments on sec.330.832(b) requesting that an exemption be granted for facilities storing shreds prior to recycling. The TWC believes that there is a need for the recycler to exhibit that the shreds received are being utilized in an efficient recycling process before the TWC would declare that a registration for storage would not be required, therefore the TWC will not change sec.330.832(b) to include a classification for recycling facilities. The TWC received one comment on sec.330.832 requesting an additional classification of storage facility to allow short-term storage of up to 50,000 whole tires for up to 180 days without drainage and site layout plans prepared by a registered professional engineer. The TWC disagrees with the commentor because adequate fire protection and vector control must be ensured through drainage and site layout plans. Therefore, sec.330.832 will not be changed. The TWC received one comment on sec.330.832(b)(1) requesting that the TWC allow recycling centers to be classified under a Type VIII-WT storage facility. The TWC disagrees with the commentor and will not change sec.330.832(b)(1) because Type VIII-WT facilities are designated solely for temporary whole tire storage and not for tire shreds. The TWC received one comment on sec.330.832(b)(2) stating that the rule was in conflict with sec.330.832(b)(2)(A) and requesting clarification on the applicability of an VIII-R waste tire storage facility. However, the TWC believes the commentor misread the section and clarification is not necessary because the section does not contradict sec.330.832(b)(2)(A). The TWC received one comment on sec.330.835(b)(2)(B) requesting the TWC allow larger storage piles for inside storage. The TWC disagrees with the commentor because in the event of a fire, the current rule ensures the maintenance of fire fighting capabilities for inside storage therefore, the TWC will not change sec.330.835(b)(2)(B). The TWC received one comment on sec.330.835(b)(2)(B) requesting that the TWC eliminate the 15 foot height requirement for outside shredded tire piles. The TWC disagrees with the commentor and will not change sec.330.835(b)(2)(B) because of the necessity to ensure adequate accessibility for fire fighting purposes and safety of employees at the registered storage sites. The TWC received five comments on sec.330.835(b)(3) requesting that the TWC eliminate the 20 foot property line or easement requirement for storing piles of tires or tire pieces outside or inside buildings. The TWC agrees with the commentor and will change sec.330.835(b)(3) in order to provide for a variance on a case- by-case basis, when the applicant can not meet the letter of the requirement, however, the intent of the requirement remains intact and the local fire marshal must evaluate the fire prevention portion of the application to determine whether the applicant can provide adequate fire protection measures in the event of a fire on the facility site. The TWC received one comment on sec.330.835(b)(6) requesting to eliminate, or authorize the TWC to allow a variance, to the requirement for barbed wire fencing. The TWC disagrees with the commentor and will not change sec.330.835(b) (6) because processing facilities must be secured to protect the public from injury. The TWC received three comments on sec.330.835(b)(7) requesting that the TWC eliminate the requirement regarding an adequate fire protection system if the storage facility owner/operator has obtained approval from the local fire marshall as to the adequacy of the site's system. The TWC disagrees with the commentor's request and will not change sec.330.835(b)(7) because the TWC believes minimum requirements on a statewide basis addressing fire prevention are necessary to provide for public safety. The TWC received two comments on sec.330.835(c)(2)(G) requesting that the TWC clarify the types of generators that may be charged a fee for the collection and/or transportation of waste tires off site. The TWC agrees with the commentor and sec.330.811(c) will be changed and sec.330.811(d) will be added to clarify the type of generator that may be charged a collection and/or transportation fee by a transporter. The TWC received two comments on sec.330.835(c)(2)(N) requesting that the TWC limit the requirement for transporter training by the processor that receives independent transporter tires to one annual orientation and training session. Also the commentor indicated that the requirement would result in independent transporters having to attend multiple training and orientation sessions on a quarterly basis. The TWC disagrees with the commentor and will not change sec.330.835(c)(2)(N) because the TWC believes that a transporter should be familiar with each storage facility's operation and guidelines. Also the TWC believes that information on program modifications can be disseminated regularly to transporters through the storage facility's training program. The TWC received one comment on sec.330.843(b)(3)(F) stating that it should not be necessary to describe the location of the fixed processor's equipment since the application requires the facility address. However, the TWC disagrees with the commentor and will not change sec.330.843(b)(3)(F) because some facilities may have different addresses for various portions of their operations. The TWC received one comment on sec.330.847(c) asking why the fixed processor registration does not require an engineering seal. The TWC will not change sec.330.847(c) because an engineering seal is required for storage facility applications in sec.330.831(b)(8) and since a fixed processor must also register as a storage facility, the engineering seal is already required. The TWC received one comment on sec.330.847(d) requesting that the TWC eliminate the requirement for independent transporters to attend quarterly training and orientation sessions at all processing facilities where they do business. The TWC disagrees with the commentor and will not change sec.330. 847(d) because the TWC believes that a transporter should be familiar with the processing facilities operation and guidelines. Also the TWC believes that information on program modifications can be disseminated regularly to transporters through the processor's training program. The TWC received one comment on sec.330.848(b)(2) requesting to add language specifying the use of tire shreds as part of a drainage layer at a permitted municipal landfill as recycling. The TWC disagrees with the commentor and will not change sec.330.848(b)(2) because the TWC will approve recycling uses on an individual basis. Also, landfills must obtain permission under other TWC municipal solid waste permit rules for the use of tire shreds as part of a municipal landfill drainage layer. The TWC received one comment on sec.330.851(a)(1) requesting to add language to clarify that tires that are classified as industrial solid waste are not subject to the rule. The TWC agrees with the commentor and will change sec.330. 851(a)(1) by adding to the end of the sentence the words "regulated by this Subchapter." The TWC received one comment on sec.330.851(b)(2) noting that it conflicts with sec.330.852(b)(4) in that it does not include the words "a permitted tire incinerator". The TWC agrees with the commentor and will change sec.330.851(b) (2) by adding the words "or a permitted tire incinerator.". The TWC received one comment on sec.330.852(c)(4) stating that tires that are recyclable material are not solid waste and should not be subject to the requirements contained in Subchapter R. The TWC disagrees with the commentor because some recycling facilities may operate related businesses that must comply with applicable provisions of Subchapter R. Therefore, the TWC will not change sec.330.852(c)(4). The TWC received one comment on sec.330.862(e) indicating that the WTRF should not reimburse for tire pieces removed from PEL sites. The TWC disagrees with the commentor because the objective of the program is clean up illegal tire dumps in the State of Texas therefore, the TWC will not change sec.330. 862(e). The TWC received one comment on sec.330.862(g) requesting that the TWC eliminate responsible party liability for the clean-up of illegal waste tire dumps. The TWC believes that the commentor's request is not within the purview of the rulemaking process because this request requires a legislative change. The TWC received one comment on sec.330.863(a) requesting that the TWC eliminate the requirement that all whole used or scrap tires or tire pieces at an illegal waste tire site be collected and shredded. The TWC disagrees with the commentor and will not change sec.330.863(a) because the object of the WTRF program is to totally clean-up illegal waste tire sites. Many illegal waste tire sites have both whole tires and tire pieces, therefore, both forms of the tire must be picked up before the TWC will consider the site to be clean. The TWC received two comments on sec.330.863(c) and sec.330.872(e)(3) requesting that the TWC eliminate the 25% Priority Enforcement List (PEL) requirement for WTRF reimbursement eligibility. The commentor's request is not within the scope of these rules. Such a change could only occur through the legislative process. The TWC received one comment on sec.330.868(c)(14) requesting that the TWC state the maximum depth that a waste tire facility or mobile tire processor will have to dig to obtain tires buried in the ground or tires submerged in water. The TWC agrees with the commentor and will change sec.330.868(c)(14) to specify that the depth a waste tire facility or mobile tire processor will have to dig in order to obtain waste tires from a PEL site is six feet. The TWC received one comment on sec.330.871(b)(5) requesting that only waste tires on which a $2.00 WTRF fee was charged be eligible for reimbursement upon shredding. The commentor's request is not within the scope of these rules. Such a change could only occur through the legislative process. The TWC received one comment on sec.330.871(b)(5) recommending that special authorization tires, other than tires used for municipal, county or state government purposes shall not be eligible for reimbursement from the WTRF. The TWC disagrees with the commentor and sec.330.871(b)(5) will not be changed because the intent of the WTRF program is to eliminate all waste tire located in piles across the state. As such, the TWC provided a mechanism for citizens having tire piles numbering less than 500 to dispose of those piles without cost. Additionally, the current legislation does not specify tires what may be shredded for reimbursement. Any change to limit the type or size of tires eligible for reimbursement would require a legislative change. The TWC received one comment on sec.330.871(b)(6) requesting that the TWC limit the rate of payout from the WTRF and if the WTRF is near depletion then the General Revenue fund should be drawn on to insure that processors are paid for all the tires shredded. The legislature set up the method of reimbursement from the $2.00 tire fee. Any additional funding source for the WTRF would require a legislative change. The TWC received one comment on sec.330.872(e) recommending that the TWC include a maximum number of PEL tires that could be shredded for eligibility on a monthly basis. The TWC disagrees with the commentor and will not change sec.330.872(e) because the intent of the WTRF program is to eliminate tires in illegal waste tire piles that pose a substantial threat of harm to the public or the environment. Limiting the number of PEL tires allowed to be shredded for reimbursement eligibility to 26% eliminates the incentive to processors to clean-up PEL sites in an expeditious manner. The TWC received one comment on sec.330.871(b)(6) requesting that the TWC provide the regulated community with greater than 30 days advance notice when the TWC will begin to limit the fund pay out and the number or percentage of tires for which reimbursement will be made. The TWC agrees with the commentor and will change sec.330.871(b)(6) to include a statement that the TWC will provide at least 30 days prior notice to commencement of controlled reimbursements from the WTRF. The TWC received one comment on sec.330.872(c)(3) requesting that the TWC clarify what tires qualify as special authorization tires. The TWC defined special authorization tires in sec. sec.330.878(a)-(i) of the proposed rules. The TWC agrees with the commentor's request and has referenced sec.330.878(a)- (i) in sec.330.872(c)(3) for clarification purposes. The TWC received two comments on sec.330.873(c) and sec.330.875(a)(2) requesting that the TWC eliminate the end user disclosure requirement and proposing that the TWC could use an independent auditor for verification that the tire shreds are actually being recycled. The TWC disagrees with the commentor and will not change the sections because should an enforcement action against a violator of the end user requirement become necessary, the TWC cannot rely on an independent auditor's verification but rather, must compile and rely on its own investigation and evidence. The TWC received two comments on sec.330.873(c)(7) and sec.330.875(a)(2) requesting that the TWC insure confidentiality of information submitted by the registered processor to the TWC upon request. All information submitted to the TWC falls under the Texas Open Records Act (the Act) and is subject to disclosure unless an exemption under the Act can be claimed. As such, the submitted information is public record and the TWC cannot restrict the Office of Attorney's General review and determination process that is available under the Act through these rules. The TWC received one comment on sec.330.876(c) requesting that the TWC qualify innertubes as eligible for the $0.85 reimbursement for each 18.7 pounds of material without shredding because the recyclable value only exists when the innertube is in its original form. The commentor's request is not within the purview of the rulemaking process as this comment requires a legislative change. The TWC received one comment on sec.330.878(c) requesting that the TWC classify those waste tires located in registered landfills in the state to be PEL tires, not special authorization tires. The TWC disagrees with the commentor and will not change sec.330.878(c) because the waste tires located in landfills were legally disposed of in the landfill prior to the WTRF program. PEL sites are defined as those sites containing illegally disposed of waste tires, therefore landfill tires do not qualify as PEL tires. The TWC received one comment on sec.330.885 requesting that the TWC require transporters and mobile tire processors to post $0.85 per tire financial assurance for all tires transported and/or processed during a three month period of time. The TWC disagrees with the commentor and will not change sec.330.885 because the legislation dictates the specific items for which the TWC shall require financial assurance. Additional financial assurance requirements would require a legislative change and as such are not within the scope of these rules. The TWC received one comment on sec.330.885 requesting that the rule be changed to state that the recycling provisions are complied with by requiring the posting of financial assurance to insure the shredded tire pieces are recycled. The TWC disagrees with the commentor because the legislation specifies the financial assurance is designated for clean-up and closure of the site, not for enforcement of the recycling requirement. Developing optional financial assurance requirements is not within the scope of these rules and would require a legislative change. Therefore sec.330.885 will not be changed. The TWC received one comment on sec.330.889 requesting clarification on tires that are being salvaged and used for beneficial purposes specifically the issue of whether those tires being salvaged and used again should be exempted from any municipal solid waste regulations contained in Chapter 330. The TWC agrees that a tire that has been salvaged and used for another purpose, retreaded or sold as a used tire is not subject to the requirements of this subchapter, however, as clarified in sec.330.802(b) the TWC believes that tires used for beneficial purposes must be regulated because of the potential for harm to the public or the environment due to improper use or installation. The TWC received one comment on sec.330.889(f) requesting that the TWC reword the section to allow shredded tire pieces to be used only as a drainage layer or part of an approved leachate collection system at a industrial or municipal solid waste landfill. The TWC disagrees with the commentor and will not change sec.330.889(f) because rather than limiting the shredded tire pieces to be used only as a leachate collection system in a landfill, the TWC believes that the better approach is to preserve any future recycling alternatives that the shredded tire pieces may present. As indicated during the hearing on the proposed rules on October 26, 1992, the TWC identified six errors that would be corrected when the rules were republished. The sections that contain the errors are stated below with a brief description of the error and the correction made to the rules. In sec.330. 824(d), the words, "all", and, "the" were reversed and will be corrected. Also in that section the word "side" is corrected to be plural. In sec.330.831(b)(3) the sentence structure implies that transporters and mobile tire processors must be manifested. The sentence is corrected to state that the waste tires must be manifested. In sec.330.845(c)(2)(C) the words, "special authorization", were omitted when the rules were published. This section is corrected to include those words. In sec.330.845(c)(10)(K) an incorrect term was used for the section. The section addresses rules for waste tire facilities but sec.330. 845(c)(10)(K) references mobile tire processors. This error is corrected and waste tire facilities are properly referenced. Section 330.845(c)(10)(M) incorrectly references the manifest form, however, the section contains the requirements for the monthly operations report. The error is corrected so the subsection reflects the monthly operations report. Section 330.851(b)(2) fails to include a permitted tire incinerator as a means of tire disposal, however, sec.330.852(b)(4) does include a permitted tire incinerator as a means for tire disposal. The error is corrected so that the two subsections are in agreement. 31 TAC sec.sec.330.801, 330.802, 330.804-330.863, 330.865 The repealed sections are adopted under the Texas Water Code (Vernon 1992) , sec.5.103, which provides the Texas Water Commission with the authority to adopt any rules necessary to carry out the powers and duties under the provisions of the Texas Water Code and other laws of this state, and the Texas Solid Waste Disposal Act, (the Act), Texas Health and Safety Code, Chapter 361 (Vernon 1992), sec.361.484, which provides the Texas Water Commission with the authority to promulgate rules reasonably necessary to implement the Waste Tire Recycling Fund Program. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on November 23, 1992. TRD-9215633 Mary Ruth Holder Director, Legal Division Texas Water Commission Effective date: December 14, 1992 Proposal publication date: October 16, 1992 For further information, please call: (512) 463-8069 31 TAC sec.sec.330.801-330.802, 330.805-330.818, 330. 821-330.828, 330.831- 330.849, 330.851-330.857, 330.861, 330.878, 330.885-330. 889 The new sections are adopted under the Health and Safety Code, Chapter 361, as amended by Senate Bill 1340, Acts of the 72nd Legislature, 1991, which provides the Texas Water Commission with the authority to establish the rules necessary to adequately administer the Waste Tire Recycling Fund, and implement the activities necessary to insure prompt and accurate pay out from the fund, and to register and monitor the activities of waste tire generators, transporters, fixed and mobile processors, and storage and disposal facility owners or operators, and under the Texas Water Code sec.5.103 which gives the Texas Water Commission the authority to adopt any rules necessary to carry out its powers, duties and responsibilities. sec.330.802. Applicability. (a) The sections in this subchapter are applicable to persons that are involved in the generation, transportation, processing, storage, disposal and recycling of whole used or scrap tires that are classified as municipal solid waste and regulated by the Texas Water Commission (commission or TWC) pursuant to sec.330.3 of this title (relating to Applicability). The sections in this subchapter are not applicable to whole used or scrap tires that are classified as industrial solid waste. (b) A tire becomes a whole used or scrap tire and is eligible for reimbursement under the Waste Tire Recycling Fund (WTRF) when it is discarded by a person after it has been utilized for its intended purpose. A used tire that can be salvaged and used for another purpose, retreaded, or sold as a good used vehicle tire is not subject to the requirements of this subchapter, except as noted in sec.330.889 of this title (relating to the Beneficial Use of Whole Used or Scrap Tires). A whole used tire that cannot be reused for any other purpose is a scrap tire and is subject to the requirements of this subchapter. (c) Whole used or scrap tires that can be salvaged and used for another purpose, retreaded, or sold as a good used vehicle tire are exempted from the requirements to be split, quartered, or shredded at processing sites. All discarded used tires will be subject to manifesting by registered generators in accordance with the requirements in sec.330.807 of this title (relating to Generators of Whole Used or Scrap Tires). Tire stockpiles being held for adjustment by the manufacturer must be classified by the manufacturer for reuse or disposal within 90 days. Used tires being held for resale that are stockpiled shall receive appropriate vector control made at a frequency based upon weather conditions and other applicable local ordinances. (d) A solid or non-pneumatic whole used or scrap tire may be disposed of in a municipal solid waste facility provided there is no other available means to reduce the tire into recyclable material. (e) A whole used or scrap tire, attached to a rim, that is received at a waste tire facility, storage site, disposal site, or other solid waste facility shall be removed from the rim and processed in accordance with this chapter. (f) Large whole used or scrap tires that are 26 inches or more in rim diameter or that weigh a minimum of 500 pounds are exempt from the requirements to be split, quartered or shredded at a storage site or a permitted landfill. The large whole used or scrap tires, specified in this subsection, shall not be disposed of in a landfill and shall be either recycled or stored at a registered waste tire storage facility. Adequate vector control shall be maintained at the registered waste tire storage facility that is storing these tires. (g) Large whole used or scrap tires that are 26 inches or more in rim diameter or that weigh a minimum of 500 pounds and are capable of being shredded into pieces less than nine square inches in diameter will be eligible for reimbursement from the WTRF. sec.330.805. Generators of Whole Used or Scrap Tires. (a) Applicability. The regulations contained in these sections establish standards applicable to the generators of whole used or scrap tires. For the purpose of this subchapter, a generator shall be a person that accepts whole used or scrap tires for storage, is a fleet operator, or is a whole new or used tire retailer, wholesaler, manufacturer, or retreader. (b) Responsibility. Each generator shall be responsible for ensuring that whole used or scrap tires are transported by a registered transporter. Each generator shall ask the transporter where his whole used or scrap tires are being delivered to, and may designate the destination of the whole used or scrap tires that they generate. (c) Generator. A generator may not place a whole used or scrap tire or split, quartered, or shredded tire pieces in a dumpster for pickup by a collection vehicle that has an enclosed packer unit attached or that is used on a routine and/or regular collection route. All whole used or scrap tires and shredded tire pieces transported from a generator's location shall be transported and manifested in a separate, identifiable load. sec.330.807. Generator Record Keeping. (a) Maintenance of records. Copies of manifests, daily logs, or other documentation used to support activities related to the accumulation, handling, and shipment of whole used or scrap tires shall be retained by the generator at the facility site for a period of three years. All such records shall be made available to the executive director upon request. (b) Manifest. Generators shall initiate and maintain a record of each individual load of whole used or scrap tires hauled off-site from their business location. The record shall be in the form of a five-part manifest or other similar documentation approved by the executive director. The generator shall complete the following information on the manifest: (1) name and address of the person who generated the whole or scrap tires and the type of generator; (2) generator commission registration number; (3) date of the off-site shipment; (4) name and commission registration number of the transporter; (5) whether the generator was monetarily charged by the transporter for the service of hauling away the whole used or scrap tires; (6) number or the weight in pounds and the type of whole used or scrap tires collected for transportation; (7) name of responsible person(s) transporting the whole used or scrap tires or the shredded tire pieces; (8) the physical location of the generator's site; and (9) a signature of the representative of the generator acknowledging that the information on the manifest is true and correct. (c) Completed manifest. A generator shall obtain a copy of the completed manifest within three months after the whole used or scrap tires were transported off-site by the transporter. (d) Incomplete manifest. The generator shall notify the appropriate TWC district office of any transporter, mobile or fixed tire processor or storage site owner who fails to complete the manifest or fails to return a copy of the manifest within three months after the off-site transportation of the whole used or scrap tires. (e) Generator's log. Any whole used or scrap tire generator shall maintain a log showing the date, number, type and method of transporting the whole used or scrap tires off-site. The generator shall retain this log for a period of three years and the log shall be available to the executive director for review upon request. sec.330.808. On Site Storage. (a) Generators of whole used or scrap tires may store those same tires at the location where they are generated for a period not greater than 90 days. Whole used or scrap tires stored at the generator's site must be transported off-site within 90 days of their accumulation. Tires stored out of doors in an uncontrolled pile shall be monitored for vectors, and appropriate vector control measures shall be utilized at least once every two weeks. (b) Whole used or scrap tires generated by and stored at a generator's location may be collected in a transportable collection container that is mobile, completely enclosed, and lockable for a period of not greater than 90 days. The entire container shall be hauled from the site by a registered transporter, taken to a registered tire processing or storage facility, and shall be manifested. (c) Generators of whole used or scrap tires may store those same tires at the location where they are generated provided the number of whole used or scrap tires does not exceed 500 on the ground or 1,500 in a totally enclosed and lockable container. Whole used or scrap tires stored out of doors in a controlled pile shall be monitored for vectors, and appropriate vector control measures shall be utilized at least once every two weeks. (d) Generators of whole used or scrap tires shall only allow the accumulation of tires that were generated on-site to be stored at that same site. No whole used or scrap tires from separately owned places of business shall be transferred to, accepted, or located at, a site where they were not generated. Generators of whole used or scrap tires with multiple places of business may consolidate and store the whole used or scrap tires from several business locations to one location providing the number of whole used or scrap tires does not exceed 500 on the ground or 1,500 in a totally enclosed and lockable container. Whole used or scrap tires stored out of doors in a controlled pile shall be monitored for vectors, and appropriate vector control measures shall be utilized at least once every two weeks. (e) Retailers and wholesalers who sell whole used or scrap tires as a commodity shall do so only from stock that has been sorted, marked, classified, and arranged in an organized manner for sale to the consumer. Used tires that are to be resold as commodities, but are not handled as described in this subsection, shall be considered as stockpiled whole used or scrap tires and the site shall be subject to registration as a waste tire storage facility, if the number of whole used or scrap tires at the generator site exceeds 500 on the ground or 1, 500 in a totally enclosed and lockable container. sec.330.809. Transportation Requirements. (a) A generator shall initiate the manifest required in sec.330.807(b) of this title (relating to Generator Record Keeping) for each shipment of whole used or scrap tires transported off-site. (b) A generator may designate the destination of all whole used or scrap tires generated at his/her location. (c) A generator may transport his/her own whole used or scrap tires to a waste tire facility or mobile tire processor, provided a tire transporter registration has been obtained from the executive director. Generators who do not transport their own tires shall only use a tire transporter who is registered by the executive director. (d) A waste tire transporter or a mobile tire processor shall not charge a fee on or after April 1, 1992, to the wholesale or retail dealer of new tires for collecting whole used or scrap tires for delivery to a waste tire facility or for collecting or shredding whole used or scrap tires accepted for temporary storage from purchasers of new tires. This prohibition does not apply to the transportation of whole used or scrap tires classified as reusable under sec.330.808(e) of this title (relating to On Site Storage). This prohibition also does not apply to manufacturers, retreaders, fleet operators, owners or operators of storage sites that contain whole used or scrap tires, and wholesale and retail dealers of used tires. This prohibition also does not apply to the transportation of whole used or scrap tires that are being disposed of in a permitted landfill or tire monofill. (e) Used or defective tires shipped back to the manufacturer or manufacturer's representative for adjustment are not required to be transported by a registered transporter, provided the generator retains, for a period of three years, written records of the shipments, indicating the date of shipment and the number of tires in each shipment. These records shall be made available to the executive director for review upon request. (f) Where local ordinances require controls and records substantially equivalent to or more stringent than the requirements of subsection (a) of this section, generators may use such controls and records to satisfy the commission's requirements under this section, with approval by the executive director. sec.330.811. Transporters of Whole Used or Scrap Tires. (a) Applicability. The regulations contained in these sections establish standards applicable to transporters collecting and hauling whole used or scrap tires or shredded tire pieces. Methods of transportation shall include, but are not limited to, measures utilizing roadway, rail, and water facilities. These sections are applicable to waste tire transporters and other tire transporters who transport whole used or scrap tires or shredded tire pieces from a registered generator, waste tire facility, mobile tire processor, registered waste tire storage site, or Priority Enforcement List (PEL) site. (b) Responsibility. Transporters shall maintain records using a manifest system as provided in sec.330.815 of this title (relating to Transporter Record Keeping). Each transporter shall be responsible for ensuring that whole used or scrap tires or shredded tire pieces are transported to a waste tire facility, a registered storage site, a permitted landfill or monofill, a whole used or scrap tire or shredded tire pieces recycler, or a retreader. (c) Prohibition. A waste tire transporter may not charge a fee to a wholesale or retail dealer of new tires for collecting for delivery to a waste tire facility or for collecting and shredding used or scrap tires accepted for temporary storage by the dealer from purchasers of new tires. (d) A registered waste tire transporter may charge a collection and/or transportation fee to a generator that accepts whole used or scrap tires for storage, is a fleet operator, is a wholesale dealer of used tires, is a retail dealer of used tires, is a manufacturer, or is a retreader. Additionally, a transporter may charge a generator (as defined in sec.330.805(a) of this title (relating to Generators of Whole Used or Scrap Tires)) a collection and/or transportation fee for tires that are not transported to a waste tire facility, a mobile tire processor or a storage facility. sec.330.814. Vehicle and Equipment Sanitation Standards. All vehicles and equipment used for the collection and transportation of whole used or scrap tires or shredded tire pieces shall be constructed, operated, and maintained to prevent loss of whole used or scrap tires or shredded tire pieces during transport and to prevent health nuisances and safety hazards to operating personnel and the public. Collection vehicles and equipment shall be maintained in a sanitary condition to preclude odors and insect breeding. Any vehicle or trailer used to transport whole used or scrap tires or shredded tire pieces shall be identified on both sides and the rear of the vehicle. The identification shall consist of the name and place of business of the transporter and the commission registration number using numbers and letters at least 2 inches tall. Trailers or trucks used to transport whole used or scrap tires shall be either fully enclosed and lockable, or have sidewalls of sufficient height to contain the load. Trailers and trucks transporting whole used or scrap tires in excess of the sidewall height of the vehicle shall be covered with a tarp during transit. Trailers and trucks transporting shall be covered with a tarp during transit. sec.330.824. Vehicle and Equipment Requirements. (a) All vehicles and equipment used for the collection and shredding of whole used or scrap tires shall be constructed, operated, and maintained to prevent public health nuisances and safety hazards to operating personnel and the public. The equipment shall be periodically cleaned to prevent loose materials from being discharged while in transit or in operation. (b) The mobile tire processor shall be equipped with or shall have access to a scale to weigh the shredded tire pieces immediately after shredding. Reimbursement from the WTRF shall be based on the after shredded weight of the tire. Any scale used that is not certified by the Texas Department of Agriculture (TDA) shall be supported with documentation as to why the scale cannot be certified and calibration documentation equivalent to the TDA must be provided to the executive director on a monthly basis from the manufacturer of the scale. (c) The mobile tire shredder must be mounted on wheels or skids. It may not be permanently anchored in a fixed location. (d) The mobile tire processor registration number shall be stenciled on all sides of the processing equipment. sec.330.831. Storage of Whole Used or Scrap Tires or Shredded Tire Pieces. (a) Applicability. The regulations contained in these sections establish standards applicable to persons that store whole used or scrap tires or shredded tire pieces on any public or privately owned property. Storage of whole used or scrap tires or shredded tire pieces shall be considered as a temporary means of holding such tires or tire pieces and shall require permitting or registration in accordance with this subchapter. These sections do not apply to the use of tires in the storage, protection, or production of agricultural commodities. (b) Responsibility. (1) All persons shall properly register their property with the executive director if the intended use of the property is for the storage of whole used or scrap tires or shredded tire pieces as provided in this subchapter. (2) Owners and/or operators shall ensure that the tire transporters or mobile tire processors that deliver whole used or scrap tires or shredded tire pieces at their registered waste tire storage facility or permitted waste tire monofill are properly registered with the executive director as required by sec.330.812 of this title (relating to Transporter Registration), sec.330.822 of this title (relating to Mobile Tire Processor Registration) and sec.330.843 of this title (relating to Waste Tire Facility Registration). (3) Owners and\or operators shall ensure that the tire transporters or mobile tire processors that deliver whole used or scrap tires or shredded tire pieces at their registered waste tire storage facility or permitted waste tire monofill have manifested the whole used or scrap tires or shredded tire pieces as required by sec.330.815 of this title (relating to Transporter Record Keeping), sec.330.825 of this title (relating to Mobile Tire Processor Record Keeping) and sec.330.845 of this title (relating to Waste Tire Facility Record Keeping). (4) Owners and/or operators of waste tire storage facilities shall obtain all required necessary and appropriate state and local permits, licenses, or registrations and operate in compliance with such permits, licenses, or registrations, or other applicable state and local codes. (5) The waste tire storage facility shall maintain copies of all records required by this section for a period of three years. These records shall be made available to the executive director for review upon request. (6) A waste tire storage facility shall maintain manifests of whole used or scrap tires or shredded tire pieces. The manifest form shall contain the following information filled out completely by the waste tire storage facility prior to final disposition of the whole used or scrap tires or shredded tire pieces: (A) the name, physical address, and telephone number of the individual or company that is storing or disposing of the whole used or scrap tires or shredded tire pieces; (B) the waste tire storage facility registration number; (C) the date and time of delivery of the whole used or scrap tires or shredded tire pieces to the storage or disposal facility; (D) the number and type of whole used or scrap tires or the weight of shredded tire pieces stored or disposed of at the registered waste tire storage facility; and (E) the signature of an authorized representative of the waste tire storage facility acknowledging that the information on the manifest form is true and correct. (7) If an application for registration for an VIII-R waste tire storage facility is received that is not administratively and technically complete, the WTRF staff shall notify the applicant of the deficiencies within 10 working days. If the additional information is not received within 60 days of the date of receipt of the deficiency notice, the executive director may return the incomplete application to the applicant. The executive director may extend the response time to a maximum of 270 days upon sufficient proof from the applicant that an adequate response can not be submitted within 60 days. If, however, the applicant does not submit an administratively and technically complete application within the time frames indicated above, the application shall be considered withdrawn without prejudice. (8) Owners and/or operators of waste tire storage facilities shall ensure that the application for registration of the waste tire storage facility is completed and sealed by a Texas registered professional engineer. sec.330.835. Requirements for a Type VIII-R Waste Tire Storage Facility. (a) Registration requirements. (1) Persons who store or intend to store more than 500 whole used or scrap tires and/or an equivalent amount of shredded tire pieces on the ground or 1,500 whole used or scrap tires and/or an equivalent amount of shredded tire pieces in a totally enclosed and lockable container shall register these sites with the executive director. Registration forms shall be provided by the executive director upon request. (2) Persons who apply and receive Type VIII-R facility registration from the executive director shall maintain a copy of the registration at their designated place of business and at the designated storage facility location. (3) A Type VIII-R registration shall expire 60 months from the date of issuance. Registrations shall be renewed prior to the expiration date. Applications for renewal shall be submitted at least 60 days prior to the expiration date of the Type VIII-R storage facility registration. (4) Type VIII-R storage facility owners and/or operators shall submit an amendment to their application to the commission within 15 days of a change to their registration if: (A) any data submitted in support of the application for registration has changed; (B) the office or place of business is relocated; or (C) the registered name of the facility owner or operator has changed. (5) A new Type VIII-R storage facility registration application shall be submitted to the executive director within 10 days of a determination by the executive director that operations or management methods are no longer adequately described by the existing registration or ownership of the registered Type VIII-R storage facility has changed or the operator of a Type VIII-R storage facility has changed. Following the executive director's determination, the old Type VIII-R storage facility registration number shall be canceled. (6) The commission shall suspend or revoke a Type VIII-R storage facility registration or deny an initial or renewal application for registration for cause as provided in sec.330.840 of this title (relating to Penalties for Owner or Operator of Waste Tire Storage Facilities). An opportunity for a formal hearing on the suspension or revocation may be requested by the applicant within 20 days after a notice of suspension or revocation has been sent by the executive director to the last known address of the registrant. If the registration is suspended or revoked, and a formal hearing has been requested by the applicant the Type VIII-R storage facility shall not accept for storage additional whole used or scrap tires or shredded tire pieces regulated under this subchapter until a final decision has been made by the commission as result of the hearing. If the suspension or revocation of the Type VIII-R storage facility registration is approved by the commission, the owner or operator of the facility shall remove all whole used or scrap tires or shredded tire pieces stored at the facility within 60 days from the date of suspension or revocation. (7) Preparation and submission of an application for a Type VIII-R storage facility shall be in accordance with the following procedures: (A) The application for registration shall be prepared and signed by the applicant on a form to be provided by the executive director. The application shall include information necessary for the executive director to make an evaluation of the proposed operation to ensure that the facility is located, designed, and operated so that the health, welfare, and physical property of the public as well as the environment and endangered species are protected. Failure to submit complete information as required by these sections shall result in the return of the application to the applicant without further action by the executive director. The submission of false information shall constitute grounds for denial of the initial or renewal application or suspension or revocation of the current Type VIII-R storage facility registration. (B) The application for a registration of a Type VIII-R storage facility shall be submitted in triplicate to the executive director with all supporting data also submitted in triplicate unless otherwise directed by the executive director. Following receipt of the application, the executive director will forward to the applicant a letter acknowledging receipt of the application. (C) Data presented in support of an initial or renewal application for a Type VIII-R storage facility shall consist of: (i) the legal name and address of the individual, partnership, corporation, city, county or other governmental entity that is applying for the registration and will be responsible for operations at the Type VIII-R storage facility; (ii) the legal name and address of landowner where the Type VIII-R storage facility will be or is currently located; (iii) the current status of the Type VIII-R storage facility; (i.e. proposed or existing); (iv) the specific location of the Type VIII-R storage facility by street address, if within the city limits, or distance and direction from a city corporate limits or road intersection. The Type VIII-R storage facility location shall be further described by giving the direction (using compass headings as N, NE, E, etc.) and distance measured perpendicularly (in feet or miles), unless otherwise noted, from each Type VIII-R storage facility boundary to a known physical feature (such as a road, highway, canal, creek, etc.); (v) the location of the Type VIII-R storage facility by county, or extraterritorial jurisdiction of a city; (vi) the estimated number of whole used or scrap tires or shredded tire pieces to be received daily; (vii) the size of the Type VIII-R storage facility in acres; (viii) the maximum number of whole used or scrap tires or shredded tire pieces to be stored at the Type VIII-R storage facility; (ix) the intended purpose of the whole used or scrap tires or shredded tires pieces stored at the Type VIII-R storage facility; (x) the time period that the whole used or scrap tires or shredded tire pieces will be stored at the Type VIII-R storage facility (not to be in excess of 12 months unless written authorization for a longer storage period has been granted by the executive director); (xi) the storage method (tire pile on the ground, inside a building or enclosure, totally enclosed and lockable containers); (xii) a topographic map which shall be a United States Geological Survey 7-1/2 minute quadrangle sheet or equivalent, encompassing the area of the site and showing the location of area streams (particularly those entering and leaving the site), and marked to show the Type VIII-R storage facility boundaries, and roadway access. These maps may be obtained at a nominal cost from: Branch of Distribution, United States Geological Survey Federal Center, Denver, Colorado 80225; (xiii) a general location map, which shall be all or a portion of a half-scale county map, prepared by the Texas Department of Transportation, annotated as necessary to show the location of the Type VIII-R storage facility; prevailing wind direction; residences, cemeteries, and recreational areas within a one mile radius of the Type VIII-R storage facility and location and type of surface of all roads within a one mile radius which will be used for entering or leaving the Type VIII-R storage facility. If only a portion of the map sheet is used, the portion shall include scale, date, north arrow, and two or more latitudes and longitudes. These maps may be obtained at a nominal cost from the nearest District Highway Engineer Office or by writing to: Texas Department of Transportation, Attention: Transportation Planning Division (D-10), P.O. Box 5051, West Austin Station, Austin, Texas 78763-5051; (xiv) a statement from the property owner substantially equivalent to sec.330.905 of this title (relating to Appendix E-Form for Property Owner Affidavit) shall be submitted when the applicant is not a city, county, state agency, federal agency, or other governmental entity and is not the owner of record of the land described in the application, or does not have an option to buy the land. The statement shall be witnessed and notarized. If the property owner does not sign the statement, the applicant shall provide the executive director with documentation that the property owner has been properly notified and advised of his/her responsibilities and potential liabilities in relation to the operation of a Type-VIII-R waste tire storage facility on the owner's land; (xv) a Type VIII-R storage facility layout plan showing location of the storage areas, fire lanes, access roads (internal and external), fire control facilities, facility security and fencing, maintenance and control buildings, sanitation facilities, location and description of the type of tire processing equipment to be used, and other operational buildings to be located on the Type VIII-R storage facility; (xvi) a drainage plan showing drainage flow throughout the Type VIII-R storage facility area, specifically the potential for contaminated stormwater run-off from storage piles, or wastewater run-off from areas of the waste tire storage facility where equipment is operated or stored; locations of streams; and any other important drainage feature of the facility. Any additional surface drainage controls that are necessary to ensure facility containment and treatment of potentially contaminated stormwater or wastewater shall be designed by a registered professional engineer in accordance with sec.330.65(b)(5)(F)(iii) and (v) of this title (relating to Technical Information Required for Landfill Sites Serving 5,000 Persons or More-Site Development Plan). If, during review of the application or after issuance of the registration, a detailed drainage plan is determined to be required, then it shall be prepared, signed, and sealed by a registered professional engineer in accordance with sec.330.58 of this title (relating to Preparation of Application) within the time period requested by the executive director; (xvii) a legal description of the Type VIII-R storage facility consisting of the official metes and bounds description including the volume and page number of the deed record, or if platted property, the book and page number of the plat record of only that acreage encompassed in the application; (xviii) a Type VIII-R storage facility operating plan containing information outlined in subsection (c) of this section; and (xix) an applicant's statement and signature provided by the applicant, or the authorized representative empowered to make commitments for the applicant, that he/she is familiar with the application and all supporting data and is aware of all commitments represented in the application and that he/she is also familiar with all pertinent requirements in these regulations and he/she agrees to develop and operate the Type VIII-R storage facility in accordance with the application, the sections in this subchapter, and any special provisions that may be imposed by the executive director. (b) Design requirements for Type VIII-R waste tire storage facility. (1) A Type VIII-R waste tire storage facility shall be designed so that the health, welfare and safety of operators, transporters, and others who may utilize the Type VIII-R waste tire storage facility is maintained. (2) Whole used or scrap tires or shredded tire pieces may be stored using tire piles, inside storage, or lockable containers, or a combination of any of the aforementioned methods. (A) Tire piles consisting of whole used or scrap tires or shredded tire pieces shall be no greater than 15 feet in height nor shall the pile cover an area greater than 8,000 square feet. (B) Whole used or scrap tires or shredded tire pieces may be stored in any enclosed building or other type of covered enclosure. Where applicable, local fire prevention codes must be met and appropriate precautions taken. Inside storage piles or bins shall not exceed 12,000 cubic feet with a 10 foot aisle space between piles or bins. (C) Whole used or scrap tires or shredded tire pieces may be stored in trailers provided the trailer is totally enclosed and lockable and shall not be capable of containing more than 1,500 whole used or scrap tires or equivalent number of shredded tire pieces. (3) Outside piles consisting of whole used or scrap tires or shredded tire pieces and entire buildings used to store whole used or scrap tires or shredded tire pieces shall not be within 20 feet of the property line or easements of the Type VIII-R storage facility. The executive director may grant a variance to the 20 foot property line or easement requirement on a case-by-case basis in cases of unusual building codes or site conditions. In order for the applicant to be granted a variance, the applicant must demonstrate to the satisfaction of the executive director that the distance that is the subject of the variance is adequate for fire fighting purposes and meets the other applicable requirements of this subchapter. (4) Whole used or scrap tires shall be split, quartered, or shredded within 90 days from the date of delivery to the Type VIII-R storage facility. Large whole used or scrap tires that are 26 inches or more in rim diameter or that weigh a minimum of 500 pounds are exempt from this requirement. Appropriate vector controls shall be used at a frequency based upon type and size of piles, weather conditions and other applicable local ordinances. (5) There shall be a minimum separation of 20 feet between outside tire piles consisting of whole used or scrap tires or shredded tire pieces. This 20-foot space shall be designated as a fire lane and shall be an all-weather road. The open space between buildings and outside tire piles consisting of whole used or scrap tires or shredded tire pieces shall be a minimum of 20 feet and kept open at all times and maintained free of rubbish, equipment, tires, or other materials. (6) The Type VIII-R storage facility shall be completely enclosed with a chain-link type security fence at least six feet in height with no less than three strands of barbed wire encircling the top of the fence with lockable gates. Storage buildings or enclosures not enclosed with a chain-link type security fence shall be secured by lockable doors. Waste tire storage facilities shall be kept locked during all non-operational hours. (7) The Type VIII-R storage facility shall have an adequate fire protection system using fire hydrants or a firewater storage pond or tank at the facility. The capacity of a firewater storage pond or tank shall be of sufficient size for firefighting purposes and shall be in conformance with all local and state fire code requirements. The fire marshall within whose jurisdiction the waste tire storage facility is located shall approve the fire protection system. A letter approving the fire protection system from the fire marshall shall be included in the application for waste tire storage facility registration. (8) The Type VIII-R waste tire storage facility shall have a large capacity carbon dioxide or dry chemical fire extinguisher(s) located in strategically- placed enclosures throughout the entire site. Fire extinguishers used at waste tire storage facilities with inside and outside storage should be equally spaced within the facility to provide quick access from any location within the facility. The minimum spacing between fire extinguishers, inside and outside, shall be 100 feet. The minimum number of fire extinguishers or fire hydrants for each waste tire storage facility shall be one per acre. (9) If required, suitable drainage structures or features shall be provided to divert the flow of rainfall run-off or other uncontaminated surface water within the Type VIII-R storage facility to a location off-site. (10) Each site shall conspicuously display at the entrance a sign at least one and 1/2 feet by two and 1/2 feet in size with clear, legible letters stating the name of the Type VIII-R storage facility using the words "waste tire storage facility", the registration number, and operating hours. (11) A Type VIII-R storage facility located within a designated floodplain area shall provide adequate protection levees or dikes to prevent the discharge off-site of any contaminated material stored within the Type VIII-R storage facility. (12) The Type VIII-R storage facility shall be designed in accordance with all local building codes, fire codes, or other appropriate local codes. (c) Type VIII-R waste tire storage facility operating plan. (1) The purpose of the Type VIII-R storage facility operating plan is to provide specific guidance and instructions for the management and operation of a Type VIII-R waste tire storage facility. The operating personnel shall have instructions in sufficient detail to enable them to conduct day-to-day operation in a manner consistent with the design of the Type VIII-R storage facility and the requirements contained in this subchapter. (2) The Type VIII-R storage facility operating plan shall include guidance or instructions on the following: (A) security, facility access control, the hours and days during which tire- hauling vehicles will be accepted, traffic control, and safety; (B) sequence of the development of the Type VIII-R storage facility such as utilization of storage areas, drainage features, firewater storage ponds, trenches, and buildings; (C) control of loading and unloading of whole used or scrap tires or shredded tire pieces within designated areas so as to minimize operational problems at the Type VIII-R storage facility; (D) fire prevention and control plans, and special training requirements for fire-fighting personnel that may be called for assistance; (E) vector control procedures for any type of vector that may be found at the Type VIII-R storage facility; (F) a procedure for removal of any waste material that is not a whole used or scrap tire or shredded tire piece to a disposal facility permitted by the commission. This procedure must include the means to be used for removal of the waste material illegally deposited at the Type VIII-R storage facility. In all cases, such waste shall be removed from the storage area immediately and placed in suitable collection bins or be returned to the transporter's vehicle and removed from the Type VIII-R storage facility. Collection bins must be emptied at least weekly, depending on the amount and type of unauthorized waste. The equipment necessary to meet this objective shall be specified in the design requirements and shall be on site and operable during operating hours; (G) a facility employee shall be designated by the owner or operator to inspect each load of whole used or scrap tires or shredded tire pieces that is delivered to the Type VIII-R storage facility. The employee shall have the authority and responsibility to reject unauthorized or improperly manifested loads, or loads that contain whole used or scrap tires that were obtained from wholesale or retail dealers of new tires by charging such individuals or companies for the collection of those tires. The employee shall also be authorized to have unauthorized materials removed by the transporter, assess appropriate disposal fees, and have any unauthorized material removed by on-site personnel. The name of the designated employee shall be provided to the executive director by the owner or operator of the facility; (H) a procedure whereby the transporter manifest required by sec.330.807 of this title (relating to Generator Record Keeping), the daily log and other required documents shall be maintained at the Type VIII-R storage facility for a period of three years and be made available for inspection by the executive director or authorized agents or employees of local governments having jurisdiction to inspect the storage facility; (I) dust and mud control measures for access roads, fire lanes, and storage areas within the Type VIII-R storage facility; (J) posting of signs and enforcement of Type VIII-R storage facility rules; (K) wet-weather operations; (L) preventive maintenance procedures for all storage areas, tire processing equipment, fire lanes, fire control devices, drainage facilities, access roads, buildings, and other structures on the Type VIII-R storage facility in use during the active operating period of the Type VIII-R storage facility. A schedule shall be established for periodic inspection of all equipment and facilities to determine if unsatisfactory conditions exist; (M) incorporation of other instructions as necessary to ensure that the Type VIII-R storage facility personnel comply with all of the operational standards for the facility; and (N) the waste tire storage facility owner or operator shall conduct a training program on a quarterly basis, for all waste tire storage facility employees that transport or handle whole used or scrap tires or shredded tire pieces. This training program shall address the review and proper completion of manifest forms prior to the transportation of whole used or scrap tires from a generator, or the acceptance of whole used or scrap tires or shredded tire pieces at the waste tire storage facility. Transporters not employed by the waste tire storage facility but that deliver whole used or scrap tires or shredded tire pieces to the waste tire storage facility shall be required to attend a training and orientation program to familiarize the transporter with facility operational guidelines and requirements, the acceptable procedures for the collection and transportation of whole used or scrap tires from a generator (specifically when a collection fee can or cannot be charged), the proper completion of a manifest form, and the rules and regulations under which all aspects of the generation, transportation, processing, storage, and disposal of whole used or scrap tires or shredded tire pieces are governed. A waste tire storage facility owner or operator shall submit written documentation to the executive director indicating that the training and orientation programs required in this section, have been completed. This written documentation shall be submitted by the waste tire storage facility owner or operator to the executive director within 10 days of completion of the training and orientation program. (d) Type VIII-R waste tire storage facility record keeping. (1) General requirements. (A) The executive director approved Type VIII-R storage facility layout plan, Type VIII-R storage facility operating plan, and all supporting data to the application, is an operational requirement. Any significant deviation as determined by the executive director, from any part of the site layout plan or operating plan or other supporting data without prior approval from the executive director shall be a violation of this subchapter. (B) A copy of the registration with all supporting data, including the approved Type VIII-R storage facility layout plan, the approved Type VIII-R storage facility operating plan, and the commission's current rules shall be on- site at all times. The facility supervisor shall be knowledgeable of current commission rules and contents of the approved Type VIII-R storage facility application in relation to the operational requirements of the specific Type VIII-R storage facility. (C) All drawings or other sheets prepared for revisions to a Type VIII-R storage facility layout plan or other previously approved documents, which may be required by this subchapter, shall be submitted in triplicate. (2) Daily log. Persons that store whole used or scrap tires or shredded tire pieces subject to control under this subchapter shall maintain a record of each individual delivery and removal. Such record shall be in the form of a daily log or other similar documentation approved by the executive director. The daily log shall include, at a minimum, the: (A) name and commission registration number of the waste tire storage facility; (B) physical address of the Type VIII-R storage facility; (C) number of whole used or scrap tires or shredded tire pieces received at the Type VIII-R storage facility; (D) number of whole used or scrap tires or shredded tire pieces, removed from the Type VIII-R storage facility (for disposal, resale, recycling, reuse or energy recovery); (E) specific location in the Type VIII-R storage facility (i.e., tire pile number, bin number, building number, etc.) where whole used or scrap tires or shredded tire pieces are delivered or removed (for disposal, resale, recycling, reuse or energy recovery); (F) description of specific events or occurrences at the Type VIII-R storage facility relating to routine maintenance, fires, theft, spraying for vectors, observations of vectors or evidence of vectors, or other similar events or occurrences; (G) number of whole used or scrap tires being held for resale, adjustments, or other purposes; (H) name and signature of facility representative acknowledging truth and accuracy of the daily log; and (I) the name, address, telephone number, and date of the individual or company delivering or removing the whole used or scrap tires or shredded tire pieces to or from the Type VIII-R waste tire storage facility. (3) Manifests. The Type VIII-R storage facility operator shall retain a copy of all manifests received from a mobile tire processor or waste tire facility, or waste tire transporter for whole used or scrap tires or shredded tire pieces delivered to the Type VIII-R storage facility or removed from the Type VIII-R storage facility. The Type VIII-R waste tire storage facility shall ensure that the top copy of the five-part manifest shall be returned to the generator completely filled out within 90 days of the date and time of collection as indicated in Section 1 of the manifest form. (4) Maintenance of records and reporting. The Type VIII-R storage facility operator shall retain a copy of all records showing the collection and disposition of the whole used or scrap tires or shredded tire pieces. Such copies shall be retained for three years and made available for review to the executive director upon request. (5) Annual report. The Type VIII-R storage facility owner or operator shall submit to the executive director an annual summary of their activities through December 31 of each year showing the number of whole used or scrap tires or shredded tire pieces delivered, the disposition of whole used or scrap tires or shredded tire pieces, and the number of whole used or scrap tires or shredded tire pieces removed from the facility. The annual report shall be submitted no later than March 1 of the year following the end of the reporting period. The annual report shall be prepared on a form provided by the executive director. (6) Local ordinances. Where local ordinances require controls and records substantially equivalent to or more stringent than the requirements of this subchapter, the Type VIII-R waste tire storage facility owner or operator shall use such controls and records to satisfy the commission's requirements, upon review and approval by the executive director. sec.330.845. Waste Tire Facility Record Keeping. (a) General Requirements. (1) The executive director approved waste tire facility layout plan, facility operating plan, and all supporting data to the application, is an operational requirement. Any significant deviation as determined by the executive director, from any of the above without prior approval from the executive director shall be a violation of this subchapter. (2) A copy of the registration with all supporting data, including the approved waste tire facility layout plan, the approved waste tire facility operating plan, and the commission's current rules shall be on-site at all times. The facility supervisor shall be knowledgeable of current commission rules and the contents of the approved application in relation to the operational requirements of the specific waste tire facility. (3) All drawings or other sheets prepared for revisions to a waste tire facility layout plan or other previously approved documents, which may be required by this subchapter, shall be submitted in triplicate. (b) Maintenance of records. The waste tire facility shall maintain copies of all records required by this section for a period of three years. These records shall be made available to the executive director for review upon request. (c) Required records. A waste tire facility shall maintain manifests of whole used or scrap tire pieces. (1) The manifest shall contain the following information filled out completely by the waste tire facility prior to final disposition of the whole used or scrap tire pieces: (A) the name, physical address and telephone number of the individual or company that is processing the whole used or scrap tires; (B) the waste tire facility registration number; (C) the date and time of delivery of the whole used or scrap tires to the waste tire facility; (D) the number and type of whole used or scrap tires delivered to the registered waste tire facility; and (E) the signature of an authorized representative of the waste tire facility acknowledging that the information on the manifest form is true and correct. (2) The daily log shall include at a minimum the following: (A) the name and commission registration number of the waste tire facility; (B) the physical address of the waste tire facility storage site; (C) the total number and type of whole used or scrap tires received at the waste tire facility from PEL sites, special authorization sites and generators, listed separately; (D) the total number and type of whole used or scrap tires processed, and the amount, by weight, of shredded tire pieces; (E) the amount by weight of shredded tire pieces removed from the waste tire facility for storage, recycling, disposal, resale, reuse or energy recovery; and (F) the name and signature of an authorized facility representative acknowledging the truth and accuracy of the daily log. (3) A waste tire facility shall maintain a record of the specific location in the waste tire facility (i.e., tire pile number, bin number, building number, etc.) where whole used or scrap tires are located upon delivery. (4) A waste tire facility shall maintain a record of the description of specific events or occurrences at the waste tire facility relating to routine maintenance, fires, theft, spraying for vectors, or other similar events or occurrences. (5) The facility shall maintain equipment and vehicle preventive maintenance records. (6) The facility shall maintain the annual report required by the executive director. (7) The facility shall maintain a log containing copies of all monthly reimbursement vouchers submitted to the executive director for reimbursement. (8) The facility shall maintain a record of the dates and documentation of calibration by the manufacturer of the scale. (9) The facility shall maintain a daily log of unmanifested tires listing the number and type of whole used or scrap tires received, the name of the individual or company that delivered the tires, and the date that the tires were delivered to the waste tire facility. (10) The facility shall maintain a log containing copies of the monthly operations reports. This report shall contain the following information and shall be completely filled out each month by the waste tire facility owner or operator: (A) the month and date that the report was completed by the waste tire facility owner or operator; (B) the name of the waste tire facility as shown on the monthly reimbursement voucher; (C) the mailing address and telephone number of the waste tire facility; (D) the name of a contact person employed by the waste tire facility; (E) the shredding operation time; (F) the amount in weighed tire units or whole tires that were stored at or removed from the waste tire storage site for which reimbursement was requested; (G) the amount in weighed tire units or whole tires that were stored at or removed from the waste tire storage facility for which reimbursement was not requested; (H) the monthly and total financial assurance secured and recorded with the Texas Water Commission Financial Assurance Section; (I) the carry-over in weighed tire units for PEL, generator, or special authorization tires shredded during that and previous months; (J) a list of all generators whose manifests were accepted during that month; (K) a list of all transporters that delivered whole used or scrap tires to the waste tire facility during that month; (L) a diagram of the storage site outlining the specific tire piles and the weight of shredded tire pieces deposited in each pile during that month; and (M) the signature of an authorized representative of the waste tire facility acknowledging that the information on the monthly operations report is true and correct. (d) Annual report. A waste tire facility operator shall submit to the executive director an annual summary of their activities through December 31 of each year showing the number and type of whole used or scrap tires collected, shredded, the disposition of such tires, and the amount by weight of shredded tire pieces removed from the facility and delivered to a registered waste tire storage facility, a permitted waste tire monofill, or a recycling, reuse or energy recovery facility. The annual report shall be submitted no later than March 1 of the year following the end of the reporting period. The report shall be prepared on a form provided by the executive director. (e) Local ordinances. Where local ordinances require controls and records substantially equivalent to or more stringent than the requirements of this subchapter, waste tire facility operators shall use such controls and records to satisfy commission requirements under this section upon review and approval by the executive director. sec.330.851. Disposal of Whole Used or Scrap Tires. (a) Applicability. (1) The regulations contained in these sections establish standards applicable for the disposal of whole used or scrap tires or shredded tire pieces regulated by this subchapter. (2) For the purpose of this section, the disposal of whole used or scrap tires or shredded tire pieces pertains to the disposition of any whole used or scrap tire or shredded tire pieces in a permitted municipal solid waste landfill, in a permitted tire monofill, in a waste tire facility designed for the recycling, reuse or energy recovery of whole used or scrap tires or shredded tire pieces, or permitted tire incinerator. (b) Responsibility. (1) Owners and/or operators of waste tire storage facilities containing whole used or scrap tires or shredded tire pieces shall ensure that any whole used or scrap tires or shredded tire pieces delivered to or removed from their facility are disposed of pursuant to sec.330.853 of this title (relating to Permit Requirements of Waste Tire Disposal Facilities). (2) Individuals or companies that dispose of whole used or scrap tires or shredded tire pieces regulated by this subchapter shall do so only at a permitted municipal solid waste landfill, a permitted waste tire monofill, a facility engaging in recycling, reuse or energy recovery, or a permitted tire incinerator. sec.330.868. Approval to Collect and Process Tires from PEL Sites. (a) Prior to collecting and/or shredding whole used or scrap tires or tire pieces from any PEL site, a mobile tire processor or waste tire facility shall provide a clean-up plan and a time schedule for completing the clean-up of all whole used and scrap tires or tire pieces from the PEL site. Clean-up activities shall commence only after the submitted plan and schedule have been approved by the commission's district office and the provisions of sec.330.865 of this title (relating to Assignment of PEL Sites) have been met. (b) If the executive director finds that any of the schedule related information described in subsection (c)(1)-(14) of this section to be unacceptable, an amended clean-up plan or time schedule shall be negotiated between the commission's district office and the waste tire facility or mobile tire processor before additional whole used or scrap tire or tire pieces are removed from the PEL site for shredding. (c) The Site Clean-Up Plan submitted by a mobile tire processor or waste tire facility shall, at a minimum, include the following: (1) the estimated number of whole used or scrap tires or tire pieces collected, and the shredding capacity, in either tires or pounds of shredded rubber per day, that the waste tire facility or mobile tire processor can perform at the site; (2) the approximate number of days required to complete the site clean-up, however, if more whole used or scrap tires or tire pieces are located on the PEL site than the original number of tires used to calculate the overall project length, a correction factor may be applied, following verification and approval from the commission's district office; (3) the date, or range of dates that work on the PEL site shall commence; (4) the waste tire facility or mobile tire processor registration number; (5) the name under which the waste tire facility or mobile tire processor registration number was issued; (6) whether the waste tire facility or mobile tire processor intends to shred all the whole used or scrap tires or tire pieces on the PEL site, transport all such tires to a registered waste tire facility, or conduct the clean-up using both methods; (7) the total number of whole used or scrap tires or tire pieces by weight from other PEL sites that, as of the date the site clean-up plan was filed, have been collected and/or shredded; (8) the total number of whole used or scrap tires or tire pieces by weight from in-state sources other than PEL sites that, as of the date the Site Clean- Up Plan was filed, have been collected and/or shredded; (9) the method of recycling, reuse or energy recovery planned for the whole used or scrap tires or tire pieces that are proposed to be collected and shredded by the waste tire facility or mobile tire processor; (10) the registration number(s) of all waste tire transporters who are expected to transport whole used or scrap tires or tire pieces from the PEL site; (11) the identification by name and registration number of any temporary waste tire storage sites proposed to be utilized for either whole used or scrap tires or tire pieces prior to shredding; (12) a health and safety plan shall be included to identify, at a minimum, the following: (A) how water shall be provided to the site workers while at the PEL site; (B) a discussion of the manner in which vectors will be controlled at the PEL site; (C) the emergency routes to the nearest hospital with a map outlining the route kept in a designated vehicle at all times; (D) the safety or protective garments that will be provided to the PEL site workers to ensure their safety. At a minimum, gloves and back supports must be made available to the workers loading the whole used or scrap tires or tire pieces into the vehicles for transport; and (E) rest room facilities must be provided to the PEL workers at PEL sites containing more than 50,000 tires or at PEL sites that are expected to take more than one week to complete clean-up; (13) each load of whole used or scrap tires or tire pieces transported from a PEL site shall be manifested showing the PEL site name and identification number on the lines designated company name and registration number, respectively; and (14) a discussion stating whether the PEL site is suspected to have tires buried or submerged on-site. The discussion will state that should the PEL site contain tires buried in the ground or tires submerged under water, then the depth that the waste tire facility or mobile tire processor will dig to retreive and remove those whole used or scrap tires or tire pieces from the site shall not be in excess of six feet. (d) The executive director may require that because of exceptional conditions, only waste tire facilities or mobile tire processors that are willing to transport all whole used or scrap tires or tire pieces off the PEL site prior to shredding at a registered waste tire facility shall be allowed to collect and shred tires from that specific PEL site. (e) The executive director may require that collection and shredding at a PEL site be conducted only between certain hours of the day and on certain days of the week. sec.330.871. Waste Tire Recycling Fund (WTRF). (a) Applicability. The regulations contained in these sections establish standards and procedures for the operation of the WTRF program. (b) Responsibility. (1) Each individual or company that operates as a mobile tire processor or waste tire facility and that is eligible to participate in the WTRF program shall be responsible for operating in compliance with the provisions of this subchapter. (2) Each individual or company that owns or operates an illegal waste tire site or is a generator of whole used or scrap tires shall be responsible for complying with the provisions of this subchapter. (3) The executive director requires that all whole used or scrap tires on which the $2.00 WTRF fee is assessed for the replacement tire shall be subject to the free collection and transportation of those whole used or scrap tires from the generator's place of business (authorized by the Texas Health and Safety Code Annotated, Chapter 361, sec.361.480 entitled Tire Collection Fee Prohibited), provided the generator is a wholesale or retail dealer of new tires. (4) If a $2. 00 WTRF fee is assessed on a replacement tire, then the tire that was disposed of as a waste tire shall not be charged an additional disposal fee by the wholesale or retail dealer of the tire. (5) A whole used or scrap tire that does not fit the criteria for assessment of the $2.00 WTRF fee as defined in sec.330.872(d) of this title (relating to WTRF Program), may still be eligible for reimbursement under the WTRF provided the whole used or scrap tire is shredded to pieces that are less than nine square inches in size. (6) The executive director shall have the authority to limit the rate of pay- out from the WTRF should the WTRF become depleted, by limiting the number or weight of whole used or scrap tires or tire pieces that a waste tire facility or mobile tire processor shall be reimbursed for shredding for a specific month. The executive director shall notify the waste tire facility or mobile tire processor at least thirty days prior to the commencement of this activity. sec.330.872. Waste Tire Recycling Fund (WTRF) Program. (a) Purpose. The purpose of the WTRF is to provide a means for the shredding of all whole used or scrap tires or tire pieces within the boundaries of the State of Texas so that the material contained in the tires can be effectively reused, recycled, or used in energy recovery facilities. The methods for recycling whole used or scrap tires or tire pieces are as follows: (1) resale of whole tires; (2) retreading of whole tires; (3) use of the tires or portions of the tires in the manufacture of parts or products; (4) beneficial use of whole tires; or (5) shredding whole tires into pieces nine square inches or less in size. (b) Objectives. The objectives of the WTRF program are to clean-up illegal waste tire sites that contain whole used or scrap tires or tire pieces, to collect whole used or scrap tires that are generated on a daily basis prior to being deposited at an illegal waste tire site, and to aid in the development of industries and businesses that recycle, reuse or recover the energy from whole used or scrap tires or shredded tire pieces. (c) Whole used or scrap tire category. The whole used or scrap tires that have been determined by the executive director to be eligible for reimbursement within the WTRF program are categorized as follows: (1) whole used or scrap tires or tire pieces from illegal waste tire sites and certain legal waste tire storage sites listed on the PEL; (2) whole used or scrap tires from a generator that accumulates the whole used or scrap tires on a daily basis; and (3) whole used or scrap tires or tire pieces from sources other than those indicated in paragraphs (1) and (2) of this subsection, as approved by the executive director. For the purposes of this subchapter, and the WTRF program, whole used or scrap tires or tire pieces in this third category shall be called special authorization tires. (For a complete explanation of special authorization tires refer to sec.330.878(a)-(i) of this subchapter.) (d) A $2.00 tire fee shall be collected on each new tire sold for an automobile, van, bus, truck, trailer, semi-trailer, truck tractor and semi- trailer combination, or recreational vehicle that has a rim diameter equal to or greater than 12 inches but less than 26 inches. This fee shall be deposited into the WTRF. The monies in the WTRF shall be used to reimburse the mobile tire processors and the waste tire facilities that comply with the requirements of this subchapter for the shredding of whole used or scrap tires or tire pieces. (e) Operation of the WTRF Program. The WTRF program shall be operated in the following manner: (1) A mobile tire processor or waste tire facility that wishes to participate in the WTRF program shall be in compliance with the requirements of this subchapter prior to a determination by the executive director of eligibility for reimbursement from the WTRF. (2) a mobile tire processor or waste tire facility that intends to shred whole used or scrap tires or tire pieces for reimbursement shall shred the tires or pieces to a particle size of nine square inches or less. (3) A mobile tire processor or waste tire facility shall shred at least 25% of the monthly weight of shredded tire pieces from PEL sites. (4) A mobile tire processor or waste tire facility shall shred at least 25% of the monthly weight of shredded tire pieces from generator sites. (5) A mobile tire processor or waste tire facility shall shred no greater than 50% of the monthly weight of shredded tire pieces from sources that have been designated by the executive director as special authorization tires. (6) Any remaining percentage of the monthly weight of shredded tire pieces can be obtained from the categories in paragraphs (3)-(5) of this subsection. (7) The mobile tire processor or waste tire facility shall submit his/her reimbursement request on a payment voucher to the executive director on a monthly basis. The payment voucher form shall be supplied by the executive director. (8) The mobile tire processor or waste tire facility shall maintain and retain all reimbursement records for a period of three years and shall make such records available to the executive director for review upon request. (9) The mobile tire processor or waste tire facility shall be reimbursed in an amount equal $0.85 for each 18.7 pounds of weighed tire shredded by the processor during the preceding calendar month. 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 November 23, 1992. TRD-9215634 Mary Ruth Holder Director, Legal Division Texas Water Commission Effective date: December 14, 1992 Proposal publication date: October 16, 1992 For further information, please call: (512) 463-8069 TITLE 34. PUBLIC FINANCE Part I. Comptroller of Public Accounts Chapter 3. Tax Administration Subchapter O. State Sales and Use Tax 34 TAC sec.3.354 The Comptroller of Public Accounts adopts an amendment to sec.3.354, concerning debt collection services, without changes to the proposed text as published in the October 16, 1992, issue of the Texas Register (17 TexReg 7196). The first amendment is a minor change to the definition of debt collection service that was made by the 72nd Legislature, 1991. The second change deletes from the rule the provisions of subsection (b)(3) requiring the writer of the dishonored check to be responsible for paying the cost incurred to process a dishonored check, including the sales tax due on the debt collection service. The amendment has the effect of making the person who received the dishonored check and hired a debt collector to collect the debt responsible for the sales tax on the debt collection service. Changes to subsection (g) are being made to clarify the comptroller's policy on who is responsible for reporting tax when the customer claims the service being provided benefits locations both in Texas and out of state. Subsection (h) was reformatted and reworked. Other minor changes were made to the section for clarification. No comments were received regarding adoption of the amendment. The amendment is adopted under the Tax Code, sec.111.002, which provides the comptroller with the authority to prescribe, adopt, and enforce rules relating to the administration and enforcement of the provisions of the Tax Code, Title 2. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on November 20, 1992. TRD-9215572 Martin E. Cherry Chief, General Law Section Comptroller of Public Accounts Effective date: December 11, 1992 Proposal publication date: October 16, 1992 For further information, please call: (512) 463-4028 TITLE 37. PUBLIC SAFETY AND CORRECTIONS Part I. Texas Department of Public Safety Chapter 1. Organization and Administration Videotapes and Photographs 37 TAC sec.1.71 The Texas Department of Public Safety adopts an amendment to sec.1.71, concerning disposition of photographs, without changes to the proposed text as published in the October 16, 1992, issue of the Texas Register (17 TexReg 7197). The adoption of the amendment will ensure videotapes, photographs, or negatives are properly retained for civil and criminal litigation and other administrative uses. The amendment revises the undesignated head, rule title, and subsections (a) and (b) by adding videotapes. Subsection (a) revises public property to agency property generally available to the public. No comments were received regarding adoption of the amendment. The amendment is adopted under the Texas Government Code, sec.411.006(4), which provides the director with the authority to adopt rules, subject to commission approval, considered necessary for the control 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 November 17, 1992. TRD-9215676 James R. Wilson Director Texas Department of Public Safety Effective date: December 14, 1992 Proposal publication date: October 16, 1992 For further information, please call: (512) 465-2000 Fees for Copies of Records 37 TAC sec.1.124 The Texas Department of Public Safety adopts an amendment to sec.1.124, concerning safety responsibility bureau fees, without changes to the proposed text as published in the October 16, 1992, issue of the Texas Register (17 TexReg 7198). The adoption of this amendment will ensure that costs for processing and searching of nonstandard records will be assessed to those utilizing the service and not be imposed to the taxpaying public. The amendment increases the fee from $1.00 to $7.00 for processing and searching nonstandard records pertaining to motor vehicle traffic accidents and/or safety responsibility cases in compliance with the Open Records Act, Texas Civil Statutes, Article 6252-17a, sec.9(b). No comments were received regarding adoption of the amendment. The amendment is adopted under the Texas Government Code, sec.411.006(4), which provides the director with the authority to adopt rules, subject to commission approval, considered necessary for 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 November 17, 1992. TRD-9215675 James R. Wilson Director Texas Department of Public Safety Effective date: December 14, 1992 Proposal publication date: October 16, 1992 For further information, please call: (512) 465-2000 TITLE 37. PUBLIC SAFETY AND CORRECTIONS Part III. Texas Youth Commission Chapter 91. Discipline and Control Control 37 TAC sec.91.69 The Texas Youth Commission (TYC) adopts an amendment to sec.91.69, concerning detention, without changes to the proposed section as published in the September 29, 1992, issue of the Texas Register. The amendment will bring about more efficient detention hearings. The amendment clarifies time limits for conducting a detention hearing necessary to continue detaining a youth. No comments were received regarding adoption of the amendment. The amendment is proposed under the Human Resources Code, sec.61.040, which provides the Texas Youth Commission with the authority to establish and operate places for detention. 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 November 18, 1992. TRD-9215606 Ron Jackson Executive Director Texas Youth Commission Effective date: December 11, 1992 Proposal publication date: September 29, 1992 For further information, please call: (512) 483-5244 TITLE 40. Social Services and Assistance Part I. Texas Department of Human Services Chapter 15. Medicaid Eligibility Subchapter D. Resources 40 TAC sec.15.435 The Texas Department of Human Services (DHS) adopts an amendment to sec.15. 435, concerning the exclusion of retroactive cash payments made to an ineligible spouse or parent for providing medical or social services to the client, in its Medicaid Eligibility chapter. The justification for the amendment is to comply with federal regulations published in the Federal Register/Volume 57, Number 154. The amendment will function by excluding retroactive cash payments made to an ineligible spouse or parent for providing medical or social services to the client. The amendment is adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which authorizes the department to administer public and medical assistance programs. The adopted amendment is effective August 10, 1992, to comply with federal requirements. sec.15.435. Liquid Resources. (a)-(m) (No change.) (n) Certain cash payments for medical or social services. (1) Cash received for medical or social services that is not countable income is not a resource for the calendar month after the month of receipt. Cash kept until the first moment of the second calendar month after its receipt becomes a countable resource at that time. This exclusion does not apply to cash reimbursement for medical or social services already paid for by the client. (2) For one calendar month following the month of receipt, retroactive cash payments made to an ineligible spouse or parent for providing medical or social services to the client are excluded from resources deemed to the client. 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 November 23, 1992. TRD-9215667 Nancy Murphy Agency Liaison, Policy and Document Support Texas Department of Human Services Effective date: August 10, 1992 For further information, please call: (512) 450-3765 Texas Department of Insurance Exempt Filing Notification Pursuant to the Insurance Code, Chapter 5, Subchapter L (Editor's Note: As required by the Insurance Code, Article 5.96 and 5. 97, the Texas 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 of the Texas Department of Insurance, at a public hearing held at 10:30 a.m. on November 12, 1992, under Docket Number 1942, in Room 100 of the Texas Department of Insurance Building, 333 Guadalupe Street, Austin, adopted amendments as proposed by Roeder & Moon, Inc. in a petition filed in the Chief Clerk's Office on August 31, 1992. The petition recommended revising the Texas Basic Manual of Rules, Classifications and Rates for Workers' Compensation and Employers' Liability by amending the payroll for employees classified under Code 9610-Motion Picture Production from total payroll to a maximum payroll of $1200 per week per employee. Based on these amendments, the upper payroll limitation would apply to those workers involved in motion picture production. Roeder & Moon, Inc.'s petition (Reference Number W-0892-56), was published in the October 9, 1992, issue of the Texas Register (17 TexReg 7058). The State Board has jurisdiction over this matter pursuant to the Insurance Code, Article 5.60 and Article 5.96. The amendments as adopted by the State Board of Insurance are as follows: Maximum Renumeration applicable in accordance with Basic Manual Rule V-F-2 "Payroll Limitation" and Rule V-F-3 "Executive Officers" and the footnote instructions for Code 9178-"Athletic Team: Non-Contact Sports, "Code 9179- "Athletic Team: Contact Sports, "Code 9186-"Carnival-Traveling" and Code 9610- Motion Picture: Production".....$1,200. MOTION PICTURE PRODUCTION-in studios or outside-ALL OPERATIONS UP TO THE DEVELOPMENT OF NEGATIVES and Clerical, Drivers........9610. The entire remuneration of all employees shall be included in computing premium, subject however to a maximum payroll amount either shown under Miscellaneous Values or filed by the insurance company. This notification is made pursuant to the Texas Insurance Code, Article 5. 96, which exempts it from the requirements of the Administrative Procedure and Texas Register Act. Consistent with Texas Insurance Code, Article 5.96(h), prior to the effective date, December 12, 1992, of this action, the board will notify all insurers writing workers' compensation insurance. 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 November 23, 1992. TRD-9215640 Linda K. von Quintus-Dorn Chief Clerk Texas Department of Insurance Effective date: December 12, 1992 Proposal publication date: October 9, 1992 For further information, please call: (512) 463-6327