Proposed Sections Before an agency may permanently adopt a new or amended section, or repeal an existing section, a proposal detailing the action must be published in the Texas Register at least 30 days before any action may be taken. The 30-day time period gives interested persons an opportunity to review and make oral or written comments on the section. Also, in the case of substantive sections, a public hearing must be granted if requested by at least 25 persons, a governmental subdivision or agency, or an association having at least 25 members. Symbology in proposed amendments. New language added to an existing section is indicated by the use of bold text. [Brackets] indicate deletion of existing material within a section. TITLE 1. ADMINISTRATION Part V. General Services Commission Chapter 115. Building Property Services Division Space Allocation 1 TAC sec.115.50 The General Services Commission proposes new sec.115.50, concerning office space allocation for Article I and II agencies in leased or owned space. The proposed section establishes a maximum allocation of office space for agencies under Articles I and II of the General Appropriations Act; states types of space to which the rule does not apply; provides definitions; and establishes a procedure for requesting space in excess of the maximum allocation. Tom Fitzpatrick, director of office of facility planning, has determined that for the first five year period this section is in effect there will be significant fiscal implications to state government based on reductions in total office area requirements for state agencies and reductions in total space leased. The resulting cost savings have been estimated to be approximately $2 million in fiscal year 1994; $4 million in fiscal year 1995; $6 million in fiscal year 1996; $8 million in fiscal year 1997; and $8 million in fiscal year 1998. Mr. Fitzpatrick also has determined that for each year the section is in effect the public benefit anticipated as a result of enforcing the section will be administrative rules consistent with applicable statutory provisions and reduced facility costs through limiting the allocation of space for state agencies. There is no anticipated economic cost to persons required to comply with the proposed section. Comments on the proposal may be submitted to Judith Porras, General Counsel, General Services Commission, P.O. Box 13047, Austin, Texas 78711-3047. Comments must be received no later than 30 days from the date of publication of the proposal in the Texas Register. The new section is proposed under Texas Civil Statutes, Article 601b, sec.34, House Bill 2626, 73rd Legislative Session, which provide the General Services Commission with the authority to promulgate rules necessary to accomplish the purpose of this Article. sec.115.50. Space Allocation. (a) Texas Civil Statutes, Article 601b, sec.6.021, require the commission to allocate space to state agencies in the best and most efficient manner possible and provides that the commission may not allocate space to an Article I or II Agency that exceeds an average of 153 square feet for each agency employee for each agency site for usable office space. (b) By August 31, 1995, office space under the commission's jurisdiction shall be allocated to Article I or II agencies at an average space allocation ratio of not more than 153 square feet of usable office space per agency employee for each agency site. For the purpose of calculating the space allocation ratio at a particular site, all offices, workstations, workspaces, storage spaces, support spaces, and circulation spaces within the agency's net usable square footage shall be included except that type of space listed in subsection (d) of this section. (c) Each state agency shall propose a plan acceptable to the commission for meeting the target allocation. Such plans shall be submitted by March 31, 1994. (d) This section applies to use of office facilities obtained through the commission including both state-owned and leased space. (1) This section does not apply to: (A) agency sites where 15 or fewer employees are located; (B) aircraft hangar space; (C) radio antenna space; (D) boat storage space; (E) vehicle parking space; (F) residential space for a Texas Department of Mental Health and Mental Retardation program; (G) residential space for a Texas Youth Commission program; (H) space to be utilized for less than one month for meetings, conferences, seminars, conventions, displays, examinations, auctions, or similar purposes; (I) warehouse space; (J) laboratory space; (K) storage space exceeding 1,000 gross square feet; (L) hearing rooms required to conduct hearings required under the Administrative Procedure and Texas Register Act (Texas Civil Statutes, Article 6252-13a); or, (M) library space. (2) The following types of rooms, when clearly enumerated in space requests, will be excluded by the commission from calculation of the space allocation ratio: (A) state or regional computer operations centers; (B) full-time, shared state or regional training centers; (C) rehabilitation workshops; (D) client waiting areas at client-service locations; (E) client training classrooms; (F) space provided to itinerant staff of another agency at client-service locations; (G) playrooms at client-service locations; (H) observation rooms in clinical or protective services offices; (I) conference rooms scheduled by the commission for shared use; (J) telephone/data closets; (K) trial preparation rooms and litigation file rooms at litigation offices of the Attorney General; (L) testing areas and public waiting areas at Department of Public Safety driver license offices; (M) medical examination rooms and clinical laboratories of the Department of Health; (N) storage areas for pharmaceuticals and medical supplies or for client equipment and appliances; and (O) a pro rata share of internal circulation space associated with excluded uses at the site. (e) The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise. (1) Agency employee-The full-time-equivalent of a person performing services on-site under the direction of a state agency, including hours worked by "full- time employees", "part-time employees" and "consultant and contract individuals" as those terms are defined by the State Auditor; including employees paid from funds maintained outside the Treasury, and including hours worked by volunteers performing necessary services. (2) Agency head-The highest ranking executive officer responsive to a policy- making board or commission with full-time responsibility for the operations of the agency. (3) Agency site-A building or building complex on a single site or under a single lease contract, where agency business is transacted or services are provided. (4) Article I or II agency-A state agency listed in Article I or II of the General Appropriations Act. (5) Net usable square feet-An area within the exterior walls of a building identified as needed by the occupying agency to carry out its function, including interior hallways for the exclusive use of the occupying agency, but shall not include areas reserved for: (A) public hallways, restrooms, stairwells, and elevator shafts; (B) mechanical rooms or closets for heating, air conditioning, plumbing, janitorial, electrical, telephone, and other general building services; (C) interior atriums, courts, etc., for public use; and (D) fire tower and fire tower court. (6) Space allocation ratio-The ratio of the total usable office space (in square feet) to the total number of agency employees at the subject site. At sites where two or more agencies are co-located, the sum of agency employees at the site shall be considered. (7) Space use study-A study conducted by the commission to determine space requirements for the necessary functions of state agencies. (8) State agency- (A) any department, commission, board, office, or other agency in the executive branch of state government created by the constitution or a statute of this state, except the Texas High-Speed Rail Authority; (B) the Supreme Court of Texas, the Court of Criminal Appeals of Texas, a court of civil appeals, or the Texas Civil Judicial Council; or (C) a university system or an institution of higher education as defined in the Texas Education Code, sec.61.003, as amended, other than a public junior college. (9) Usable office space-For the purpose of calculating an agency's space allocation ratio, that portion of the net usable square feet of an agency site which houses agency staff and operations other than those rooms specifically excluded under subsection (c) of this section. (f) If an agency desires more than 153 square feet of usable office space per agency employee at a particular site, a written request must be submitted to the commission, demonstrating that it meets one of the criteria in subsection (g) of this section. (1) Each request must be signed by the agency head and the chairman of the agency's governing body. This authority may not be delegated. (2) The commission will grant or deny a request in writing. (3) A summary of all requests and a copy of any requests granted by the commission will be provided to the Legislative Budget Board, the Governor's Budget and Planning Office, and the chairman of the House Appropriations Committee. (g) The commission may allocate usable office space in excess of 153 square feet per agency employee, if the commission determines that: (1) A strict application of the standard to a given site would unavoidably and critically impair an agency's functions; (2) The number of persons routinely working in a space is substantially different from the agency employee calculation; (3) Based upon a space use study conducted by the commission, a particular type of space should be excluded; or (4) A request is consistent with an agency's plan, previously accepted by the commission, for implementation of this rule. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on August 31, 1993. TRD-9328065 Judith Porras General Counsel General Services Commission Earliest possible date of adoption: October 8, 1993 For further information, please call: (512) 463-3583 Chapter 117. Centralized Services Division Business Machine Repair 1 TAC sec.117.41 The General Services Commission proposes an amendment to s117.41, concerning business machine repair services. The amendments streamline and consolidate existing rules, and outline the scope of business machine repair services for governmental entities. Michael N. Powers, director for inter-agency services division, has determined that for the first five-year period the section is in effect there will be no fiscal implications for state agencies and other government entities as a result of enforcing or administering the section. Mr. Powers also has determined that for each year of the first five years the section is in effect state and other governmental entities will benefit from streamlined regulations. Comments may be submitted to Judith Porras, General Counsel, General Services Commission, P.O. Box 13047, Austin, Texas 78711-3047. Comments must be received no later than 30 days from the date of publication of the proposal in the Texas Register. The new section is proposed under Texas Civil Statutes, Article 601b, which provide the General Services Commission with the authority to promulgate rules to accomplish the purpose of the Article. sec.117.41. Business Machine Repair Services [General]. (a) Under Texas Civil Statutes, Article 601b, s11.03,
    business machine repair services must be
      [are] offered to State agencies located in Austin. [(Attorney General's Opinion Numbers M-1199 and M-1284, 1979.)] (b) Business machine repair services may be provided to other governmental entities under agreements which comply with the requirements of the Interagency Cooperation Act (Chapter 771, Texas Government Code) or the Interlocal Cooperation Act (Chapter 791, Texas Government Code). (c) No privately-owned machines shall be serviced. (d) Payment for repair service shall be secured by voucher prepared by the Commission, promptly verified by the appropriate agency. The Commission may refuse to do additional repair work for an agency so long as that agency holds unprocessed a previous voucher. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on August 31, 1993. TRD-9328062 Judith Porras General Counsel General Services Commission Earliest possible date of adoption: October 8, 1993 For further information, please call: (512) 463-3583 1 TAC sec.117.42, sec.117.43 (Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the General Services Commission or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The General Services Commission proposes the repeal of s117.42 and sec.117.43, concerning business machine repair services. The repeal will consolidate existing rules. The significant content of these repealed sections is proposed to be consolidated into amended sec.117.41. Michael N. Powers, director for inter-agency services division, has determined that for the first five-year period the repeals will be in effect there will be no fiscal implications for state agencies and other governmental entities as a result of repealing these repeals. Mr. Powers also has determined that for each year of the first five years the repeals are in effect state agencies and other governmental entities will benefit from simplified regulations. Comments may be submitted to Judith Porras, General Counsel, General Services Commission, P.O. Box 13047, Austin, Texas 78711-3047. Comments must be received no later than 30 days from the date of publication of the proposal in the Texas Register. The repeals are proposed under Texas Civil Statutes, Article 601b, which provide the General Services Commission with the authority to promulgate rules to accomplish the purpose of that Article. sec.117.42. Machines Entitled to Service. sec.117.43. Payment for Repair. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on August 31, 1993. TRD-9328063 Judith Porras General Counsel General Services Commission Earliest possible date of adoption: October 8, 1993 For further information, please call: (512) 463-3583 TITLE 4. AGRICULTURE Part IX. Texas Veterinary Medical Diagnostic Laboratory Chapter 102. Pullorum Disease and Fowl Typhoid Program 4 TAC sec.sec.102.1-102.10 The Texas Veterinary Medical Diagnostic Laboratory proposes amendments to sec.sec.102.1-102.10, concerning the control and erodication of pullorum disease and fowl typhoid from poultry flocks in Texas. The proposed amendment deals primarily with a transfer of authority between the Texas Agricultural Experiment Station and the Texas Veterinary Diagnostic Lab. A. K. Eugster, executive director, Texas Veterinary Medical Diagnostic Laboratory, has determined that for the first five-year period the sections are in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the sections. Mr. Eugster also has determined that for each year of the first five years the sections are in effect the public benefit anticipated as a result of enforcing the sections will be that poultry products will be free of salmonella, pullorum, and typhoid organisms; the protection of poultry product consumers; and enhancement of U.S. and international trade of poultry and their products. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the sections as proposed. Comments on the proposal may be submitted to A. Konrad Eugster, Executive Director, TVMDL, P.O. Drawer 3040, College Station, Texas 77841-3040. The amendments are proposed under the Agriculture Code, s168.002, which provides the Texas Agricultural Experiment Station with the authority to promulgate and administer a program to control and eradicate pullorum disease and fowl typhoid. sec.102.1. Applicability and Scope. These rules shall apply to all firms or persons producing hatching eggs, or hatching, selling, or exhibiting domesticated poultry within the State of Texas. sec.102.2. Definitions and Terms. The following words and terms, when used in this section, have the following meanings, unless the context clearly indicates otherwise. Dealer-A firm or person other than a flockowner or hatchery who offers poultry or hatching eggs for sale or trade. Flock- (A) All the poultry and eggs under the same owner-ship or management on any given premise or on adjacent premises; and (B) all poultry under the control or ownership of a dealer. Hatchery-Equipment on one premises operated or controlled by any person or firm for the hatching of poultry eggs. Infected flock -A flock in which one or more birds has been diagnosed and confirmed by isolation of Salmonella pullorum or Salmonella gallinarum to be infected with pullorum disease or fowl typhoid. Multiplier flock -A flock that originates from a primary breeding flock and that is intended for production of hatching eggs. Negative test result-An approved testing procedure in which the blood or serum antigen mixture fails to clump. Official test-Serological testing using a Texas Veterinary Medical Diagnostic Laboratory (TVMDL) approved testing procedure conducted by a recognized laboratory and/or TVMDL personnel. Positive test result-An approved testing procedure in which there is complete or nearly complete clumping of the blood or serum antigen mixture. Poultry-Chickens, turkeys, game birds, and all other domestic fowl. Primary breeding flock-A flock that is maintained for the purpose of establishing, continuing, or improving parent lines. Products-Poultry or hatching eggs. Recognized laboratory -A laboratory approved by TVMDL for performing approved serological testing procedures and bacteriological culture techniques. Testing agent-An employee, agent, or representative of TVMDL authorized by TVMDL to perform approved serological testing procedures and bacteriological culture techniques. sec.102.3. Methods of Compliance. All firms or persons hatching or selling domesticated poultry within the State of Texas must have a pullorum-typhoid status at least equivalent to that specified by the National Poultry Improvement Plan of the Animal and Plant Health Inspection Service of the United States Department of Agriculture. A firm or persons may obtain such status by compliance with one of the following methods. (1) Those firms or persons currently qualified under the National Poultry Improvement Plan are recognized as meeting the requirement of these sections. (2) Any firm or person presently under a program of monitoring and testing breeder birds for pullorum and typhoid, which is equivalent to the required program, may have the program approve by the Texas Veterinary Medical Diagnostic Laboratory (TVMDL). (3) A firm or person unable to obtain a pullorum typhoid status at least equivalent to that specified by the National Poultry Improvement Program by compliance with one of the methods outlined in paragraphs (1) and (2) of this section must submit his flock to an official test. A flock in which all test results are negative shall be considered to have a pullorum-typhoid status equivalent to that specified by the National Poultry Improvement Plan. The following testing procedures may be used to comply with this regulation: (A) All birds in the primary breeder flocks are tested and all birds in multiplier flocks are tested. (B) All birds in the primary breeder flocks are tested, and birds in the multiplier flocks are tested according to the following: [graphic]
        The amount of testing in multiplier flocks will be based or origin of the flock, the present testing program, and the number of years of continuous operation without evidence of pullorum or typhoid in a hatchery supply flock or in progeny from the hatchery. (C) All birds in the primary breeder flocks are tested. Multiplier flocks are not required to test. (D) At least 300 birds from the primary breeder flocks are tested. No test is required in multiplier flocks. (E) Under the methods described in subparagraphs (B), (C), and (D) of this section, in lieu of blood testing, TVMDL may determine that a primary breeding flock, a multiplier breeding flock, game birds, and waterfowl may comply with this regulation if a bacteriologic monitoring program and a bacteriologic examination has been made of samples of down or fluff shed by baby poultry in the hatchery. At least three negative cultures on samples collected on three separate hatches are required. In making such determination, TVMDL shall consider the origin of the flock and any history of pullorum disease or fowl typhoid in the flock or on the premises in which the flock has been housed, incubated, brooded, or ranged. The TVMDL may require blood testing of flocks when there is any cause to suspect infection with pullorum disease or fowl typhoid. Before compliance by this method can be approved by TVMDL, the firm or person owning the flock must agree to submit specimens to an approved laboratory when excessive mortality in birds under four weeks of age has occurred. (4) A dealer may qualify by purchasing hatching eggs or the poultry only from pullorum-typhoid free flocks as established under the Texas Pullorum-Typhoid Program or the National Poultry Improvement Plan or an equivalent program. sec.102.4. Submission of Positives to a Recognized Laboratory and Restrictions on Sale and Movement Pending Laboratory Testing. (a) Each flockowner or dealer of poultry indicating a positive test result in tests conducted by a testing agent shall submit such birds from the flock to a recognized laboratory for confirmation. If laboratory examination fails to reveal Salmonella pullorum or Salmonella gallinarum organisms, the flock shall be considered negative. If a flockowner or dealer of poultry refuses to pen and/or present poultry for field testing by a testing agent, or if a field test indicates a positive result and a flockowner or dealer of poultry fails to submit such poultry to a recognized laboratory for confirmation, or if a flockowner or dealer offers for sale poultry lacking a pullorum-typhoid status equivalent to that specified by the National Poultry Improvement Plan of the United States Department of Agriculture, Animal and Plant Health Inspection Service, TVMDL may designate the entire flock an infected flock. (b) The number of poultry to be submitted for laboratory confirmation of serologic tests shall be all reactor birds up to five or as otherwise determined by TVMDL or its representative. (c) The TVMDL may order any flockowner or dealer who has refused to pen or present poultry for field testing by a testing agent, or who has offered for sale poultry lacking a pullorum-typhoid status equivalent to that specified by the National Poultry Improvement Plan of the United States Department of Agriculture, Animal and Plant Health Inspection Service, or who fails to submit to a recognized laboratory for confirmation poultry which has indicated a positive test result in a field test, to refrain from selling, trading, or moving his flock or hatching eggs without receiving prior written permission from the Texas Animal Health Commission or TVMDL. Such order shall remain in effect until the flock has been determined by field or laboratory examination to be free of Salmonella pullorum or Salmonella gallinarum organisms, or in cases where such organisms are present, until the Texas Animal Health Commission has imposed a quarantine or otherwise acted to restrict the movement of birds or eggs to prevent the further spread of the infection. sec.102.5. Procedures for Handling Infected Flocks and Their Products. (a) Any infected flock shall be reported to the Texas Animal Health Commission, who will impose a quarantine or otherwise restrict the movement of birds or eggs to prevent further spread of the infection. An infected flock may be disposed of in one of the following manners: (1) Birds reacting to the pullorum-typhoid test may be removed from the flock and all remaining birds in the flock serologically tested. If, as a result of two consecutive negative flock tests, the first not less than 21 days later, the flock shall be considered to have a pullorum-typhoid status at least equivalent to that specified by the National Poultry Plan. The flock must not be treated with antibiotics or other drugs that may mask the presence of the disease. (2) The flock may be moved to a state or federally inspected poultry processing establishment accompanied by a written certificate issued by the Texas Animal Health Commission or its representative. (3) The flock may be depopulated without recompense to the owner under supervision of the Texas Animal Health Commission and/or Texas Veterinary Medical Diagnostic Laboratory (TVMDL). (b) The TVMDL may require the testing of any flock when such testing is necessary to the control and eradication of pullorum disease and fowl typhoid. The owner must pen and/or present his birds for testing at a time and place designated by a testing agent of TVMDL. (1) All incubating eggs from infected flocks shall be removed from the incubator and destroyed under Texas Animal Health Commission and TVMDL supervision prior to hatching, except that by special permission eggs may be hatched under quarantine of the eggs and the progeny. (2) Fowl typhoid (S. gallinarum) positive flock/s must follow the Texas Animal Health Commission (TAHC) rules and regulations outlined in Chapter 57.11(a)(4), which states: "(4) When Fowl Typhoid (S. gallinarum) infection is confirmed in a flock, the farm on which the flock is located shall be placed under quarantine and the flock depopulated. Following depopulation and burial or incineration of all poultry, nest material, and litter, the premise and facilities shall be cleaned and disinfected. The premise shall remain quarantined for at least 180 days following depopulation during which time poultry shall not be reintroduced to the premises. Following removal of the quarantine, repopulation of the premises may be allowed with poultry that have been tested negative to fowl typhoid." sec.102.6. Cleaning and Disinfecting. Premises found to have housed, incubated, brooded, or ranged an infected flock shall be cleansed and disinfected under the supervision of Texas Veterinary Medical Diagnostic Laboratory (TVMDL) personnel within 15 days following depopulation, unless an extension of time is granted. No infected premises shall be restocked with poultry or eggs for hatching purposes until the above cleaning and disinfecting requirement is certified complete by TVMDL. sec.102.7. Texas Pullorum-Typhoid Certified Flock and Approved Hatchery Classification. A flock classification of "Texas pullorum-typhoid certified" is established to recognize and identify those flocks that are free of pullorum disease and fowl typhoid. (1) A flock of poultry may attain this status by meeting the requirements of one of three alternatives. The alternatives are the following: (A) A flock may attain this status when each chicken or turkey breeder flock 16 weeks of age or older and other poultry approaching sexual maturity, and before eggs are hatching, has been tested by an approved serological testing procedure, conducted by authorized Texas Veterinary Medical Diagnostic Laboratory (TVMDL) personnel, with no positive reactors. (B) A flock may attain this status when it is a flock originating from Texas Pullorum-Typhoid Certified flocks, U.S. Pullorum-Typhoid Clean, or the equivalent to that specified by the National Poultry Improvement Plan by one of the methods described in sec.102.3 of this title (relating to Methods of Compliance). (C) A flock found to be infected with pullorum disease may attain this status by two consecutive negative tests not less than 21 days apart provided that all eligible poultry on the premises have been included in such tests. These flocks must be retested one year from the date of their last negative test (100% test). (2) A flock of poultry which has been certified may be recertified each year under this system if there is no serological or other evidence of pullorum disease or fowl typhoid and all birds added to the flock are U.S. Pullorum- Typhoid Clean, Texas Pullorum-Typhoid Certified, or the equivalent. (3) Any hatchery in the state must be approved by the Texas Veterinary Medical Diagnostic Laboratory (TVMDL). Hatcheries desiring approval must be inspected and approved by a representative of TVMDL. Factors which will be considered by TVMDL in the approval process include physical facilities, hatchery sanitation, the source and identification of all hatching eggs, and the cleaning, disinfecting, and biosecurity practices of the hatchery. Only eggs or products from flocks which meet the United States pullorum-typhoid clean status, according to the National Poultry Improvement Plan or a Texas pullorum-typhoid certified flock or hatchery or equivalent, may be used by the hatchery. It is the responsibility of the hatchery management to require that only eggs from qualified flocks are placed in the incubators. Failure to enforce this requirement is a violation of the Pullorum-Typhoid Act and may result in quarantine and/or prosecution. (4) Approved hatcheries shall be subject to periodic inspections. Failure to meet the requirements of these regulations is cause for withdrawal of the approval status of the hatchery. sec.102.8. Exhibition of Poultry. All poultry going to public exhibition must originate from pullorum-typhoid clean sources and must be accompanied by a certificate of source or purchase. Poultry going to exhibition which are not accompanied by a certificate of source or purchase will be declared an infected flock by the Texas Veterinary Medical Diagnostic Laboratory (TVMDL). Organizers and sponsors of public exhibition are required to bar from exhibition any poultry not accompanied by certificate of source or purchase. sec.102.9. Registration. (a) All hatcheries must register and submit the following information to the Pullorum-Typhoid Program, Texas Veterinary Medical Diagnostic Laboratory, Drawer 3040, College Station, Texas 77841-3040: (1) hatchery name, address, capacity, and type of poultry hatched; (2) name and address of each supplier of hatching eggs and location of breeder flocks. (b) All independent breeding flocks not associated with a registered hatchery must register, giving flock size, breed, where eggs are hatched, and location of flock. A testing report form completed by a testing agent will satisfy the requirement for registration of a flock. sec.102.10. Public Sales.
          All poultry offered for public sale or trade at markets such as trade days, flea markets, auctions, or any other public sale must originate from pullorum-typhoid clean flocks or hatcheries. The seller must furnish proof of the source of poultry or hatching eggs offered for public sale. The owner or management of an market or public sale shall prevent the sale, trade, or offer for sale of any bird that is not properly qualified under the Texas Pullorum-Typhoid Program. Failure to enforce this requirement may result in the issuing of an order prohibiting any further sale of poultry on the grounds. All birds from states other than Texas must be accompanied by a health certificate from the state of origin, including a negative pullorum-typhoid test within 30 days of the sale. All poultry not properly identified and qualified as pullorum-typhoid clean is prohibited from sale and must be returned to the owner or dealer's premises. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in College Station, Texas, on August 2, 1993. TRD-9327724 A. K. Eugster Executive Director Texas Veterinary Medical Diagnostic Laboratory Earliest possible date of adoption: October 8, 1993 For further information, please call: (409) 845-9000 TITLE 7. BANKING AND SECURITIES Part I. Finance Commission of Texas Chapter 3. Banking Section Subchapter B. General 7 TAC sec.3.31, sec.3.32 (Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the State Finance Commission or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The State Finance Commission of Texas (the Commission) proposes the repeal of sec.3.31 and sec.3.32, concerning certain application fees that are to be replaced by proposed new sec.3.37, published for comment in this issue of the Texas Register . Pursuant to Texas Civil Statutes, Article 342-112(2), the Banking Commissioner and the Commission are charged with establishing reasonable and necessary fees for the administration of the Banking Code, Texas Civil Statutes, Article 342- 101 et seq. Existing sec.3.31 establishes a $5,000 application fee for a state bank or trust company charter and imposes the cost of investigation upon the applicant. Existing sec.3.32 imposes a change of domicile fee of $150, refundable in the event the application is denied. Proposed new sec.3.37 sets filing fees for certain types of applications for banks, trust companies and others, and will duplicate the types of fees presently imposed by sec.3.31 and sec.3.32. Allen Barr, deputy director, Corporate Activities Division, Texas Department of Banking, has determined that for the first five-year period the repeals are in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the repeals in that the fees are being replaced by new fees in proposed sec.3.37. Mr. Barr also has determined that for each year of the first five years the repeals are in effect the public benefit anticipated as a result of enforcing the repeals will be the elimination of duplicate fee provisions once proposed sec.3.37 is adopted. There will be no effect on small businesses. No economic cost will result to entities as a result of the repeals of these sections. Comments on the proposed repeals to be considered by the Commissioner and the Commission must be submitted in writing within 30 days after publication of the proposal in the Texas Register to Everette D. Jobe, General Counsel, Texas Department of Banking, 2601 North Lamar Boulevard, Austin, Texas 78705-4294. The repeals are proposed under the general rulemaking authority of the Commissioner and the Commission with regard to fees for the administration of the Banking Code pursuant to the Texas Civil Statutes, Article 342-112(2). The following are the articles that are affected by the proposed repeal of sec.3.31 and sec.3.32: Section 3.31-Texas Civil Statutes, Articles 3921, 342-331, 342-363, and 342- 1101. Section 3.32-Texas Civil Statutes, Article 342-311. sec.3.31. Application Fees for State Bank or Trust Company Charters. sec.3.32. Domicile Change Fee. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on August 30, 1993. TRD-9328006 Everett D. Jobe General Counsel Texas Department of Banking Earliest possible date of adoption: October 8, 1993 For further information, please call: (512) 475-1300 7 TAC sec.3.37 The Finance Commission of Texas (the Commission) and the Banking Commissioner of Texas (the Commissioner) propose new sec.3.37, concerning application fees and recovery of investigative costs. In this issue of the Texas Register , the Commission and the Commissioner are also proposing the repeal of sec.3.31 and sec.3.32, concerning certain application fees that will be subsumed by new sec.3.37. Pursuant to Texas Civil Statutes, Article 342-112(2), the Commissioner and the Commission are charged with establishing reasonable and necessary fees for the administration of the Banking Code, Texas Civil Statutes, Article 342-101 et seq. Existing sec.3.31 sets a $5,000 application fee for a state bank or trust company charter and imposes the cost of investigation upon the applicant. Existing sec.3.32 imposes a change of domicile fee of $150, refundable in the event the application is denied. Other application fees have been imposed pursuant to instructions distributed with application forms. The purpose of any fee charged by the Commissioner, whether the fee is for applications, annual assessments, examinations, recovery of costs, or other purposes, is to enable the Texas Department of Banking (the Department) to be self-supporting. Texas Civil Statutes, Article 342-112(3), provide that all fees must be deposited in the Banking Department Expense Fund, from which all expenses incurred by the Department must be paid. State law prohibits payment of Department expenses form any other funds of this State. As a policy matter, the Commissioner and the Commission propose to reduce the Department's heavy reliance on examination fees, impose appropriate application fees and cost deposits to make identifiable services of the Department self- sustaining to the extent possible, and calculate periodic assessment fees in sufficient amount to fund the remaining unrecovered regulation expenses of the Department. This effort is being undertaken with respect to every industry regulated by the Commissioner with the objective of having each industry pay its proportionate share of the cost of regulation. To that end, proposed new sec.3.37 sets filing fees for certain types of applications for banks, trust companies and others, and for protests filed against such applications, provides for payment of filing fees at the time of filing and for the nonrefundability of filing fees generally, sets the amount of application fees at the estimated base cost of processing the application or at the amount set by statute, and provides for recovery of investigative costs incurred by the Department in certain situations. The adoption of new sec.3.37 will result in better matching of the actual cost of regulation with the service provided for the purpose of achieving economic self-sufficiency for application processing within the Department. A further purpose of the proposed new sec.3.37 is to consolidate all bank and trust company application fees in one section for ease of reference. The Commission and the Commissioner direct the reader's attention to the provisions of House Bill Number 1212, 73rd Legislature, 1993, effective September 1, 1993, which amends and renumbers several of the articles affected by this rulemaking proposal. Statutory citations in this preamble and in the body of proposed new sec.3.37 are to the statutes as amended by the 73rd Legislature, 1993. Allen Barr, deputy director, Corporate Activities Division, Texas Department of Banking, has determined that for the first five-year period the section is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the section. While the proposed rule will result in an increase in revenue from application fees, the increased revenue will decrease the amount of Departmental operational expenses that must be recouped from the banking and trust industries through assessment fees. Mr. Barr estimates that the amount of increased revenue from application fees (and the corresponding decrease in the base upon which assessment fees are calculated) to be $250,000 in each year for the first five years the proposed section is in effect. Mr. Barr also has determined that for each year of the first five years the section is in effect the public benefit anticipated as a result of enforcing the section is the economic self-sufficiency of the Department with respect to processing certain applications and the reduction in assessment fees to the banking and trust industries as a result of increased revenues from the application process. No net economic cost will result to persons required to comply with the proposed section with the exception of small businesses that seek to use the term "bank," "trust," or similar terms in their corporate names, and must file an application to the Department for permission to do so. The anticipated, aggregate economic cost to these small businesses will be $10, 000 for each year of the five-year period, or an estimated 200 applications at a filing fee of $50 per application. No difference will exist between the cost of compliance for small businesses and the cost of compliance for the largest businesses affected by the section. Based on past experience, substantially all applicants seeking permission to use terms in their corporate names otherwise prohibited by Texas Civil Statutes, Article 342-902, will be small businesses. Comments on the proposal to be considered by the Commission and the Commissioner must be submitted in writing within 30 days after publication of the proposed section in the Texas Register to Everette D. Jobe, General Counsel, Texas Department of Banking, 2601 North Lamar Boulevard, Austin, Texas 78705- 4294. The new section is proposed under Texas Civil Statutes, Article 342-112(2), which provide the Commissioner and the Commission with the authority to establish reasonable and necessary fees for administration of the Banking Code. Alternate statutory authority for certain fees can be found in Texas Civil Statutes, Articles 3921 (bank charter fees), 342-331(c), 342-363(c), (bank charter fees and costs), 342-401a(J) (fees and costs for review of stock transfer), 342-903(1)(c) (branch office application fees), 342-1005(4) (application fees for foreign bank agencies), 342-1007(c) (renewal application fees for foreign bank agencies), and 342-1102 (certain statutory provisions applicable to trust companies). The Commissioner expressly proposes those aspects of this section that are within her sole authority to do so. The Commission expressly proposes those aspects of this section that are within its sole authority to do so. The following are the articles and sections that are affected by the proposed new sec.3.37: Texas Civil Statutes, Articles 3921, 342-305, 342-306, 342-310, 342-311, 342-331, 342-332, 342-363, 342-368, 342-401a, 342-513, 342-607, 342- 902, 342-903, 342-912, 342-913, 342-1006, 342-1007, 342-1101, 7 TAC sec.3.7 (relating to Bank Subsidiary Corporations), 7 TAC sec.3.61 (relating to Acquisition or Change of Control of Trust Companies), 7 TAC sec.3.91 (relating to Establishment and Closing of a Branch Bank), 7 TAC sec.3.93 (relating to Loan Production Offices) and Texas Business Corporation Act Articles 2.01(B)(4), 2.05(A)(2), and 3.03(A). sec.3.37. Application Fees and Cost Deposits. (a) Basis of Fees. The Banking Commissioner has determined that the filing fees set forth in subsection (b) of this section are either set by statute or, when added to any required investigative cost reimbursement set forth in subsection (f) of this section, approximate the agency's cost of processing the application, including any associated review, investigation and examination. (b) Filing Fees. An applicant shall pay the filing fee established in the following schedule of fees: [graphic] (c) Additional Charter Amendment Fee. In addition to the fee required by subsection (b) of this section, pursuant to Texas Civil Statutes, Article 3921, if an amendment of supplement to the charter of articles of association of a state bank increases the authorized capital of the bank in excess of $10, 000, the bank shall pay an additional fee of $10 for each $10,000 increase or fraction thereof, up to a maximum fee of $2,500. (d) Fee for Protest Filing. Any person filing a protest to the application of another person for a bank or trust company charter or for a branch banking facility shall pay a fee of $2,500 simultaneously with such protest filing, to partially offset the agency's increased cost of processing and reduce the costs incurred by the applicant resulting solely from the protest. (e) Fees Nonrefundable. All filing fees shall be paid at the time of filing and shall be nonrefundable. Except for charter application fees and fees established by statute, the Banking Commissioner may reduce or waive any filing fee upon a showing of substantial hardship. (f) Required Reimbursement of Investigative Costs. In addition to the filing fees set forth in subsection (b) of this section, applicants for a bank or trust company charter shall pay costs incurred in any investigation, review, or examination deemed appropriate by the Department of Banking at the rate of $500 per examiner per day. Such costs shall be paid by the applicant upon written request of the Department. Failure to pay a bill for investigative costs in addition to the application fee shall be grounds for denial of the application. The Banking Commissioner may in the exercise of discretion reduce or waive payment of any costs upon a showing of substantial hardship, and may elect to allow a successful applicant to reduce future assessments by all or a part of investigative costs paid. (g) Severability. If any fee or cost recovery set forth in this section is finally determined by a court of competent jurisdiction to be beyond the scope of agency authority to adopt, such fee or cost reimbursement shall be severed from this section and the remainder of this section shall remain fully enforceable. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on August 30, 1993. TRD-9328007 Everette D. Jobe General Counsel Texas Department of Banking Earliest possible date of adoption: October 8, 1993 For further information, please call: (512) 475-1300 7 TAC sec.3.38 (Editor's Note: The Texas Finance Commission proposes for permanent adoption the new section it adopts on an emergency basis in this issue. The text of the new section is in the Emergency Rules section of this issue.) The Finance Commission of Texas (the Commission) proposes new sec.3.38, concerning the application of a state banking association to convert to a state limited banking association. Article XVI, sec.16(c), of the Texas Constitution provides that a state bank "has the same rights and privileges that are or may be granted to national banks of the United States domiciled in this State." Pursuant to Texas Civil Statutes, Article 342-113(4), the Commission is charged with promulgating rules to "permit state banks to transact their affairs in any manner ... which they could do ... were they organized and operating as a National bank under the laws of the United States...." Through an apparent oversight, House Bill Number 1212, 73rd Legislature, 1993, provided for the conversion of national banks to state limited banking associations but not for conversion of state banks to state limited banking associations. State banks can become state limited banking associations, but only through a presumably more costly and time consuming method known as "phantom" mergers or "interim bank" mergers. The Commission proposes new sec.3.38 to preserve competitive parity between state and national banks as mandated by the Texas Constitution and Article 342-113(4). The section as proposed will permit but not require a state bank that wishes to convert to a state limited banking association to do so in the same manner as a national bank is authorized to do. Any state bank that chooses to take advantage of the option presented by this section must obtain the approval of its board of directors and its shareholders as if such transaction was a merger pursuant to Part V of the Texas Business Corporation Act, including the obligation to pay dissenters' rights in the manner contemplated therein. The Commission directs the reader's attention to the provisions of House Bill Number 1212, 73rd Legislature, 1993, effective September 1, 1993, which amends and renumbers several of the articles affected by this rulemaking proposal. Statutory citations in the body of proposed new sec.3.38 are to the statutes as amended by the 73rd Legislature, 1993. Everette D. Jobe, general counsel, Texas Department of Banking, has determined that for the first five-year period the section is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the section. Mr. Jobe also has determined that for each year of the first five years the section is in effect the public benefit anticipated as a result of enforcing the section is the enhancement of competitive equality of state banks to national banks. There will be no effect on small businesses. No economic cost will result to entities as a result of complying with the proposed section. Comments on the proposal to be considered by the Commission must be submitted in writing within 30 days after publication of the proposed section in the Texas Register to Everette D. Jobe, General Counsel, Texas Department of Banking, 2601 North Lamar Boulevard, Austin, Texas 78705-4294. The new section is proposed under Texas Civil Statutes, Article 342-113(4), which provide the Commission with the authority to promulgate general rules and regulations to permit state banks to transact their affairs in any manner which they could do were they organized and operating as national banks. The following are the articles and sections that are affected by the proposed new sec.3.38: Texas Constitution Article XVI, sec.16, and Texas Civil Statutes, Articles 342-310 and 342-363. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on August 30, 1993. TRD-9328004 Everette D. Jobe General Counsel Texas Department of Banking Earliest possible date of adoption: October 8, 1993 For further information, please call: (512) 475-1300 Subchapter E. Banking House and Other Facilities 7 TAC sec.3.91 The Finance Commission of Texas (the Commission) and the Banking Commissioner of Texas (the Commissioner) propose new sec.3.91, concerning the application of a state bank to establish a branch bank pursuant to Texas Civil Statutes, Article 342-903. Existing sec.3.91, proposed for repeal at 18 TexReg 1985, is repealed in this issue of the Texas Register . A prior proposed version of sec.3.91, published at 18 TexReg 2249, is being withdrawn in this issue of the Texas Register. Article XVI, sec.16(c), of the Texas Constitution provides that a state bank "has the same rights and privileges that are or may be granted to national banks of the United States domiciled in this State." Pursuant to Texas Civil Statutes, Article 342-113(4), the Commission is charged with promulgating rules to "permit state banks to transact their affairs in any manner ... which they could do ... were they organized and operating as a National bank under the laws of the United States...." The intent of these provisions is to preserve competitive parity between state and national banks. Prior to its amendment in 1991, Article 342-903 was substantially more restrictive regarding the right of a state bank to establish branches. Pursuant to 12 United States Code, sec.36(c), national banks can branch to the same extent as state banks. In 1987, a federal court interpreted the definition of "state bank" in 12 United States Code, sec.36(h), ("institutions carrying on the banking business" under state law) to include a state savings and loan association, which had statewide branching power. Department of Banking and Consumer Finance of Mississippi v. Clarke, 809 F.2d 266 (5th Cir.), cert. denied, 483 U.S. 1010 (1987). On June 14, 1988, a federal court in Texas reached the same result in State of Texas v. Clarke, 690 F.Supp. 573 (W. D. Tex. 1988). In response to these developments in federal law, the Commission, pursuant to its power under Article 342-113(4) to preserve competitive parity by rule, promptly amended sec.3.91 effective October 25, 1988, published at 13 TexReg 5203, to greatly exceed the scope of Article 342-903 and permit statewide branching for state banks. In 1990, the Commission again amended sec.3.91, published at 15 TexReg 431, to add a requirement that an administrative hearing be held and a requirement, among others, of demonstrated public need for the branch bank, reasoning that these requirements were coextensive with requirements applicable to state savings and loan associations and thereby the same as applicable to national banks. One commenter had argued to no avail that the new requirements were more onerous than those applicable to national banks, pointing to the federal regulation pertaining to the branch application process, 12 Code of Federal Regulations sec.5.10 and sec.5.30. Experience over the past three years has proven the commenter correct. Protestants have for the most part used the protest and hearing process to attempt to obtain proprietary and confidential information of their competitor and to drive up the cost of obtaining regulatory approval of a branch for their competitor. In 1991, Texas Civil Statutes, Article 342-903, was greatly liberalized to permit state banks to branch virtually at will upon the prior written approval of the Commissioner, limited only to the condition that the Commissioner not have "any significant supervisory or regulatory concerns." Acts 1991, 72nd Legislature, Chapter 515, sec.2. New versions of sec.3.91 were proposed in October of 1991, 16 TexReg 6107, and April of 1993, 18 TexReg 2249, in attempts to implement this new, unfettered discretion of the Commissioner with regard to branching of state banks, but neither was adopted. Most commenters argued that the new proposals were too restrictive. The Commission and the Commissioner propose new sec.3.91 to preserve competitive parity between state and national banks as mandated by the Texas Constitution and Article 342-113(4), and to implement the full amount of discretion the Texas Legislature has entrusted to the Commissioner. The section as proposed will permit but not require the Commissioner to hold a hearing in the event valid and substantive reasons exist why the written submissions of the applicant and any protestants are inadequate to fully develop the possibility of supervisory or regulatory concerns which, in the final analysis, is a purely discretionary decision of the Commissioner. Hearings, if granted, will be conducted pursuant to the Administrative Procedure Act, Texas Government Code, Chapter 2001, to the extent feasible and not in conflict with Article XVI, sec.16(c), of the Texas Constitution. The new section as proposed also defines with specificity the concept of "significant supervisory or regulatory concerns" to provide applicants, commenters, and protestants alike with fair notice of the requirements of the Commissioner and the basis of branching decisions. Everette D. Jobe, general counsel, Texas Department of Banking, has determined that for the first five-year period the section is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the section. Mr. Jobe also has determined that for each year of the first five years the section is in effect the public benefit anticipated as a result of enforcing or administering this section is the enhancement of competitive equality of state banks to national banks. There will be no effect on small businesses. No economic cost will result to persons as a result of complying with the proposed section. Comments on the proposal to be considered by the Commission and the Commissioner must be submitted in writing within 30 days after publication of the proposed section in the Texas Register to Everette D. Jobe, General Counsel, Texas Department of Banking, 2601 North Lamar Boulevard, Austin, Texas 78705- 4294. The new section is proposed under Texas Civil Statutes, Article 342-113(4), which provide the Commission with the authority to promulgate general rules and regulations to permit state banks to transact their affairs in any manner which they could do were they organized and operating as national banks, and under Texas Civil Statutes, Article 342-903, sec.1(c) and sec.2(b), which empowers the Commissioner to promulgate standards and procedures for branch applications. The following are the articles and sections that are affected by the proposed new sec.3.38: Texas Constitution Article XVI, sec.16, and Texas Civil Statutes, Article 342-903, and proposed 7 TAC sec.3.37 as published in this issue of the Texas Register. sec.3.91. Establishment and Closing of a Branch Bank. (a) Definition of Branch. For purposes of this section, "branch," "branch bank," or "branch office" is any location away from a state bank's principal banking house at which the bank receives deposits, pays checks, or lends money, including a drive-in facility located more that 1,000 feet from the nearest wall of the principal banking house or any branch office of the bank, but not including an unmanned teller machine subject to Texas Civil Statutes, Article 342-903a, a loan production office operated in compliance with sec.3.93 of this title (relating to Loan Production Offices), or a state or federally licensed armored car service or other courier service transporting items for deposit or payment unless the risk of loss of items in the custody of such service is borne by the employing bank, or unless the items are deemed to be in customer accounts at the employing bank and insured by the Federal Deposit Insurance Corporation. The purpose of the Banking Commissioner (the Commissioner) in promulgating this definition is to ensure that significant banking functions are made available to the public only through authorized facilities, and it should be liberally construed to effectuate that purpose. (b) Forms. A state bank that desires to operate a branch shall complete and file a branch application on forms promulgated by the Texas Department of Banking (the Department). Application forms and instructions are available from the Department on request. (c) Filing. The Department will advise the applicant when a branch application has been reviewed and found to be complete. If the application is reviewed and found to be incomplete, the Department will advise the applicant as to what further information must be furnished before the application will be complete and accepted for filing. The Department will accept an branch application for filing after it has determined that the application is complete and accompanied by the proper application fee as set forth in sec.3. 37(b) of this title (relating to Application Fees and Cost Deposits). (d) Investigative Costs. The Department may investigate facts in connection with any application. Costs incurred in any investigation deemed appropriate by the Department shall be paid by the applicant as set forth in sec.3.37(f) of this title. (e) Public Notice. (1) When notified of the acceptance of its completed application for filing, the applicant shall publish notice of the application, together with the statement set forth in paragraph (2) of this subsection, in a newspaper of general circulation in the community where the proposed branch is to be located. The applicant will furnish the Department with a copy of the notice and a publisher's affidavit attesting to the date of its publication. (2) The notice shall state the fact of the application, the proposed location of the branch, and substantially the following text as a separately stated paragraph: "Any person wishing to comment on this application, either for or against, may file written comments with the Texas Department of Banking, 2601 North Lamar Boulevard, Austin, Texas 78705-4294 within 14 days of the date of this publication. Such comments will be made a part of the record before and considered by the Banking Commissioner. Any person wishing to formally protest and oppose the proposed branch and participate in the application process may do so by filing a written notice of protest with the Texas Department of Banking, 2601 North Lamar Boulevard, Austin, Texas 78705-4294 within 14 days of the date of this publication, together with a filing fee of $2,500. The protest fee may be reduced or waived by the Banking Commissioner upon a showing of substantial hardship." (f) Public Comment and Protest. For a period of 14 days after publication of notice or such longer period as the Commissioner may allow for good cause shown, the public may submit written comments or protests regarding the application. Persons submitting comments will not be entitled to further notice of or participation in the branch application proceedings but all comments submitted will be made a part of the record. Each protestant will have the rights and responsibilities set forth in subsections (h) and (i) of this section. (g) Criteria for branch approval: Significant supervisory or regulatory concerns. (1) In concluding whether the Commissioner has any significant supervisory concerns regarding a proposed branch, the Commissioner will consider the financial effect of the branch on the applicant, the management abilities of the applicant, and the history and prospects of the applicant and its affiliates regarding fulfillment of responsibilities to regulatory agencies and to the public, including, but not limited to, the responsibility of the applicant to meet the credit needs of its entire community pursuant to the Community Reinvestment Act (CRA), 12 United States Code, sec.2901 et seq. (2) In concluding whether the Commissioner has any significant regulatory concerns regarding a proposed branch, the Commissioner will consider the need to maintain a sound banking system and will follow the principles that the marketplace normally is the best regulator of economic activity, and that competition promotes a sound and more efficient banking system that serves customers well. Accordingly, absent significant supervisory concerns, the general policy of the Commissioner is to approve applications to establish and operate branches, provided that approval would not otherwise violate the provisions of federal or state law (including any requirements for federal banking agency approval). (3) In evaluating whether the Commissioner should have any significant supervisory or regulatory concerns as set forth in paragraphs (1) and (2) of this subsection, the Commissioner will consider written material in the record, including the application, comments on file, and protests on file and any replies of the applicant, the Department's files as they relate to the current financial condition of the applicant, and any data that the Commissioner may properly officially notice. Specifically, the Commissioner will at least consider: (A) the Department's files as they relate to the current financial condition of the applicant, including but not limited to, its capital, asset quality, management, earnings and liquidity (These files are confidential pursuant to Texas Civil Statutes, Article 342-210 and are not open or available to either the applicant or a protestant in the absence of a court order); (B) costs of establishing the proposed branch office, including costs of purchasing or leasing the branch site, necessary furnishings, staffing and equipment and effect of these costs on the operations of the applicant as a whole; (C) whether projected earnings appear reasonable and sufficient to support expenses attributable to the branch without jeopardizing the safety and soundness of the applicant; (D) depth and quality of management of the applicant and the proposed branch; (E) compliance with the CRA as determined by the rating assigned in the applicant's most recent CRA evaluation; (F) the applicant's responsiveness to recommendations made in past state and federal bank examination reports and whether the applicant has generally been operated in substantial compliance with all applicable state and federal laws; (G) whether the proposed branch name clearly identifies the branch as such or whether it is likely to confuse and mislead the public; and (H) whether the security measures proposed for the branch are adequate under the proposed plan of operation. (4) The Commissioner will direct the Department to assemble, evaluate, and make a recommendation regarding all relevant documentation and data as set forth in this subsection; provided, however, that if a hearing is granted pursuant to subsection (i) of this section, the Commissioner will request the Department's hearing officer (Hearing Officer) to discharge this function. Portions of the record so assembled that are confidential pursuant to Texas Civil Statutes, Article 342-210, shall be segregated and clearly marked as confidential. (h) Protest. (1) A protest may be initiated by notifying the Department in writing of the intent to protest the application within the time period allowed by subsection (f) of this section, accompanied by the filing fee as set forth in sec.3.37(d) of this title. If the protest is untimely, the filing fee will be returned to the protestant. If the protest is timely, the Department will notify the applicant of the protest and mail or deliver a complete copy of the application to the protestant within 14 days after receipt of the protest, provided the protestant first signs an agreement, in form specified by the Department, protecting the confidential portions of the application from misuse or improper disclosure, and files the unaltered agreement with the Department within the 14 day period. (2) The protestant shall file a detailed protest responding to each substantive statement contained in the application within 20 days after receipt of the application. The protestant's response shall indicate with regard to each such statement whether it is admitted or denied. The applicant shall file a written reply to the detailed response within 10 days after the response is filed. Both the detailed response and the reply thereto shall be verified by affidavit and shall contain a certificate of service on the opposing party. When applicable, statements in the response and in the reply may be supported by references to data available in sources of which official notice may properly be taken. Comments received by the Department and any replies of the applicant to such comments will also be made available to the protestant. (3) The Commissioner may extend any time period set forth in this subsection for good cause shown. Good cause includes, but is not limited to, failure of the Department to furnish required documentation, forms or information within a reasonable time to permit its effective use by the recipient, or failure of a party to timely serve a filed document on an opposing party. The filing date is the date the document is actually received by the Department and not the date of mailing. Failure to timely file a required document shall be deemed a withdrawal of the application or protest, as applicable. (i) Hearing. (1) Pursuant to Texas Civil Statutes, Article 342-903, and Texas Constitution Article XVI, sec.16(c), the Commissioner may not be compelled to hold a hearing prior to granting or denying approval to establish a branch. (2) However, in the exercise of discretion, the Commissioner will consider granting a hearing on a branch application at the request of either the applicant or a protestant. The Commissioner may order a hearing even if no hearing has been requested by the parties. Any party requesting a hearing must indicate with specificity what issues are involved that cannot be determined on the basis of the record compiled pursuant to subsection (g) of this section and why the issues cannot be so determined. The request for hearing and the Commissioner's decision with regard to granting a hearing will be made a part of the record. (3) If a hearing is not requested or if a request for hearing is denied, the Commissioner will consider the application in the manner set forth in and solely on the basis of the written record established pursuant to subsection (g) of this section. (4) If a hearing is granted, the Commissioner will instruct the Hearing Officer to enter appropriate order(s) and conduct the hearing under the Administrative Procedure Act, Texas Government Code, Chapter 2001, to the extent feasible and not in conflict with Texas Constitution, Article XVI, sec.16(c). Issues will be limited to those on which testimony is absolutely necessary, and the Hearing Officer may require testimony to be submitted in written form and prefiled. No evidence will be received on matters that are not in dispute. No issues or evidence will be considered that are not relevant to the standards set forth in subsection (g) of this section or that are not supported by the application, response, or reply. (j) Beginning Operations. Any branch approved pursuant to this section must begin operations within 18 months from the date of approval unless the Commissioner extends that date in writing. Approval will automatically expire 18 months from the date of approval if no extension is granted. (k) Emergency Branches. The procedures set forth in subsections (e), (f) , (h), and (i) of this section do not apply to branch applications made as a part of a transaction for the purpose of assuming all or a portion of the assets and liabilities of any bank deemed by the Commissioner to be in an unsafe condition. (l) Branch Relocation. A bank may, with prior written approval of the Commissioner, relocate an approved branch to a location within the community served by the branch. The procedures outlined in this section for approval of branches shall not apply to the relocation of an approved branch. The bank shall file an application to relocate a branch accompanied by the required application fee pursuant to sec.3.37 of this title. (m) Closing a Branch. At least 60 days before closing an approved branch, the bank shall provide the Department with a copy of a resolution adopted by a majority of the board of directors at a duly convened meeting authorizing the branch to be closed. Notice of the closing shall be conspicuously posted in the lobby of the branch continuously for at least 30 days prior to the date of closing. The bank shall notify the Department when the branch location has been officially closed. The bank cannot thereafter reopen the branch except upon application for a new branch in compliance with this section. (n) Parity provision. This section should be liberally interpreted to allow state chartered banks to branch to the same extent as national banks. See Texas Constitution, Article XVI, sec.16(c); Texas Civil Statutes, Article 342-113(4). [graphic] This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on August 30, 1993. TRD-9328008 Everette D. Jobe General Counsel Texas Department of Banking Earliest possible date of adoption: October 8, 1993 For further information, please call: (512) 475-1300 Chapter 4. Currency Exchange 7 TAC sec.4.3 The Finance Commission of Texas (the Commission) proposes an amendment to sec.4.03, concerning recordkeeping and reporting requirements under the Currency Exchange Act, Texas Civil Statutes, Article 350 (the Act), to require licensees under the Act to keep additional records regarding currency exchange and transmission transactions. Pursuant to the Act, sec.7, the Commission is required to adopt rules necessary to implement the Act, specifically including rules regarding recordkeeping and reporting requirements. After initial adoption of the Act and before having the benefit of experience examining or regulating currency exchange or transmission businesses, the Banking Commissioner of Texas (the Commissioner) recommended that the Finance Commission adopt a rule setting forth minimal recordkeeping and informational reporting, which was adopted and is currently in effect. Since the adoption of the existing section, the Commissioner and the Texas Department of Banking (the Department) have had the opportunity to examine numerous licensees and have developed a better understanding of the business operations of licensees and the types of records that would be of the most assistance to the Department and the Commissioner in carrying out their duties under the Act. The additional records will assist the Department's examiners in fulfilling the examination requirement of the Act and increase the efficiency of the examination function. This increased efficiency should shorten the average amount of time required to conduct an examination of a licensee and should therefore lower the cost of examination to the licensee. Pursuant to 31 Code of Federal Regulations, Part 103, currency exchange businesses currently are required to maintain records similar to those reflected in subsection (d)(1)(A) of the amendment as proposed. As a result, that portion of the proposed amendment should not require any significant change in the manner in which currency exchange businesses maintain their records. In subsection (d)(2)(A), the Commission proposes to extend those same recordkeeping requirements to currency transmission businesses. Subsection (d) (3)(A) will provide the Department with basic information regarding the type and volume of business handled by the licensees and will enable the Department to ensure that the amount of the bond posted by the licensee under the Act is sufficient and complies with the Department's rules with respect to bonding. Brian R. Herrick, assistant general counsel, Texas Department of Banking, has determined that for each year of the first five years the section is in effect there will be fiscal implications as a result of enforcing or administering the section. The proposed amendment will have no effect on state or local government but will increase the cost of compliance with the rule for small businesses by an estimated $.05 per currency exchange or currency transmission transaction processed by the licensee in the amount of $1,000 or more. Any additional cost should be in large part offset by a reduction in the examination fee charged by the Department, because less time will be required to examine the operations of a licensee under the Act as a result of increased accuracy and completeness in recordkeeping. The cost of compliance per $100 of sales will be approximately the same for small businesses and the largest businesses. Mr. Herrick also has determined that for each year of the first five years the section is in effect the public benefit anticipated as a result of enforcing the section will be to provide more detailed records for the transactions regulated under the Act, thus increasing the efficiency and effectiveness of the examination process. The efficiency achieved should enhance the orderly administration of the Act and ensure that the purposes of the Act are substantially fulfilled. The economic cost to persons who are required to comply with the amendment as proposed will be an estimated additional $.05 per currency exchange or currency transmission transaction processed by the licensee in the amount of $1,000 or more. Any additional cost should be in large part offset by a reduction in the examination fee charged by the Department, because less time will be required to examine the operations of a licensee under the Act as a result of increased accuracy and completeness in recordkeeping. Comments on the proposal may be submitted to Brian R. Herrick, Assistant General Counsel, Texas Department of Banking, 2601 North Lamar Boulevard, Austin, Texas 78705-4294. The amendment is proposed under Texas Civil Statutes, Article 350, sec.7, which require that the Commission adopt rules necessary to implement Article 350, including rules related to recordkeeping and reporting requirements. Texas Civil Statutes, Article 350 and Article 489d are affected by the proposed amendment of sec.4.03. sec.4.03. Reporting and Recordkeeping. (a) Persons holding a license (
            Licensees) pursuant to Texas Civil Statutes, Article 350 (the Act)
              shall maintain separate accounting books and records in Texas relating to their operations. All books and records maintained by Licensees [in accordance with this section] shall be located where they are readily accessible to the Department of Banking. (b) Licensees shall comply with all federal laws and regulations affecting their operations, and shall
                maintain records of all
                  [any] filings made pursuant to and
                    [or] documentation required under all
                      [any] applicable federal laws and
                        [or] regulations
                          , including [, but not limited to,] the requirements set forth in 31 United States Code, sec.5313 and 31 Code of Federal Regulations, [Title 31 United States Code, sec.5313, and Title 31 Code of Federal Regulations,] Part 103. (c) Each Licensee shall, in a form prescribed by the Banking Commissioner, file quarterly written reports with
                            [to] the Department of Banking. (d) In addition to the records required to be maintained under subsections (a) and (b) of this section, Licensees shall keep the following records. (1) Currency Exchange. (A) No Licensee may engage in a currency exchange transaction in an amount of $1,000 or more unless the Licensee issues sequentially numbered receipts for each of those transactions. Duplicate copies of the receipts must be maintained by the Licensee for a period of at least five years. The receipts must include the following information: (i) the name and address of the customer; (ii) the social security number of the customer, or if the customer is an alien and does not have a social security number, then the passport number, alien identification card number, or other official document of the customer evidencing nationality or residence (e.g., a provincial driver's license with indication of home address); (iii) the date of birth of the customer; (iv) the name and address of the person on whose behalf the transaction is being conducted if the customer is conducting the transaction on behalf of another person, together with the appropriate identification for such other person specified in clause (ii) of this subparagraph; (v) the date of the transaction; (vi) the location of the office where the transaction was conducted; (vii) the amount and type of currency received and given in exchange; (viii) the rate of exchange; (ix) the amount of any service charges or fees paid or assessed in connection with the transaction; and (x) the initials of the employee of the Licensee effecting the transaction. (B) In addition, the Licensee shall verify the customer's name and address by examination of a document that contains the name, address, and a photograph of the customer and is customarily acceptable within the banking community as a means of identification when cashing checks for nondepositors. The Licensee shall record the specific identifying information on the receipt (e.g., state of issuance and number of driver's license). (C) Contemporaneous currency exchange transactions of the same or different types of currency made by or on behalf of the same person totaling $1,000 or more shall be treated as one transaction. Multiple transactions made by or on behalf of the same person during one business day totaling $1,000 or more shall be treated as one transaction if an individual employee, director, officer, or partner of the Licensee knew or should have known that the transactions occurred. (2) Currency Transmission. (A) No Licensee authorized to engage in currency transmission may enter into a currency transmission transaction in an amount of $1,000 or more unless the Licensee issues sequentially numbered receipts for each of those transactions. Duplicate copies of the receipts must be maintained by the Licensee for a period of at least five years. The receipt must indicate whether the transaction was initiated or terminated at the Licensee's business and must include the following information: (i) the name and address of the customer, whether sender or recipient; (ii) the social security number of the customer, or if the customer is an alien and does not have a social security number, then the passport number, alien identification card number, or other official document of the customer evidencing nationality or residence (e.g., a provincial driver's license with indication of home address); (iii) the date of birth of the customer; (iv) the name and address of the person on whose behalf the transaction is being conducted, if the customer is conducting the transaction on behalf of another person, together with the appropriate identification for such other person specified in clause (ii) of this subparagraph; (v) the date of the transaction; (vi) the location of the office where the transaction was conducted; (vii) the amount of the transmission in U.S. dollars; (viii) the rate of exchange, if applicable; (ix) the designated recipient's name, address, and telephone number, if the customer is the sender; (x) the sender's name, address, and telephone number, if the customer is the recipient and that information is available to the Licensee; (xi) any instructions or messages relating to the transmission; (xii) the amount of any service charges or fees assessed or paid in connection with the transaction; and (xiii) the method of payment (e.g., cash, check, credit card, etc.). (B) In addition, the Licensee shall verify the customer's name and address by examination of a document that contains the name and address of the customer and is customarily acceptable within the banking community as a means of identification when cashing checks for nondepositors, and shall record the specific identifying information on the receipt (e.g., state of issuance and number of driver's license). (C) Contemporaneous transactions initiated by or on behalf of the same person or received by or on behalf of the same person totaling $1,000 or more shall be treated as one transaction. Multiple transactions during a single business day initiated by or on behalf of the same person or received by or on behalf of the same person and totaling $1,000 or more shall be treated as one transaction if an individual employee, director, officer, or partner of the Licensee knew or should have known that the transactions occurred. (3) A Licensee must maintain a chronological log or logs for each calendar month on which shall be recorded the following information for each transaction: (A) the date of the transaction; (B) the location of the office where the transaction was conducted; (C) the amount and type of currency received and given in exchange, or the amount of the transmission, as applicable; (D) the rate of exchange, if applicable; (E) the amount of any service charges or fees assessed in connection with the transaction; and (F) the number of the receipt issued in connection with the transaction, if any. (e) Failure to comply with this section shall be grounds for denial, revocation, or suspension of a license as provided in the Act, sec.6, and assessment of a civil penalty in accordance with the Act, sec.15. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on August 30, 1993. TRD-9328012 Everette D. Jobe General Counsel Texas Department of Banking Earliest possible date of adoption: October 8, 1993 For further information, please call: (512) 475-1300 Part II. Banking Department of Texas Chapter 13. Practice and Procedure Subchapter A. Hearing Procedures Hearings 7 TAC sec.13.71 The Finance Commission of Texas (the Commission) and the Banking Commissioner of Texas (the Commissioner) propose new sec.13.71, concerning recovery of administrative costs in hearings conducted relative to the Department of Banking. All costs related to conduct of the hearing and prosecution of the State's case are currently recoverable from the applicant seeking approval and the proposed sec.13.71 will permit a portion of such costs to be assessed to the applicant in opposition in appropriate circumstances. Applicants to the Department of Banking seeking approval for certain actions are charged fees and assessed costs for the purpose of enabling the function of processing applications to be self-supporting. Texas Civil Statutes, Article 342-112(3), provides that all fees must be deposited in the Banking Department Expense Fund, from which all expenses incurred by the Department must be paid. State law prohibits payment of Department expenses from any other funds of this State. Applicants who are forced to seek a hearing because of agency opposition to the application are thus charged for the cost of the hearing, including internal costs such as staff time and external costs such as the fee for a court reporter and costs of preparing the transcript. Applicants to the Department in opposition to a filed application who force a hearing to be held currently are not charged any portion of the incurred costs, artificially increasing the cost to the applicant seeking approval, sometimes prohibitively. Circumstances in the past have convinced the Banking Commissioner that, on occasion, the only reason for a protest, albeit unstated, is to increase the cost to the original applicant. Proposed sec.13.71 allows the Commissioner, in the exercise of discretion, to equitably divide the costs associated with the hearing among the parties. The Commission and the Banking Commissioner direct the reader's attention to the provisions of House Bill Number 1212, 73rd Legislature, 1993, effective September 1, 1993, which amends and renumbers several of the articles affected by this rulemaking proposal. Statutory citations in this preamble are to the statutes as amended by the 73rd Legislature, 1993. Everette D. Jobe, general counsel, has determined that for the first five-year period the section is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the section. Mr. Jobe also has determined that for each year of the first five years the section is in effect the public benefit anticipated as a result of enforcing the section will be to equitably distribute the costs of conducting administrative hearings among the parties. There will be no effect on small businesses. The possible economic cost to persons who are required to comply with the section as proposed will be the recovery costs imposed on a party or parties requiring the hearing. Comments on the proposal to be considered by the Banking Commissioner and the Commission must be submitted in writing within 30 days after publication of the proposed section in the Texas Register to Everette D. Jobe, General Counsel, Texas Department of Banking, 2601 North Lamar Boulevard, Austin, Texas 78705. The new section is proposed under Texas Civil Statutes, Article 342-112(2), which provide the Commissioner and the Commission with the authority to establish reasonable and necessary fees for the administration of the Banking Code. The following are the articles and sections that are affected by the proposed new sec.13.71: Texas Civil Statutes, Articles 342-305, 342-306, 342-310, 342- 311, 342-331, 342-363, 342-903, 342-1101, and 7 TAC sec.3.91 (relating to Establishment of a Branch Bank). sec.13.71. Recovery of Administrative Costs. (a) The filing of a protest against granting an application previously filed with the Department of Banking is itself an application seeking action from the Department. For purposes of subsection (b) of this section, the original applicant and all protestants are collectively referred to as the applicants. (b) The Commissioner may for good cause, after notice and hearing, impose direct administrative costs incurred by the Department of Banking on the applicants before the Commissioner, in addition to other sanctions and cost recoveries provided by law or these rules. Direct administrative costs incurred by the Department include but are not limited to the estimated, fully allocated cost of Department employees participating in the hearing, internal and external or out-of-pocket expenses incurred by the Department, administrative law judge fees and expenses, court reporter fees and expenses, investigative costs, witness fees and deposition expenses, witnesses' travel expenses, reasonable fees for professional services of expert witnesses, and the reasonable cost of a study, analysis, audit, or other project the Commissioner finds to have been necessary in preparation of the state's case. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on August 30, 1993. TRD-9328011 Everette D. Jobe General Counsel Texas Department of Banking Earliest possible date of adoption: October 8, 1993 For further information, please call: (512) 475-1300 TITLE 16. ECONOMIC REGULATIONS Part I. Railroad Commission of Texas Chapter 5. Transportation Division Subchapter W. Registration of Commercial Carriers 16 TAC sec.5.501 The Railroad Commission of Texas proposes an amendment to sec.5.501, concerning definitions as they pertain to the registration of commercial carriers. The amendment is proposed as a result of legislative changes made by the 73rd Legislature, 1993, which transferred jurisdiction over the licensing of vehicle storage facilities from the Texas Department of Licensing and Regulation to the Railroad Commission of Texas, effective September 1, 1993. The proposed amendment adds tow trucks to the definition of the term "commercial motor vehicle," and specifically exempts tow trucks from the requirements of the commission's rules concerning the registration of commercial carriers. Jackye Greenlee, assistant director-central operations, has determined that for the first five-year period the section is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the section. Barbara H. Owens, hearings examiner, also has determined that for each year of the first five years the section is in effect the public benefit anticipated as a result of enforcing the section will be to bring the rule into conformity with the new authority the commission has acquired over the licensing of vehicle storage facilities, and the rules administratively transferred or promulgated pursuant to that authority. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the section as proposed. Comments on the proposal may be submitted to Barbara H. Owens, Hearings Examiner, Legal Division, Railroad Commission of Texas, P.O. Box 12967, Austin, Texas 78711-2967. Comments will be accepted for 30 days after publication in the Texas Register. The amendment is proposed pursuant to Senate Bill 452, which amends Texas Civil Statutes, Article 6687-9a, sec.4(b), to require the commission to adopt rules establishing requirements for the licensing of persons to operate vehicle storage facilities. The amendment is also proposed pursuant to Texas Civil Statutes, Article 911b, sec.4(a), which provide the commission with power and authority to prescribe all rules and regulations necessary for the government of motor carriers and for the safety of operations of motor carriers. The following are the articles that are affected by this rule: Section 5. 501- Texas Civil Statutes, Articles 911b and 6687-9a. sec.5.501. Definitions. (a) For the purposes of this subchapter, the term
                              commercial motor vehicle shall mean any motor vehicle transporting property in furtherance of any commercial enterprise, which motor vehicle has a gross vehicular weight or an actual weight (including any trailer or towed vehicle) of more than 26,000 pounds, and shall mean any motor vehicle requiring hazardous material placarding, regardless of weight. The term shall also mean a motor vehicle equipped with, or used in combination with a mechanical device, mini-wrecker, or auto trailer, and which is adapted or used to tow, winch or otherwise move a motor vehicle, regardless of weight. (b) (No change.) (c) Notwithstanding the provisions of subsections (a) and (b) of this section, the following are not subject to the provisions of this subchapter: (1)-(8) (No change.) (9) a tow truck registered with the commission pursuant to sec.5. 803 of this title (relating to Tow Truck Registration Requirements). (d) Notwithstanding the provisions of subsection (a) of this section, the following are not commercial motor vehicles: (1)-(3) (No change.) (4)
                                [(5)] a motor vehicle operated by or on behalf of a farmer or rancher, an agricultural cooperative of which the farmer or rancher is a member, a gin, or an elevator. [(4) a tow truck registered with the Texas Department of Labor and Standards pursuant to the provisions of Texas Civil Statutes, Article 6687-9b, sec.1]. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on August 25, 1993. TRD-9328110 Mary Ross McDonald Assistant Director, Legal Division-Gas Utilities/LP Gas Railroad Commission of Texas Earliest possible date of adoption: October 8, 1993 For further information, please call: (512) 463-7095 Subchapter CC. Tow Trucks 16 TAC sec.sec.5.801-5.816 (Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Railroad Commission of Texas or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The Railroad Commission of Texas proposes the repeal of ssec.5.801-5.816, and proposes new sec.sec.5.801-5.816, concerning the regulation and operation of tow trucks. This proposal is made pursuant to Senate Bill 452 and Senate Bill 958, 73rd Legislature, 1993, which transferred jurisdiction of the regulation and operation of tow trucks from the Commission of Licensing and Regulation to the Railroad Commission of Texas. New Subchapter CC will contain the new rules for use by the Railroad Commission of Texas. Jackye Greenlee, assistant director-central operations, has determined that for the first five-year period the repeals are in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the repeals. Carrie L. McLarty, hearings examiner, has determined that for each year of the first five years the repeals are in effect the public benefit anticipated as a result of enforcing the repeals will be to provide comprehensive instructions to the public regarding the licensing and regulation of tow truck operations. There will be no effect on small businesses. There is no economic cost to persons who are required to comply with the repeals in the form of filing and registration fees. Comments may be submitted to Carrie L. McLarty, Hearings Examiner, Legal Division, Railroad Commission of Texas, P.O. Box 12967, Austin, Texas 78711- 2967. Comments will be accepted for 30 days after publication in the Texas Register. The repeals are proposed under Senate Bill 452, sec.11, 73rd Legislature, 1993, which orders the Railroad Commission of Texas to adopt rules, in the interest of public safety, that provide requirements for registration and maintenance of registration, including minimum insurance requirements for the operation of tow trucks and minimum safety standards regarding the operation of tow trucks. sec.5.801. Authority. sec.5.804. Exemptions. sec.5.807. Tow Trucks as Commercial Vehicles. sec.5.808. Inspection and Investigation by the Commission. sec.5.809. Denial, Revocation, or Suspension for a Criminal Conviction. sec.5.810. Administrative Sanctions. sec.5.811. Criminal Penalty Sanctions. sec.5.812. General Technical Requirements. sec.5.813. Technical Requirements for Accident Scene Tow Trucks. sec.5.814. Technical Requirements for Recovery of Vehicles for a Lien Holder. sec.5.815. Sanctions-Revocation or Suspension Because of a Criminal Conviction. sec.5.816. Technical Requirements -All Tow Trucks. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on August 31, 1993. TRD-9328108 Mary Ross McDonald Assistant Director, Legal Division-Gas Utilities/LP Gas Railroad Commission of Texas Earliest possible date of adoption: October 8, 1993 For further information, please call: (512) 463-7094 (Editor's Note: The Railroad Commission of Texas proposes for permanent adoption the new sections it adopts on an emergency basis in this issue. The text of the new sections is in the Emergency Rules section of this issue.) The new sections are proposed under Senate Bill 452, sec.11, 73rd Legislature, 1993, which orders the Railroad Commission of Texas to adopt rules, in the interest of public safety, that provide requirements for registration and maintenance of registration, including minimum insurance requirements for the operation of tow trucks and minimum safety standards regarding the operation of tow trucks. The following is the article that is affected by this rule: Subchapter CC-Texas Civil Statutes, Article 6687-9b. sec.5.801. Authority. The rules in this subchapter are promulgated under the authority of the Texas Tow Truck Act (Texas Civil Statutes, Article 6687-9b), the Texas Motor Carrier Act (Texas Civil Statutes, Article 911b), and the Motor Carrier Safety Act (Texas Civil Statutes, Article 6701d). sec.5.804. Exemptions. The following vehicles are excluded from regulation under the Act and exempted from registration under the Act: (1) As to out-of-state tow trucks only: (A) a tow truck that is registered under the motor vehicle registration laws of another state; (B) a tow truck that is operated in connection with and based at a towing business located in another state; (C) a tow truck that is registered with a department or agency of another state; (D) a tow truck that is regulated under the laws of another state that, as to the operation of tow trucks, has established standards that equal or exceed the requirements of the Act; and (E) a tow truck that is operated only temporarily or occasionally on the highways of this state. (2) The following are also exempted from the provisions of this subchapter: (A) a tow truck owned by and used exclusively in the service of the United States, the State of Texas, a county, a city, or a school district; (B) a light commercial vehicle having a manufacturer's rated capacity of one ton or less to which a chain, strap or rented tow bar or towing device is affixed and that is operated by an individual not in an automotive or motor vehicle business; (C) a vehicle that is towing a race car, a motor vehicle for exhibition, or an antique motor vehicle, and is not being operated as part of a business or profession; (D) a recreational vehicle, as defined by the Texas Commercial Drivers License Act (Texas Civil Statutes, Article 6687b-2), including subsequent amendments to that definition, towing another vehicle for a noncommercial purpose; (E) a commercial transport vehicle that is capable of hauling four or more motor vehicles; (F) a vehicle used only for towing motorcycles and which is incapable of towing any other type vehicle; (G) a non-tow truck or tow device used by a rental car agency to move vehicles for customer use; (H) a non-tow truck or tow device used in agricultural operations for agricultural purposes; and (I) a non-tow truck or tow device owned by a licensee of the Motor Vehicle Board of the Texas Department of Transportation in transporting a vehicle owned by the licensee or a customer of the licensee. sec.5.807. Tow Trucks as Commercial Vehicles. Notwithstanding any provision of this subchapter, a tow truck is a commercial motor vehicle and the owner of a tow truck is a commercial carrier as those terms are defined in sec.5.501 of this title (relating to Definitions). Any violation of this Act or rule adopted in this subchapter respecting safety or insurance shall be the same as having violated the Motor Carrier Act, the Motor Carrier Safety Act or a rule adopted by the commission relating to those acts. sec.5.808. Inspection and Investigation by the Commission. (a) The commission or its authorized representative shall exercise all the authority given it under the Motor Carrier Act, and may examine the books, records, accounts, letters, memoranda, documents, checks, vouchers, or telegrams of a tow truck owner. (b) Any person who applies for or has received a certificate of registration shall have given its implied consent for an authorized inspector of the commission to audit, examine, or inspect any business record, document, book, account, equipment, or facility of that person. The refusal of a person to consent to such audit, examination or inspection shall constitute a violation under this subchapter. sec.5.809. Denial, Revocation, or Suspension for a Criminal Conviction. An owner who has a felony or misdemeanor conviction that directly relates to the duties and responsibilities involved in the operation of a tow truck, including any conviction for a crime involving moral turpitude, may be denied certificates of registration or have a certificate of registration suspended or revoked by the commission. sec.5.810. Administrative Sanctions. (a) When the term "violation" or "violate," in either singular or plural form, is used in this section it shall mean: (1) any violation of the Act, or rule or order adopted or issued related to the Act; (2) any violation of the Motor Carrier Act, or rule or order adopted or issued related to that act; (3) any violation of the Motor Carrier Safety Act, or rule or order adopted or issued related to that act; (4) any felony or misdemeanor conviction of an owner that directly relates to the duties and responsibilities involved in operating a tow truck; or (5) any revocation of an owner's felony probation, parole, or mandatory supervision. (b) If an owner commits a violation the commission may: (1) deny, revoke, or suspend the owner's certificate of registration; (2) assess an administrative penalty in an amount not to exceed that permitted by Texas Civil Statutes, Article 911b, sec.4(a)(12); or (3) place the owner on probation. (c) If a suspension is probated, the commission may require the owner to: (1) report regularly to the commission or its designee on the matter made the basis of probation; or (2) limit areas of operations to the areas prescribed by the commission. (d) If, after investigation of a possible violation by an authorized inspector of the commission, the investigator determines that a violation has occurred, the investigator shall issue a report to the director, stating the facts on which the conclusion that a violation occurred is based. Upon reviewing the report, the director shall recommend what sanctions, if any, should be imposed upon the violator. If it is recommended by the director that sanctions should be imposed, the recommendation to the commission shall be based on the following factors which the commission may consider when ordering sanctions: (1) the seriousness of the violation; (2) the history of previous violations; (3) the amount or action necessary to deter future violations; (4) the amount of monetary gain realized by the owner charged; (5) efforts made to correct the violation; (6) if the violation involves a felony conviction or probation, parole, or mandatory supervision revocation: (A) the nature and seriousness of the crime; (B) the relationship of the crime to the safe operation and insuring of a tow truck; (C) the extent to which a certificate of registration might offer an opportunity to engage in further criminal activity of the same type as that in which the owner was previously involved; (D) the relationship of the crime to the ability, capacity, or fitness to perform the responsibilities of operating a tow truck; (E) the extent and nature of the owner's past criminal activity; (F) the amount of time elapsed between the owner's last criminal activity; (G) the conduct and work activity of the owner prior to and following the criminal activity; (H) whether or not the owner was a minor at the time of the conviction of the crime; (I) evidence of the person's rehabilitation or rehabilitative effort while incarcerated or following release; (J) other evidence of the person's present fitness as deemed appropriate; and (7) any other matters that justice may require. (e) The director shall give written notice of the violation to the owner. The notice shall include: (1) a brief summary of the charges; (2) a statement of the proposed sanction, and any accompanying conditions; and (3) a statement of the right of the owner charged to a hearing on the occurrence of the violation and the sanction and any terms thereof. (f) Not later than the 20th day after the date on which the notice is received, the owner charged may accept the recommendation of the director made under this rule, including the sanction and all accompanying conditions, or make a written request for a hearing on the charges made. The director may extend the time for the owner charged to reply to the recommendation, provided that in the opinion of the director, a good-faith effort to negotiate a settlement of the violation has begun. (g) If the owner charged with the violation accepts the recommendation of the director, the commission may issue an order approving the recommendation of the director (or other sanction as may be agreed upon between the director and the owner charged) ordering the recommended sanction and accompanying conditions be imposed upon that owner. The commission may refuse to issue an order approving the recommendation of the director and enter an order approving a lesser sanction, and it may require a hearing, or direct that further negotiations be made with the owner charged. (h) If the owner charged fails to respond in a timely manner to the notice, or if the owner requests a hearing, the director shall set a hearing and the charges heard. sec.5.811. Criminal Penalty Sanctions. (a) A person commits an offense if it operates a tow truck that: (1) does not have a valid certificate of registration issued under the Act; (2) operates a tow truck that does not have: (A) a valid certificate of registration issued under this Act; and (B) a valid tow license plate attached to the rear of the tow truck that is clearly visible from the rear of the truck. (b) A person convicted of a violation of this section shall be punished by a fine of not less than $200 and not more than $500. sec.5.812. General Technical Requirements. (a) Each tow truck must display a tow truck license plate issued by the Texas Department of Transportation under Texas Civil Statutes, Article 6675a-1. The plate must be permanently attached to the rear of the vehicle and in clear visible view. (b) Each tow truck shall have the owner's: (1) legal business or legal assumed name; (2) city, or county (if the owner's place of business is in an unincorporated area); and (3) telephone number. (c) The identification markings shall be durably inscribed or affixed on each side of the tow truck in letters of no less than two inches, in contrasting colors, and clearly visible at 50 feet for a person with a normal vision range. (d) If the owner claims an exemption to the cargo, hook-up, or similar insurance requirements of this subchapter, there must be durably affixed on each side of the tow truck, in letters at least two inches high, the words "Not For Hire." (e) Every tow truck owner shall comply with the law regarding brakes contained in Texas Civil Statutes, Article 6701d, sec.132, or rules adopted by the Public Safety Commission relating to motor carrier safety. (f) No tow truck shall tow more than its actual weight unless it has a 35,000 pound winch capacity (single or dual line), a 5/8 inch cable or its equivalent, and air brakes. If a certified law enforcement officer at the scene of an accident determines that the scene must be cleared immediately, and a heavy-duty tow truck is not available, the officer may waive this requirement at the scene. (g) When a tow truck is towing two or more vehicles, it must be able to tie into and operate the service brakes on the rearmost towed vehicle. This provision does not apply if the rearmost towed vehicle has only vacuum brakes and the tow truck is not equipped with a pneumatic braking system. (h) A tow truck equipped with a mechanical device shall have, as a minimum: (1) a winch that has a winch line and boom with a lifting capacity of not less than 8,000 pounds single line capacity; or (2) a wheel lift with a lifting capacity of not less 2,500 pounds. (i) A tow truck used in combination with a mini-wrecker or auto trailer equipped with a mechanical device shall have a lifting capacity of not less than 5,000 pounds, and it shall have a towing capacity of not less than 7,000 pounds whether or not it is equipped with a mechanical device. (j) Each tow truck shall have the following standard equipment: (1) for a tow truck towing a motor vehicle that has wheels in contact with the ground a mechanical device or other equipment sufficient to prevent the swinging of the motor vehicle being transported; (2) standard J-hook-up chains and at least two 5/16 inch link steel safety chains for tow trucks with a registered weight of 10,000 pounds or less; (3) at least two 3/8 inch steel safety chains or their equivalent for tow trucks with a registered weight over 10,000 pounds; (4) rope, wire, or straps suitable for securing doors, hoods, trunks or other parts of the motor vehicle being towed for the safe tow of such motor vehicle; and (5) outside rear view mirrors on both sides of the tow truck. (k) A tow truck operator towing a vehicle that does not have functioning tail lights, or turn signals, while being towed shall supply the towed motor vehicle with functioning tail lights or turn signals. (l) A tow truck operator shall perform a safety wrap sufficient to secure the towed motor vehicle in the event of failure of the mechanical device used in towing the motor vehicle. (m) Safety chains shall be used on all tows performed by an operator. (n) Tow trucks with a slip-in bed must have the bed properly secured to the frame of the truck by a minimum of eight one-half inch diameter bolts of which at least four must be at the front of the slip-in bed. (o) A tow truck with a mechanical device shall not be used to lift or tow more than its safe lifting capacity as recommended by the manufacturer. (p) A tow truck operator must have a valid driver's license of the proper class. (q) A tow truck shall, at all times, meet the motor vehicle inspection standards required by law. (r) No tow truck operator shall tow a vehicle contrary to the recommended towed vehicle's manufacturer's safety policies and procedures regarding hook-up and towing. (s) A tow truck owner shall inform consumers or service recipients of the name, mailing address, and telephone number of the commission for purposes of directing unresolved complaints to the commission. The information pertaining to any unresolved complaints may be included on: (1) a written tow truck slip or ticket; (2) a sign prominently displayed at the place of payment; or (3) any other bill for service. (t) The term "unresolved complaint" as used in this section shall mean a good- faith effort between the tow truck owner and the consumer or service recipient, to reach an amiable solution to their to dispute, and are unable to do so. (u) At no time shall any owner tow a vehicle while there is a person in the towed vehicle. Violation of this provision shall subject the violator to the administrative penalty sanctions as set out in this subchapter. sec.5.813. Technical Requirements for Accident Scene Tow Trucks. (a) A tow truck responding to, or towing from, the scene of an accident shall be equipped with at least the following: (1) a ten pound BC fire extinguisher or two five pound BC fire extinguishers. All fire extinguishers shall be properly filled, operable, and located so as to be readily accessible for use. Fire extinguishers shall meet, at least, the minimum requirements of the National Fire Protection Handbook, 14th edition (1976), and shall be labeled by a national testing laboratory; (2) a crowbar or wrecking bar; (3) a broom or other device for clearing highways of debris; (4) three portable red emergency reflectors, orange safety cones, or flares; (5) a container to carry glass and debris cleaned from a highway; (6) a spotlight or flashlight; and (7) flashing warning lights that comply with the Uniform Act Regulating Traffic on Highways (Texas Civil Statutes, Article 6701d, sec.124(d)) . (b) A tow truck operator shall ensure that, while a motor vehicle is being lifted in preparation for towing, no one but the operator and certified law enforcement officers shall be within a safe distance of the tow truck. (c) A tow truck operator responding to the scene of an accident shall remove from the highway debris resulting from an accident which may impede the orderly flow of traffic. This includes broken glass or other light weight debris that can easily be removed by one person, unless the operator is requested to perform other clean-up services in connection with an accident by an a certified law enforcement official or other authorized government official, and which clean-up does not involve the removal of the cargo carried by a vehicle associated with the wreckage. (d) Certified law enforcement officials may do whatever is necessary to control the scene of an accident when an emergency situation exists. sec.5.814. Technical Requirements for Recovery of Vehicles for a Lien Holder. (a) An operator shall not tow a motor vehicle for a lien holder using towing pins or towing blades more than one mile, unless the operator rehooks the towed motor vehicle and observes all the requirements set forth in this subchapter. (b) The requirements for safety wraps and safety chains do not apply during the first one mile where the towing pins or tow blade are used. Thereafter, they must be utilized as set forth in sec.5.812 of this subchapter (relating to General Technical Requirements). sec.5.815. Leases. (a) A person who, through a lease, memorandum, or agreement, assumes supervision, direction, or control of a tow truck which is to be used exclusively or primarily for the conduct of its business, is a tow truck owner under the rules of this subchapter. (b) Any person operating a tow truck pursuant to a lease, memorandum, or agreement shall file an executed copy of the lease, memorandum, or agreement with the Department of Public Safety. (c) A person who acquires use of a tow truck through lease, memorandum or agreement shall maintain full direction and control over the operation of the tow truck and its operator at all times in which the lease, memorandum or agreement is in effect. sec.5.816. Assumed Business Names. (a) An owner shall not operate any tow truck under more than one assumed business name. (b) Every tow truck owner operating a tow truck under an assumed business name shall file such name with the county clerk's office of the county in which it resides or in which it bases a tow truck. If a corporation, a tow truck owner shall file its assumed business name with the secretary of state. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on August 31, 1993. TRD-9328113 Mary Ross McDonald Assistant Director, Legal Division-Gas Utilities/LP Gas Railroad Commission of Texas Earliest possible date of adoption: October 8, 1993 For further information, please call: (512) 463-7094 Subchapter DD. Vehicle Storage Facilities 16 TAC sec.sec.5.902, 5.903, 5.905, 5.906, 5.908, 5.909, 5.913-5. 920 The Railroad Commission of Texas proposes amendments to ssec.5.902, 5.903, 5.905, 5.906, 5.908, 5.909, and 5.913-5.920, concerning vehicle storage facilities. In Senate Bill 452, the 73rd Legislature, 1993 transferred jurisdiction over the licensing of vehicle storage facilities from the Texas Department of Licensing and Regulation to the Railroad Commission of Texas, effective September 1, 1993. Rules that are adopted by the Texas Department of Licensing and Regulation prior to September 1, 1993, are to remain in effect as rules of the Railroad Commission of Texas after that date. Consistent with the legislation, the rules contained in Chapter 79 of this title (relating to Vehicle Storage Facilities) were administratively transferred to Chapter 16, Subchapter DD, of this title (relating to Vehicle Storage Facilities), effective September 1, 1993. The proposed amendments will not be effective prior to September 1, 1993. Jackye Greenlee, assistant director-central operations, has determined that for the first five-year period the sections are in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the sections. Barbara H. Owens, hearings examiner, also has determined that for each year of the first five years the sections are in effect the public benefit anticipated as a result of enforcing the sections will be to bring the rules into conformity with statutory requirements and with the overall regulatory scheme of the Railroad Commission of Texas. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the sections as proposed. Comments on the proposal may be submitted to Barbara H. Owens, Hearings Examiner, Legal Division, Railroad Commission of Texas, P.O. Box 12967, Austin, Texas 78711-2967. Comments will be accepted for 30 days after publication in the Texas Register. The amendments are proposed pursuant to House Bills 709 and 710, which amend Texas Civil Statutes, Article 6687-9a, sec.2 and sec.14, and pursuant to Senate Bill 452, which amends Texas Civil Statutes, Article 6687-9a, sec.4(b), to require the commission to adopt rules establishing requirements for the licensing of persons to operate vehicle storage facilities, to ensure that licensed storage facilities maintain adequate standards for the care of stored vehicles. The amendments are also proposed pursuant to Texas Civil Statutes, Article 911b, sec.4(a), which provide the commission with power and authority to prescribe all rules and regulations necessary for the government of motor carriers and for the safety of operations of motor carriers. The following are the articles that are affected by these rules: sec.sec.5.902, 5.903, 5.905, 5.906, 5.908, 5.909, and 5.913-5.920-Texas Civil Statutes, Articles 911b and 6687-9a. sec.5.902. Definitions. The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. Commission-The Railroad Commission of Texas
                                  [Commission of the Texas Department of Licensing and Regulation]. [Commissioner-The Commissioner of the Texas Department of Licensing and Regulation.] [Department-The Texas Department of Licensing and Regulation.] Director-The director of the Transportation/Gas Utilities Division of the commission or his or her designee. Vehicle storage facility-A garage, parking lot, or any facility owned or operated by a person other than a governmental entity, except as provided in sec.5.919(f) of this title (relating to Technical Requirements-Storage Fees/Charges),
                                    for storing or parking ten or more vehicles. Ten or more vehicles shall mean the capacity to park or store ten or more vehicles a year. sec.5.903. Licensing Requirements. (a) A person must hold a current license issued by the commission
                                      [commissioner] in order to operate a vehicle storage facility. (b) (No change.) (c) A license to operate a vehicle storage facility issued by the commission
                                        [commissioner] is valid only for the physical location indicated
                                          [located] on the license. (d) An application for a license to operate a
                                            vehicle storage facility must be made under oath and must contain: (1)-(8) (No change.) (9) a statement indicating whether or not the facility has an all weather surface as required by sec.5.918
                                              [sec.79.100] of this title (relating to Technical Requirements); (10) a statement indicating whether or not the facility has the signs posted in the proper locations required by sec.5. 918
                                                [sec.79.100] of this title (relating to Technical Requirements); and (11) a statement indicating whether or not the facility has the lighting required by sec.5.918
                                                  [sec.79.100] of this title (relating to Technical Requirements). (e) (No change.) (f) Each license issued by the commission
                                                    [commissioner under this Act] expires on the anniversary date of when it is issued. (g) A licensee may apply annually, on a form provided by the commission
                                                      [department], to renew the license. (h)-(i) (No change.) sec.5.905. Insurance Requirements. (a) Each license applicant shall file with the commission
                                                        [department] a certificate of insurance evidencing the required garagekeeper's legal liability insurance for the vehicle storage facility. (b) No insurance policy or certificate of insurance will be accepted by the commission
                                                          [commissioner] unless issued by an insurance company licensed and authorized to do business in this state in the form prescribed or approved by the State Board of Insurance and signed or countersigned by an authorized agent of the insurance company. [The commissioner will accept a certificate of insurance issued by a surplus lines insurer that meets the requirements of the Insurance Code, Article 1.14-2, and rules adopted by the State Board of Insurance under that article, if accompanied by an affidavit as proof of inability to obtain insurance from any insurance company authorized to do business in this state.] (c) (No change.) (d) The vehicle storage facility's insurance policy shall provide that the insurance company will give the commission
                                                            [department] 30 days written notice of any policy cancellation or expiration. (e) (No change.) sec.5.906. Responsibilities of the Licensee-Accepting Vehicles for Storage. (a) (No change.) (b) After accepting for storage a vehicle registered in Texas, the vehicle storage facility must notify the vehicle's last registered owner and all recorded lienholders by certified/registered mail within five
                                                              [seven] days, but in no event sooner than within 24 hours of receipt of the vehicle. If the certified/registered letter is returned unclaimed, refused, or moved, left no forwarding address, publication in a newspaper is not required. If the identity of the last registered owner cannot be determined, if the registration contains no address for the owner, or if it is impossible to determine with reasonable certainty the identity and address of all lienholders, notice in one publication in one newspaper of general circulation in the area where the vehicle was towed from is sufficient. (c) (No change.) (d) It shall be a defense to an action initiated by the commission
                                                                [department] for violation of this section that the facility has attempted, in writing, but been unable to obtain information from the foreign registry department. (e) The vehicle storage facility operator may not charge an owner more than $25 for this notification. However, if a vehicle is removed by the owner within 24 hours after the date the operator receives the vehicle, then no notification is required under this section, and no notification fee may be charged to the owner by the vehicle storage facility operator. (f) (No change.) (g) All notifications shall state: (1)-(4) (No change.) (5) the vehicle storage facility number preceded by the words "Railroad Commission of Texas
                                                                  [Texas Department of Licensing and Regulation] Vehicle Storage Facility License Number"; and (6) (No change.) (h) (No change.) sec.5.908. Responsibilities of the Licensee-Documentation. (a) -(b) (No change.) (c) All required documentation shall be made available by the licensee, his agent, or his employee for inspection and copying upon request by commission
                                                                    [department] personnel, or a certified law enforcement officer within his jurisdiction, during the same hours the vehicle storage facility must ensure that vehicles are available for release to the vehicle owner. (d)-(e) (No change.) sec.5.909. Responsibilities of the Licensee-Vehicle Transfers. (a) When a motor vehicle has been delivered to a storage facility, the vehicle may not be moved from that facility within the first 31 days of storage without the vehicle owner's authorization. If it becomes necessary to move the vehicle during the first 31 days of storage because of storage facility capacity problems, neither the registered vehicle owner or recorded lienholder(s) may be assessed an additional charge. The vehicle storage facility must send notice in accordance with sec.5.906(b)
                                                                      [sec.79.70(b)] of this title (relating to Responsibilities of the Licensee-Accepting Vehicles for Storage), except that the notice must be sent no less than 72 hours prior to moving the vehicle. (b) If a vehicle is moved from a storage facility, the licensee shall: (1) charge only those fees otherwise permitted by sec.5.919
                                                                        [sec.79.101] of this title (relating to Technical Requirements-Storage Fees/Charges) after the vehicle is towed to another location without the vehicle owner's permission; (2) (No change.) (3) allow the vehicle owner or his/her authorized representative to obtain possession of the vehicle upon presentation of any one of the following: (A) (No change.) (B) a commission-approved
                                                                          [department-approved] affidavit of right of possession; (C)-(G) (No change.) (4)-(5) (No change.) sec.5.913. Sanctions-Administrative Sanctions. (a) If a licensee, a partner of a licensee, a principal in the licensee's business, or an
                                                                            [am] employee of the licensee, with the licensee's knowledge, violates the Act, or a rule or order promulgated under the Act, the commission or its designee may issue a written warning to the licensee specifying the violation. In addition, the commission may, after notice and a hearing
                                                                              [commissioner shall]: [(1) issue a written warning to the licensee specifying the violation;] (1)
                                                                                [(2)] deny, revoke, or suspend a license; or (2)
                                                                                  [(3)] place a person on probation whose license has been suspended. (b) If a suspension is probated, the commission
                                                                                    [commissioner] may require the person to: (1) report regularly to the commission or its designee
                                                                                      [commissioner] on matters that are the basis of the probation; or (2) limit practice to the areas prescribed by the commission
                                                                                        [commissioner]. (c) If, after investigation of a possible violation by an authorized inspector of the commission
                                                                                          [and the facts surrounding that possible violation], the investigator
                                                                                            [commissioner] determines that a violation has occurred, the investigator
                                                                                              [commissioner] shall issue a preliminary report to the director,
                                                                                                stating the facts on which the conclusion that a violation occurred is based[, recommending that an administrative sanction be imposed on the person charged, and recommending the precise nature and conditions, if any, of that proposed sanction]. Upon reviewing the report, the director shall recommend to the commission what sanctions, if any, should be imposed upon the violator. If it is determined by the director that sanctions should be imposed, the recommendation to the commission shall be based on the following factors, which the commission may consider when ordering sanctions
                                                                                                  [The commissioner shall base the recommended sanction, and any accompanying conditions, on the following factors]: (1)-(5) (No change.) (d) The director
                                                                                                    [Not later than the 14th day after the day on which the preliminary report is issued, the commissioner] shall give written notice of the violation to the person charged. The notice shall include: (1)-(3) (No change.) (e) Not later than the 20th day after the date on which the notice is received, the person charged may accept the recommendation
                                                                                                      [determination] of the director
                                                                                                        [commissioner] made under this rule, including the recommended sanction and all accompanying conditions, or make a written request for a hearing on that recommendation
                                                                                                          [determination]. The director may extend the time for the person charged to reply to the recommendation, provided that in the opinion of the director, a good-faith effort to negotiate a settlement of the violation has begun. (f) If the person charged with the violation accepts the recommendation
                                                                                                            [determination] of the director
                                                                                                              [commissioner], the commission may
                                                                                                                [commissioner shall] issue an order approving the recommendation (or other sanction as may be agreed upon between the director and the person charged)
                                                                                                                  [determination] and ordering that the recommended sanction and accompanying conditions be imposed upon that person. The commission may refuse to issue an order approving the recommendation of the director, and may enter an order approving a different sanction, or require a hearing, or direct that further negotiations be made with the person charged. (g) If the person charged fails to respond in a timely manner to the notice, or if the person requests a hearing, the director
                                                                                                                    [commissioner] shall set a hearing, give written notice of the hearing to the person, and designate a hearings examiner to conduct the hearing. [(h) If an administrative hearing is held, and the person wishes to dispute the administrative sanction imposed, not later than the 30th day after the date on which the decision is final as provided by the Administrative Procedure and Texas Register Act, sec.16(c) (Texas Civil Statutes, Article 6252-13a), the person charged shall file a petition for judicial review contesting the fact of the violation and/or the administrative sanction. Judicial review is subject to the substantial evidence rule and shall be instituted by filing a petition with a Travis County district court as provided by the Administrative Procedure and Texas Register Act, sec.19 (Texas Civil Statutes, Article 6252-13a). A motion for rehearing is a prerequisite to appeal under this section.] sec.5.914. Sanctions-Administrative Penalty/Fine. (a) If a person violates the Act, or a rule or order adopted or issued by the commission
                                                                                                                      [commissioner] relating to the Act, the commission may, in addition to or in lieu of a sanction imposed under sec.5.913
                                                                                                                        [sec.79.90] of this title (relating to Sanctions-Administrative Sanctions), assess an administrative penalty in an amount not to exceed $1,000 for each violation. (b) (No change.) (c) If, after investigation of a possible violation by an authorized inspector of the commission
                                                                                                                          [and the facts surrounding that possible violation], the investigator
                                                                                                                            [commissioner] determines that a violation has occurred, the investigator
                                                                                                                              [commissioner] shall issue a preliminary report to the director,
                                                                                                                                stating the facts on which the conclusion that a violation occurred is based[, recommending that an administrative penalty not to exceed $1,000 for each violation be imposed on the person charged, and recommending the amount of that proposed penalty.] Upon reviewing the report, the director shall recommend to the commission what administrative penalty, if any, should be imposed upon the person charged; such administrative penalty shall not exceed $1,000 for each violation imposed upon the person charged. If it is determined by the director that an administrative penalty should be imposed, the recommendation to the commission shall be based on the following factors, which the commission may consider when ordering an administrative penalty
                                                                                                                                  [The commissioner shall base the recommended amount of the proposed penalty on the following factors]: (1)-(5) (No change.) (d) The director
                                                                                                                                    [Not later than the 14th day after the day on which the preliminary report is issued, the commissioner] shall give written notice of the violation to the person charged. The notice shall include: (1)-(3) (No change.) (e) Not later than the 20th day after the date on which the notice is received, the person charged may accept the recommendation
                                                                                                                                      [determination] of the director
                                                                                                                                        [commissioner] made under this rule, including the recommended penalty, or make a written request for a hearing on that recommendation
                                                                                                                                          [determination]. (f) If the person charged with the violation accepts the recommendation
                                                                                                                                            [determination] of the director
                                                                                                                                              [commissioner] , the commission may
                                                                                                                                                [shall] issue an order approving the recommendation (or other penalty as may be agreed upon between the director and the person charged)
                                                                                                                                                  [determination] and ordering that the person pay the recommended penalty. The commission may refuse to issue an order approving the recommendation of the director, and may enter an order approving a different penalty, or require a hearing, or direct that further negotiations be made with the person charged. (g) If the person charged fails to respond in a timely manner to the notice, or if the person requests a hearing, the director
                                                                                                                                                    [commissioner] shall set a hearing, give written notice of the hearing to the person, and designate a hearings examiner to conduct the hearing. [(h) If an administrative hearing is held, not later than the 30th day after the date on which the decision is final as provided by the Administrative Procedure and Texas Register Act (Texas Civil Statutes, Article 6252-13a) sec.16(c), the person charged shall: [(1) pay the penalty in full; or [(2) file a petition for judicial review contesting the fact of the violation and/or the administrative penalty/fine. Judicial review is subject to the substantial evidence rule and shall be instituted by filing a petition with a Travis County district court as provided by Administrative Procedure and Texas Register Act, sec.19 (Texas Civil Statutes, Article 6252-13a). A motion for rehearing is a prerequisite for appeal under this section. If this petition for judicial review is filed, the person must forward the amount of the administrative penalty/fine to the department for deposit in an escrow account, or post a supersedeas bond with the department in the amount of the penalty/fine, until judicial review is final. [(i) A person charged with a penalty who is financially unable to comply with subsection (h)(2) of this section is entitled to judicial review if the person files with the court, as part of the person's petition for judicial review, a sworn statement that the person is unable to meet the requirements of that subsection. [(j) Except as provided by subsection (i) of this section, failure to forward the amount assessed or post the bond with the department, in the manner and within the period prescribed by the department, results in a waiver of legal rights to judicial review. If the person charged fails to forward the amount assessed or post the bond, the commissioner or the attorney general may bring an action for the collection of the penalty.] sec.5.915. Sanctions-Injunctive Relief and Civil Penalty. (a) If it appears that a person is in violation of, or is threatening to violate, the Act or
                                                                                                                                                      [of] a rule or order promulgated under the Act, the commission
                                                                                                                                                        [commissioner], or the attorney general at the commission's
                                                                                                                                                          [commissioner's] request, may institute an action for injunctive relief to restrain the person from continuing the violation and for civil penalties not to exceed $1,000 for each violation and not exceeding $250, 000 in the aggregate. (b) If the commission
                                                                                                                                                            [commissioner] or the attorney general prevails in an action under this section, the commission
                                                                                                                                                              [commissioner] or the attorney general is entitled to recover reasonable attorney's fees and court costs. sec.5.916. Sanctions-Criminal Penalty. (a) A person commits an offense if the person: (1) operates a vehicle storage facility that does not have a valid license issued under the Act; or (2) violates any rule adopted by the commission under the Act. (b) A person convicted of an offense under this section shall be punished by a fine of not less than $200 and not more than $500
                                                                                                                                                                [An offense under this section is a Class C misdemeanor]. (c) A person commits a separate offense for each day the person acts in violation of this section. (d)
                                                                                                                                                                  [(c)] A peace officer or license and weight inspector for the Department of Public Safety may make an arrest for a violation of a rule adopted under the Act. sec.5.917. Sanctions-Revocation or Suspension Because of a Criminal Conviction. (a) The commission
                                                                                                                                                                    [commissioner] may revoke, suspend, or deny a license issued under the Act, or place a person on probation whose license has been suspended, if the commission
                                                                                                                                                                      [commissioner] determines that a licensee, a partner of the licensee, a principal in the licensee's business, or an employee of the licensee has been finally convicted of: (1)-(2) (No change.) (b) The commission
                                                                                                                                                                        [commissioner] may also, after hearing, suspend, revoke, or deny a certificate of registration because of a person's felony probation revocation, parole revocation, or revocation of mandatory supervision. (c) In determining whether a criminal conviction directly relates to the operation of a vehicle storage facility, the commission
                                                                                                                                                                          [commissioner] shall consider: (1)-(4) (No change.) (d) In determining the present fitness of a person who has been convicted of a crime, the commission
                                                                                                                                                                            [commissioner] shall also consider: (1) (No change.) (2) whether or not the person was a minor
                                                                                                                                                                              [the age of the person] at the time of the commission of the crime; (3)-(6) (No change.) (e) It shall be the responsibility of the applicant, to the extent possible, to secure and provide the commission
                                                                                                                                                                                [department] the recommendations of the prosecution, law enforcement, and correctional authorities as required. (f) The applicant shall also furnish proof, in such form as may be required by the commission
                                                                                                                                                                                  [department], that he or she has maintained a record of steady employment, has supported his or her dependents per court order, has otherwise maintained a record of good conduct, and has paid all outstanding court costs, supervision fees, fines, and restitution as may have been ordered in all criminal cases in which he or she has been convicted. sec.5.918. Technical Requirements.
                                                                                                                                                                                    Each vehicle storage facility: (1) shall notify consumers and service recipients of the name, mailing address, and telephone number of the commission
                                                                                                                                                                                      [department] for purposes of directing complaints to the commission
                                                                                                                                                                                        [department]. The licensee may use a sticker or rubber stamp to convey the required information. The notification shall be included on: (A)-(C) (No change.) (2)-(3) (No change.) (4) shall have a clearly visible and readable sign at its main entrance setting out the name of the storage lot, the street address, the telephone number, the hours, within one hour of which vehicles will be released to vehicle owners, and the storage lot's state license number preceded by [either] the phrase "VSF License Number"[, "License Number", "State License Number" or "TDLR Number"]; (5) -(8) (No change.) (9) shall have a publicly listed and operable telephone where the licensee can be contacted. If the telephone number is changed from the number set out in the vehicle storage license application, the licensee shall give the commission
                                                                                                                                                                                          [department] written notice of the change prior to the date the new number is used. The notice shall include the storage lot's name, its location, its license number, the old telephone number, and the new telephone number; (10)-(11) (No change.) sec.5.919. Technical Requirements -Storage Fees/Charges. (a) A vehicle storage facility operator may not charge an owner more than $25 for notification under s5.906(b)
                                                                                                                                                                                            [sec.79.70(b)] of this title (relating to Accepting Vehicles for Storage). (b) A vehicle storage facility operator may not charge an owner more than $10 for any action taken by or at the direction of the operator or owner of the vehicle storage facility necessary to preserve, protect, or service a vehicle stored or parked at the facility
                                                                                                                                                                                              [preservation of a stored motor vehicle]. (c) A vehicle storage facility operator may not charge less than $5.00 or more than $15 for each day or part of a day for storage of a vehicle. A daily storage fee may be charged for a day regardless of whether the vehicle is stored for 24 hours of the day, except that a daily storage fee may not be charged for more than one day if the vehicle remains at the vehicle storage facility less than 12 hours. For the purposes of this subsection, a day is considered to begin and end at midnight. (d)-(e) (No change.) (f) For purposes of this section, "vehicle storage facility" includes a garage, parking lot, or any type of facility owned by a governmental entity for storing or parking ten or more vehicles. sec.5.920. Technical Requirements -Other Statutes and Administrative Rules; City Ordinances. Each vehicle storage facility must meet the requirements of all other applicable statutes and administrative rules promulgated thereunder and all applicable city ordinances in addition to meeting the requirements of these rules. The following statutes and ordinances are at least some of the other laws which may impact your operation of a vehicle storage facility. You should contact the named agency for more information. (1) (No change.) (2) Texas Tow Truck Act, Texas Civil Statutes, Article 6687-9b. This act regulates the operation of tow trucks in the State of Texas. This statute is administered by the Railroad Commission of Texas
                                                                                                                                                                                                [Department of Licensing and Regulation]. (3)-(4) (No change.) This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on August 31, 1993. TRD-9328109 Mary Ross McDonald Assistant Director, Legal Division-Gas Utilities/LP Gas Railroad Commission of Texas Earliest possible date of adoption: October 8, 1993 For further information, please call: (512) 463-7095 TITLE 22. EXAMINING BOARDS Part XV. Texas State Board of Pharmacy Chapter 281. General Provisions. 22 TAC sec.281.48 (Editor's Note: The Texas State Board of Pharmacy proposes for permanent adoption the amendment it adopts on an emergency basis in this issue. The text of the amendment is in the Emergency Rules section of this issue.) The Texas State Board of Pharmacy proposes an amendment to sec.281.48, concerning Informal Disposition of a Contested Case. The amendment as proposed will bring the Texas Pharmacy Rule of Procedure into compliance with the directives included in new sec.17D of the Texas Pharmacy Act as added by Senate Bill 621 passed by the 73rd Legislature to be effective September 1, 1993. These rules outline procedures for informal conferences, including providing provisions, when applicable and permitted by law, for complainants to have the opportunity to be heard at an informal conference. Fred S. Brinkley, Jr., R.Ph., M.B.A., has determined that there will not be fiscal implications as a result of enforcing or administering the rule. There will be no effect on state or local government for the first five-year period the rule will be in effect. Mr. Brinkley has determined that for each year of the first five years the rule as proposed will be in effect the public benefit anticipated as a result of enforcing the rule as proposed will be to allow the complainant the opportunity to be heard when an informal settlement conference regarding their complaint is held. There is no cost for businesses to comply with the rule. There is no anticipated economic cost to individuals who are required to comply with the rule as proposed. Comments on the proposal may be submitted to Gay Dodson, Director of Compliance, 8505 Cross Park #110, Austin, Texas 78754. The new rule is proposed under the Texas Pharmacy Act, (, Texas Civil Statutes, Article 4542a-1), sec.16(a), which provides the Texas State Board of Pharmacy the authority to adopt rules for the proper administration and enforcement of the Act; the Texas Pharmacy Act, sec.17B(c), which becomes effective September 1, 1993, and requires that the board adopt a form for complaints; and the Texas Pharmacy Act, sec.17D, which becomes effective September 1, 1993, and requires that the Board adopt rules governing informal disposition of contested cases. The following statutes that is affected by this rule: Texas Civil Statutes, Article 4542a-1. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on August 31, 1993. TRD-9328096 Fred S. Brinkley, Jr. Executive Director/Secretary Texas State Board of Pharmacy Proposed date of adoption: December 20, 1993 For further information, please call: (512) 832-0661 22 TAC sec.281.73 (Editor's Note: The Texas State Board of Pharmacy proposes for permanent adoption the new section it adopts on an emergency basis in this issue. The text of the new section is in the Emergency Rules section of this issue.) The Texas State Board of Pharmacy proposes new sec.281.73, concerning Complaints. The section describes the procedures for filing complaints made to the Board. Fred S. Brinkley, Jr., R.Ph., M.B.A., has determined that there will not be fiscal implications as a result of enforcing or administering the rule. There will be no effect on state or local government for the first five-year period the rule will be in effect. Mr. Brinkley has determined that for each year of the first five years the rule as proposed will be in effect the public benefits anticipated as a result of enforcing the rule as proposed will be the outlining in rule the procedures for filing a complaint against a pharmacist or pharmacy. There is no cost for businesses to comply with the rule. There is no anticipated economic cost to individuals who are required to comply with the rule as proposed. Comments on the proposal may be submitted to Gay Dodson, Director of Compliance, 8505 Cross Park #110, Austin, Texas 78754. The new section is proposed to ensure compliance with provisions described in Senate Bill 621 adopted by the 73rd Legislature. Senate Bill 621 was passed by the 73rd Legislature and adds a new sec.17B to the Texas Pharmacy Act which becomes effective September 1, 1993. Section 17B provides that "the board by rule shall adopt a form for the filing of complaints made to the board." The new rule is proposed under the Texas Pharmacy Act ( Texas Civil Statutes, Article 4542a-1) sec.16(a), which provides the Texas State Board of Pharmacy the authority to adopt rules for the proper administration and enforcement of the Act, and the Texas Pharmacy Act, sec.17B(c), which becomes effective September 1, 1993, and requires that the board adopt a form for complaints. The following statute is affected by this rule: Texas Civil Statutes, Article 4542a-1. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on August 31, 1993. TRD-9328094 Fred S. Brinkley, Jr. Executive Director/Secretary Texas State Board of Pharmacy Proposed date of adoption: December 20, 1993 For further information, please call: (512) 832-0661 Chapter 283. Licensing Requirements for Pharmacists 22 TAC sec.283.9, sec.283.10 (Editor's Note: The State Board of Pharmacy proposes for permanent adoption the amended sections it adopts on an emergency basis in this issue. The text of the amended sections is in the Emergency Rules section of this issue.) The Texas State Board of Pharmacy proposes amendments to s283.9 and sec.283.10 concerning Fee Requirements for Licensure by Examination and Reciprocity and Requirements for Application for a Pharmacist License Which Has Expired. The rule amendments as proposed will implement provisions of the Texas Pharmacy Act, sec.16(a) and sec.24(g), as amended by Senate Bill 621 passed by the 73rd Legislature which will become effective September 1, 1993. These amendments change the Act to specify that a pharmacist may not renew a license that has been expired for one year rather than two years. These amendments outline the procedures a pharmacist must follow to obtain a new license. Fred S. Brinkley, Jr., R.Ph., M.B.A., has determined that there will not be fiscal implications as a result of enforcing or administering the rule. There will be no effect on state or local government for the first five-year period the rule will be in effect. Mr. Brinkley has determined that for each year of the first five years the rule as proposed will be in effect: the public benefits anticipated as a result of enforcing the rule as proposed will be the protection of the public health and welfare by outlining procedures to assure that procedures are in place for the issuance of a pharmacists license. There is no cost for businesses to comply with the rule. There is no anticipated economic cost to persons who are required to comply with the rule as proposed. Comments on the proposal may be submitted to Gay Dodson, Director of Compliance, 8505 Cross Park #110, Austin, Texas 78754. The amendments are proposed under the Texas Pharmacy Act, sec.16(a), which gives the Board the Authority to adopt rules for the proper administration of the Act; and sec.24(g), which specifies that the Board may not renew a license that has been expired one year or more. The following is statute affected by this rule: Texas Civil Statutes, Article 4542a-1. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on August 31, 1993. TRD-9328092 Fred S. Brinkley, Jr. Executive Director/Secretary Texas State Board of Pharmacy Proposed date of adoption: December 20, 1993 For further information, please call: (512) 832-0661 TITLE 30. ENVIRONMENTAL QUALITY Part I. Texas Natural Resource Conservation Commission Chapter 317. Design Criteria for Sewerage Systems Sewage Collection System The Texas Natural Resource Conservation Commission proposes the repeal of sec.317.2, and new sec.317.2, concerning design of sewerage collection systems. The repeal sec.317.2 and the new sec.317.2 relate to Sewage Collection System. The section establishes minimum design standards for the installation of gravity sewage collection lines. The section proposes to define minimum acceptable standards and recommended guidelines which must be met in order to obtain construction approval. The authority vested in the chapter has been granted to the Texas Natural Resource Conservation Commission by the 70th Legislature under the Texas Water Code, sec.26.034. The following changes reflect the changes in the document. New sec.317.2(a)(1) defines the minimum cycle life of a collection system to be 50 years. Section 317.2(a)(2) defines the minimum material standards for the pipe selection of sanitary sewer lines. Section 317.2(a)(4)(B) expands on the testing method, lists a chart that may be used and allows for testing times to be terminated at specific points during the test if there is not a pressure drop. Section 317.2(a)(5)(A) states that the design engineer shall define the maximum trench width with a minimum clearance of four inches below and on both sides of the pipe. Stones larger than six inches in diameter shall not be used for backfill. Section 317.2(c)(5)(A) of this section states brick manholes shall not be used. Section 317.2(c)(5)(H) covers testing of manholes. Section 317.2(d) addresses alternative sewer systems in detail. Stephen Minick, division of budget and planning, has determined that for the first five years the repeal is in effect there will be fiscal implications as a result of enforcement and administration of the repeal. No significant effects on state government are anticipated. The section as proposed will potentially have effects on local governments. The effect of these rules will be to adopt performance-based standards for materials, design and construction of sewage collection systems. The application of these standards may reflect a difference in cost of new installed systems when compared to systems currently in place. The actual amount and whether the difference is positive or negative can only be determined on a case-by-case basis. Generally, the use of performance-based standards will ensure that substandard systems, which may be of lower cost, are not installed. In instances where collection systems may be designed which would exceed standards, in order to provide for additional margins of safety or uncertainties of installation, the use of the proposed performance standards and requirements could have the effect of minimizing unnecessary costs to system owners or operators. Under this section as proposed, an engineer responsible for the design of a collection system shall also certify that the system was constructed as approved by the commission. The on-site inspection required to comply with this provision will represent an additional cost which will vary with each case based on the size of the project, its complexity, and the relative costs of the personnel involved. The potential effects on small businesses are those which relate to engineering firms providing consultant services to collection system owners and operators. It is anticipated that the new requirements related to engineering design of collection systems will have cost implications for design engineers. These costs are not anticipated to reflect significant increases in overall project costs, but may be felt more significantly in smaller firms where these costs represent a larger percentage of total costs and revenues. Any costs attributable to the changes in engineering requirements are anticipated to be short-term and should decrease as experience with the new requirements is obtained. Mr. Minick also has determined that for the first five years this repeal is in effect the public benefit anticipated as a result of enforcement of and compliance with the repeal will be improvements in the design and construction of sewage collection systems; maximization of the return on capital investment by system owners and operators; minimization of long-term operation, maintenance and replacement costs for collection systems; and improvements in the quality of the surface water resources of the state. There are no additional costs anticipated for any individual required to comply with the repeal as proposed. Comments on the proposal may be submitted to Vic Ramirez, Staff Attorney, Legal Division, Texas Natural Resource Conservation Commission, 1700 North Congress Avenue, P.O. Box 13087, Austin, Texas 78711-3087. Comments will be accepted until 5:00 p.m., 30 days after the date of this publication. 30 TAC sec.317.2 (Editor's note: The text of the following section proposed for repeal will not be published. The section may be examined in the offices of the Texas Natural Resource Conservation Commission or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The repeal is proposed under the authority of the Texas Water Code, sec.sec.5. 103, 5.105, 5.120 and 26.023, which provide the Texas Natural Resource Conservation Commission with the authority to promulgate rules as necessary to carry out its powers and duties under the Texas Water Code and other laws of the state and to establish and approve all general policies of the commission. sec.317.2. Sewage Collection System. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on September 1, 1993. TRD-9328105 Mary Ruth Holder Director, Legal Division Texas Natural Resource Conservation Commission Earliest possible date of adoption: October 8, 1993 For further information, please call: (512) 463-8069 The new section is proposed under the Texas Water Code, s26.023, which provides the Texas Natural Resource Conservation Commission with the authority to make rules setting water quality standards for all water in the state. The section is also proposed under the Texas Water Code, sec.5.103, which authorizes the commission to adopt any rules necessary to carry out its powers and duties under the Water Code and other laws of this state. sec.317.2. Sewage Collection System. (a) General Requirements. (1) Design. Sewer lines shall be designed for the estimated future population to be served, plus adequate allowance for institutional and commercial flows. The collection system design shall provide a minimum structural life cycle of 50 years. The collection system design shall provide for the minimization of anaerobic conditions. The owner of the collection system shall provide full-time inspection under the direction of the registered professional engineer responsible for the design during the entire construction and testing phases of the project. The engineer responsible for the design shall also certify to the Executive Director that the project was constructed as approved. (2) Pipe Selection. The choice of sewer pipe shall be based on the chemical characteristics of the water delivered by public and private water suppliers, the character of industrial wastes, the possibilities of septicity, the exclusion of inflow and infiltration, the external forces, internal pressures, abrasion, and corrosion resistance. For all installations, if a pipe as a whole or an integral structural component of the pipe will deteriorate when subjected to corrosive internal conditions, a Commission-approved coating or liner shall be installed at the pipe manufacturing facility unless the final engineering design report, including calculations and data, submitted by the engineer demonstrates that the design and operational characteristics of the system will maintain the structural integrity of the system during the minimum life cycle. The sewer pipe to be used shall be identified in the plans and technical specifications with its appropriate ASTM, ANSI, or AWWA specification numbers for both quality control (dimensions, tolerances, etc.) and installation (bedding, backfill, etc.). (A) Flexible Pipe. The engineer shall submit an engineering report that includes the method of defining the modulus of soil reaction, (E'), for the bedding material, (E' [sub]b), and the natural soil (E' point=4.52p [sub]n), or other specific information to quantify the effect of the in-situ material on the effective modulus, (E' [sub]e). The report shall also include design calculations for E' point=4.52p [sub]e, prism load, live loads, long-term deflection, strain, bending strain, buckling, and wall crushing. The design calculations shall include all information pertinent to the determination of an adequate design including, but not limited to: pipe diameter and material with reference to appropriate standards, modulus of elasticity, tensile strength, pipe stiffness or ring stiffness constant converted to pipe stiffness as described below, Leonhardt's zeta factor or E' [sub]e from another acceptable method, the conversion factor used to obtain vertical deflection when using the Modified Iowa Equation, trench width, depth of cover, water table elevation, etc. Pipe stiffness shall be related to Ring Stiffness Constant (RSC) by the following equation: [graphic]
                                                                                                                                                                                                  In all cases the design procedure, such as outlined in this subsection, shall dictate the minimum pipe stiffness whether less than or greater than 46 psi, however, direct-bury installations of flexible pipe material may consider a minimum stiffness requirement to ensure ease of handling, transportation, and construction. Special consideration shall be given to the pipe stiffness at the expected installation temperature. The resistance of each material to the failure modes of strain, buckling, and wall crushing shall be justified to the satisfaction of the Executive Director by the engineer. In all situations, the design methodology shall be consistent with currently accepted design practices and acceptable to the Executive Director. In the design of sanitary sewer systems using trenchless technology, other design methodology may be considered appropriate, depending upon the type of pipe selected and other specific conditions. (B) Rigid Pipe. The engineer shall submit an engineering report that includes the trench width, water table, and depth of cover, etc. For rigid conduits the minimum strengths for the given class shall be noted in the appropriate standard for the pipe material. For the purpose of this section, rigid pipe is defined as concrete, vitrified clay, or ductile iron pipe. (C) Other pipe materials may be considered on a case-by-case basis by the Executive Director. The design and installation of such materials shall generally follow the guidelines for flexible or rigid pipe with appropriate exceptions. (3) Jointing Material. The materials used and methods to be applied in making joints shall be included in the technical specifications. Materials used for sewer joints shall have a satisfactory record of preventing infiltration and root entrance. Rubber gaskets, PVC compression joints, high compression polyurethane, welded, or other types of factory made joints are required. (4) Testing of Installed Pipe. An infiltration, exfiltration, or low-pressure air test shall be specified. Copies of all test results shall be made available to the Executive Director upon request. Tests shall conform to the following requirements: (A) Infiltration or Exfiltration Tests. The total infiltration or exfiltration, as determined by a hydrostatic head test, shall not exceed 50 gallons per inch diameter per mile of pipe per 24 hours at a minimum test head of two feet above the crown of the pipe at the upstream manhole, or at least two feet above existing groundwater, whichever is greater. For construction within the 25 year flood plain, the infiltration or exfiltration shall not exceed ten gallons per inch diameter per mile of pipe per 24 hours at the same minimum test head. If the quantity of infiltration or exfiltration exceeds the maximum quantity specified, remedial action shall be undertaken in order to reduce the infiltration or exfiltration to an amount within the limits specified. (B) Low Pressure Air Test. The low pressure air test shall conform to the procedures described in ASTM C-828, ASTM C-924, ASTM C-969, or other appropriate procedures. For sections of pipe less than 36-inch average inside diameter, the following procedure shall apply unless the pipe is to be joint tested. The pipe shall be pressurized to 3.5 psi greater than the pressure exerted by groundwater above the pipe. Once the pressure is stabilized, the minimum time allowable for the pressure to drop from 3.5 pounds per square inch gauge to 2.5 pounds per square inch gauge shall be computed from the following equation: [graphic]
                                                                                                                                                                                                    Since a K value of less than 1.0 shall not be used, there are minimum testing times for each pipe diameter as follows: [graphic]
                                                                                                                                                                                                      The test may be stopped if no pressure loss has occurred during the first 25% of the calculated testing time. If any pressure loss or leakage has occurred during the first 25% of the testing period, then the test shall continue for the entire test duration as outlined or until failure. Lines with a 27-inch average inside diameter and larger may be air tested at each joint. If the joint test is used, a visual inspection of the joint shall be performed immediately after testing. The pipe is to be pressurized to 3.5 psi greater than the pressure exerted by groundwater above the pipe. Once the pressure has stabilized, the minimum time allowable for the pressure to drop from 3.5 pounds per square inch gauge to 2.5 pounds per square inch gauge shall be ten seconds. (5) Bedding. (A) Trenching, Bedding, and Backfill. The width of the trench shall be minimized, but shall be ample to allow the pipe to be laid and jointed properly and to allow the backfill to be placed and compacted as needed. The trench sides shall be kept as nearly vertical as possible. As used herein, a trench shall be defined as that open cut portion of the excavation up to one foot above the pipe. The engineer shall specify the maximum trench width. When wider trenches are necessary, the appropriate bedding class and pipe strength shall be used. A minimum clearance of four inches below and on each side of all pipes to the trench walls and floor shall be provided. Bedding classes A, B, or C, as described in ASTM C 12 (ANSI A 106. 2), Water Environment Federation (WEF) Manual of Practice (MOP) No. 9, or American Society of Civil Engineers (ASCE) MOP 37 shall be used for all rigid pipes, provided that the proper strength pipe is used with the specified bedding to support the anticipated load(s). Embedment classes I, II, or III, as described in ASTM D-2321 (ANSI K65.171) shall be used for all flexible pipes, provided the proper strength pipe is used with the specified bedding to support the anticipated load, except that ASTM D-2680 may be used if the pipe stiffness is 200 psi or greater. Backfill shall be of suitable material removed from excavation except where other material is specified. Debris, large clods or stones greater than six inches in diameter, organic matter, or other unstable materials shall not be used for backfill. Backfill shall be placed in such a manner as not to disturb the alignment of the pipe. Water line crossings shall be governed by special backfill requirements specified in s317.13 of this title (relating to Appendix E-Separation Distances). (B) Deflection Testing. Deflection tests shall be performed on all flexible pipes. For pipelines with inside diameters less than 27 inches, a rigid mandrel shall be used to measure deflection. For pipelines with an inside diameter 27 inches and greater, a method approved by the Executive Director shall be used to test for vertical deflections. Other methods shall provide a precision of two tenths of one percent (0.2%) deflection. The test shall be conducted after the final backfill has been in place at least 30 days. No pipe shall exceed a deflection of 5.0%. If a pipe should fail to pass the deflection test, the problem shall be corrected and a second test shall be conducted after the final backfill has been in place an additional 30 days. The tests shall be performed without mechanical pulling devices. The design engineer should recognize that this is a maximum deflection criterion for all pipes and a deflection test less than 5.0% may be more appropriate for specific types and sizes of pipe. The design engineer shall certify, to the Executive Director, that the entire installation has passed the deflection test within 30 days of the testing. This certification shall be provided for the Commission to consider the requirements of the approval to have been met. (1) Mandrel Sizing. The rigid mandrel shall have an outside diameter (O.D.) equal to 95% of the inside diameter (I.D) of the pipe. The inside diameter of the pipe, for the purpose of determining the outside diameter of the mandrel, shall be the average outside diameter minus two minimum wall thicknesses for O.D.-controlled pipe and the average inside diameter for I.D. controlled pipe, all dimensions shall be per appropriate standard. Statistical or other "tolerance packages" shall not be considered in mandrel sizing. (2) Mandrel Design. The rigid mandrel shall be constructed of a metal or a rigid plastic material that can withstand 200 psi without being deformed. The mandrel shall have nine or more "runners" or "legs" as long as the total number of legs is an odd number. The barrel section of the mandrel shall have a length of at least 75% of the inside diameter of the pipe. A proving ring shall be provided and used for each size mandrel in use. (3) Method Options. Adjustable or flexible mandrels are prohibited. A television inspection is not a substitute for the deflection test. A deflectometer may be approved for use on a case-by-case basis. Mandrels with removable legs or runners may be accepted on a case-by-case basis. (4) Site Inspections. The Executive Director shall, on a random basis, perform site inspections of deflection testing. To facilitate these inspections, the design engineer shall notify the Executive Director at least ten working days prior to the deflection test and should be in attendance. The Executive Director shall not accept the design engineer's certification, as required above, if proper notice was not provided. (5) Protecting Public Water Supply. Water lines and sanitary sewers shall be installed no closer to each other than nine feet between outside diameters. Where this cannot be achieved, the sanitary sewer shall be constructed in accordance with sec.317.13 of this title (relating to Appendix E-Separation Distances). No physical connection shall be made between a drinking water supply, public or private, and a sewer or any appurtenance. An air gap of a minimum of two pipe diameters shall be maintained between all potable water outlets and the water surface elevation of sewer appurtenances. (6) Excluding Surface Water. Proposals for the construction of combined sewers will not be approved. Roof, street, or other types of drains which will permit entrance of surface water into the sanitary sewer system shall not be acceptable. (7) Active Geologic Faults. For systems to be located in areas of known active geologic faults, the design engineer shall locate any faults within the area of the collection system and the system shall be laid out to minimize the number of sewers crossing faults. Where crossings are unavoidable, the engineering report shall specify design features to protect the integrity of the sewer. Consideration should be given to joints providing maximum deflection and to providing manholes on each side of the fault so that a portable pump may be used in the event of sewer failures. Service connections within 50 feet of an active fault should be avoided. (8) Erosion Control. Erosion or sedimentation control that minimizes the effects of runoff shall be provided during the construction phase of a project. This requirement will be reviewed on a case-by-case basis. (b) Capacities. (1) Sources. The peak flow of domestic sewage, peak flow of waste from industrial plants, and maximum infiltration rates shall be considered in determining the hydraulic capacity of sanitary sewers. (2) Existing Systems. The design of extensions to sanitary sewers should be based on the data from the existing system. If this is not possible, the design shall be based on data from similar systems or sec.317.2(b)(3) of this title (relating to New Systems). (3) New Systems. New sewers shall be designed on the basis of an estimated daily sewage flow contribution as shown in the table in sec.317.4(a) of this title (relating to Wastewater Treatment Facilities). Minor sewers shall be designed such that when flowing full they will transport wastewater at a rate approximately four times the system design daily average flow. Main trunk, interceptor, and outfall sewers shall be designed to convey the contributed minor sewer flows. (c) Design Details. (1) Minimum size. No sewer other than service laterals and force mains shall be less than six inches in diameter. (2) Slope. All sewers shall be designed and constructed with slopes sufficient to give a velocity when flowing full of not less than 2.0 feet per second. The grades shown in the following table are based on Manning's formula with an assumed "n factor" of 0. 013 and constitute minimum acceptable slopes. The minimum acceptable "n" for design and construction shall be 0.013. The "n" used takes into consideration the slime, grit, and grease layers that will hinder hydraulics as the pipe matures. [graphic]
                                                                                                                                                                                                        * For lines larger than 39 inches in diameter, the slope may be determined by Manning's formula to maintain a minimum velocity greater than 2. 0 feet per second when flowing full and a maximum velocity less than ten feet per second when flowing full. [graphic] (3) High Velocity Protection. Where velocities greater than ten feet per second will occur when the pipe is flowing full, at slopes greater than those listed above, special provisions shall be made to protect against pipe displacement by erosion of the bedding and/or shock. (4) Alignment. Sewers shall be laid in straight alignment with uniform grade between manholes unless slight deviations from straight alignment and uniform grade are justified to the satisfaction of the Executive Director. (5) Manhole Use. Manholes shall be placed at points of change in alignment, grade, or size of sewer, at the intersection of sewers and the end of all sewer lines that will be extended at a future date. Any proposal which deviates from this requirement shall be justified to the satisfaction of the Executive Director. Cleanouts with watertight plugs may be installed in lieu of manholes at the end of sewers which are not anticipated to be extended within one year of completion of construction. (A) Type. Manholes shall be monolithic, cast-in-place concrete, fiberglass, precast concrete, HDPE, or of equivalent construction. Brick manholes shall not be used; however, one layer of fired clay brick may be used for final manhole adjustment where one six-inch concrete ring will exceed the specified tolerances. (B) Spacing. The maximum recommended manhole spacing for sewers with straight alignment and uniform grades are in the following table. Reduced manhole spacing may be necessary, depending on the utility's ability to maintain its sewer lines. Areas subject to flooding require special consideration to minimize inflow. [graphic] (C) Inflow and Infiltration Control. Manholes should not allow surface water to drain into them. If manholes are located within the 100-year flood plain, the manhole covers shall have gaskets and be bolted or have another means of preventing inflow. Where gasketed manhole covers are required for more than three manholes in sequence, an alternate means of venting shall be provided at less than 1,500-foot intervals. Vents should be designed to minimize inflow. Impervious material should be utilized for manhole construction in these areas in order to minimize infiltration. (D) Manhole Diameter. Manholes shall be of sufficient inside diameters to allow personnel to work within them and to allow proper joining of the sewer pipes in the manhole wall. The inside diameter of manholes shall be not less than 48 inches. (E) Manhole Inverts. The bottom of the manhole shall be provided with a "U"- shaped channel that is as much as possible a smooth continuation of the inlet and outlet pipes. For manholes connected to pipes less than 15 inches in diameter the channel depth shall be at least half the largest pipe diameter. For manholes connected to pipes 15 to 24 inches in diameter the channel depth shall be at least three-fourths the largest pipe diameter. For manholes connected to pipes greater than 24 inches in diameter the channel depth shall be at least equal to the largest pipe diameter. In manholes with pipes of different sizes, the tops of the pipes shall be placed at the same elevation and flow channels in the invert, sloped on an even slope from pipe to pipe. The bench provided above the channel shall be sloped at a minimum of 0.5 inch per foot. Where sewer lines enter the manhole higher than 24 inches above the manhole invert, the invert shall be filleted to prevent solids deposition. A drop pipe should be provided for a sewer entering a manhole more than 30 inches above the invert. (F) Manhole Covers. Manhole covers of nominal 24-inch or larger diameter are to be used for all sewer manholes. (G) Manhole Access. Design of features for entering manholes shall be guided by the following criteria: (i) It is suggested that entrance into manholes in excess of four feet deep be accomplished by means of a portable ladder. Other designs for ingress and egress should be given careful evaluation considering the safety hazards associated with the use of manhole steps under certain conditions. (ii) Where steps are used, they shall be made of a non-corrosive material and be in accordance with applicable OSHA specifications as published by the U. S. Department of Labor. (H) Testing. Manholes shall be tested separately and independently of the wastewater lines. All wastewater lines coming into the manhole shall be sealed with an internal pipe plug, then the manhole shall be filled with water and maintained full for at least one hour. The maximum leakage shall be 0.025 gallons per foot diameter per foot of manhole depth per hour. For concrete manholes a wetting period of 24 hours may be used prior to testing in order to allow saturation of the concrete. Other methods of manhole testing, such as vacuum testing, may be allowed by the Executive Director on a case-by-case basis. (6) Sag Pipes (Inverted Siphons). Sag pipes shall have two or more barrels, a minimum pipe diameter of six inches and shall be provided with necessary appurtenances for convenient flushing and maintenance. The manholes shall have adequate clearances for rodding, and in general, sufficient head shall be provided and pipe sizes selected to assure velocities of at least three feet per second at design flows. The inlet and outlet details shall be arranged so that the normal flow is diverted to one barrel. Provisions shall be made such that either barrel may be taken out of service for cleaning. (d) Alternative Sewer Systems. Use of pressure sewers may be considered when justified by unusual terrain or geological formations, low population density, difficult construction, or other circumstances where a pressure system would offer an advantage over a gravity system. An alternative sewer system will be considered for approval only when conditions make a gravity collection system impractical. (1) Management. A responsible management structure shall be established, to the satisfaction of the Executive Director, to be in charge of the operation and maintenance of an alternative sewer system. A legally binding service agreement shall be required to insure the low pressure sewer system is properly constructed and maintained. The required elements of the service agreement are as follows: (A) The document must be legally binding. (B) Existing septic tanks that are to be used for primary treatment prior to the discharge into an alternative sewer system must be cleaned, inspected, repaired, or replaced if necessary, to minimize inflow and infiltration into the new collection system prior to connection. (C) The utility shall have approval authority for the design of the system including all materials and equipment prior to the installation of a septic tank or a grinder pump lift station. The materials shall comply with standard specifications submitted to and approved by the Executive Director. (D) The utility must be able to approve the installation of the septic tank or grinder pump lift-station after construction to ensure the installation was as specified. (E) The utility must be responsible for the operation and maintenance of the system, including any septic tanks and grinder pump lift-stations incorporated. (F) The utility must be able to stop any authorized discharges from any collection system appurtenances in order to prevent contamination of State waters. (G) The utility shall submit a maintenance schedule to the Executive Director which outlines routine service inspections for each grinder pump lift-station, septic tank, and other components. (H) Pumping units, grinder pumps, and septic tanks shall be regarded as integral components of the system and not as a part of the home plumbing. (I) Provision to ensure collection system integrity during a power outage (two-year event) shall be incorporated into the design. (2) Design Considerations. The following shall be submitted to and approved by the Executive Director: (A) the number of units pumping at any one time; (B) flow velocities in the range of three to five feet per second; (C) the installation of air relief valves; (D) the provision of means to flush all lines in the system; (E) the installation of cleanouts; and (F) development of procedures whereby portions of the pressure system may be rerouted with temporary lines in the event of leaks, construction, or repair. (3) Pipe Selection. Pipe which will be used in this type of sewer application shall have a minimum sustained working pressure rating of 100 pounds per square inch gauge as per appropriate standard. Joints appropriate for the pipe selected shall be specified. Pipe selection shall also conform to subsection (a)(1), (2), (3), and (5) of this section. (4) Hydrostatic Testing. All pressure pipe installations shall be tested for leakage. Copies of all test results shall be made available to the Executive Director upon request. Leakage shall be defined as the quantity of water that must be supplied into the pipe or any valved section thereof, to maintain pressure within five pounds per square inch of the specified test pressure after the air in the pipeline has been expelled. The test pressure shall be either a minimum of 25 pounds per square inch gauge or 1.5 times the maximum force main design pressure, whichever is larger. The maximum allowable leakage shall be calculated using the formula below. If the quantity of leakage exceeds the maximum amount calculated, remedial action shall be taken to reduce the leakage to an amount within the allowable limit as follows: [graphic] (5) Pumps. Pumping units and grinder pumps used in pressure sewer systems should be reliable, easily maintained, and should have compatible characteristics. (A) Pumps and grinder pump units shall be provided with two backflow prevention devices and shall be easily accessible for maintenance. (B) Sufficient holding capacity shall be provided in the pumping compartment to allow for wastewater storage during power outages and equipment failures. Storage volume should be based on power supply outage records and replacement equipment availability. (C) Pumping units shall not be installed in the settling chamber of a septic tank if the septic tank is to be used for solids reduction. (D) Alarms, warning lights, or other suitable indicators of unit malfunction shall be installed at each pumping station. (E) Whenever any pumping station handles waste from two or more residential housing units or from any public establishment, dual grinder pump units shall be provided to assure continued service in the event of equipment malfunction. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on September 1, 1993. TRD-9328106 Mary Ruth Holder Director, Legal Division Texas Natural Resource Conservation Commission Earliest possible date of adoption: October 8, 1993 For further information, please call: (512) 463-8069