PROPOSED RULES 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 63>Texas Register at least 30 days before action is 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 action, 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 16. ECONOMIC REGULATION Part IX. Texas Lottery Commission Chapter 401. Administration of the State Lottery Act Subchapter C. Practice and Procedure 16 TAC sec.sec.401.158, 401.159, 401.205, 401.206 The Texas Lottery Commission proposes amendments to sec. s401.158, 401.159, 401.205, and 401.206, concerning the practice and procedure before the Texas Lottery Commission as it relates to licensing administrative hearings. The amendments to the sections clarify the particular notice procedures to be used in the event of a proposed denial of an application for a license or proposed suspension or revocation of a license. The amendments also clarify the person within the agency who will be initiating the administrative proceedings as well as who will have the authority or delegated authority to make decisions on these matters. Linda Cloud, operations manager, 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. Ms. Cloud 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 ensure that licensees are afforded due process in conjunction with licensing administrative hearings. 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 Kimberly L. Kiplin, General Counsel, Texas Lottery Commission, P.O. Box 16630, Austin, Texas 78752-6630. The amendments are proposed under the Texas Civil Statutes, Article 179g (State Lottery Act), which provide the Texas Lottery Commission with the authority to adopt rules necessary to administer the State Lottery Act. sec.401.158. Suspension or Revocation of License. (a) The commission
    [comptroller] may [propose to] suspend or revoke any license issued under this subchapter if the commission
      [he] finds that any factor listed as grounds for denial of a license under sec.401. 153(b) of this title (relating to Qualifications for License) or any factor listed in subsection (b) of this section apply to the licensee. The commission
        [comptroller] shall advise the sales agent in writing of the decision to suspend or revoke any of the reasons therefor. In addition, in the event of a license suspension under this section, the director shall also advise the licensee of the terms under which suspended license may be reissued. (b) Without limiting the commission's
          [comptroller] ability to consider factors listed in sec.401.153(b) as grounds for suspension or revocation of a license issued under this subchapter, the commission
            [comptroller] may also [propose to] suspend or revoke a license based on finding any of the following: (1)-(16) (No change.) [(c) In the event the comptroller proposes the suspension or revocation of a sales agent's license under this section, the sales agent may appeal the comptroller's decision in accordance with sections issued by the comptroller under this title for that purpose.] sec.401.159. Summary Suspension of License. (a) In addition to the authority to suspend a sales agent's license pursuant to sec.401.158 of this title (relating to Suspension or Revocation of License), the director
              [comptroller] may suspend a sales agent's license subject to the limited notice and hearing procedures established under other rules to be adopted by the commission
                [comptroller] under this title for that purpose, if the director
                  [comptroller] finds that the action is necessary to maintain the integrity, security, honesty, or fairness of the operation or administration of the lottery or to prevent financial loss to the state, and: (1) the sales agent fails to deposit money received from ticket sales under the State Lottery Act, sec.5.01; (2) an event occurs that would render the sales agent ineligible for a license under sec.4.153(b); (3) the sales agent refuses to permit the director, the executive director
                    [comptroller], or the state auditor to examine the agent's books, records, papers, or other objects or refuses to answer any question authorized under the State Lottery Act, sec.2.02(j); or (4) the director learns the sales agent has failed to disclose information that would, if disclosed, render the sales agent ineligible for a license under sec.4.153(b). (b) A summary suspension properly commenced under rules adopted by the commission
                      [comptroller] under this title is effective at the time the notice is served. If notice is personally served, the license shall immediately surrender the license to the commission
                        [comptroller] or its
                          [his] representative. If notice is served by mail, the licensee shall immediately return the license to the commission
                            [comptroller]. In addition, at the time the licensee is served with notice under this subsection, the licensee may be required by the director to surrender to an authorized representative of the division all division property, return all unsold tickets in accordance with normal division policy, pay funds owed to the division by an authorized method, and take such further action as required by the director. sec.401.205. Initiation of a Hearing. (a) Denial of application or
                              [,] suspension[,] or revocation of license [application]. (1) If the director of the Lottery Division determines that an applicant is not eligible for a license for reasons other than these set out in the State Lottery Act, sec.3.02, the director
                                [he] will notify the applicant, in writing, by personal service or by registered or certified mail, return receipt requested, that the application has been denied and will state the reasons for the denial. The applicant may, within 15 days of the date of the notice of denial, make a written request for a hearing to contest the denial. If the applicant does not request a hearing within 15 days of the date of the notice of denial, the hearing is waived and a final decision will be issued. (2) If the director proposes to deny an application for a license for reasons set out in the State Lottery Act, sec.3.02, the applicant is entitled to written notice of the time and place of the hearing. A notice may be served on the applicant personally or sent by certified or registered mail, return receipt requested, to the person's mailing address as it appears on the commission's records. A notice must be served or mailed not later than the 20th day before the hearing. After the hearing, the director shall deny an application for a license if the director finds that any of the grounds for denial set out in the State Lottery Act, sec.3.02, exist. (3)
                                  [(2)] The executive director
                                    [comptroller] will notify the licensee in writing, by personal service or by registered or certified mail, return receipt requested, that the license will be suspended or revoked for reasons other than those reasons set out in the State Lottery Act, sec.3.02,
                                      and will state such
                                        [the] reasons for the action. The licensee may, within 15 days of the date of the notice of suspension or revocation, make a written request for a hearing to contest the action. If the licensee does not request a hearing within 15 days of the date of the notice of suspension or revocation, the hearing is waived and a final decision will be issued by the executive director (4) If the commission proposes to suspend or revoke a license for reasons set out in the State Lottery Act, sec.3.02, the licensee is entitled to written notice of the time and place of the hearing. A notice may be served on the licensee personally or set by certified or registered mail, return receipt requested, to the person's mailing address as it appears on the commission's records. A notice must be served or mailed not later than the 20th day before the hearing. After the hearing, the commission shall suspend or revoke a license if the commission finds that any of the grounds for suspension or revocation set out in the State Lottery Act, sec.3.02, exist. (b) Court reporter and transcripts. (1) If the
                                          [at such time as an] applicant or licensee requests a court reporter
                                            [hearings], he shall deposit with the commission
                                              [comptroller] an amount sufficient to cover the cost of the court reporter. (2) (No change.) sec.401.206. Extensions of Time. (a) Motions for extension of the due date for submitting a request for hearing on the proposed
                                                denial of an application or on the proposed suspension or revocation of a license may be granted in case of emergency or extraordinary circumstances. Motions for extension will not be routinely granted and each request will be closely scrutinized to insure that the applicant or license has made every effort to comply with the original deadline. Motions filed after the expiration of the original due date will not be considered. Motions must be directed to the executive director
                                                  [chief administrative law judge] or his/her
                                                    designee, who will grant or deny the motion. (b) (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 December 30, 1993. TRD-9334083 Kimberly L. Kiplin General Counsel Texas Lottery Commission Earliest possible date of adoption: February 7, 1994 For further information, please call: (512) 323-3791 TITLE 25. HEALTH SERVICES Part II. Texas Department of Mental Health and Mental Retardation Chapter 401. System Administration Subchapter B. Interagency Agreements 25 TAC sec.401.53 (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 Department of Mental Health and Mental Retardation or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The Texas Department of Mental Health and Mental Retardation (TDMHMR) proposes the repeal of sec.401.53, concerning the plan for new bed development in the Texas ICF/MR program. The plan is being repealed consistent with the mandates of Senate Bill 160, which requires TXMHMR to develop a plan for long-term care which addresses the issues formerly addressed in the bed plan. The proposed repeal of the section affects the Texas Health and Safety Code, sec.533.062. Leilani Rose, director, Office of Financial Services, has determined that there will no significant fiscal implications to state government or local government or small businesses as a result of enforcing and administering the proposal. There is no anticipated local economic impact. Karen Hale, director, Planning and Policy Development, has determined that the public benefit is the promulgation of rules that effectively implement state laws. There is no anticipated cost to persons required to comply with the section as proposed. Written comments concerning the proposal may be submitted to Linda Logan, director, Policy Development, Texas Department of Mental Health and Mental Retardation, P.O. Box 12668, Austin, Texas 78711-2668, within 30 days of publication. The repeal is proposed under the Texas Health and Safety Code, sec.532.015, which provides the Texas Board of Mental Health and Mental Retardation with rulemaking powers. sec.401.53. Annual Plan for New Bed Development in the Texas ICF/MR Program. 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 December 29, 1993. TRD-9334053 Ann K. Utley Chairman Texas Department of Mental Health and Mental Retardation Earliest possible date of adoption: February 7, 1994 For further information, please call: (512) 206-4516 25 TAC sec.401.57 The Texas Department of Mental Health and Mental Retardation (TDMHMR) proposes new sec.401.57, concerning training requirements for identifying abuse, neglect, and unprofessional or unethical conduct in health care facilities. Senate Bill 210 of regular session of the 73rd Texas Legislature requires TDMHMR, the Texas Commission on Alcohol and Drug Abuse, and the Texas Department of Health to adopt the memorandum by rule. The proposed section affects Chapter 161, Subchapter K of the Texas Health and Safety Code. Leilani Rose, director, Office of Financial Services, has determined that there will be no significant fiscal implications to state government or local government or small businesses as a result of enforcing and administering the proposal. There is no anticipated local economic impact. Karen Hale, director, Planning and Policy Development, has determined that the public benefit is the promulgation of rules to facilitate mental health professionals to function in compliance with state laws. There is no anticipated cost to persons required to comply with the section as proposed. Written comments concerning the proposal may be submitted to Linda Logan, director, Policy Development, Texas Department of Mental Health and Mental Retardation, P.O. Box 12668, Austin, Texas 78711-2668, within 30 days of publication. The new section is proposed under the Texas Health and Safety Code, sec.532. 015, which provides the Texas Board of Mental Health and Mental Retardation with rulemaking powers. sec.401.57. Training Requirements for Identifying Abuse, Neglect, and Unprofessional or Unethical Conduct in Health Care Facilities. (a) TDMHMR adopts Exhibit N a joint memorandum of understanding (MOU) with TDH and TCADA concerning training requirements for identifying abuse, neglect, and unprofessional or unethical conduct in health care facilities. (b) Copies of the MOU are filed in the Office of Policy Development, TDMHMR, 909 West 45th Street, Austin, Texas 78756, and may be reviewed during regular business hours. The MOU reads as follows. [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 December 29, 1993. TRD-9334054 Ann K. Utley Chairman Texas Department of Mental Health and Mental Retardation Earliest possible date of adoption: February 7, 1994 For further information, please call: (512) 206-4516 TITLE 30. ENVIRONMENTAL QUALITY Part I. Texas Natural Resource Conservation Commission Chapter 115. Control of Air Pollution from Volatile Organic Compounds Subchapter G. Consumer-related Sources Consumer Products 30 TAC sec.sec.115.600, 115.610, 115.612-115.615, 115.617, 115. 619 The Texas Natural Resource Conservation Commission (TNRCC) proposes new sec.sec.115.600, 115.610, 115.612-115.615, 115.617, and 115.619, and the repeal of existing sec.sec.115.612-115.615, 115.617, and 115.619, concerning Consumer Products. The new undesignated head will be included in existing Subchapter G, concerning Consumer-Related Sources. The new sections have been developed in response to a requirement by the United States Environmental Protection Agency (EPA) and the 1990 Amendments to the Federal Clean Air Act (FCAA) for states to develop and adopt the Rate-of-Progress (ROP) State Implementation Plan (SIP) by November 15, 1993. An ROP SIP was submitted to EPA by November 15, 1993 that included a commitment to adopt rules, if necessary, for Consumer Products. The repeals are necessary in order to adopt the proposed new sections. The ROP SIP is required to achieve and maintain a volatile organic compound (VOC) emissions level that is 15% below the 1990 base year emissions by 1996 in the Beaumont/Port Arthur, Dallas/Fort Worth, El Paso, and Houston/Galveston ozone nonattainment areas. Although the ozone nonattainment counties are Brazoria, Chambers, Collin, Dallas, Denton, El Paso, Fort Bend, Galveston, Hardin, Harris, Jefferson, Liberty, Montgomery, Orange, Tarrant, and Waller, this proposal will affect all counties in the state to maximize the effectiveness of the rule and subsequent reduction in VOC emissions. New sec.115.612, concerning Control Requirements, applies new VOC content standards to various consumer products, and establishes dates for the new standards that allow manufacturers time to develop new product formulations. New sec.115.613, concerning Alternate Control Requirements, allows manufacturers to apply to the Executive Director for alternate control requirements which result in substantially equivalent VOC emissions when compared to products complying with the standards required by sec.115.612. New sec.115.613 also establishes procedures for a manufacturer to apply for a variance based on extraordinary reasons beyond their reasonable control. New sec.115.614, concerning Innovative Products, allows an exemption from the standards of sec.115.612 if manufacturers demonstrate that a product will result in equal or less VOC emissions than a representative product complying with the standard or the calculated VOC emissions from a noncomplying product, if the product had been reformulated to comply with the standard. New sec.115.615, concerning Testing Requirements, specifies requirements for test methods and alternatives to be used in determining compliance with sec.115. 612. New sec.115.616, concerning Recordkeeping and Reporting Requirements, details product display, reporting, and recordkeeping requirements which are necessary to verify proper compliance with the requirements of this undesignated head. New sec.115.617, concerning Exemptions, exempts certain consumer products from other provisions of this undesignated head. New sec.115. 619, concerning Counties and Compliance Schedules, specifies the applicable counties and compliance dates for the new requirements. The proposed amendments are part of the Phase II rules in a series of proposed revisions to Chapter 115 (concerning Control of Air Pollution From Volatile Organic Compounds) and the SIP to provide the required reductions in the ozone nonattainment areas as mandated by the 1990 FCAA Amendments. Since this is an interim step in attaining the ozone standard, only those controls needed to satisfy the requirement will be adopted. Additional controls are anticipated to be adopted by November 15, 1994 in conjunction with an attainment demonstration requirement in each ozone nonattainment area. By this time, Urban Airshed Modeling (UAM) will be available to facilitate more scientific decision-making regarding the effect of control measure scenarios on ozone levels. The UAM is a quantitative state-of-the-art computer model that will enable the staff to evaluate the effects of various combinations of control measures on ozone. Texas is submitting rules to meet the ROP reduction in two phases. Phase I rules comprised a significant portion of the required reductions and were submitted by the original deadline of November 15, 1993. Phase II consists of any remaining percentage toward the 15% net of growth reductions, as well as additional contingency measures to obtain an additional 3.0% of reductions. Phase II will be submitted by November 15, 1994. Stephen Minick, budget and planning division, has determined that for the first five-year period the proposed sections are in effect, the annual cost to state and local governments is estimated at $90,000, which would primarily be the result of hiring additional personnel to inspect and monitor these new requirements. Total economic costs to small businesses, persons, and businesses required to implement the proposed measures may vary from $0.9 million to about $19.8 million. Any costs continuing beyond 1997 would be operating, maintenance, and recordkeeping requirements. All estimates are stated in 1993 dollars with no adjustments for inflation and assume continuing costs equal to those incurred during 1993-1997. Mr. Minick also has determined that for the first five-year period the proposed sections are in effect, the public benefit anticipated as a result of implementing these new sections will be satisfaction of FCAA Amendments and EPA requirements, and VOC emission reductions in ozone nonattainment areas which are necessary for the timely attainment of the ozone standard. Public hearings on this proposal are scheduled for the following times and places: January 24, 1994, 7:00 p.m., City of Houston Pollution Control Building Auditorium, 7411 Park Place Boulevard, Houston, Texas; January 26, 1994, 6:00 p.m., City of El Paso, Council Chambers, 2 Civic Center Plaza, El Paso, Texas; and January 27, 1994, 7:00 p.m., Irving Central Library, 801 West Irving Boulevard, Irving, Texas. Staff members will be available to discuss the proposal 30 minutes prior to each hearing. Public comments, both oral and written, on the proposed changes are invited at the hearings. Interrogation or cross-examination is not permitted. Written comments not presented at the hearings must be submitted to the TNRCC Central Office in Austin by no later than February 25, 1994. Material received by the Regulation Development Section by 4:00 p.m. on that date will be considered by the Commission prior to any final action on the proposed revisions. Copies of the proposed revisions are available at the Regulation Development Section of the TNRCC Air Quality Planning Division located at 12118 North IH-35, Park 35 Technology Center, Building E, Austin, Texas 78753, and at all TNRCC Air regional offices. For further information, contact Lou DeCuir at (512) 239-1513. Persons with disabilities who have special communication or other accommodation needs who are planning to attend the hearings should contact the agency at (512) 475-2245. Requests should be made as far in advance as possible. The new sections are proposed under the Texas Health and Safety Code, the Texas Clean Air Act (TCAA), sec.382.017, which provides the TNRCC with the authority to adopt rules consistent with the policy and purposes of the TCAA. sec.115.600. Definitions. Unless specifically defined in the Texas Clean Air Act (TCAA) or in the rules of the Commission, the terms used by the Commission have the meanings commonly ascribed to them in the field of air pollution control. In addition to the terms which are defined by the TCAA, the following terms, when used in this undesignated head, relating to Consumer Products, shall have the following meanings, unless the context clearly indicates otherwise. Aerosol cooking spray-Any aerosol product designed either to reduce sticking on cooking and baking surfaces or to be applied on food, or both. Aerosol product -A pressurized spray system that dispenses product ingredients by means of a propellant or mechanically induced force. This does not include pump sprays. Agricultural use -The use of any pesticide or method or device for the control of pests in connection with the commercial production, storage, or processing of any animal or plant crop. This does not include the sale or use of pesticides in properly labeled packages or containers which are intended for home use, use in structural pest control, industrial use, or institutional use. The following are for the purposes of this subchapter only. (A) Home use means use in a household or its immediate environment. (B) Structural pest control means for use in maintaining building structures. (C) Industrial use means use for or in a manufacturing, mining, or chemical process or use in the operation of factories, processing plants, and similar sites. (D) Institutional use means use within the confines of, or on property necessary for the operation of buildings such as hospitals, schools, libraries, auditoriums, and office complexes. Air freshener-Any consumer product including, but not limited to, sprays, wicks, powders, and crystals, designed for the purpose of masking odors, or freshening, cleaning, scenting, or deodorizing the air. This includes spray disinfectant products that are expressly represented, verbally or visually, for use as air fresheners in a manner unrelated to surface application on the product container, on any label or packaging attached thereto, or in the product's literature or advertising. This does not include products that are used on the human body, or products that function primarily as cleaning products. The presence of, and representations about, a product's fragrance and ability to deodorize (resulting from surface application) shall not constitute a claim of air freshening. All other forms -All consumer product forms for which no form-specific volatile organic compound (VOC) standard is specified in sec.115. 612(a) of this title (relating to Control Requirements). Unless specified otherwise by the applicable VOC standard, this includes, but is not limited to, solids, liquids, wicks, powders, crystals, and cloth or paper wipes (towelettes). Antiperspirant-Any product including, but not limited to, aerosols, roll-ons, sticks, pumps, pads, creams, and squeeze-bottles, that is intended by the manufacturer to be used to reduce perspiration in the human axilla by at least 20% in at least 50% of a target population. ASTM-The American Society for Testing and Materials. Automotive windshield washer fluid-Any liquid designed for use in a motor vehicle windshield washer fluid system either as an antifreeze or for the purpose of cleaning, washing, or wetting the windshield(s). This does not include any fluid which is placed in a new motor vehicle prior to the time of initial sale. Bathroom and tile cleaner-A product designed to clean tile or surfaces in bathrooms. This does not include products specifically designed to clean toilet bowls or toilet tanks. Carburetor-choke cleaner -A product designed to remove dirt and other contaminants from a carburetor. This does not include products designed to be introduced directly into the fuel lines or fuel storage tank prior to introduction into the carburetor. Charcoal lighter material-Any combustible material designed to be applied on, incorporated in, added to, or used with charcoal to enhance ignition. This does not include any of the following: (A) electrical starters and probes, (B) metallic cylinders using paper tinder, (C) natural gas, and (D) propane. Construction and panel adhesive-Any one-component house-hold adhesive having gap filling capabilities, and which distributes stress uniformly throughout the bonded area resulting in a reduction or elimination of mechanical fasteners. These materials are applied from one-tenth gallon or eleven fluid ounces caulking cartridges. Consumer-Any person who purchases or acquires any consumer product for personal, family, household, or institutional use. Persons acquiring a consumer product for resale are not considered consumers of that product. Consumer product -A chemically formulated product used by household and institutional consumers. Contact adhesive -Any household adhesive that: (A) is nitrile-based, or contains polychlorobutadiene (neoprene, chloroprene, bayprene), or latex; (B) when applied to two substrates, forms an instantaneous, non-repositionable bond; (C) when dried to touch, exhibits a minimum 30-minute bonding range; and (D) bonds only to itself without the need for reactivation by solvents or heat. Container/packaging-The part or parts of the consumer or institutional product which serve only to contain, enclose, incorporate, deliver, dispense, wrap, or store the chemically formulated substance or mixture of substances which is solely responsible for accomplishing the purposes for which the product was designed or intended. This includes any article onto or into which the principal display panel is incorporated, etched, printed, or attached. Crawling bug insecticide-Any insecticide product that is designed for use against ants, cockroaches, or other household crawling arthropods, including, but not limited to, mites, silverfish, or spiders. This does not include products designed to be used exclusively on humans or animals. Deodorant-Means any product including, but not limited to, aerosols, roll- ons, sticks, pumps, pads, creams, and squeeze-bottles, that is intended by the manufacturer to be used to minimize odor in the human axilla by retarding the growth of bacteria which cause the decomposition of perspiration. Device-Any instrument or contrivance (other than a firearm) which is designed for trapping, destroying, repelling, or mitigating any pest or any other form of plant or animal life (other than man and other than bacteria, virus, or other micro-organism on or in living man or other living animals); but not including equipment used for the application of pesticides when sold separately there from. Disinfectant-any product intended to destroy or irreversibly inactivate infectious or other undesirable bacteria, pathogenic fungi, or viruses on surfaces or inanimate objects and whose label is registered under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA, 7 U.S.C. 136, et seq). This does not include any of the following: (A) products designed solely for use on humans or animals; (B) products designed for agricultural use; (C) products designed solely for use in swimming pools, therapeutic tubs, or hot tubs; and (D) products which, as indicated on the principal display panel or label, are designed primarily for use as bathroom and tile cleaners, glass cleaners, general purpose cleaners, toilet bowl cleaners, or metal polishes. Distributor-Any person to whom a consumer product is sold or supplied for the purposes of resale or distribution in commerce, except that manufacturers, retailers, and consumers are not distributors. Dusting aid-A product designed to assist in removing dust and other soils from floors and other surfaces without leaving a wax or silicone-based coating. This does not include products which consist entirely of compressed gases for use in electronic or other specialty areas. Engine degreaser -A cleaning product designed to remove grease, grime, oil, and other contaminants from the external surfaces of engines and other mechanical parts. Executive Director -The Executive Director of the Texas Natural Resource Conservation Commission, or his or her delegate. Fabric protectant -A product designed to be applied to fabric substrates to protect the surface from soiling from dirt and other impurities or to reduce absorption of water into the fabric's fibers. This does not include silicone- based products whose function is to provide water repellency, or products designed for use solely on fabrics which are labeled "for dry clean only" and sold in containers of ten fluid ounces or less. Flea and tick insecticide-Any insecticide product that is designed for use against fleas, ticks, their larvae, or their eggs; not including products that are designed to be used exclusively on humans or animals and their bedding. Flexible flooring material-Asphalt, cork, linoleum, no-wax, rubber, seamless vinyl, and vinyl composite flooring. Floor polish or wax-A wax, polish, or any other product designed to polish, protect, or enhance floor surfaces by leaving a protective coating that is designed to be periodically replenished. This does not include spray buff products, products designed solely for the purpose of cleaning floors, floor finish strippers, products designed for unfinished wood floors, and coatings subject to architectural coatings regulations. Flying bug insecticide -Any insecticide product that is designed for use against flying insects or other flying arthropods, including, but not limited to, flies, mosquitoes, moths, or gnats. This does not include wasp and hornet insecticide, or products that are designed to be used exclusively on humans or animals. Fragrance-A substance or complex mixture of aroma chemicals, natural essential oils, and other functional components which is added to a consumer product to impart an odor or scent or to counteract a malodor. Furniture maintenance product-A wax, polish, conditioner, or any other product designed for the purpose of polishing, protecting, or enhancing finished wood surfaces other than floors. This does not include dusting aids, products designed solely for the purpose of cleaning, and products designed to leave a permanent finish such as stains, sanding sealers, and lacquers. Gel-A colloid in which the disperse phase has combined with the continuous phase to produce a semisolid material, such as jelly. General purpose adhesive-Any non-aerosol household adhesive designed for use on a variety of substrates, not including contact adhesives or construction and panel adhesives. General purpose cleaner-A product designed for general all-purpose cleaning, in contrast to cleaning products designed to clean specific substrates in certain situations. This includes products designed for general floor cleaning, kitchen or countertop cleaning, and cleaners designed to be used on a variety of hard surfaces; but does not include degreasers. Glass cleaner-A cleaning product designed primarily for cleaning surfaces made of glass. This does not include products designed solely for the purpose of cleaning optical materials used in eyeglasses, photographic equipment, scientific equipment, and photocopying machines. Hairspray-A consumer product designed primarily for the purpose of dispensing droplets of a resin on and into a hair coiffure which will impart sufficient rigidity to the coiffure to establish or retain the style for a period of time. Hair mousse-A hairstyling foam designed to facilitate styling of a coiffure and provide limited holding power. Hair styling gel-A high viscosity, often gelatinous, product that contains a resin and is designed for the application to hair to aid in styling and sculpting of the hair coiffure. High volatility organic compound (HVOC)-Any organic compound that exerts a vapor pressure greater than 80 milliliters mercury when measured at 200 degrees Celsius. Household adhesive -Any household product that is used to bond one surface to another by attachment. This does not include products used on humans and animals, adhesive tape, contact paper, wallpaper, shelf liners, or any other product with an adhesive incorporated onto or in an inert substrate. This also does not include units of product, less packaging, which weigh more than one pound or consist of more than 16 fluid ounces. Household product -Any consumer product that is primarily designed to be used inside or outside of living quarters or residences that are occupied or intended for occupation by individuals, including the immediate surroundings. Initial sale-The bargain, sale, transfer, or delivery with intent to pass an interest therein, other than a lien, of a motor vehicle which has not been previously registered or licensed in Texas or elsewhere; and such a bargain, sale, transfer, or delivery, accompanied by registration or licensing of said vehicle in Texas or elsewhere, shall constitute the first sale of said vehicle, irrespective of where such bargain, sale, transfer, or delivery occurred. Insect repellent -A pesticide product that is designed to be applied on human skin, hair, or attire worn on humans in order to prevent contact with or repel biting insects or arthropods. Insecticide-A pesticide product that is designed for use against insects or other arthropods, but excluding products that are: (A) for agricultural use; (B) for use in maintaining building structures; or (C) restricted materials that require a permit for use and possession. Insecticide fogger -Any insecticide product designed to release all or most of its content, as a fog or mist, into indoor areas during a single application. Institutional product -A consumer product that is designed for use in the maintenance or operation of an establishment that manufactures, transports, or sells goods or commodities, or provides services for profit; or is engaged in the nonprofit promotion of a particular public, educational, or charitable cause. Establishments include, but are not limited to, government agencies, factories, schools, hospitals, sanitariums, prisons, restaurants, hotels, stores, automobile service and parts centers, health clubs, theaters, or transportation companies. Institutional products do not include household products and products that are incorporated into or used exclusively in the manufacture or construction of the goods or commodities at the site of the establishment. Label-Any written, printed, or graphic matter affixed to, applied to, attached to, blown into, formed, molded into, embossed on, or appearing upon any consumer product or consumer product package, for purposes of branding, identifying, or giving information with respect to the product or to the contents of the package. Laundry prewash -A product that is designed for application to a fabric prior to laundering and that supplements and contributes to the effectiveness of laundry detergents and/or provides specialized performance. Laundry starch product-A product that is designed for application to a fabric, either during or after laundering, to impart and prolong a crisp, fresh look and may also act to help ease ironing of the fabric. This includes, but is not limited to, fabric finish, sizing, and starch. Lawn and garden insecticide-An insecticide product designed primarily to be used in household lawn and garden areas to protect plants from insects or other arthropods. Liquid-A substance or mixture of substances which is capable of a visually detectable flow as determined under the American Society for Testing and Materials (ASTM) D-4359-90. This does not include powders or other materials that are composed entirely of solid particles. Manufacturer-Any person who imports, manufactures, assembles, produces, packages, repackages, or relabels a consumer product for distribution or sale in Texas. Medium volatility organic compound (MVOC)-Any organic compound that exerts a vapor pressure greater than two milli liters mercury and less than or equal to 80 millimeters mercury when measured at 200 degrees Celsius. Nail polish-Any clear or colored coating designed for application to the fingernails or toenails and including, but not limited to, lacquers, enamels, acrylics, base coats, and top coats. Nail polish remover-A product designed to remove nail polish and coatings from fingernails or toenails. Non-aerosol product -Any antiperspirant or deodorant that is not dispensed by a pressurized spray system. Nonresilient flooring -Flooring of a mineral content which is not flexible, including terrazzo, marble, slate, granite, brick, stone, ceramic tile, and concrete. Oven cleaner-Any cleaning product designed to clean and to remove dried food deposits from oven walls. Percent-by-weight-The total weight of volatile organic compound (VOC) except those VOCs exempted under sec.115.617 of this title (relating to Exemptions), expressed as a percentage of the total net weight of the product exclusive of the container or package as calculated according to the following equation: [graphic] Pesticide-Includes any substance or mixture of substances labeled, designed, or intended for use in preventing, destroying, repelling, or mitigating any pest, or any substance or mixture of substances labeled, designed, or intended for use as a defoliant, desiccant, or plant regulator, provided that the term pesticide will not include any substance, mixture of substances, or device which the United States Environmental Protection Agency does not consider to be a pesticide. Principal display panel or panels-That part, or those parts of a label that are so designed as to most likely be displayed, presented, shown, or examined under normal and customary conditions of display or purchase. Whenever a principal display panel appears more than once, all requirements pertaining to the principal display panel shall pertain to all such principal display panels. Product category -The applicable category which best describes the product as listed in this section and which appears on the product's principal display panel. Product form-The applicable form which most accurately describes the product's dispensing form, including aerosol products, gels, liquids, pump sprays, and solids. Propellant-A liquefied or compressed gas that is used in whole or in part, such as a co-solvent, to expel a liquid or any other material from the same self-pressurized container or from a separate container. Pump spray-A packaging system in which the product ingredients within the container are not under pressure and in which the product is expelled only while a pumping action is applied to a button, trigger, or other actuator. Restricted materials -Any pesticides established for restricted use under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), sec.3(d), 7 United States Code 136, et seq. Retailer-Any person who sells, supplies, or offers consumer products for sale directly to consumers. Retail outlet-Any establishment at which consumer products are sold, supplied, or offered for sale directly to consumers. Shaving cream-An aerosol product which dispenses a foam lather intended to be used with a blade or cartridge razor, or other wet-shaving system, in the removal of facial or other bodily hair. Solid-A substance or mixture of substances which, either whole or subdivided (such as the particles comprising a powder), is not capable of visually detectable flow as determined under the American Society for Testing and Materials (ASTM) D-4359-90. Spray buff product -A product designed to restore a worn floor finish in conjunction with a floor buffing machine and special pad. Usage directions -The text or graphics on the product's label or accompanying literature which describes to the end user how and in what quantity the product is to be used. Wasp and hornet insecticide-Any insecticide product that is designed for use against wasps, hornets, yellow jackets, or bees by allowing the user to spray a high-volume directed stream or burst from a safe distance at the intended pest or its hiding place. Wax-A material or synthetic thermoplastic substance generally of high molecular-weight hydrocarbons or high molecular-weight esters of fatty acids or alcohols, except glycerol and high polymers (plastics) . Wax includes, but is not limited to, substances derived from the secretions of plants and animals such as carnuba wax and beeswax, substances of a mineral origin such as ozocerite and paraffin, and synthetic polymers such as polyethylene. Wood floor wax -Wax-based products for use solely on wood floors. sec.115.610. Applicability. Except as provided in s115.617 of this title (relating to Exemptions), this subchapter shall apply to any person who sells, offers for sale, supplies, distributes, or manufactures consumer products for use in the State of Texas. sec.115.612. Control Requirements. (a) Volatile Organic Compound (VOC) content limits are as follows: (1) Except as provided in sec.115.617 of this title (relating to Exemptions), sec.115.614 of this title (relating to Innovative Products), and sec.115.613 of this title (relating to Alternate Control Requirements), no person shall sell, supply, offer for sale, distribute, or manufacture for use in Texas any consumer product which was manufactured after January 1, 1995, (January 1, 1996 for Nail Polish Removers, and Glass Cleaners -All Other Forms) and contains VOC in excess of the limits specified in Table III. [graphic] (2) Except as provided in sec.115.617 of this title, sec.115.614 of this title, and sec.115.613 of this title, no person shall sell, supply, offer for sale, distribute, or manufacture for use in Texas any antiperspirant or deodorant which was manufactured after January 1, 1995 and contains high volatility organic compounds (HVOC) in excess of the limits specified in Table IV. [graphic] (b) Notwithstanding the provisions of subsection (a) of this section, a consumer product manufactured prior to January 1, 1995 or other specified date and not complying with the standards listed in Tables III and IV may be sold, supplied, distributed, and offered for sale until November 15, 1996, and not thereafter. (c) For consumer products for which the label, packaging, or accompanying literature specifically states that the product should be diluted prior to use, the limits specified in subsection (a) of this section shall apply to the product only after the minimum recommended dilution has taken place. For purposes of this subsection, the minimum recommended dilution shall not include recommendations for incidental use of a concentrated product to deal with limited special applications such as hard-to-remove soils or stains. (d) The provisions of Tables III and IV shall not apply to a consumer product manufactured prior to the effective date stated in subsection (a) of this section. (e) Notwithstanding the definition of product category in sec.115.600 of this title (relating to Definitions), if anywhere on the principal display panel of any consumer product, any representation is made that the product may be used as, or is suitable for use as a consumer product for which a lower VOC standard is specified in sec.115.612 of this title (relating to Control Requirements), then the lowest VOC standard shall apply. This requirement does not apply to general purpose cleaners. (f) For consumer products that are registered under the Federal Insecticide, Fungicide, and Rodenticide Act, (FIFRA; 7 United States Code, sec.sec.136-136y), the effective date of the VOC standards is one year after the date specified in subsection (a) of this section. (g) The requirements for charcoal lighter material are as follows. (1) No person shall sell for use in Texas any charcoal lighter material which was manufactured after January 1, 1995 that emits greater than 0.020 pounds of VOC per start when used in accordance with the directions on the label of the product. Emissions are determined using the procedures specified in the South Coast Air Quality Management District Rule 1174 Ignition Method Compliance Certification Protocol, dated February 27, 1991, or other methods which are approved by the Executive Director and are shown to provide equivalent results. (2) Charcoal lighter materials' labels and accompanying literature shall clearly show usage directions for the product. For liquid charcoal lighter materials, the directions shall accurately reflect the required quantity of charcoal lighter material per pound of charcoal. (3) Records of emission testing results, physical property data, formulation data, and other information for use in determining compliance with the requirements of this subsection for all charcoal lighter materials must be made available to the Executive Director within 30 days of receipt of such requests. (4) Notwithstanding any other provision of this subsection, charcoal lighter material products manufactured prior to January 1, 1995, and not complying with the standards of this subsection may be sold, distributed, supplied, and offered for sale until November 15, 1996, and not thereafter. (h) The requirements of subsection (a)(1) of this section do not apply to automotive windshield washer fluids that are contained in motor vehicles at the time of initial sale. sec.115.613. Alternate Control Requirements. (a) For all persons affected by this undesignated head, any alternate methods of demonstrating and documenting continuous compliance with the applicable control requirements or exemption criteria in this section may be approved by the Executive Director in accordance with sec.115.910 of this title (relating to Alternate Means of Control) if emission reductions are demonstrated to be substantially equivalent or greater. (b) The Executive Director may exempt a consumer product from the requirements of sec.115.612(a) of this title (relating to Control Requirements) if a manufacturer obtains a variance pursuant to appropriate California Air Resources Board (CARB) regulations, unless the CARB variance is revoked. The following procedures are applicable: (1) A manufacturer shall apply in writing to the Executive Director for any variance claimed under this subsection. The application shall include the supporting documentation that demonstrates that the product has been granted a variance pursuant to CARB regulations, and shall include documentation showing the terms and conditions of the CARB variance. (2) Within 30 days of receipt of a variance application, the Executive Director shall determine whether an application is complete. (3) Within 90 days after an application has been deemed complete, the Executive Director shall determine whether, under what conditions, and to what extent, a variance from the requirements of sec.115.612(a) of this title will be permitted. The Executive Director shall notify the applicant of the decision in writing, and shall specify the terms and conditions of the approved variance. (4) For any product for which a variance has been granted pursuant to this subsection, the manufacturer shall notify the Executive Director in writing within 30 days of any changes in the product formulation or terms and conditions of the corresponding CARB variance. The Executive Director shall determine what, if any, changes to the variance are needed, and shall notify the manufacturer of the decision in writing. (5) If volatile organic compounds (VOC) standards are lowered for a product category through any subsequent rulemaking in Texas, all variances granted for products in the product category shall have no force and effect as of the effective date of the modified VOC standard. (c) Any person who cannot comply with the requirements set forth in sec.115.612(a) because of extraordinary reasons beyond the person's reasonable control may apply in writing to the Executive Director for a variance. (1) The variance shall be processed in accordance with sec.103.11 of this title (relating to Types of Hearings). Information submitted to the Executive Director by a variance applicant may be claimed as confidential, and if so claimed, shall be protected from public disclosure to the extent allowed under the Texas Open Records Act. (2) In considering whether to grant a variance from this rule, the Executive Director shall consider the facts and circumstances bearing on the reasonableness of a product's emissions, including: (A) the character and degree of injury to or interference with the public's health and physical property associated with product emissions when used for its intended purpose; (B) the product's social and economic value; (C) the technical practicability and economic reasonableness of reducing the emissions resulting from the product; and (D) the total emissions arising from use of the product. (3) Any variance order shall specify terms and conditions, a date by which final compliance with its terms and conditions will occur, and may contain a condition that specifies increments of progress to assure timely compliance. (4) A variance shall cease to be effective upon failure of the party to whom the variance was granted to comply with any substantive term or condition of the variance. (5) If VOC standards are lowered for a product category through any subsequent rulemaking, all variances granted for products in the product category shall have no force and effect as of the effective date of the modified VOC standard. (6) Upon the application of any person, the Executive Director may review, and for good cause, modify or revoke a variance after holding a public hearing in accordance with sec.103.31 of this title (relating to Calling the Hearing) and sec.103.33 of this title (relating to Action on Request for a Hearing). sec.115.614. Innovative Products. (a) The Executive Director shall exempt a consumer product from the requirements of sec.115.612(a) of this title (relating to Control Requirements) if a manufacturer demonstrates that, due to some characteristics of the product formulation, design, delivery systems, or other factors, the use of the product will result in equal or less volatile organic compounds (VOC) emissions as compared to: (1) The VOC emissions from a representative consumer product which complies with the VOC standards specified in s115.612(a); or (2) The calculated VOC emissions from a noncomplying representative product, if the product had been reformulated to comply with the VOC standards specified in sec.115.612(a). VOC emissions shall be calculated using the following equation: [graphic]
                                                      If a manufacturer demonstrates that this equation yields inaccurate results due to some characteristics of the product formulation or other factors, an alternative method which accurately calculates emissions may be used upon approval of the Executive Director. (b) For the purposes of this section a representative consumer product is: (1) one which is subject to the same VOC limit in s115.612(a) as the innovative product; (2) which is of the same product form, unless the innovative product uses a form which was non-existent in the product category on the effective date of the standards specified in sec.115.612(a); and (3) which has at least similar efficacy as other consumer products in the same category based on generally accepted tests for that category. (c) A manufacturer shall apply in writing to the Executive Director for any exemption claimed under this section. The application shall include the supporting documentation that demonstrates the emissions from the innovative product, including the actual physical test methods used to generate the data and, if necessary, the consumer testing undertaken to document product usage. In addition, the applicant must provide any information necessary to enable the Executive Director to establish enforceable conditions for granting the exception including the VOC content for the innovative product, and test methods for determining the VOC content. Information submitted to the Commission by a variance applicant may be claimed as confidential, and if so claimed, shall be protected from public disclosure to the extent allowed under the Texas Open Records Act. (d) Within 30 days of receipt of the exemption application the Executive Director shall determine whether an application is complete. (e) Within 90 days after an application has been deemed complete, the Executive Director shall determine whether, under what conditions, and to what extent, an exemption from the requirements of sec.115.612(a) will be permitted. The applicant and the Executive Director may mutually agree to a longer time- period for reaching a decision, and additional supporting documentation may be submitted by the applicant before a decision has been reached. The Executive Director shall notify the applicant of the decision in writing and specify such terms and conditions that are necessary to insure that emissions from the product will meet the emissions reductions specified in subsection (a) of this section, that such emissions reductions can be enforced. If an applicant has been granted an exemption for an innovative product by another state or federal agency whose criteria for exemption meet or exceed those provided for in subsection (a) of this section, the applicant may submit such an exemption as part of the application under this section in lieu of the information required by subsection (c) of this section. In such a case, the Executive Director shall make its determination under this subsection within 45 days after the application has been deemed complete. (f) In granting an exemption for a product, the Executive Director shall establish conditions that are enforceable. These conditions may include the VOC content of the innovative product, dispensing rates, application rates, and any other parameters determined by the Executive Director to be necessary. The Executive Director shall also specify the test methods for determining conformance to the conditions established. The test methods shall include criteria for reproducibility, accuracy, sampling, and laboratory procedures. (g) For any product for which an exemption has been granted pursuant to this section, the manufacturer shall notify the Executive Director in writing no less than 30 days prior to any change in the product formulation or recommended product usage directions, and shall also notify the Executive Director within 30 days if the manufacturer learns of any information which would alter the emissions estimates submitted to the Executive Director in support of the exemption application. Innovative product exemptions granted for products under subsection (f) of this section shall have no force and effect as of the date of notification if any change is made which alters emissions estimates submitted to the Executive Director pursuant to subsection (c) of this section. (h) If VOC standards are lowered for a product category through any subsequent rulemaking, all innovative product exemptions granted for products in the product category, except as provided in this subsection, shall have no force and effect as of the effective date of the modified VOC standard. This subsection shall not apply to innovative products which have VOC emissions less than representative products using the new VOC standard, for which a written notification of the product's emissions status versus the lowered VOC standard has been submitted to the Executive Director before the effective date of such standard, or to products manufactured prior to the effective date of the modified standard under a valid innovative product exemption. (i) If the Executive Director believes that a consumer product for which an exemption has been granted no longer meets the criteria for an innovative product specified in subsection (a) of this section, the Executive Director may modify or revoke the exemption as necessary to assure that the product will meet these criteria. The Executive Director shall not modify or revoke an exemption without first affording the applicant an opportunity for a public hearing in accordance with sec.103.31 of this title (relating to Calling the Hearing) to determine if the exemption should be modified or revoked. (j) Any person affected by decisions of the Executive Director pursuant to subsection (e) of this section may appeal to the Commission by filing written notice of appeal with the Executive Director within 30 days after the decision. Such appeal is to be taken by written notification to the Executive Director. Section 103.71 of this title (relating to Request for Action by the Commission) should be consulted for the method of requesting Commission action on the appeal. sec.115.615. Testing Requirements. (a) Testing to determine compliance with the requirements of this subchapter shall be performed using methods which are shown to accurately determine the concentration of volatile organic compounds (VOCs) in a subject product or its emissions. (b) Testing to determine compliance with the requirements of this subchapter may alternatively be demonstrated through calculation of the VOC content from records of amounts of constituents used to manufacture the product. Compliance determination based on these records may not be used unless the manufacturer of a consumer product keeps accurate and updated records of production of the amount and chemical composition of the individual product constituents. These records must be kept for at least three years. (c) Testing to determine whether a product is a liquid or solid shall be performed using American Society for Testing and Materials (ASTM) D4359-90 (May 25, 1990), which is incorporated by reference herein. (d) Testing to determine distillation points of petroleum distillate-based charcoal lighter materials shall be performed using ASTM D86-90 (September 28, 1990), which is incorporated by reference herein. (e) Testing to determine compliance with the requirements for charcoal lighter material shall be performed using the procedures specified in the South Coast Air Quality Management District Rule 1174 Ignition Method Compliance Certification Protocol (February 28, 1991) , which is incorporated by reference herein, or other methods which are approved by the Executive Director and are shown to provide equivalent results. sec.115.616. Recordkeeping and Reporting Requirements. (a) Each manufacturer of a consumer product subject to sec.115.612 of this title (relating to Control Requirements) shall clearly display on each consumer product container or package, the day, month, and year on which the product was manufactured, or a code indicating such date. This date or code shall be displayed on each consumer product container or package which is manufactured after January 1, 1995. The requirements of this provision shall not apply to products which are offered to consumers free of charge for the purpose of sampling the product. (b) If a manufacturer uses a code indicating the date of manufacture for any consumer product subject to sec.115. 612 of this title, an explanation of the code must be filed with the Executive Director no later than November 15, 1996. (c) Records of product volatile organic compounds (VOC) content, based upon testing or chemical composition records as set forth in sec.115.615 of this title (relating to Testing Requirements), must be made available to the Executive Director within 30 days of receipt of such requests. Information submitted in response to such requests may be claimed as confidential, and if so claimed shall be protected from public disclosure to the extent allowed under the Texas Open Records Act. (d) On or before January 1, 1996, and no later than July 1 of each second year thereafter, each manufacturer subject to sec.115.612(a)(2) of this title shall submit to the Executive Director a written report. Information submitted pursuant to this subsection may be claimed as confidential, and if so claimed shall be protected from public disclosure to the extent allowed under the Texas Open Records Act. The report shall include the following information: (1) the brand name for each antiperspirant and deodorant product; (2) the owner of the trademark or brand name; (3) the product forms; (4) the annual sales in Texas in pounds per year and the method used to calculate annual sales; (5) the total VOC content in percent by weight which: (A) has a vapor pressure of 2.0 millimeters mercury (mm Hg) or less at 20 degrees Centigrade; or (B) consists of 10 carbon atoms, if the vapor pressure is unknown; (6) the total HVOC and MVOC content in percent by weight. sec.115.617. Exemptions. (a) This rule shall not apply to any consumer product manufactured in Texas for shipment and use outside of Texas. (b) The provisions of this rule shall not apply to a manufacturer or distributor who sells, supplies, or offers for sale in Texas a consumer product that does not comply with the volatile organic compounds (VOC) standards specified in sec.115.612 of this title (relating to Control Requirements), as long as the manufacturer or distributor can demonstrate that the consumer product is intended for shipment and use outside of Texas, and that the manufacturer or distributor has taken reasonable prudent precautions to assure that the consumer product is not distributed in Texas. This subsection does not apply to consumer products that are sold, supplied, or offered for sale by any person to retail outlets in Texas. (c) The requirements of sec.115.612(a) shall not apply to products and colorants up to a combined level of 2.0% VOC by weight contained in any consumer product. (d) The requirements of sec.115.612(a)(1) shall not apply to any VOC that: (1) contains more than 12 carbon atoms per molecule, and for which the vapor pressure is unknown; (2) has a vapor pressure of 0.1 millimeter mercury (mm Hg) or less at 20 degrees Celsius; or (3) has a melting point higher than 20 degrees Celsius and does not sublime (i.e., does not change directly from a solid into a gas without melting), if the vapor pressure is unknown. (e) The requirements of sec.115.612(a)(2) shall not apply to any VOC that: (1) contains more than 10 carbon atoms per molecule, and for which the vapor pressure is unknown; or (2) has a vapor pressure of 2 mm Hg or less at 20 degrees Celsius. (f) The requirements of sec.115.616(b) of this title (relating to Recordkeeping Requirements) shall not apply to consumer products registered under the Federal Insecticide, Fungicide, and Rodenticide Act, (FIFRA; 7 United States Code, sec.136/136y). (g) The requirements of sec.115.612(a) of this title shall not apply to air fresheners and insecticides containing at least 98% paradichlorobenzene. (h) The requirements of sec.115.612(a) of this title shall not apply to adhesives sold in containers of one fluid ounce or less. (i) The requirements of sec.115.612(a) of this title shall not apply to bait- station insecticides. For the purpose of this section, bait station insecticides are containers enclosing an insecticidal bait that is not more than 0.5 ounce by weight, where the bait is designed to be ingested by insects and is composed of solid material feeding stimulants with less than 5. 0% active ingredients. (j) The requirements of sec.115.612(a) of this title shall not apply to air fresheners that are comprised entirely of fragrance, less compounds not defined as VOC under sec.115.10 of this title (relating to Definitions) or exempted under subsection (d) of this section. sec.115.619. Counties and Compliance Schedules. All affected persons within the State of Texas shall be in compliance with the requirements of this undesignated head as soon as practicable, but in any case no later than the dates specified in sec.115.612 of this title (relating to Control Requirements), sec.115.613 of this title (relating to Alternate Control Requirements), sec.115.614 of this title (relating to Innovative Products), and s115.617 of this title (relating to Exemptions). 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 December 17, 1993. TRD-9334029 Mary Ruth Holder Director, Legal Division Texas Natural Resource Conservation Commission Proposed date of adoption: May 15, 1994 For further information, please call: (512) 463-8159 30 TAC sec.sec.115.612-115.615, 115.617, 115.619 (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 Texas Natural Resource Conservation Commission or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The repeals are proposed under the Texas Health and Safety Code, the Texas Clean Air Act (TCAA), sec.382.017, which provides the Texas Natural Resource Conservation Commission with the authority to adopt rules consistent with the policy and purposes of the TCAA. sec.115.612. Control Requirements. sec.115.613. Alternate Control Requirements. sec.115.614. Inspection Requirements. sec.115.615. Testing Requirements. sec.115.617. Exemptions. sec.115.619. Counties and Compliance Schedules. 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 December 17, 1993. TRD-9334101 Mary Ruth Holder Director, Legal Division Texas Natural Resource Conservation Commission Proposed date of adoption: May 15, 1994 For further information, please call: (512) 463-8159 Chapter 325. Certificates of Competency 30 TAC sec.sec.325.2, 325.3, 325.5, 325.6, 325.11, 325.15 The Texas Natural Resource Conservation Commission (Commission) proposes amendments to sec.sec.325.2, 325.3, 325.5, 325.6, 325.11, and 325.15, concerning the evaluation of work experience towards wastewater operator certification, the payment of an application fee instead of an issuance fee for certification, options for enforcement actions taken by the executive director and commission, and the payment of an application fee for perpetual certification. These amendments are proposed in order to implement certain provisions of the Texas Water Code, sec.26.0301, which went into effect September 1, 1987. These amendments are proposed in order to delineate eligibility requirements and procedures for those applying for wastewater operator certificates of competency. Section 325.2(d) is amended to reflect qualification requirements for education and years of experience. Section 325.2(e) is amended by deleting the statement that all experience must be actual facility experience and by requiring that at least one-half of a plant operator's total wastewater experience be in actual, "hands-on" treatment plant operation. Section 325.2(g) is amended, though not substantively, by deleting any reference to an implementation date as it appeared in the previous rules. The current sec.325. 2(h) is deleted and replaced by the current sec.325.2(i). Section 325.2(h) is amended to delineate the actual work experience and training needed for the different classes of license as is in the current sec.325.2(i). The current sec.325.2(j) is deleted, which would eliminate the current practice of collecting an issuance fee prior to certification as a treatment plant operator. No text has been changed, just a reserialization of the current sec.325.2(k), (l), (m), and (n). Section 325.3 is amended by deleting the current sec.325.3(g), relating to the practice of collecting an issuance fee prior to certification as a collection system operator. Section 325.3(i) is amended to make it clear that treatment plant operators of specific levels may operate collection systems. No text has been changed, just a reserialization of the current sec.325.3(h), (i), (k), and (l). Section 325.5 is amended to include provisions for an application fee. Section 325.5(a) is amended to delineate that the applicant must correct application deficiencies within 60 days of notification of the deficiency or the application will be considered invalid. Section 325.5(c) establishes that an application fee is to be paid by all applicants. Section 325.5(d) sets the application fee at $20 annually, to be paid prior to issuance of the certificate for the entire term of the certificate. Section 325.5(e) specifies that applications for certificates are valid for one year, that after an initial failure an applicant may retake the exam twice without payment of another fee, and that another application and fee must be submitted after a third failure or after one year of submission, whichever occurs first. Section 325.6(c) is amended by delineating that the basic wastewater course may not be used to renew Class A or Class B certificates. No text has been changed, just a reserialization of the current sec.325.6(c), (d), (e), (f), and (g). Section 325.11(a) dictates that if the executive director believes good cause exists to bring an enforcement action against a wastewater treatment facility operator, he can reprimand the operator, place the operator on probation, or if the circumstances warrant, the Commission may suspend or revoke the operator's certificate. Section 325.11(c) defines suspension of a certificate, the length of suspension, and when a certificate is automatically revoked. Section 325.11(d) delineates the process of reapplying for a certificate once it has been revoked. Section 325.11(e) provides that operators may be subject to administrative penalties for failing to perform adequate process control in the event of permit violations. Section 325.15 is amended by clarifying that perpetual certification is to be issued upon application for renewal and payment of the appropriate fee. Stephen Minick, division of budget and planning, has determined that for the first five years these sections will be in effect, there will be little fiscal implication as a result of enforcement and administration of the sections. There will be a slight increase in revenue to state government, approximately $15,000 annually in each of the fiscal years 1994-1998. There are minor fiscal implications anticipated for local governments, as they will share the impact of this revenue increase with the operators who pay for their own certificates. The actual affect on any one holder of or applicant for an operator certificate is anticipated to be small, and will now be shared by those who do not pass examinations. These sections as proposed are not anticipated to have effects on small businesses except as they relate to certified wastewater operators. The effects on small businesses would be equivalent to those for firms of any size employing such operators. Mr. Minick also has determined that for the first five years these sections as proposed are in effect the public benefit anticipated as a result of enforcement of and compliance with the sections are improvements in the professional certification of operators of wastewater treatment facilities, the management and operation of wastewater facilities and the protection of the quality of the surface water resources of the state. Comments on the proposal may be submitted to Kathy Keils, Staff Attorney, Legal Division, Texas Natural Resource Commission, P.O. Box 13087, Austin, Texas 78711-3087, (512) 463-8069. Comments will be accepted until 5:00 p.m. for a period of 30 days following the date of this publication. The amended sections are proposed under the Texas Water Code, sec.5.103 and sec.5.105, which provides authorization for the Commission to adopt any rules necessary to carry out its powers and duties and to establish policies of the Commission. sec.325.2. Certificates for Wastewater Treatment Plant Operators. (a)-(c) (No change.) (d) The qualification requirements for each class of certificate for treatment plant operators are as follows: [graphic] (e) [Experience must be actual wastewater treatment facility experience and not experience which is non-operational in nature.] Credit for related experience not directly connected with wastewater treatment facility operation, laboratory analyses,
                                                        or maintenance will be approved at a rate of 50% of actual experience and only if the experience involves tasks similar to those required for operation of wastewater treatment facilities. At least one-half of the total experience requirement must be in actual, "hands-on" wastewater treatment plant operation. In no case (except for Class D) shall the amount of actual experience be less than one year. In order for laboratory experience to be applicable at a rate of 100% toward operator certification, the laboratory must be on-site and owned by the permittee such that the laboratory technician consults on a daily basis with operational personnel. (f) (No change.) (g) [(Effective beginning September 1, 1991)] The hours of training which are required in subsection (d) of this section must be in approved courses which include, but are not limited to, the following or their equivalents: (1)-(4) (No change.) [(h) (Effective until September 1, 1991) The hours of training which are required in subsection (d) of this section must be in approved courses which include, but are not limited to, the following: [(1) Class A-wastewater treatment, wastewater collection, laboratory, and management; [(2) Class B-wastewater treatment, wastewater collection, and laboratory; [(3) Class C-basic wastewater operation and either wastewater treatment or wastewater collection; [(4) Class D-basic wastewater operation.] (h)
                                                          [(i)] For treatment plant operators who qualify for Classes A-C with an education of high school or equivalent, one year of college (32 semester hours approved by the executive director) or an additional 40 hours of training credits approved by the executive director may be substituted for either one-half year or
                                                            one year of the experience requirement.
                                                              [; however:] [(1) for Class A certificates, the actual work experience shall not be less than six years; [(2) for Class B certificates, the actual work experience shall not be less than three years; [(3) for Class C certificates, the actual work experience shall not be less than one year.] [(j) In addition to meeting the requirements of subsection (d) of this section, a fee must be paid before a certificate is issued. Applicants will be notified by letter at their last known address when the fee is to be paid. The appropriate fee must be received by the executive director no later than three months after the date of billing, or the application will be considered invalid and must be repeated with re-examination. It is the responsibility of the applicant that the appropriate fee be paid within the three-month period. Fees are $20 annually and the fee for the entire term of the certificate must be paid prior to issuance. A two-year certificate requires a fee of $40, a three-year certificate requires a fee of $60, a five-year certificate requires a fee of $100, and an eight-year certificate requires a fee of $160.] (i)
                                                                [(k)] Subject to revocation or suspension under sec.325.11 of this title (relating to Revocation or Suspension of Certificate), Class A certificates shall be valid for a term of eight years; Class B certificates shall be valid for a term of five years; Class C certificates shall be valid for a term of three years; and Class D certificates shall be valid for a term of two years. Certificates of competency for operators which were issued by the Texas Department of Health prior to August 15, 1985, will remain valid for the terms stated thereon. (j)
                                                                  [(l)] A certified wastewater treatment plant operator may perform all duties relating to the operation and maintenance of both wastewater treatment plants and collection systems and need not hold both types of certificates. (k)
                                                                    [(m)] Training used to meet the requirements of this section for obtaining or renewing wastewater certificates may be granted in areas of training other than those stated in subsections (g) and (h) of this section upon executive director approval of the training material. If the specific course and subject matter are approved, the executive director will determine the number of hours of credit that will be recognized for the course. The executive director shall review and approve the qualifications for all instructors of the training courses. Two hours of training credit will be recognized for verified attendance at the monthly Texas Water Utilities Association district meetings when the meetings include a training session related to wastewater utilities. Training credit may also be satisfied by other professional activities, such as publication of articles and teaching training courses, upon approval of the executive director. (l)
                                                                      [(n)] Operators of domestic wastewater treatment facilities owned and located on industrial sites which are regulated by industrial-type wastewater disposal permits are required to be certified only if the point of discharge is separate from any other industrial outfalls and the domestic wastewater is not commingled with other industrial wastewater prior to discharge. sec.325.3. [(Effective beginning June 1, 1990) -] Certificates for Collection System Operators. (a)-(f) (No change.) [(g) In addition to meeting the requirements of subsection (c) of this section, a fee must be paid before a certificate is issued. Applicants will be notified by letter at their last known address when the fee is to be paid. The appropriate fee must be received by the executive director no later than three months after the date of billing, or the application will be considered invalid and must be repeated with re-examination. It is the responsibility of the applicant that the appropriate fee be paid within the three-month period. Fees are $20 annually and the fee for the entire term of the certificate must be paid prior to issuance. A two-year certificate requires a fee of $40, and a three- year certificate requires a fee of $60.] (g)
                                                                        [(h)] Terms of Certificates for Collection System Operators. Subject to revocation or suspension under sec.325.11 of this title (relating to Revocation or Suspension of Certificate), Class I certificates shall be valid for a term of two years; and Class II certificates shall be valid for a term of three years. (h)
                                                                          [(i)] Ordinarily, collection systems are considered as a part of the treatment works and are under the operation and supervision of certified wastewater treatment plant personnel; however, in those instances where an entity does not own the treatment facility treating its wastewater and the wastewater is routed elsewhere for treatment or the responsibility for operation and maintenance of the collection system is distinctly separated from the wastewater treatment facility, the operators in the collection system may be certified solely as collection system operators and are not required to be certified as wastewater treatment plant operators. In those cases, the collection system shall be classified as Category I if it transports daily average flows of less than 100,000 gpd, and as Category II if it transports daily average flows of 100,000 gpd or greater. (i)
                                                                            [(j)] Each classified wastewater collection system shall have at least one operator who holds a certification commensurate with that category of system. Each Category I system shall have at least one operator with either
                                                                              a Class I or Class II certificate or treatment plant operator's certificate.
                                                                                Each Category II system shall have at least one operator with a Class II certificate or Class C treatment plant operator's certificate. (j)
                                                                                  [(k)] A certified collection system operator may perform only those duties relating to the operation and maintenance of collection systems. Experience exclusively in collection system operation and maintenance is not applicable towards certification as a treatment plant operator. (k)
                                                                                    [(l)] Training used to meet the requirements for obtaining or renewing collection system operator certificates may be granted in areas of training other than those stated in subsection (e) of this section upon executive director approval of the training material. If the specific course and subject are approved, the executive director will determine the number of hours of credit that will be recognized for the course. The executive director shall review and approve the qualifications for all instructors of the training courses. Two hours of training credit will be recognized for verified attendance at the monthly Texas Water Utilities Association district meetings when the meetings include a training session related to wastewater utilities. sec.325.5. Applications and Fees. (a) Applications for certificates of competency for wastewater treatment plant and collection system operators shall be made to the executive director, who is authorized by the commission to issue the certificates of competency for the commission. Applications shall be completed in full, and the applicant shall be mailed notification of any deficiencies by the executive director. All deficiencies shall be corrected within 60 days of notification, or the [application and] examination will be considered invalid and must be repeated. (b) (No change.) (c) Applications for new, renewed, or upgraded certificates shall be accompanied by a fee in the form of a personal check, cashier's check, or money order. Cash cannot be accepted for payment of fees. All fees shall be made payable to the Texas Natural Resource Conservation Commission and are nonrefundable. (d) Fees are $20 annually, and the fee for the entire term of the certificate must be paid prior to issuance. A two-year certificate requires a fee of $40, a three-year certificate requires a fee of $60, a five-year certificate requires a fee of $100, and an eight-year certificate requires a fee of $160. (e) Applications for new and upgraded certificates are valid for a period of one year from their date of receipt at the commission. After an initial failure, examinations may be repeated two times without payment of another fee. Another application and fee must be submitted after a third failure or after one year of submission of the application, whichever occurs first. sec.325.6. Renewal of Operator Certificates. (a)-(b) (No change.) (c) The Basic Wastewater course may not be used to renew Class A or B certificates. (d)
                                                                                      [(c)] Class D certificates are not renewable at any activated sludge type facilities, or trickling filter or RBC facilities with a permitted daily average flow of 100, 000 gallons per day or greater. (e)
                                                                                        [(d)] If the applicant fails to pass the renewal examination with a grade of at least 70%, the applicant must wait a minimum of three months before retaking any renewal examination. To renew a certificate that has been expired for a period of one year or more, the applicant must satisfy the current requirements for training, education, experience, and fees, in addition to taking and passing a renewal examination. (f)
                                                                                          [(e)] Holders of a certificate of competency must notify the executive director of any change in address or employment within ten days from the date the change occurs. (g)
                                                                                            [(f)] Fees for renewal of certificates must be paid prior to renewal of the certificate. Fees are $20 annually and the fee for the entire term of the certificate must be paid prior to renewal. A two-year certificate requires a fee of $40, a three-year certificate requires a fee of $60, a five- year certificate requires a fee of $100, and an eight-year certificate requires a fee of $160. (h)
                                                                                              [(g)] When the certificate of an operator expires while he or she is in full time active military service, the certificate may be renewed without examination upon: (1) proof of military service; (2) proof of the previously held certificate; and (3) payment of the appropriate fee. sec.325.11. Sanctions [Revocation or Suspension of Certificate]. (a) If the executive director believes that good cause exists to bring enforcement action against an operator or wastewater treatment facility operations company
                                                                                                [suspend or revoke the certificate of competency of an individual treatment plant operator or of a wastewater treatment facility operations company], he [shall request the commission to schedule a hearing, after proper notice to the certificate holder, before a hearings examiner or the commission.] may initiate any of the following corrective measures. (1) Reprimand. If after a thorough investigation of the circumstances surrounding the violations, the executive director finds that the operator or wastewater treatment facility operations company was responsible for contributing to the severity of the violations but that formal suspension or revocation proceedings are not warranted, he may reprimand the operator or company in writing by certified mail. The operator or company has an opportunity to consult with the executive director and his staff and present evidence which might refute the allegations. (2) Probation. Alternatively, the executive director may place the operator or company on probation for a period of time not longer than one year, if after investigation, he finds that the operator or company committed an offense that does not warrant suspension or revocation of the certificate but was more serious in nature than an offense deserving of a reprimand. Such probationary status shall serve as a warning to the operator or company and any further violations or offenses shall warrant suspension or revocation proceedings. Notification and rebuttal procedures shall be the same as for suspension or revocation, but the commission shall not be required to hold a formal hearing. (3) Suspend or revoke. The commission may suspend or revoke the certificate of competency if the commission finds that the holder of the certificate was responsible for causing, allowing or permitting a substantial violation of any disposal permit for a wastewater treatment facility, or for falsifying reports or laboratory test results, or for falsifying any information in documents submitted under this chapter, or for other good cause. (b) (No change.) (c) A certificate of competency shall be suspended for a period of one year; however, depending upon the seriousness of the offense(s), the time of suspension may be decreased or increased. Suspension means that the certificate is no longer valid and that the operator is no longer authorized to operate any treatment or collection facilities until the period of suspension is complete. No re-testing is required.
                                                                                                  A certificate is revoked automatically upon a second suspension. At the request of the certificate holder, or for good cause shown, the certificate may be suspended indefinitely by the commission. (d) The holder of a certificate of competency which has been revoked may reapply for a certificate of competency pursuant to this chapter as if applying for the first time, after a period of at least one year from the date of revocation. If a certificate is revoked a second time, the revocation will be permanent. Re-testing is required in order to become re-certified after revocation. (e) Operators are responsible for performing adequate process control of wastewater treatment facilities as described in the various operator training manuals and according to industry standards. Operator performance that results in permit violations may subject the operator to administrative penalties or other sanctions as described in this section. sec.325.15. Perpetual Certificates of Competency. Perpetual certificates of competency issued by the Texas Department of Health prior to September 1, 1985, will be exempt from the certification renewal requirements of this chapter, unless revoked pursuant to sec.325.11 of this title (relating to Revocation or Suspension of Certificate). Upon application for renewal and payment of the appropriate fee
                                                                                                    by an operator and verification of records, an operator who has maintained a valid certificate of competency for 30 years shall retain the certificate in perpetuity. 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 December 31, 1993. TRD-9334124 Mary Ruth Holder Director, Legal Division Texas Natural Resource Conservation Commission Earliest possible date of adoption: February 7, 1994 For further information, please call: (512) 463-8069