ADOPTED RULES An agency may take final action on a section 30 days after a proposal has been published in the Texas Register. The section becomes effective 20 days after the agency files the correct document with the Texas Register, unless a later date is specified or unless a federal statute or regulation requires implementation of the action on shorter notice. If an agency adopts the section without any changes to the proposed text, only the preamble of the notice and statement of legal authority will be published. If an agency adopts the section with changes to the proposed text, the proposal will be republished with the changes. TITLE 4. AGRICULTURE Part I. Texas Department of Agriculture Chapter 5. Quarantines Pink Bollworm Quarantine 4 TAC sec.5.178, sec.5.179 The Texas Department of Agriculture (the department) adopts amendments to sec.5.178 and sec.5.179, concerning the Pink Bollworm Quarantines. Section 5.179 is adopted with changes to the proposed text as published in the December 17, 1993, issue of the Texas Register (18 TexReg 9661). Section 5.178 is adopted without changes and will not be republished. The amendments are adopted to establish procedures for setting zone advisory committees and to specify stalk destruction methods. The change in sec.5.179 is the deletion of the words "turned under" from subsection (a)(5)(A). Comments from producers at the public hearing which was conducted by the department on January 10, 1994, in Pecos, Reeves County, Texas, suggested that the words "turned under" would require them to purchase new equipment to comply with the regulation. The department agrees and has made this change. The amendments are adopted under the Texas Agriculture Code, sec.74.054, which provides the Texas Department of Agriculture with the authority to adopt rules necessary for the control and eradication of the pink bollworm. sec.5.179. Authorized Planting and Stalk Destruction Dates. (a) All cotton plants in any of the quarantine zones set forth in sec.5. 178 of this title (relating to Quarantine Zones) must be planted and mechanically destroyed by the authorized planting and stalk destruction deadlines indicated for each zone. This must be accomplished by shredding or plowing out the plants in such a way as to absolutely prevent further growth and to the point where there are no standing cotton stalks or regrowth. (1)-(4) (No change.) (5) Zone 5. Stalk destruction date: on or before February 1. (A) Destruction shall be accomplished by complete shredding and plowing of stalks. (B) Plowing shall be performed with an implement which dislodges the root and leaves the soil in a ridged and roughened condition. (b)-(c) (No change.) This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on March 25, 1994. TRD-9438146 Dolores Alvarado Hibbs Chief Administrative Law Judge Texas Department of Agriculture Effective date: April 15, 1994 Proposal publication date: December 17, 1993 For further information, please call: (512) 463-7583 TITLE 16. ECONOMIC REGULATIONS Part II. Public Utility Commission of Texas Chapter 23. Substantive Rules Records and Reports 16 TAC sec.23.11 The Public Utility Commission of Texas adopts an amendment to sec.23.11, with changes to the proposed text as published in the September 24, 1993, issue of the Texas Register (18 TexReg 6506). The amendment clarifies certain ambiguities, deletes duplicative items, provides certain filing dates, and simplifies some of the filing requirements. The amendment provides that the annual reports for the preceding calender year shall be filed with the Commission on June 1 of each year; clarifies the filing requirements relating to affiliated interests; clarifies the filing requirements for payment of compensation to parties for legal and administrative matters in Texas; clarifies the filing requirements for other payments, including expenses for legislative matters in Texas; and deletes duplicative requirements for administrative and legislative matters in Texas. Questions with a request for comments were published in the December 11, 1992, issue of the Texas Register (17 TexReg 8711). The proposed amendment to sec.23.11 was published in the September 24, 1993, issue of the Texas Register (18 TexReg 6506). Comments to the proposed amendments were filed by ten parties. The list of respondents includes: Houston Lighting and Power (HL&P), Texas Utilities Electric Company (TU Electric), Texas Electric Cooperatives (TEC), Central Power and Light Company, Southwestern Electric Power Company and West Texas Utilities Company (jointly referred to as the CSW Companies), Gulf State Utilities (GSU), Lower Colorado River Authority (LCRA), Texas Statewide Telephone Cooperative, Inc. (TSTCI), Office of Public Utility Counsel (OPC), Texas-New Mexico Power (TNP), and Southwestern Public Service Company (SPS). An initial recommendation for adoption was submitted to the Commission on January 21, 1994. Comments from TEC and GTE on the initial recommendation of the rule were received on February 7, 1994. The following summarizes the comments of the parties, the issues, and the Commission's response to the comments. TSTCI agrees with the June 1 due date for sec.23.11(f) and (g) reports, as specified in sec.23.11(d)(7), if the reports are to be required. TU Electric agrees that this change is appropriate. The CSW Companies agree with the change to specify a filing date for this subsection. OPC states that the due date of these reports should be consistent with the 100 day-due date of other reports, making this report due on April 10. The Commission rejects OPC arguments for an earlier filing deadline. The Commission proposed a June 1 filing deadline because April is a busy month for utilities, due to the fact that utilities are required to make several filings with the Commission and with Federal agencies. The Commission prefers to give the utilities ample time so that they can file complete and accurate sec.23. 11(f) and (g) reports. The Commission adopts the proposed amendment to the rule as published. TSTCI recommends that sec.23.11(f) be repealed. However, if an annual report is required, TSTCI suggests that the Cost Allocation Manual should be referenced as the location for this information. TU Electric does not particularly oppose this reporting requirement because compliance is not costly. However TU Electric suggests that it could be repealed because the information is included in the Shareholder Annual Reports required to be filed with the Commission under sec.23.11(d)(4), and this information is not pertinent except in the context of a rate case. TEC states that the proposed amendment to this section represents a definite improvement because the current rule is too vague and does not adequately define the utilities' reporting responsibility. TEC supports the proposed amendment to sec.23.11(f). The Commission agrees that some of the information required by sec.23.11(f) is presented in different reports filed with the Commission. However, the filed information is not in the same format or level of detail required by the amendment. Moreover, the limited information referenced by the utilities is scattered in different reports. The Commission believes that the information required by this rule should be available to the public without excessive searching and compiling efforts. TSTCI stated that this information is also found in telephone utility Cost Allocation Manuals, and those manuals should be referenced as the location for this information. The Commission points out that, at present, telephone utilities are not required to file the Cost Allocation Manuals with the Commission. The Commission is currently in the process of a proposed rulemaking regarding the filing of a Cost Allocation Manual with the Commission. However, the rule as proposed would not provide the same level of detail that the Commission is currently seeking in this rule. TU Electric stated that this information is also found in the shareholder annual reports. The annual report however, does not report the information in the same format or level of detail that is required by this subsection. Also, not all utilities are either currently required to file this information or the reports mentioned previously do not apply to all utilities. For these reasons the Commission disagrees with the suggested changes and adopts sec.23. 11(f)(1) of the rule as published. TSTCI's concern with the proposed amendment to sec.23.11(f)(2) is the amount of work required and the cost involved. TSTCI recommends that the proposed amendment be rejected and that the rule be repealed. If an annual report concerning this information is necessary, TSTCI recommends that Schedule VI of the Earnings Monitoring Report should be referenced as the location for this information. TU Electric states that compliance with the interpretation of the current language is not particularly costly, and TU Electric would not oppose the requirement even though the information is not pertinent except in the context of a rate case. However, if the proposed language is intended to detail each and every separate transaction between a utility and its affiliates, TU Electric suggests that compliance will be very costly. TU Electric requests that this rule be repealed. As an alternative, TU Electric requests that the rule be clarified so that compliance will not be unduly costly, by requiring that the information be reported on an annual total basis. TNP states that the proposed amendments are unreasonably burdensome, administratively costly to produce, and duplicative of Schedules G-6, G-6.1, and G-6.2 of the electric utility rate filing package requirements. TNP states that expanding the current reporting requirements to include a complete delineation and/or narrative of each transaction between affiliates is simply an inefficient use of resources and is costly. TNP recommends deleting this onerous reporting requirement, or at a minimum, requiring only a report of affiliates on an annual total basis. The CSW Companies state that it is not clear that the reporting required by the first sentence of (f)(2) is specified by the last two sentences. The CSW Companies also state that the proposed amendment should be changed to make it clear that the contract amount for each cash and non-cash transaction with each affiliated interest is to be reported by total for each affiliate with regard to type of transaction, thereby making it consistent with the requirements for schedule G- 6.1 of the electric utility rate filing package. The Commission disagrees with these comments and believes that the information required by sec.23.11(f)(2) should be provided annually on a per transaction basis. Because the information required by this subsection is in an area that is heavily scrutinized not only by the Commission but also by other interested parties, the Commission believes that each transaction should be reported to provide a sufficient level of information. The assertion that some of this information is duplicative of the information filed in the rate filing package may be true; however, some utilities have never filed a rate filing package with the Commission. Also, utilities generally do not file a rate filing package annually. Finally, the information provided in the Earnings Monitoring Report is not in the same level of detail that this subsection requires. GTE, in response to Staff's initial recommendation, expressed two concerns regarding the proposed amendment to sec.23.11(f)(2). First, the requirement to report "the contract amount" leaves uncertainty as to whether the utility is to file a schedule of contracted rates that were in effect during the reporting period, or a schedule of actual charges whether or not these transactions are covered by an existing written contract. Second, the requirement to report transactions with affiliate interests "by nature of the transaction" gives little guidance as to what level of detail is actually required. In GTE's opinion, the requirement to further categorize the amounts beneath the total amount by affiliate is burdensome, costly and unnecessary. GTE states that such information is available in the Earnings Monitoring Reports, and therefore urges that sec.23.11(f)(2) be repealed. 23.11(f) requires the utilities to reduce to writing any contracts or arrangements it may have with its affiliates. Further, it is implicit that the utilities file complete and accurate reports. It is possible for the contracting parties to devise a myriad of arrangements and contractual scenarios that no rule can address with specificity. Therefore, it becomes essential that the utilities provide a short description of goods and services, and categorize the transactions by affiliated interest and by nature of the transaction as provided in the amendment to accurately report affiliate transactions in a manner that is understandable. In the scenario presented by GTE, it may be appropriate for a utility to describe the affiliate arrangement and provide contracted amounts as well as actual payments to compile an accurate report. The Commission finds GTE's arguments unpersuasive and adopts sec.23.11(f)(2) of the rule as published. TSTCI fails to see the usefulness of the information required by the published sec.23.11(g) of the rule and believes that the request only creates work. TSTCI also believes that this information is of no value except when a utility is requesting a change in its rates. Therefore, TSTCI recommends that this rule be repealed. If the requirement is retained, TSTCI states that the information should be contained in the Earnings Monitoring Report. TU Electric states that compliance with this reporting requirement is costly and serves no useful purpose outside the context of a rate case. However, if this reporting requirement must remain, TU Electric urges that the threshold be increased to $1,000 and that the information be reported on a per transaction basis instead of the proposed $600 threshold per transaction or series of transactions to a single party. TEC supports the establishment of a minimum threshold for reporting compensation. TEC, however, would support a higher threshold amount, such as $2,000, because the cost of most legal and administrative matters is likely to exceed that amount. With a $600 minimum threshold, TEC believes it is likely that virtually every payment of compensation for legal and administrative matters will have to be reported. TEC appreciates the deletion of "legislative matters" from subsection (g) since it is duplicative of subsection (h). The CSW Companies agree with the $600 level for individual payments of compensation to a single party but feel that clarification is needed as to what the Commission is requesting by the "in a series of payments of compensation to a single party totaling more than $600." If it is intended to mean each payment, the CSW Companies request that this be changed to require that only the payee and the total be reported. OPC states that the current rule is patterned after PURA, sec.28(a)(7), which refers to "annual reports showing all payments of compensation . . ." OPC alleges that the proposed amendment is weaker than the statutory provision because the amendment sets a $600 minimum payment before the payment has to be reported. OPC contends that the reporting requirement in the rule can not be weaker than the requirement set out in the statute, and that the Commission should reject the reference to a $600 minimum payment. OPC further states that it does not object to moving the reporting requirement for legislative matters to subsection (h)(4), provided that all payments have to be reported. OPC correctly points out that the published subsection (g) is patterned after PURA, sec.28(a)(7). However, OPC misconstrues the scope of the statutory power granted to the Commission under PURA, sec.28(a) to mean it is a statutory mandate to the Commission to require utilities to report all payments of compensation. Such an interpretation is clearly erroneous. Rather, PURA, sec.28(a) grants the Commission the power to require, at its own discretion, that the utilities file the stated reports. Furthermore, OPC's suggestion is counterproductive in that it would require utilities to produce and report voluminous data to the Commission and consequently dissipate Commission resources by making it difficult for the staff and the public to extract meaningful information. Because the Commission adopts a version of subsection (g), wherein the published subsections (g) and (h) have been consolidated as subsection (g), the Commission's response to other comments on the published subsections (g) and (h) is provided later in this preamble after summary of comments on the published subsection (h). TSTCI recommends that the published sec.23.11(h) of the rule be repealed because the information is currently being provided in summary form on Schedule V of the Earnings Monitoring Report. TU Electric again believes that this rule should be repealed in its entirety because it is not only costly to comply with, but serves no useful purpose to the Commission outside the context of a rate case. However, if this reporting requirement must be retained, TU Electric contends that the $250 threshold should be applied on a per payment basis rather than as an aggregated threshold. SPS states that the proposed amendment of this subsection, relating to legislative advocacy, goes beyond the will of the legislature as expressed in the Ethics Reform Act of 1990. SPS also states that this subsection should not be changed for three reasons: this change will increase paperwork and costs to the utility with no apparent benefit to the Commission; all legislative advocacy expenses are attributed to stockholders and not to the ratepayers and, therefore, serve no useful purpose to the ratemaking process; and the proposed rule change exceeds the requirements set out by the legislature. TEC states that there still appears to be a substantial overlap and duplicative reporting requirements between published subsections (g) and (h)(4). TEC states that the requirement of published subsection (h), for reporting expenditures related to representation before any governmental agency or body, overlaps with that of the published subsection (g), which requires the reporting of compensation for legal and administrative matters. TEC suggests that the proposed rule for the published subsection (h)(4) omit "or any governmental agency or body." The LCRA states that the dollar threshold of $250 in published sec.23.11(h) is too low and suggests that reporting be required for expenditures exceeding $600, the recommended limit in the published sec.23.11(g). TNP states that the proposed amendments to this subsection exceed the reporting boundaries enacted by the Texas legislature in passing the Ethics Reform Act of 1990. Section 305. 024(a)(4) of the Texas Government Code limits reporting to annual expenditures to a single party of $500. TNP, therefore, suggests raising the threshold to $500, or, preferably, deleting this subsection in its entirety. TNP also states that this information provides no useful purpose outside the context of a rate case and that similar information can be found in other reports. Finally, TNP states that the published sec.23.11(h)(4) reporting requirement's inclusion of representation before any governmental body or agency is clearly unnecessary and only serves to further compound the myriad of current reporting requirements. The CSW Companies propose that the threshold amount for this subsection be $600, which would be consistent with published subsection (g), instead of $250. Again, the CSW Companies propose that only the payee and the total amount paid to a single party be reported. The CSW Companies also urge that the information requested in published subsections (h) (1) and (3) not be included, since it is not required in the Commission's rate filing package and provides no beneficial information for earnings monitoring. Finally, the CSW Companies state that published subsection (h)(4), in part, appears to be duplicative of published subsection (g) and, therefore, should be eliminated. OPC states that published subsection (h) implements PURA, sec.30, which refers to reporting "all" expenditures. OPC therefore urges that the rule should not set out a threshold amount before the utility has to provide the detail. OPC contends the rule should track the statute, thus requiring the utility to list the detail of each expenditure. OPC states that the Commission should revise the proposed amendment to this subsection by deleting the following language: "or a series of expenditures made for a single party exceeding $250." OPC also asks the Commission to delete the $50 minimum payment referenced in the current rule. If the Commission retains the $50 minimum or accepts the $250 minimum, OPC urges the Commission to reject the proposed amendment to subsection (h)(4). If the Commission retains any minimum dollar amount for subsection (h), OPC contends that the language that the Commission is proposing to transfer from subsection (g) to subsection (h)(4) should remain in subsection (g). OPC further requests that if the Commission disagrees with OPC's proposals, then, pursuant to sec.2001.003(1)(C) of the Administrative Procedure Act, Texas Government Code Chapter 2001, the Commission should explain the basis for its disagreement. TEC, in response to General Counsel's initial recommendation, stated that it is not clear that the published sec.23.11(h)(4) deals only with legislative advocacy and legislative matters, and expressed concern that the provision might be interpreted to require reporting of all expenditures exceeding $250 for representation before any governmental agency, even though such expenditures have nothing to do with legislative advocacy. TEC stated that in the initial recommendation the General Counsel interpreted the phrase "or any governmental agency or body" to mean that legislative advocacy and/or legislative matters be reported if represented before other governmental agencies or bodies such as FCC, FERC, U.S. Congress, etc. To eliminate the stated confusion, TEC suggested alternative language containing specific references to the U.S. Congress, etc., as a substitute to the published sec.23. 11(h)(4). OPC correctly points out that the published subsection (h) is patterned after PURA, sec.30. However, OPC misconstrues the scope of the statutory power granted to the Commission under PURA, sec.30, to mean it is the Commission's statutory mandate to require utilities to report all of their expenditure. Such an interpretation is clearly erroneous. The Commission interprets PURA, sec.30, as granting the Commission the power to require, at its own discretion, that utilities file the stated reports. Furthermore, OPC's suggestion is counterproductive in that it would require utilities to produce and report voluminous data to the Commission and consequently dissipate Commission resources by making it difficult for the staff and the public to extract meaningful information. A review of the history of the published subsection (h) indicates that the threshold amount of $50 was established in 1976, when the rule was first adopted. The Commission believes that adjusting the threshold amount to $250 is appropriate. Raising this amount to $500 or $600 will substantially diminish the amount and value of the information provided to the Commission and the public. Again, the information that is required to be reported for this published subsection is heavily scrutinized not only by the Commission but also by other interested parties and should therefore, be reported on a per transaction basis to provide an adequate level of information. The Commission agrees that the information in consolidated form is reported in the earnings monitoring report. However, the information is provided on an aggregate basis and not on a per transaction basis. Argument has been raised that this information is provided in the rate filing package. While this is true, not all utilities submit a rate filing package and, in any event, utilities do not file the package annually. The Commission recognizes that the requirements in the published subsection (h)(4) may cause some degree of confusion with the requirements under published subsection (g). The Commission also recognizes difficulties and confusion arising out of two different threshold amounts, one of $600 in the published subsection (g), and the second of $250 in the published subsection (h), along with concerns expressed regarding reporting of legal expenses, "legislative advocacy," "legislative matters," and administrative expenses. Additional confusion appears to arise from difficulty in deciphering filing requirements where the reportable amounts fall between $250 and $600. To obviate these difficulties, the Commission believes that consolidating published subsections (g) and (h) into one subsection, and providing a single threshold amount of $250, would eliminate a substantial degree of the confusion in reporting requirements. The categories defined in published subsections (g) and (h) are now consolidated into subsection (g), and appropriate contextual revisions to the language therein have been made. The consolidated subsection (g) provides for a single threshold amount of $250 for all categories of reports. In addition, paragraphs (4), (5), and (8) of the consolidated subsection (g) are revised to enhance clarity of reporting requirements. The Commission interprets "legislative matters" in paragraph (4) to include "legislative advocacy" and, for clarity, specifically includes language to that effect. The revised language of the consolidated subsection (g) clearly specifies that amounts disbursed for various categories pertain to Texas related matters. Therefore, expenditures relating to legislative matters relating to Texas, incurred anywhere, must be reported. Paragraph (5), relating to representation before any governmental body, now specifically includes municipalities. Reporting under paragraph (8), relating to payments for dues and membership, now requires that the component of such payments relating to paragraph (1)-(7) of this subsection must be identified, if known, following reasonable inquiry by the utility and paid to a trade association, industry group, or other organization formed to advance, or whose activities are or become primarily directed toward advancing, utility interests. The Commission anticipates that this requirement, for identification of the component of the payment relating to paragraphs (1)-(7), may generally be satisfied by enclosing an annual report of the payee (if the required information is contained therein) and making an unambiguous cross-reference to the required information in that enclosed report. The Commission recognizes that not all representation made before the legislature amounts to advocacy of a position. The Commission clarifies that any interaction with the legislature (e.g., serving as an information resource without advocating a position) should be reported under consolidated subsection (g)(4). The Commission also recognizes that representation before an agency need not be "legislative advocacy" or on a "legislative matter" but includes any interaction with a governmental agency or body. The Commission also clarifies that the phrase "or any governmental agency or body" in consolidated subsection (g)(5) refers to such entities anywhere. The Commission further clarifies that no duplication of information need be provided in the General Reports. Should legitimate confusion arise regarding filing of a particular information under one subsection or the other, the utilities may choose to file that information under either subsection, and provide an unambiguous cross reference to the location of such information in other section(s) causing the confusion, if any. The Commission adopts consolidated sec.23.11(g) of the rule. All comments, including those not specifically addressed herein, were fully considered by the Commission. The section is adopted under Texas Civil Statutes, Article, 1446c, sec.16, which provide the Public Utility Commission of Texas with the authority to make and enforce rules reasonably required in the exercise of its powers and jurisdiction. sec.23.11. General Reports. (a)-(c) (No change.) (d) Due dates of reports. All periodic reports must be received by the commission on or before the following due dates unless otherwise specified in this section. (1) monthly reports: 45 days after the end of the reported period; (2) quarterly reports other than shareholder reports: 45 days after the end of the reported period; (3) semi-annual and annual earnings reports: 100 days after the end of the reported period; (4) shareholder annual reports: seven days from the date of mailing the same to shareholders; (5) Securities and Exchange Commission filings: 15 days from the initial filing date with the Securities and Exchange Commission; (6) special or additional reports: as may be prescribed by the commission, and (7) annual reports required by subsections (f) and (g) of this section shall be due June 1 of each year and shall reflect the transactions for the most recent calendar year. (e) (No change.) (f) Relationships with affiliates. Copies of contracts or arrangements between any public utility and any affiliated interest shall be filed with the commission on request. If such contract or arrangement is not in writing, it shall be reduced to writing. The requirements of this subsection are not satisfied by the filing of an earnings report. The following information shall be reported annually: (1) a narrative which details the names of each affiliated interest as defined in sec.23.3 of this title (relating to Definitions), and an organizational chart showing the relationship of each affiliated interest to the utility ; and (2) the contract amount for each cash and non-cash transaction with each affiliated interest including, but not limited to, payments for costs of any goods and services, or any property, right, or thing, or for interest expense. These transactions shall be categorized by affiliated interest and by nature of the transaction. A brief description of each good and service shall be provided by affiliated interest. (g) Payments, compensation, and other expenditures. An annual report shall be filed with the commission providing information for each of the following classes of payments, compensation (other than salary or wages subject to the withholding of federal income tax) and expenditures made relating to matters in Texas, and detailing (by payee) each expenditure (and for the purposes of this rule any series of expenditures) made to a single payee exceeding $250 for: (1) business gifts and entertainment; (2) institutional, consumption-inducing, and other advertising expenses; (3) public relations expenses; (4) legislative matters, including advocacy before any legislative body; (5) representation before any governmental agency or body, including municipalities; (6) legal expenses not accounted for in other categories of this subsection; (7) charitable, civic, religious, and political contributions and donations; (8) all dues or membership fees paid, including an identification of that portion of those dues or membership fees paid to a trade association, industry group, or other organization formed to advance, or whose activities are or become primarily directed toward advancing, utility interests, which relate to activities listed in paragraphs (1)-(7) of this subsection if known following reasonable inquiry by the utility; and (9) other expenses as deemed appropriate by the commission. (h) Gross receipts assessment reporting. All utilities subject to the jurisdiction of the commission shall file a gross receipts assessment report with the state comptroller reflecting those gross receipts subject to the assessment stipulated in the Act on a form prescribed by the state comptroller. These reports shall be required on an annual basis for those companies that have elected to remit their assessment annually and on a quarterly basis for those companies that have elected to remit their assessment quarterly. Such reports and assessments shall be remitted in accordance with the Public Utility Regulatory Act, Article XII, sec.79. (i) Information omitted from reports. The commission may waive the reporting of any information required in those sections if it determines that it is either impractical or unduly burdensome on any utility to furnish the requested information. If any such information is omitted by permission of the commission, a written explanation of the omission must be stated in the report. (j) Special and additional reports. Each utility, including municipally owned utilities, shall report on forms prescribed by the commission special and additional information as requested which relates to the operation of the business of the utility. (k) Service quality reports. Service quality reports shall be submitted quarterly on a form prescribed by the commission. (l) Research and development reports. Research and development reports shall be submitted annually on a form prescribed by the commission. (m) Report amendments. Corrections of reports resulting from new information or errors shall be filed on a form prescribed by the commission. (n) Semi-annual and annual earnings report. Each utility shall report its semi-annual and annual earnings on forms prescribed by the commission as set out in sec.23.12 of this title (relating to Financial Records and Reports). (o) Penalty for refusal to file on time. In addition to penalties prescribed by law, the commission may disallow for rate making purposes the costs related to the activities for which information was requested and not timely filed. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on March 23, 1994. TRD-9438058 John M. Renfrow Secretary Public Utility Commission of Texas Effective date: April 13, 1994 Proposal publication date: September 24, 1993 For further information, please call: (512) 458-0100 Part IX. Texas Lottery Commission Chapter 401. Administration of State Lottery Act Subchapter B. Licensing of Sales Agents 16 TAC sec.sec.401.158, 401.159, 401.205, 401.206 The Texas Lottery Commission adopts amendments to sec. sec.401.158, 401.159, 401.205, and 401.206, with changes to the proposed text as published in the January 7, 1994, issue of the Texas Register (19 TexReg 143). The amendments establish the particular notice procedures to be used in licensing procedures and identify the person within the agency who may initiate an administrative licensing proceeding and, also, who has the authority or delegated authority to make decisions on these matters. The amendments identify the proper 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 clarify that the lottery director is the person who may summarily suspend a sales agent's license. Additionally, the amendments provide that under certain circumstances, the executive director may notify the sales agent of a proposed suspension or revocation of the sales agent's license. Further, the amendments provide that if the applicant or licensee requests a court reporter, the applicant or licensee shall deposit with the commission sufficient funds to cover the cost of the court reporter. Finally, the amendments clarify that motions for extension of the due date for submitting a request for hearing on the proposed denial of an application or proposed suspension or revocation of a license must be directed to the executive director. The Texas Lottery Commission did not receive any comments on the proposed amendments. However, the agency believes that minor changes to the language in the amendments is necessary for clarification. The language references the word "director" and. due to a recent reorganization, the agency believes it is important to clarify that the word "director" means "Lottery Operations Division Director." The amendments are adopted under the Texas Government Code, Title 4, Subtitle E, Chapter 466, sec.466.015, which provides authorization for the commission to adopt all rules necessary to administer the State Lottery Act. sec.401.158. Suspension or Revocation of License. (a) The commission may suspend or revoke any license issued under this subchapter if the commission 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 shall advise the sales agent in writing of the decision to suspend or revoke any of these reasons therefore. In addition, in the event of a license suspension under this section, the director of the Lottery Operations Division shall also advise the licensee of the terms under which the suspended license may be reissued. (b) Without limiting the commission's ability to consider factors listed in sec.401.153(b) of this title as grounds for suspension or revocation of a license issued under this subchapter, the commission may also suspend or revoke a license based on finding any of the following: (1)-(16) (No change.) 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 of the Lottery Operations Division 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 under this title for that purpose, if the director of the Lottery Operations Division 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 (Texas Government Code, sec.466.351); (2) an event occurs that would render the sales agent ineligible for a license under Rule 401.153(b) of this title (relating to Qualifications for License); (3) the sales agent refuses to permit the director of the Lottery Operations Division, the executive director, 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(h) (Texas Government Code, sec.466.014(h)); or (4) the director of the Lottery Operations Division learns the sales agent has failed to disclose information that would, if disclosed, render the sales agent ineligible for a license under sec.401.153(b) of this title. (b) A summary suspension properly commenced under rules adopted by the commission under this title is effective at the time the notice is served. If notice is personally served, the licensee shall immediately surrender the license to the commission or its representative. If notice is served by mail, the licensee shall immediately return the license to the commission. In addition, at the time the licensee is served with notice under this subsection, the licensee may be required by the director of the Lottery Operations Division to surrender to an authorized representative of the Lottery Operations 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 Hearing. (a) Denial of application or suspension or revocation of license. (1) If the director of the Lottery Operations 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 (Texas Government Code sec.466.155), the director 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 of the Lottery Operations Division proposes to deny an application for a license for reasons set out in the State Lottery Act, sec.3.02 (Texas Government Code, sec.466.155), 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 of the Lottery Operations Division 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) The executive director 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 (Texas Government Code, sec.466.155), and will state such 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, (Texas Government Code, sec.466.155), 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 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 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, (Texas Government Code, sec.466. 155) exist. (b) Court reporters and transcripts. (I) If the applicant or licensee requests a court reporter, he shall deposit with the commission 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 licensee 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 or his/her designee, who will grant or deny the motion. (b) (No change.) This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on March 25, 1994. TRD-9438190 Kimberly L. Kiplin General Counsel Texas Lottery Commission Effective date: April 18, 1994 Proposal publication date: January 7, 1994 For further information, please call: (512) 323-3791 Subchapter F. ADA Requirements 16 TAC sec.sec.401.401-401.408 The Texas Lottery Commission adopts new sec.sec.401.401-401.408, concerning ADA requirements, with changes to the proposed text as published in the January 18, 1994, issue of the Texas Register (19 TexReg 318). The sections allow lottery players with disabilities to have access to all locations where lottery tickets are sold. The agency will conduct on-site inspections of each Lottery applicant for compliance with this subchapter prior to granting a permanent license. An agency employee who has completed ADA accessibility training will inspect the retailer's facility. If the agency determines that a lottery licensee or applicant is not in compliance with this subchapter, the licensee or applicant will be so notified and will be given a 60-day period to correct all deficiencies, and failure to do so will lead to the denial of an application for a license or the suspension or revocation of the license. If within this 60-day period, the licensee or applicant has not eliminated the identified deficiencies but has submitted a written request for an extension of time, the agency may grant a 30-day extension for good cause. During a 30-day public comment period beginning January 18, 1994, the agency received written comments from three commenters. The three commenters: Advocacy, Incorporated, Texas Department of Licensing and Regulations, and Diamond Shamrock Refining and Marketing Company, ("Diamond Shamrock") made comments without stating either support or opposition to the proposed new sections. However, as a result of previous meetings and discussions regarding the proposed new sections, the agency believes Advocacy, Incorporated supports the proposed new sections. Advocacy, Incorporated's comments urged the inclusion of references to exclusionary policies throughout the provisions of the new section, as applicable. Generally, this commenter wants the Lottery to require a Lottery licensee or applicant to modify exclusionary policies, to pursue complaints of a retailer's exclusionary policies, and to take disciplinary action against a Lottery licensee or applicant who does not modify its exclusionary policies. The agency does not believe this suggested requirement is necessary to achieve compliance by Lottery retailers with the State Lottery Act's provisions that require a Lottery applicant to certify its compliance with the ADA. Furthermore, the intent of an existing Lottery rule sec.401.158(b)(8) is to ensure all Lottery players. including players with disabilities, are provided courteous assistance by Lottery retailers. Another comment by Advocacy, Incorporated urged the inclusion of a statement like "the ADA applies to the Texas Lottery" in the preamble of new sections. The agency believes the State Lottery Act, (Texas Government Code Chapter 466) applies to the Texas Lottery. More specifically, sec.466.155(f) of the Texas Government Code, which provides that the Lottery "director may not issue a license to an applicant who fails to certify to the director the applicant's compliance with the federal Americans with Disabilities Act of 1990" applies to the Texas Lottery. However, the language suggested by Advocacy, Incorporated is too broad because it does not specify which of the Titles of the ADA apply. Further, at this time, the agency does not agree that Title 2 of the ADA applies to the Lottery retailers' locations, and, is not inclined to include a provision that is broad in its language, and, therefore, ambiguous. Another commenter, the Texas Department of Licensing and Regulation, expressed concerned that while the proposed new sections "may fulfill statutory mandates with regard to language pertaining to the Americans with Disabilities Act, (they) sic point=9.03p set=9.03p do not address the fact that other state and local codes are also applicable." The agency does not agree that it should undertake to inspect its licensees and applicants' locations for compliance with other state and local codes. The agency agrees that it should comply with the provisions of the State Lottery Act, specifically sec.466.155(f); however, to broaden the scope of these new sections, as suggested by this commenter, may exceed the agency's statutory authority. Notwithstanding the agency's position on this issue, the Lottery agrees with the commenter that cooperation and communication with sister agencies regarding this issue is in the best interest of state government and will result in better accessibility for persons with disabilities. Therefore, the agency will undertake to inform its retailers that there may be state and local codes which may be applicable. The third commenter, Diamond Shamrock, suggested changes to certain provisions of the new section designed to ensure consistency with the provisions of the ADA and ADA regulations. Where such provisions of the new sections are inconsistent, the agency will revise the language in the new sections. Specifically, the words "aisles and" are deleted from sec.401.403(b) (4), and the words "providing alternate forms of communications with hearing impaired individuals" are deleted from sec.401.403(b)(8) and replaced with the following: "communicating with a Lottery player with a disability to the best of the ability of the Lottery retailer or the retailer's employee." Also, the commenter makes the same comment with regard to the phrase "communication practice or" contained in sec.401.407(b). The agency agrees with the comment and, as a result, deletes this phrase from sec.401.407(b). Additionally, this commenter suggests that the word "facility" as used in sec.401.406 should be defined using the same definition as contained in the ADA regulations. However, the word "facility" as used in sec.401.406 is "lottery licensed facility" as previously referred to in the same sentence and as defined in sec.401.401, and, is limited to those portions of a public accommodation operated by a Lottery applicant or licensee to the extent used in the conduct of lottery activities. Therefore, the agency does not agree with this comment. Lastly, the commenter urges deletion of sec.401.408(b). This provision allows a complainant who disagrees with the agency's notice of apparent compliance issued to a Lottery retailer or is not satisfied with the suggested modifications to the Lottery retailer's facilities to request an administrative hearing. The commenter believes that the complainant should not have a right to overrule the Lottery Commission's determination and further, that the complainant is not required to follow any criteria or satisfy any burden of proof to show that the suggested modification is not in compliance. Further, the commenter believes the Lottery Commission should retain the authority to determine compliance. The agency agrees with this comment and will delete sec.401.408(b) The new sections are adopted under the Texas Government Code, sec.466.015, which provides the Texas Lottery Commission with authority to promulgate rules and regulations. sec.401.401. Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise. ADA-The Americans with Disabilities Act of 1990 (42 United States Code, sec.sec.12101-12213 and 47 United States Code, sec.225 and sec.611). Applicant-A person who has filed an application for a sales agent's license with the Lottery. Disability-With respect to an individual, a physical or mental impairment that substantially limits one or more of the major life activities of such individual; having had a record of such an impairment; or being regarded as having such an impairment. Lottery licensed facility-A place of public accommodation operated by an applicant/lottery retailer, including all or any portion of buildings, structures, sites, complexes, equipment, walks, passageways, parking lots, or other real or personal property, including the site where the building, property, structure, or equipment is located, to the extent used in the conduct of lottery activities. Lottery retailer -Any person or entity licensed under the State Lottery Act. Readily achievable -Easily accomplished and able to be carried out without much difficulty or expense. In determining whether an action is readily achievable, factors to be considered include: (A) the nature and cost of the action needed under this part; (B) the overall financial resources of the site or sites involved in the action; the number of persons employed at the site; the effect on expenses and resources; legitimate safety requirements that are necessary for safe operation, including crime prevention measures; or the impact otherwise of the action upon the operation of the site; (C) the geographic separateness and the administrative or fiscal relationship of the site or sites in question to any parent corporation or entity; (D) if applicable, the overall financial resources of any parent corporation or entity with respect to the number of its employees; the number, type, and location of its facilities; and (E) if applicable, the type of operation or operations of any parent corporation or entity, including the composition, structure, and functions of the workforce of the parent corporation or entity. Undue burden-Significant difficulty or expense. In determining whether an action would result in an undue burden, factors to be considered include: (A) the nature and cost of the action; (B) the overall financial resources of the site or sites involved in the action; the effect on expenses and resources; legitimate safety requirements that are neeessary for safe operation, including crime prevention measures; or the impact otherwise of the action upon the operation of the site; and (C) if applicable, the overall financial resources of any parent corporation or entity; the overall size of the parent corporation or entity with respect to the number of its employees; and the number, type, and location of facilities. sec.401.402. General Requirements. (a) Prohibition of discrimination. No lottery retailer shall discriminate against any individual on the basis of disability in the full and equal enjoyment of lottery related goods, services, facilities, privileges, advantages, or accommodations of any lottery licensed facility. (b) Integrated accessibility. A lottery licensed facility shall afford lottery related goods, services, facilities, privileges, advantages, and accommodations to any individual with a disability in the most integrated setting appropriate to the needs of the individual. (c) Lottery licensed facility located in private residences. (I) When an applicant/lottery retailer is located in a private residence, the portion of the residence used exclusively as a residence is not covered by this subchapter, but that portion used exclusively in the operation of the lottery licensed facility or that portion used both for the lottery licensed facility and for residential purposes is covered by this subchapter. (2) The portion of the residence covered under paragraph (1) of this subsection extends to those elements used to enter the lottery licensed facility, including the homeowner's front sidewalk, if any, the door or entryway, and hallways; and those portions of the residence, interior or exterior, available to or used by customers or clients, including restrooms. (d) The agency shall inspect the site of each applicant for compliance with this subchapter prior to granting a permanent license. The agency will not grant a permanent license to an applicant who is not in compliance with this subchapter. For purposes of this subsection, the provisions of sec.sec.401.401- 401. 408 of this title (relating to ADA Requirements) apply. (e) The agency shall inspect the site of each lottery retailer for compliance with this subchapter. sec.401.403. Readily Achievable Barrier Removal. (a) General. An applicant/lottery retailer shall remove architectural and communication barriers in a lottery licensed facility, where such removal is readily achievable. (b) Examples. Examples of readily achievable steps to remove barriers include, but are not limited to, the following actions: (1) installing ramps; (2) making curb cuts in sidewalks and entrances; (3) creating designated accessible parking spaces; (4) widening doors; (5) rearranging tables, chairs, vending machines, display racks, and other furniture; (6) installing offset hinges to widen doorways; (7) installing accessible door hardware; and/or (8) modification of certain exclusionary policies such as: (A) allowing service animals to enter the facility; and/or (B) communicating with a Lottery player with a disability to the best of the ability of the Lottery retailer or the retailer's employee. sec.401.404. Priority of ADA Compliance by Lottery Licensees. An applicant/lottery retailer will take readily achievable measures to comply with the barrier removal requirements of this subchapter in accordance with the following order of priorities. (1) First, an applicant/lottery retailer will take measures to provide access to a lottery licensed facility from public sidewalks, parking, or public transportation. These measures include, for example, installing an entrance ramp, widening entrances, and providing accessible parking spaces. (2) Second, an applicant/lottery retailer will take measures to provide access to those areas of a lottery licensed facility where lottery goods and services are made available to the public. (3) Third, an applicant/lottery retailer will take any other reasonable measures necessary to provide access to lottery goods and services. sec.401.405. Alternatives to Barrier Removal. Where an applicant/lottery retailer can demonstrate that barrier removal in its lottery licensed facility is not readily achievable in conjunction with federal guidelines, the applicant/lottery retailer shall make lottery related goods, services, facilities, privileges, advantages, or accommodations available through alternative methods, if those methods are readily achievable. Examples of alternatives to barrier removal include, but are not limited to, the following actions: (1) providing curb service; and/or (2) relocating activities to accessible licensed locations. sec.401.406. Future Alterations to a Lottery Licensed Facility. Any alteration to a lottery licensed facility shall be made so as to ensure that, to the maximum extent feasible, the altered portions of the facility are readily accessible to and usable by individuals with disabilities. sec.401.407. Complaints Relating to Non-Accessibility. (a) The agency will designate a specific employee or group of employees to receive and process all accessibility complaints concerning lottery retailers. Complaints must be in writing and, where possible, submitted on an agency ADA complaint form. As soon as practical, but not later than 30 days after the filing of a complaint each complaint filed with the agency will be investigated by agency personnel who have completed ADA accessibility training developed and administered by the agency, which training shall be based upon the text of the ADA, related rules and regulations promulgated by the federal government, and any technical assistance materials issued by the United States Department of Justice. As soon as practicable but not later than 15 days after the completion of the investigation, a letter of non-compliance will be issued to the lottery retailer/applicant and the complainant that filed the original Texas Lottery Commission Chapter 401. Administration of State Lottery Act complaint, if applicable, the agency determines that the applicant/lottery retailer is not in compliance with this subchapter. Regardless of whether a complaint has been filed, the agency will issue a letter of non-compliance within 15 days after the completion of an onsite inspection of the applicant/lottery retailer's physical location if the agency determines that the applicant/lottery retailer is not in compliance with this subchapter. (b) If the letter of non-compliance shows deficiencies in the accessibility of the applicant/lottery retailer's physical location, the applicant/lottery retailer shall submit a plan to the agency within 30 days of the issuance of the letter of non-compliance. The plan shall describe in detail how the applicant/lottery retailer will achieve compliance with this subchapter within 60 days of the issuance of the letter of non-compliance. The agency may grant the applicant/lottery retailer additional time to submit the plan for good cause. Within ten days of the submission of the plan to the agency, the agency shall notify the applicant/lottery retailer of the agency's acceptance or rejection of the plan, and the reasons for such acceptance or rejection. Readily achievable modifications must be made within 60 days of the date the letter of non-compliance is mailed to the lottery retailer. If within the 60 days, the applicant/lottery retailer has not eliminated the deficiencies cited in the letter of non-compliance, but has submitted a written request for an extension of time, the agency may grant a 30-day extension for good cause. Notice of this extension will be sent to the complainant, if applicable, and the applicant/lottery retailer and any such extension will commence immediately upon expiration of the first 60-day period. (c) If the corrective action taken by the applicant/lottery retailer corrects the deficiencies specified in the letter of non-compliance as originally issued or as later revised or reissued or if the on-site inspection of the applicant/lottery retailer's physical location reveals compliance with this subchapter, the agency will issue a notice of apparent compliance. Until this notice is issued, a complaint will be considered pending. (d) Failure to make readily achievable modifications within the required time period will result in the initiation of proceedings to deny an application for a license or to suspend or revoke the lottery license by the agency pursuant to the procedural requirements of state law. (e) The standards and priorities contained in sec.401.404 of this title (relating to Priority of ADA Compliance by Lottery Licensees) will be utilized by the agency in determining the applicant/lottery retailer's compliance with this subchapter. A license will be suspended if the agency determines that the lottery retailer has made significant progress toward correcting deficiencies listed in the compliance report under the order of priorities contained in sec.401.404 of this title but has not completed readily achievable barrier removal. If the agency determines that the retailer has not made a good faith effort to correct the deficiencies listed in the compliance report, this inaction will result in the revocation of the lottery license for that lottery licensed facility. (f) While proceedings to suspend or revoke a lottery retailer's license are pending pursuant to this subchapter, and until a notice of apparent compliance is issued pursuant to subsection (c) of this section, the agency shall withhold incentive payments from the lottery retailer. In addition, if a license is revoked pursuant to this subchapter, and incentive payments and other privileges have been withheld from the affected retailer pending review of the complaint, the lottery retailer forfeits any claim to such incentive payments or other privileges. sec.401.408. Requests for Hearings. (a) If the agency proposes the denial of an application for a license or the suspension or revocation of a lottery retailer's license pursuant to this subchapter, the agency shall give the applicant/lottery retailer written notice of the time and place of the administrative hearing not later than the 20th day before the date of the hearing. Issues in controversy in the hearing will include, but are not limited to: the letter of non-compliance prepared by the agency, whether the requested modifications arc readily achievable, and whether reasonable substituted modifications will fulfill the requirements of this Chapter. (b) The administrative hearing authorized by this section shall be a contested case as provided by the Administrative Procedure and Texas Register Act and the Commission's Rules of Practice and Procedure, Texas Administrative Code, Title 16, Part IX, Chapter 401. All relevant rules of evidence and time limits established in those rules shall apply to hearings conducted under this subchapter. The scope of judicial review of a decision in a contested case under this subchapter shall be under the substantial evidence rule. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on March 25, 1994. TRD-9438192 Kimberly L. Kiplin General Counsel Texas Lottery Commission Effective date: April 18, 1994 Proposal publication date: January 18, 1994 For further information, please call: (512) 323-3791 TITLE 22. EXAMINING BOARDS Part XVII. Texas State Board of Plumbing Examiners Chapter 361. Administration General Provisions 22 TAC sec.361.1 The Texas State Board of Plumbing Examiners adopts an amendment to sec.361. 1, concerning definitions, without changes to the proposed text as published in the February 1, 1994, issue of the Texas Register (19 TexReg 703). The rule is justified because it will enhance the public health, safety, and welfare by ensuring medical gas systems have been installed in such a manner as to prevent infection and/or to prevent an unintended cross-connection of breathable and lethal gasses. The rule delineates further the permissible tasks a registered apprentice may perform with regard to medical gas systems. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 6243-101, which provide the Texas State Board of Plumbing Examiners with the authority to prescribe, amend, and enforce all rules necessary to carry out the Plumbing License Law. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on March 14, 1994. TRD-9438171 Gilbert Kissling Administrator Texas State Board of Plumbing Examiners Effective date: April 15, 1994 Proposal publication date: February 1, 1994 For further information, please call: (512) 458-2145 Chapter 363. Examinations Qualifications 22 TAC sec.363.1 The Texas State Board of Plumbing Examiners adopts an amendment to sec.363. 1, concerning qualifications, without changes to the proposed text as published in the February 1, 1994, issue of the Texas Register (19 TexReg 703). The rule is justified because it will enhance the public health, safety, and welfare by ensuring each person has access to clean water because of plumbing installed and maintained by well-trained and competent plumbers. The rule requires that an applicant for the journeyman plumber's examination be a registered apprentice. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 6243-101, which provide the Texas State Board of Plumbing Examiners with the authority to prescribe, amend, and enforce all rules necessary to carry out the Plumbing License Law. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on March 14, 1994. TRD-9438170 Gilbert Kissling Administrator Texas State Board of Plumbing Examiners Effective date: April 15, 1994 Proposal publication date: February 1, 1994 For further information, please call: (512) 458-2145 22 TAC sec.363.11 The Texas State Board of Plumbing Examiners adopts an amendment to sec.363. 11, concerning endorsement training programs, without changes to the proposed text as published in the February 1, 1994, issue of the Texas Register (19 TexReg 703). The rule is justified because it will enhance the public health, safety, and welfare by ensuring medical gas training programs are offered equitably across the state such that installers of medical gas piping systems across the state install medical gas piping systems properly to prevent an unintended cross- connection of breathable and lethal gases. The rule authorizes the Board to review no less than once each year medical gas piping installation training programs to ensure the training programs are being provided equitably across the State of Texas. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 6243-101, which provide the Texas State Board of Plumbing Examiners with the authority to prescribe, amend, and enforce all rules necessary to carry out the Plumbing License Law. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on March 14, 1994. TRD-9438169 Gilbert Kissling Administrator Texas State Board of Plumbing Examiners Effective date: April 15, 1994 Proposal publication date: February 1, 1994 For further information, please call: (512) 458-2145 Chapter 365. Licensing License Categories; Description; Scope of Work Permitted 22 TAC sec.365.3 The Texas State Board of Plumbing Examiners adopts an amendment to sec.365. 3, concerning license qualifications, without changes to the proposed text as published in the February 1, 1994, issue of the Texas Register (19 TexReg 704). The rule is justified because it will enhance the public health, safety, and welfare by ensuring each person has equitable access to clean water and appropriate plumbing facilities because of plumbing installed and maintained by well-trained and competent plumbers. The rule requires that an applicant for the journeyman plumber's examination be a registered apprentice, meet certain educational requirements, and meet certain training requirements as verified by either current and/or former employers. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 6243-101, which provide the Texas State Board of Plumbing Examiners with the authority to prescribe, amend, and enforce all rules necessary to carry out the Plumbing License Law. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on March 14, 1994. TRD-9438168 Gilbert Kissling Administrator Texas State Board of Plumbing Examiners Effective date: April 15, 1994 Proposal publication date: February 1, 1994 For further information, please call: (512) 458-2145 22 TAC sec.365.5 The Texas State Board of Plumbing Examiners adopts an amendment to sec.365. 5, concerning renewals, without changes to the proposed text as published in the February 1, 1994, issue of the Texas Register (19 TexReg 704). The rule is justified because it will enhance the public health, safety, and welfare by ensuring each person has access to clean water because of plumbing installed and maintained by well-trained and competent plumbers who will have undergone the mandatory continuing education training before reactivating their journeyman or master licenses. The rule requires any journeyman or master plumber no longer required to have a current license because of retirement or because of employment in an occupation which does not require the journeyman or master plumber license need not comply with the mandatory continuing education requirement and shall have his/her license marked inactive. However, should the individual return to the plumbing trade, he/she must satisfy the mandatory continuing education requirement before the journeyman or master license will be renewed. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 6243-101, which provide the Texas State Board of Plumbing Examiners with the authority to prescribe, amend, and enforce all rules necessary to carry out the Plumbing License Law. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on March 14, 1994. TRD-9438167 Gilbert Kissling Administrator Texas State Board of Plumbing Examiners Effective date: April 15, 1994 Proposal publication date: February 1, 1994 For further information, please call: (512) 458-2145 22 TAC sec.365.11 The Texas State Board of Plumbing Examiners adopts an amendment to sec.365. 11, concerning exemptions, without changes to the proposed text as published in the February 1, 1994, issue of the Texas Register (19 TexReg 705). The rule is justified because it will enhance the public health, safety, and welfare by ensuring each person has access to clean water because of plumbing installed and maintained by well-trained and competent plumbers. The amendment to sec.365.11 is a "cleanup" to make sec.365.11 consistent with sec.363.1 concerning the number of years (two) an individual must have held the journeyman's license before applying for the master plumber's examination and license. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 6243-101, which provide the Texas State Board of Plumbing Examiners with the authority to prescribe, amend, and enforce all rules necessary to carry out the Plumbing License Law. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on March 14, 1994. TRD-9438166 Gilbert Kissling Administrator Texas State Board of Plumbing Examiners Effective date: April 15, 1994 Proposal publication date: February 1, 1994 For further information, please call: (512) 458-2145 Chapter 367. Enforcement General Provisions 22 TAC sec.367.4 The Texas State Board of Plumbing Examiners adopts an amendment to sec.367. 4, concerning display of license, without changes to the proposed text as published in the February 1, 1994, issue of the Texas Register (19 TexReg 705). The rule is justified because it will enhance public assurance that contracted plumbing is installed and maintained by well-trained, competent, and licensed plumbers. The rule requires that each master plumber engaged in plumbing contracting shall display his/her master license number and company name on both sides of all service vehicles used in conjunction with plumbing contracting by the master plumber. The display shall meet certain criteria set forth in the adopted rule. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 6243-101, which provide the Texas State Board of Plumbing Examiners with the authority to prescribe, amend, and enforce all rules necessary to carry out the Plumbing License Law. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on March 14, 1994. TRD-9438165 Gilbert Kissling Administrator Texas State Board of Plumbing Examiners Effective date: April 15, 1994 Proposal publication date: February 1, 1994 For further information, please call: (512) 458-2145 TITLE 25. HEALTH SERVICES Part I. Texas Department of Health Chapter 98. HIV and STD Control Subchapter C. Texas HIV Medication Program General Provisions 25 TAC sec.98. 104, sec.98.105 The Texas Department of Health (department) adopts amendments to existing sec.98.104 and sec.98.105, with changes to the proposed text as published in the February 8, 1994, issue of the Texas Register (19 TexReg 855). The sections implement the provisions of the "Communicable Disease Prevention and Control Act," Health and Safety Code, Chapter 85.063, Subchapter C, concerning the Texas HIV Medication Program. The program assists hospital districts, local health departments, public or nonprofit hospitals and clinics, nonprofit community organizations, and HIV infected individuals in the purchase of medications approved by the board that have been shown to be effective in reducing hospitalizations due to HIV related conditions. Generally, the sections cover eligibility for participation and medication coverage. The amendments expand coverage of the program to include Itraconazole for eligible participants. No comments were received on the proposed amendments. The only change to the final rules is editorial. The amendments are adopted under the Health and Safety Code, sec.85.063, which provides the Texas Board of Health with the authority to adopt rules concerning a Texas HIV Medication Program; and Health and Safety Code, 12.001, which provides the Texas Board of Health with the authority to adopt rules for the performance of every duty imposed by law on the Texas Board of Health, the Texas Department of Health, and the Commissioner of Health. This amendment affects Chapter 85 of the Health and Safety Code. sec.98.104. Medication coverage. The following medications will be provided to each eligible participant. (1)-(14) (No change.) (15) Itraconazole must be provided in increments of 30 capsules not to exceed 90 capsules per month. sec.98.105. Drug specific eligibility criteria. A person is eligible for: (1)-(11) (No change.) (12) Atovaquone for the oral treatment of acute mild to moderate Pneumocystis carinii Pneumonia (PCP) in patients who are intolerant to sulfamethoxozole- trimethoprim (SMZ-TMP); (13) Rifabutin for the prevention of disseminated mycobacterium avium complex disease in patients with a CD4 cell count of 100 or less. The amount to be expended on this drug is up to $100,000, then pending available funding; and (14) Itraconazole for the treatment of Blastomycosis and Histoplasmosis. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on March 28, 1994. TRD-9438205 Susan K. Steeg General Counsel, Office of General Counsel Texas Department of Health Effective date: April 18, 1994 Proposal publication date: February 8, 1994 For further information, please call: (512) 458-7500 TITLE 25. HEALTH SERVICES Part II. Texas Department of Mental Health and Mental Retardation Chapter 401. System Administration Subchapter A. Advisory Committees 25 TAC sec.401.23, sec.401.24 The Texas Department of Mental Health and Mental Retardation (TXMHMR) adopts new sec.401.23 and sec.401.24 of Chapter 401, Subchapter A (relating to Advisory Committees) with changes to the proposed text as published in the January 28, 1994, issue of the Texas Register (19 TexReg 571). The new sections recognize two newly created advisory committees concerning provider/authority roles and alternate uses for the Travis State School. The new sections outline the purpose, tasks, and duration of the committees, which are subject to all other requirements of Chapter 401, Subchapter A, concerning advisory committees. Both sections are revised to extend the lifespan of the respective committees to the end of the biennium (August 31, 1995) although the advisory committees may cease meeting prior to that date. No comments were received regarding adoption of the new sections. The new sections are adopted under the Texas Health and Safety Code, sec.532. 015 (Texas Civil Statutes, Article 5547-202, sec.2.11), which provides the Texas Department of Mental Health and Mental Retardation with broad rulemaking powers. sec.401.23. Advisory Committee on Provider/Authority Roles. (a) The purpose of the Training Development Team is to explore the role of a state mental health and mental retardation authority and to recommend needed changes to ensure that TXMHMR can implement this role in a way which supports the department's vision for the future. (b) Tasks of the Advisory Committee on Provider/Authority Roles include: (1) studying the organization of the TXMHMR service delivery system to identify the key organizational principles which should underlie the role of state mental health or mental retardation organizations and identify issues inherent in implementing this role while simultaneously serving as a provider of services; (2) exploring organizational models (other state mh/mr systems, other service systems) which address these issues; (3) recommending to the Board strategies to delineate and separate these roles; and (4) recommending necessary actions to implement these strategies, including legislation, administrative changes, communication mechanisms, organization of functions, and others. (c) This advisory committee shall be abolished August 31, 1995, unless reauthorized. sec.401.24. Advisory Committee on Alternate Uses for the Travis State School. (a) The purpose of the Advisory Committee on Alternate Uses for the Travis State School is to develop for consideration by the TXMHMR Board recommendations for alternate use of the existing facilities and property at the Travis State School. (b) Tasks of the Advisory Committee on Alternate Uses for the Travis State School include: (1) determining if the proposed use(s) protects and serve the interests of the taxpayers of Texas; (2) assessing the ability of the proposed use(s) to address the community's expressed needs and desires; (3) considering the ability of the proposed use(s) to mitigate the economic impact of the closure upon the local community; (4) assessing the ability of the proposed use(s) to provide the job opportunities for Travis State School employees affected by the closure; (5) assessing the ability of the proposed use(s) to provide meaningful compensation to the department for the property and improvements at the Travis State School, and to enhance the value of any neighboring state-owned property; and (6) addressing other relevant concerns. (c) This advisory committee shall be abolished August 31, 1995, unless reauthorized. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on March 25, 1994. TRD-9438123 Ann K. Utley Chairman Texas Board of Mental Health and Mental Retardation Effective date: April 15, 1994 Proposal publication date: January 28, 1994 For further information, please call: (512) 206-4516 Subchapter B. Interagency Agreements 25 TAC sec.401.53 The Texas Department of Mental Health and Mental Retardation (TXMHMR) adopts the repeal of sec.401.53, concerning the plan for new bed development in the Texas ICF/MR program, without changes to the propsed text as published in the January 7, 1994, issue of the Texas Register (19 TexReg 144). The repeal of the plan for new bed development is 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 plan for new bed development. The plan for long-term care became effective September 1, 1993. No comments were received regarding adoption of the repeal. The repeal of the sections is adopted under the Texas Health and Safety Code, sec.532.015 (Texas Civil Statutes, Article 5547-202, sec.2.11), which provides the Texas Department of Mental Health and Mental Retardation with broad rulemaking powers. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on March 25, 1994. TRD-9438120 Ann K. Utley Chairman Texas Board of Mental Health and Mental Retardation Effective date: April 15, 1994 Proposal publication date: January 7, 1994 For further information, please call: (512) 206-4516 Chapter 407. Internal Facilities Management Construction Bidding Procedures 25 TAC sec.sec.407.51-407.57 The Texas Department of Mental Health and Mental Retardation (TXMHMR) adopts the repeal of sec.sec.407.51-407.57, concerning construction bidding procedures without changes to the proposed textas published in the February 8, 1994, issue of the Texas Register (19 TexReg 883). The sections are repealed to allow for the contemporaneous adoption of new sections which reflect current department procedures and terminology. No comments were received regarding adoption of the repeals. The repeals are adopted under the Texas Health and Safety Code, Title 7, sec.532.015, which provides the Texas Board of Mental Health and Mental Retardation with rulemaking powers. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on March 25, 1994. TRD-9438122 Ann K. Utley Chairman Texas Board of Mental Health and Mental Retardation Effective date: April 15, 1994 Proposal publication date: February 8, 1994 For further information, please call: (512) 206-4670 25 TAC sec.sec.407.51-407.58 The Texas Department of Mental Health and Mental Retardation (TXMHMR) adopts new sec.sec.407.51-407.58, concerning construction bidding procedures. Section 407.56 is adopted with changes to the proposed text as published in the February 8, 1994, issue of the Texas Register (19 TexReg 884). Sections 407.51-407.55 and sec.sec.407.57-407.58 are adopted without changes and will not be republished. Section 407.56 is adopted with changes to the proposed text as published in the February 8, 1994, issue of the Texas Register (19 TexReg 884). The new sections are adopted contemporaneously with the repeal of existing sections concerning the same. The new sections reflect current department procedures and terminology. Language was added to sec.407.56 which requires an affidavit of eligibility to submit bids as required by the Texas Family Code, sec.14.52, to be submitted with all bid proposals. No comments were received regarding adoption of the new sections. The new sections are adopted under the Texas Health and Safety Code, Title 7, sec.532.015, which provides the Texas Board of Mental Health and Mental Retardation with rulemaking powers. sec.407.56. Submitting Bids. (a) A contractor's bid proposal shall be written on the form which is included with the bidding documents provided by the department or the consulting architect or engineer. The bid proposal shall be submitted in a sealed envelope to the announced place before the bids are scheduled to be opened. (b) All bid proposals must include an affidavit of eligibility to submit bids as required by the Texas Family Code, sec.14.52. Failure to submit the required affidavit with the bid proposal will result in the rejection of the bid as non- conforming. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on March 25, 1994. TRD-9438121 Ann K. Utley Chairman Texas Board of Mental Health and Mental Retardation Effective date: April 15, 1994 Proposal publication date: February 8, 1994 For further information, please call: (512) 206-4670 TITLE 30. ENVIRONMENTAL QUALITY Part I. Texas Natural Resource Conservation Commission Chapter 290. Water Hygiene The Texas Natural Resource Conservation Commission (Commission) adopts the repeal of sec.sec.290.1-290.19 and adopts new sec.sec.290.101-290.119, concerning drinking water standards and applicable reporting requirements for public water systems (PWS). The repeals to sec.sec.290.1-290.19 and new sec. sec.290.101, 290. 105, 290.110, 290.111, 290.114, 290.115, 290.116, 290.118, and 290.119 are adopted without changes to the proposed text as published in the January 25, 1994, issue of the Texas Register (19 TexReg 468). Sections 290.102, 290.103, 290.104, 290.106, 290.108, 290.109, 290.112, 290.113, and 290.117 are adopted with changes to the proposed text. The Commission received comment letters from the City of Fort Worth and the City of Dallas. The comment is addressed in this order concerning several sections of the proposal. The commenter noted that the Federal maximum contaminant level (MCL) for Dibromochloropropane is 0.0002 mg/1 rather than 0.002 mg/1 as published. The Commission agrees and has modified sec.290.103 accordingly. The commenter identified a spelling error in sec.290.104. The Commission has corrected the error. 290.106 to the term "reports" that should be "samples". The section has been modified to address the comment. The commenter noted that sec.290.109 identifies certain point and non-point sources of contamination considered when monitoring waivers are granted. Since point source includes spills and leaks of chemicals at or near a water treatment facility, the commenter recommended that "drinking water source" be added to the list. The Commission agrees and has modified the section in several places in response to this comment. The commenter submits that sec.290.111 does not fit within these rules and suggests the section be removed. The commission disagrees. The section sets forth a requirement integral to the regulation of new and upgraded water systems. The commenter questioned the minimum residual disinfection levels found in sec.290.117 and sec.290.119. The commenter recommends the requirements mirror those prescribed by federal regulations. The Commission disagrees. The section sets forth a requirement that assures deactivation or killing of microorganisms within the distribution system and is consistent with good public health practices. The second commenter suggested sec.290.103 be modified to include lead and copper. These contaminants will be addressed in an upcoming comprehensive rulemaking package devoted to these items. The commenter also suggested amending sec.290.103 to allow Commission consideration of supporting national data when reviewing applications for variances and/or exemptions. The Commission believes the current rule allows for consideration of the subject data and no modification to the section is necessary. The commenter suggested sec.290.104 be modified to include a fluoride concentration in the list of daily chemical tests for systems that practice fluoridation. This activity is subject to the jurisdiction of another regulatory body. While report forms may be modified to include fluoride information, regulatory requirements must come from the agency with jurisdiction. The commenter noted a formatting error in sec.290.106 which has been corrected. The commenter suggested sec.290.106 be modified to have the Commission authorize laboratories performing bacteriological analyses to invalidate samples in specified circumstances. The Commission does not believe this change is appropriate or necessary. Laboratories have the authority to invalidate samples in certain circumstances. The commenter questioned whether sec.290.107 was being proposed. Section 290. 107 is being reserved for future use. The commenter suggested including lead and copper monitoring and reporting requirements in sec.290.108. Again, a comprehensive rulemaking package concerning lead and copper and related requirements is under development. The commenter suggests that several subsections in sec.290.108 are out of order. The Commission disagrees and no modification is necessary. The commenter submits that commission approval should not be required as set forth in sec.290.108 in cases where public water systems voluntarily conduct increased monitoring activities. The Commission is not opposed to increased monitoring by the system to be used in internal quality control. However, the rules are specific as to what sampling and analyses can be accepted as official compliance samples. The commenter request clarification of sec.290.110(c)(A) and (B) concerning quarterly sampling. The section has been modified to address the comment. The commenter seeks clarification or definition of "source of supply" in sec.290.113. The commission has replaced the subject phrase with "drinking water supply" to provide clarification. The commenter questioned the range of levels for aluminum in sec.290.113. This regulation is consistent with federal requirements. The commenter questions the fairness of sec.290.114 which requires public water systems to participate in joint monitoring programs with other interconnected water systems. Such monitoring would require a commitment by multiple water systems to act as a single system for such purposes. Utility differences almost always preclude this option. Therefore sec.290.114 has not been modified. The commenter suggests sec.290.117 concerning disinfection be modified to allow a substitute for tracer study data. The commission believes the commenters suggestion limits the use of hydrolic calculations where the existing rules allows greater flexibility. Therefore sec.290.117 has not been modified. Section 290.102 is modified to provide clarity to the definition of human consumption. Section 290.103 is further modified to correct the acronym for polycholorinated biphenyls and to correct the spelling of phthalate. The reference to variance provisions in paragraph (4) has been corrected in sec.290. 103(B)(B)(iii)(I) and sec.290.103(5)(D) has been modified to clarify specific notice content. Section 290.108 is modified to correct a grammatical error and specify the exact period of a compliance cycle as nine years. The conditions which enable a certain system to seek reductions in sampling frequency was inadvertently published in reverse. The section has been modified accordingly. Section 290.109 is modified to reorganize paragraph (6), to correct section references, to make grammatical corrections, to correct typographical errors and to correct references to the regulatory authority. Section 290.112 is modified to make a grammatical correction. Section 290.113 is modified to retitle the section making it more consistent with the requirements within the section and to reformat the table. Section 290.117 is amended in order to be consistent with subsection (a) and to provide a more realistic requirement for reporting of violations. Drinking Water Standards Governing Drinking Water Quality and Reporting Requirements for Public Water Supply Systems 30 TAC sec.sec.290.1-290.19 The repeals are adopted under Texas Water Code, sec.5.103, which provides the commission the authority to adopt and enforce rules necessary to carry out its powers and duties under the laws of this state; and the Texas Health and Safety Code, Chapter 341, Subchapter C, which governs sanitary standards of drinking water, protection of public water supplies, and bodies of water. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on March 24, 1994. TRD-9438134 Mary Ruth Holder Director, Legal Division Texas Natural Resource Conservation Commission Effective date: April 15, 1994 Proposal publication date: January 25, 1994 For further information, please call: (512) 463-8069 30 TAC sec.sec.290.101-290.119 The new sections are adopted under the Texas Water Code, sec.5.103, which provides the commission the authority to adopt and enforce rules necessary to carry out its powers and duties under the laws of this state and the Texas Health and Safety Code, Chapter 341, Subchapter C, which governs sanitary standards of drinking water, protection of public water supplies, and bodies of water. sec.290.102. Definitions. The following definitions shall apply in the interpretation and enforcement of these standards. Approved laboratory -A laboratory certified and approved by the Texas Department of Health to analyze water samples to determine their compliance with maximum allowable constituent levels. Commission-The Texas Natural Resource Conservation Commission. Community water system-A public water system which has a potential to serve at least 15 service connections on a year-round basis or serves at least 25 individuals on a year-round basis. Service connections shall be counted as one for each single family residential unit or each commercial or industrial establishment to which drinking water is supplied from the system. Compliance cycle -The nine-year (calendar year) cycle during which public water systems must monitor. Each compliance cycle consists of three three-year compliance periods. The first calendar-year cycle begins January 1, 1993, and ends December 31, 2001; the second begins January 1, 2002, and ends December 31, 2010; the third begins January 1, 2011, and ends December 31, 2019. Compliance period -A three-year (calendar year) period within a compliance cycle. Each compliance cycle has three three-year compliance periods. Within the first compliance cycle, the first compliance period is called the initial compliance period and runs from January 1, 1993 to December 31, 1995; the second from January 1, 1996 to December 31, 1998; the third from January 1, 1999 to December 31, 2001. Control tests-Chemical, physical or microbiological tests made by the operator of the water system to control the quality or quantity of water served to the public and recorded regularly in the operating records. Drinking water -All water distributed by any agency or individual, public or private, for the purpose of human consumption or which may be used in the preparation of foods or beverages or for the cleaning of any utensil or article used in the course of preparation or consumption of food or beverages for human beings. The term "Drinking Water" shall also include all water supplied for human consumption or used by any institution catering to the public. Entry Point-An is representative of the water from each well after treatment or for surface water systems or a combination of surface and ground water systems; of each source or treatment of treatment. Executive Director -The Executive Director of the Commission. Human consumption -Uses by humans in which water can be ingested into or absorbed by the human body. Examples of these uses include, but are not limited to drinking, cooking, brushing teeth, bathing, washing hands, washing dishes and preparing foods. MCL-Is an acronym for Maximum Contaminant Level. Monthly Reports of Water Works Operations -The daily record of data relating to the operation of the system facilities compiled in a monthly report. Non-community water system-Any public water system which is not a community water system. Non-transient non-community water system or "NTNCWS" -A public water system that is not a community water system and that regularly serves at least 25 of the same persons over six months per year. Public water system-A system for the provision to the public of piped water for human consumption. Such a system must have a potential to serve at least 15 service connections or 25 individuals at least 60 days out of the year. This term includes any collection, treatment, storage, and distribution facilities under control of the operator of such system and used primarily in connection with such system; and any collection or pretreatment storage facilities not under such control which are used primarily in connection with such system. Two or more water systems with each having a potential to serve less than 15 connections or less than 25 individuals but owned by the same person, firm or corporation and located on adjacent land will be considered a public water system when the total potential service connections in the combined systems are 15 or greater or if the total number of individuals served by the combined systems total 25 or more at least 60 days out of the year. Without excluding other meanings of the terms "individual" or "served," an individual shall be deemed to be served by a water system if he resides in, uses as his place of employment, or works in, a place to which drinking water is supplied from the system. A public water system is either a "community water system" or a "noncommunity water system" as defined in this section. Repeat Compliance Period-Any subsequent compliance period after the initial compliance period. Sanitary survey -An on-site review of the water source, facilities, equipment, operation and maintenance of a public water system, for the purpose of evaluating the adequacy for producing and distributing safe drinking water. sec.290.103. Standards of Chemical Quality. All analyses to determine compliance shall be performed by an approved laboratory. Analyses shall be performed on treated water the distribution system except where otherwise stated. (1) Inorganic Chemicals. The maximum contaminant levels for inorganic contaminants listed below apply to community and non-transient, non-community water systems. The maximum contaminant levels for nitrate, nitrite and total nitrate and nitrite also apply to transient non-community water systems. [graphic] (2) Fluoride. Maximum contaminant level for fluoride in community water systems is 4.0 mg/1. Also, see sec.290.113 of this title (relating to Recommended Secondary Constituent Levels Applicable to All Public Water Systems) which establishes a recommended secondary constituent level of 2.0 mg/1. (3) Maximum Contaminant Levels (MCLs) for Organic Compounds. (A) Synthetic Organic Chemicals (SOCs). The following maximum contaminant levels for synthetic organic contaminants apply to community and non-transient, non-community water systems. [graphic] (B) Volatile Organic Chemicals (VOCs). The following maximum contaminant levels for volatile organic contaminants apply to community and non-transient, non-community water systems. [graphic] (4) Variances and exemptions. Variances and exemptions, as defined in subparagraphs (A), (B), and (C) of this paragraph, may be granted at the discretion of the commission. (A) Variance-An exception to one or more of the maximum allowable levels which is necessary because the condition of the system's raw water is such that the maximum allowable level cannot be met despite the application of the best available treatment techniques (taking costs into consideration) subject to the following conditions: (i) the public water system requesting the variance was in operation on the date these standards became effective; (ii) the granting of the variance will not result in an unreasonable risk to public health; (iii) a schedule, including increments of progress, is established to bring the system into compliance with the standard in question. (B) Exemption-Exception to a provision of these standards where, because of compelling factors (which may include economic), the system is unable to comply with a specified allowable level. An exemption may be granted only under the following circumstances: (i) the public water system requesting the exemption was in operation on the date these standards became effective, or for a system that was not in operation by that date, only if no reasonable alternative source of drinking water is available to such new system; (ii) the granting of the exemption will not result in an unreasonable risk to public health; (iii) a schedule is established to bring the system into compliance with the standard in question. (C) Applications for such variances and/or exemptions must be submitted by the water system requesting a variance or exemption and must include the following: (i) a statement of the standard which is not met; (ii) an estimate of the risk involved to public health with supporting evidence from physicians or dentists in the area; (iii) a long range plan for the correction of the problem. This plan or compliance schedule must be submitted within one year following written notification that a variance or exemption has been granted; (iv) a detailed economic evaluation of the current and future situation. (D) A variance or exemption covering a group or class of systems with a common standard which is not met may be issued by the commission without individual application. However, individual compliance schedules will be required for each such system within one year following written notification by the commission that such a variance or exemption has been granted. After receiving notification from the commission that a group or class variance or exemption has been issued to their system, each system must submit the above items in accordance with subparagraph (C)(ii)-(iv) of this paragraph. (E) The commission is required to act upon all requests for variances or exemptions within a reasonable time period, not to exceed 90 days. (F) Procedures for public comment and public hearings on variances, exemptions, and compliance schedules as a condition of a variance or exemption will be as stated in the EPA National Primary Drinking Water Regulations, of 40 Code of Federal Regulations, sec.141.4 and sec.142.20. (5) Public notification requirements. (A) Maximum contaminant level (MCL), treatment technique, and variance and exemption schedule violations. The owner or operator of a public water system which fails to comply with an applicable MCL or treatment technique established by this chapter or which fails to comply with the requirements of any schedule prescribed pursuant to a variance or exemption, shall notify persons served by the system as follows. (i) Except as provided in clause (iii) of this subparagraph, the owner or operator of a public water system must give notice: (I) by publication in a daily newspaper of general circulation in the area served by the system as soon as possible, but in no case later than 14 days after notification from the commission of the violation or failure. If the area served by a public water system is not served by a daily newspaper of general circulation, notice shall instead be given by publication in a weekly newspaper of general circulation serving the area; and (II) by mail delivery (by direct mail or with the water bill), or by hand delivery, not later than 45 days after the violation or failure. The commission may waive mail or hand delivery if it determines that the owner or operator of the public water system in violation has corrected the violation or failure within the 45-day period. The commission must make the waiver in writing and within the 45-day period; and (III) for violations of the MCLs of contaminants that may pose an acute risk to human health, by furnishing a copy of the notice to the radio and television stations serving the area served by the public water system as soon as possible but in no case later than 72 hours after the violation. The following violations are acute violations: (-a-) any violations specified by the commission as posing an acute risk to human health; (-b-) any violation of the MCL for nitrate or nitrite as defined in paragraph (1) of this section and determined according to sec.290.108 of this title. (ii) Except as provided in clause (iii) of this subparagraph, following the initial notice given under clause (i) of this subparagraph, the owner or operator of the public water system must give notice at least once every three months by mail delivery (by direct mail or with the water bill) or by hand delivery, for as long as the violation or failure exists. (iii) Alternate notification requirements shall be as follows. (I) In lieu of the requirements of clause (i)(I) of this subparagraph, the owner or operator of a community water system in an area that is not served by a daily or weekly newspaper of general circulation must give notice by hand delivery or by continuous posting in conspicuous places within the area served by the system. Notice by hand delivery or posting must begin as soon as possible, but no later than 72 hours after the violation or failure for acute violations (as defined in clause (i)(III) of this subparagraph), or 14 days after notification from the commission of the violation or failure (for any other violation). Posting must continue for as long as the violation or failure exists. Notice by hand delivery must be repeated at least every three months for as long as the violation or failure exists. (II) In lieu of the requirements of clause (i) and (ii) of this subparagraph, the owner or operator of a noncommunity water system may give notice by hand delivery or by continuous posting in conspicuous places within the area served by the system. Notice by hand delivery or posting must begin as soon as possible, but no later than 72 hours after the violation or failure for acute violations (as defined in clause (i)(III) if this subparagraph) or 14 days after notification from the commission of the violation or failure (for any other violation). Posting must continue for as long as the violation or failure exists. Notice by hand delivery must be repeated at least every three months for as long as the violation or failure exists. (B) Other violations, variances, exemptions. The owner or operator of a public water system which fails to perform monitoring required by these standards, fails to comply with a testing procedure established by this section, is subject to a variance or exemption granted under paragraph (6) of this section shall notify persons served by the system as follows. (i) Except as provided in clause (iii) of this subparagraph, the owner or operator of a public water system must give notice within three months of the violation or granting of a variance or exemption by publication in a daily newspaper of general circulation in the area served by the system. If the area served by a public water system is not served by a daily newspaper of general circulation, notice shall instead be given by publication in a weekly newspaper of general circulation serving the area. (ii) Except as provided in clause (iii) of this subparagraph, following the initial notice given under clause (i) of this subparagraph, the owner or operator of the public water system must give notice at least once every three months by mail delivery (by direct mail or with the water bill) or by hand delivery, for as long as the violation exists. Repeat notice of the existence of a variance or exemption must be given every three months for as long as the variance or exemption remains in effect. (iii) Alternate notification requirements shall be as follows. (I) In lieu of the requirements of clauses (i) and (ii) of this subparagraph, the owner or operator of a community water system in an area that is not served by a daily or weekly newspaper of general circulation must give notice, within three months of the violation or granting of the variance or exemption, by hand delivery or by continuous posting in conspicuous places with the area served by the system. Posting must continue for as long as the violation exists or a variance or exemption remains in effect. Notice by hand delivery must be repeated at least every three months for as long as the violation exists or a variance or exemption remains in effect. (II) In lieu of the requirements of clauses (i) and (ii) of this subparagraph, the owner or operator of a noncommunity water system may give notice, within three months of the violation or the granting of the variance or exemption, by hand delivery or by continuous posting in conspicuous places within the area served by the system. Posting must continue for as long as the violation exists, or a variance or exemption remains in effect. Notice by hand delivery must be repeated at least every three months for as long as the violation exists or a variance or exemption remains in effect. (C) Notice to new billing units. The owner or operator of a community water system must give a copy of the most recent public notice for any outstanding violation of any maximum contaminant level, or any treatment technique requirement, or any variance or exemption schedule to all new billing units or new hookups prior to or at the time service begins. (D) General content of public notice. Each notice required by this paragraph must provide a clear and readily understandable explanation of the violation, any potential adverse health effects, the population at risk, the steps that the public water system is taking to correct such violation, the necessity for seeking alternative water supplies, if any, and any preventive measures the consumer should take until the violation is corrected. Each notice shall be conspicuous and shall not contain unduly technical language, unduly small print, or similar items that frustrate the purpose of the notice. Each notice shall include the telephone number of the owner, operator, or designee of the public water system as a source of additional information concerning the notice. Where appropriate, the notice shall be multi-lingual. (E) Mandatory health effects language. In complying with subparagraph (D) of this paragraph, the owner or operator of a public water system shall include the language specified for each contaminant in 40 Code of Federal Regulations, sec.141.32 and available from the commission. (F) Proof of public notification. Example copies of all notifications required under this paragraph must be submitted to the commission within ten days of its distribution as proof of public notification. (6) Best available technology (BAT) for treatment of violations of MCL's set in this section are listed in 40 CFR sec.141.61 for organic contaminants and 40 CFR sec.141.62 for inorganic contaminants. sec.290.104. Control Tests. These tests may be conducted by the operator of the system to judge variations in water quality, to identify objectionable water characteristics, and to detect the presence of foreign substances which may adversely affect the potability of the water. These control tests shall be performed in accordance with procedures approved by the commission. Operators of water treatment plants at all public water systems utilizing coagulation, settling, softening or filtration shall perform daily the following: chemical control tests on the filtered water; list results on the Monthly Report of Water Works Operation and copy to the commission after each month of operation. sec.290.106. Bacteriological Monitoring. (a) Routine monitoring. (1) Public water systems must collect routine bacteriological samples at active service connections which are representative of water throughout the distribution system according to a written sample siting plan. Other sampling sites may be used if located adjacent to service connections. These plans are subject to review and revision by the Commission. (2) The bacteriological monitoring frequency for community and noncommunity water systems is based on the population served by the system, in accordance with the following table: [graphic] The population for noncommunity systems will be based on the maximum daily population. (3) The public water system must collect samples at regular time intervals throughout the month, except that a system which uses groundwater (except groundwater under the direct influence of surface water, as described in sec.290.42 of this title (relating to Rules and Regulations for Public Water Systems), and serves 4,900 persons or fewer, may collect all required samples on a single day if they are taken from different sites. (4) Special purpose samples, such as those taken to determine whether disinfection practices are sufficient following pipe placement, replacement, or repair, shall not be used to determine compliance with the MCL for microbiological contaminants. (b) Repeat monitoring. (1) If a routine sample is total coliform-positive, the public water system must collect a set of repeat samples within 24 hours of being notified of the positive result, or as soon as possible if the local laboratory is closed. (A) A system which collects more than one routine sample per month must collect no fewer than three repeat samples for each total coliform-positive sample found. (B) A system which collects one routine sample per month must collect no fewer than four repeat samples for each total coliform-positive sample found. (2) The system must collect at least one repeat sample from the sampling tap where the original total coliform-positive sample was taken, and at least one repeat sample at a tap within five service connections upstream and at least one repeat sample at a tap within five service connections downstream of the original sampling site. If a fourth repeat sample is required, it must be collected within five service connections upstream or downstream. If the positive routine sample was collected at the end of the distribution line, one repeat sample must be collected at that point and all other samples must be collected within five connections upstream of that point. (3) The system must collect all repeat samples on the same day, except that a system with a single service connection may collect daily repeat samples until the required number of repeat samples has been collected. (4) If one or more repeat samples in the set is total coliform-positive, the public water system must collect an additional set of repeat samples in the manner specified in paragraphs (1)-(3) of this subsection. The additional samples must be collected within 24 hours of being notified of the positive result or as soon as possible if the local laboratory is closed. The system must repeat this process until either total coliforms are not detected in one complete set of repeat samples or the system determines that the MCL for total coliforms has been exceeded. (5) If a system collecting fewer than five routine samples per month has one or more total coliform-positive samples and the commission does not invalidate the sample(s) in accordance with subsection (c) of this section, it must collect at least five routine samples during the next month the system provides water to the public. (6) After a system collects a routine sample and before it learns the results of the analysis of that sample, if it collects another routine sample(s) from within five adjacent service connections of the initial sample, and the initial sample, after analysis, is found to contain total coliform bacteria, then the system may count the subsequent sample(s) as a repeat sample instead of as a routine sample. (7) Results of all routine and repeat samples not invalidated by the commission must be included in determining compliance with the MCL for total coliforms in accordance with sec.290.105 of this title (relating to Maximum Bacteriological Contaminant Levels (MCLs) for Microbiological Contaminants). (c) Invalidation of total coliform samples. (1) A total coliform-positive sample invalidated under this subsection does not count towards meeting the minimum monitoring requirements of this section. (2) The commission may invalidate a total coliform-positive sample only if one of the following conditions is met: (A) the laboratory establishes that improper sample analysis caused the total coliform-positive result; (B) the commission, on the basis of the results of repeat samples collected as required by this section, determines that the total coliform-positive sample resulted from a domestic or other nondistribution system plumbing problem. The commission cannot invalidate a sample on the basis of repeat sample results unless all repeat sample(s) collected at the same tap as the original total coliform-positive sample are also total coliform-positive, and all repeat samples collected within five service connections of the original tap are total coliform-negative. Under those circumstances, the system may cease resampling and request that the commission invalidate the sample. The system must provide copies of the routine positive and all repeat samples; or (C) the commission has substantial grounds to believe that a total coliform- positive result is due to a circumstance or condition which does not reflect water quality in the distribution system. In this case, the system must still collect all repeat samples required by this section, and use them to determine compliance with the MCL for total coliforms in sec.290.105 of this title (relating to Maximum Contaminant Levels (MCLs) for Microbiological Contaminants). The system must provide written documentation which must state the specific cause of the total coliform-positive sample, and what action the system has taken, or will take, to correct this problem. The commission may not invalidate a total coliform-positive sample solely on the grounds that all repeat samples are total coliform-negative. (3) If a laboratory invalidates a sample, the system must collect another sample from the same location as the original sample within 24 hours of being notified, or as soon as possible if the laboratory is closed, and have it analyzed for the presence of total coliforms. The system must continue to re- sample within 24 hours and have the samples analyzed until it obtains a valid result. (d) Fecal coliform bacteria/Escherichia coli (E. coli) testing. If any routine or repeat sample is total coliform-positive, that total coliform-positive culture medium will be analyzed to determine if fecal coliforms or E. coli bacteria are present. If fecal coliforms or E. coli are present, the system must notify the commission by the end of the day when the system is notified of the test result, unless the system is notified of the result after the commission office is closed, in which case the system must notify the commission before the end of the next business day. (e) Notification to the Texas Natural Resource Conservation Commission (TNRCC). (1) A public water system which has exceeded the MCL for total coliforms in sec.290.105 of this title (relating to Maximum Contaminant Levels for Microbiological Contaminants) must report the violation to the commission no later than the end of the next business day after it learns of the violation, and notify the public in accordance with sec.290.103(8) of this title (relating to Standards of Chemical Quality). (2) A public water system which has failed to comply with a coliform monitoring requirement must report the monitoring violation to the commission within ten days after the system discovers the violation, and notify the public in accordance with sec.290.103(8) of this title (relating to Standards of Chemical Quality). sec.290.108. Inorganic Chemical Monitoring and Analytical Requirements. Community water systems and non-transient, non-community water systems shall conduct monitoring to determine compliance with the maximum contaminant levels specified in sec.290.103 of this title (relating to Standards of Chemical Quality). Transient, non-community water systems shall conduct monitoring to determine compliance with the nitrate and nitrite maximum contaminant levels in sec.290.103 of this title (relating to Standards of Chemical Quality) (as appropriate) in accordance with this section. (1) Monitoring locations for inorganic constituents other than asbestos shall be determined as follows. (A) Groundwater systems shall take a minimum of one sample at every entry point to the distribution system (hereafter called a sampling point). (B) Surface water systems and systems using a combination of ground water and surface water sources shall take a minimum of one sample at every entry point to the distribution system (hereafter called a sampling point). (C) If a system draws water from more than one source and the sources are combined before distribution, the system must sample at an entry point to the distribution system during periods of normal operating conditions (i.e., when water is representative of all sources being used). (D) Systems shall take subsequent samples at the same sampling points unless conditions make another sampling point more representative of each source or treatment plant. (E) The commission may reduce the total number of samples which must be analyzed by allowing the use of compositing. Composite samples from a maximum of five sampling points are allowed. Compositing of samples must be done in the laboratory or in the field by commission staff. (i) If the concentration in the composite sample is greater than or equal to the proportional contribution of the MCL of any inorganic chemical, then a follow-up sample must be collected within 14 days included in the composite, (i.e., 20% of MCL when These samples must be analyzed for the contaminant(s) which were excessive in the composite sample. Detection limits for each analytical method are as listed in 40 Code of Federal Regulations, sec.141.23(a)(4)(i). (ii) Compositing may be permitted only at ground a single system. (iii) If duplicates of the original sample taken used in the composite are available, the system may use these instead of resampling. The duplicates must be analyzed within 14 days of the composite. (2) The frequency of monitoring to determine compliance with the MCL for asbestos specified in sec.290.103 of this title (relating to Standards of Chemical Quality) shall be as follows. (A) Each community and non-transient, non-community water system not receiving a waiver is required to monitor for asbestos during the first three-year compliance period of each nine-year compliance cycle beginning with the initial compliance period. (B) The commission may grant a waiver based on a consideration of the following factors: (i) potential for asbestos contamination of the water source; and (ii) the use of asbestos-cement pipe for finished water distribution and the corrosive nature of the water. (C) A waiver remains in effect until the completion of the three-year compliance period. (D) A system vulnerable to asbestos contamination due solely to corrosion of asbestos-cement pipe shall take one sample at a tap served by asbestos-cement pipe, under conditions where asbestos contamination is most likely to occur. (E) A system vulnerable to asbestos contamination due solely to source water shall monitor in accordance with the provisions of paragraph (1) of this section. (F) A system vulnerable to asbestos contamination due both to its source water supply and corrosion of asbestos-cement pipe shall take one sample at a tap served by asbestos-cement pipe, under conditions where asbestos contamination is most likely to occur. (G) A system which exceeds the MCL for asbestos as determined in paragraph (9) of this section shall monitor quarterly beginning in the next quarter after the violation occurs. (H) The commission may decrease the quarterly monitoring requirement to the frequency specified in paragraph (2)(A) of this section provided the commission has determined that the system is reliably and consistently below the maximum contaminant level. In no case can the commission make this determination unless a groundwater system takes a minimum of two quarterly samples and a surface (or combined surface/ground) water system takes a minimum of four quarterly samples. (I) If monitoring data collected after January 1, 1990, are generally consistent with the requirements of paragraph (2) of this section (relating to Standards of Chemical Quality), then the commission may allow systems to use that data to satisfy the monitoring requirement for the initial compliance period. (3) Monitoring conducted to determine compliance with the maximum contaminant levels in sec.290.103 of this title (relating to Standards of Chemical Quality) for antimony, arsenic, barium, beryllium, cadmium, chromium, cyanide, fluoride, mercury, nickel, selenium, and thallium shall be as follows. (A) Beginning in the initial compliance period, groundwater systems shall take one sample at each sampling point once every three years. Beginning in the initial compliance period, surface water systems (or combined surface/ground) shall take one sample annually at each sampling point. Each of the sampling frequencies listed in this paragraph constitute one round of sampling for groundwater and surface water systems, respectively. (B) The commission may grant waivers from the monitoring frequencies specified in subparagraph (A) of this paragraph. The term during which the waiver is effective shall not exceed one compliance cycle (nine years). (C) A condition of the waiver shall be that a system must take a minimum of one sample while the waiver is effective. (D) The commission may grant a waiver provided surface water systems have monitored annually for at least three years and groundwater systems have conducted a minimum of three rounds of monitoring. (At least one sample shall have been taken since January 1, 1990.) Both surface and groundwater systems shall demonstrate that all previous analytical results were less than the MCL. Systems that use a new water source are not eligible for a waiver until three rounds of monitoring from the new source have been completed. (E) In determining the appropriate reduced monitoring frequency, the commission shall consider: (i) reported contaminant concentrations from all previous monitoring; (ii) the degree of variation in reported concentrations; and (iii) other factors which may affect contaminant concentrations such as changes in groundwater pumping rates, changes in the system's configuration, changes in the system's operating procedures, or changes in the flow or characteristics of a reservoir or stream used as the water source. (F) If a decision by the commission is made to grant a waiver it shall be made in writing and shall set forth the basis for the determination. The determination may be initiated by the commission. The commission shall review and, where appropriate, revise the waiver of monitoring frequency when other data relevant to the system become available. (G) Systems which exceed the IOC MCL's as calculated in paragraph (9) of this section shall monitor quarterly beginning in the next quarter after the violation occurs. (H) The commission may decrease the quarterly monitoring requirement to the frequencies specified in subparagraphs (A) and (B) of this paragraph provided it has determined that the system is reliably and consistently below the MCL. In no case can the commission make this determination unless a groundwater system takes a minimum of two quarterly samples and a surface water system takes a minimum of four quarterly samples. (4) All public water systems (community; non-transient, non-community; and transient, non-community) shall monitor to determine compliance with the maximum contaminant level for nitrate as follows. (A) Community and non-transient, non-community water systems served by groundwater shall monitor annually beginning January 1, 1993; systems served by surface water shall monitor quarterly beginning January 1, 1993. (B) Each transient non-community water system shall monitor annually beginning January 1, 1993. (C) The repeat monitoring frequency for community and non-transient, non- community groundwater systems shall be quarterly for at least one year following any one sample in which the concentration is 524> 50% of the MCL. The commission may allow a groundwater system to reduce the sampling frequency to annually after four consecutive quarterly samples are reliably and consistently less than the MCL. (D) The commission may allow community and non-transient, non-community water systems to reduce the sampling frequency to annually if all analytical results from four consecutive quarters are less than 50% of the MCL. A surface water system shall return to quarterly monitoring if any one sample is greater than 50% of the MCL. (E) After the initial round of quarterly sampling for surface water systems is completed, any community or non-transient non-community system which is monitoring annually shall take subsequent samples during the quarter which previously resulted in the highest analytical result. (5) All public water systems (community; non-transient, non-community; and transient, non-community systems) shall monitor to determine compliance with the maximum contaminant level for nitrite as follows. (A) All public water systems shall take one sample at each sampling point during the initial compliance period. (B) After the initial sample, systems where the analytical result for nitrite is << 50% of the MCL shall monitor at the frequency specified by the commission. (C) The repeat monitoring frequency for nitrite for all public water systems shall be quarterly for at least one year following any one sample in which the concentration is 524> 50% of the MCL. The commission may allow a system to reduce the sampling frequency to annual after determining the system is reliably and consistently less than the MCL. (D) Systems which are monitoring annually shall take each subsequent sample during the quarter which previously resulted in the highest analytical result. (6) Confirmation sampling. (A) Where the results of sampling for antimony, arsenic, asbestos, barium, beryllium, cadmium, chromium, cyanide, fluoride, mercury, nickel, selenium or thallium indicate an exceedance of the MCL, one additional sample from the same sampling point shall be collected as soon as possible after the initial sample. (B) Where nitrate or nitrite sampling results indicate an exceedance of the maximum contaminant level, the system shall take a confirmation sample within 24 hours of the system's receipt of notification of the analytical results of the first sample. Systems unable to comply with the 24-hour sampling requirement must immediately notify the consumers served by the public water system in accordance with sec.290.103(8)(A)(iii) of this title (relating to Standards of Chemical Quality). Systems exercising this option must take and analyze a confirmation sample within two weeks of notification of the analytical results of the first sample. (C) If a commission-required confirmation sample is taken for any contaminant, then the results of the initial and confirmation sample shall be averaged. The resulting average shall be used to determine the system's compliance in accordance with paragraph (9) of this section. The commission has the discretion to delete results of obvious sampling errors. (7) The commission may require more frequent monitoring than specified in paragraphs (2)-(5) of this section or may require confirmation samples for positive and negative results at its discretion. (8) Systems may apply to the commission to conduct more frequent monitoring than the minimum monitoring frequencies specified in this section. (9) Compliance with sec.290.103 of this title (relating to Standards of Chemical Quality) (as appropriate) shall be determined based on the analytical result(s) obtained at each sampling point. (A) For systems which are conducting monitoring at a frequency greater than annual, compliance with the MCLs for antimony, arsenic, asbestos, barium, beryllium, cadmium, chromium, cyanide, fluoride, mercury, nickel, selenium, and thallium is determined by a running annual average at each sampling point. If the average at any sampling point is greater than the MCL, then the system is out of compliance. If any one sample would cause the annual average to be exceeded, then the system is out of compliance immediately. Any sample below the method detection limit shall be calculated at zero for the purpose of determining the annual average. (B) For systems which are monitoring annually, or less frequently, the system is out of compliance for antimony, arsenic, asbestos, barium, beryllium, cadmium, chromium, cyanide, fluoride, mercury, nickel, selenium, and thallium if the level of a contaminant at any sampling point is greater than the MCL. If a confirmation sample is required by the commission, the determination of compliance will be based on the average of the two samples. (C) Compliance with the MCLs for nitrate and nitrite is based on one sample if the levels of these contaminants are below the MCLs. If the levels of nitrate or nitrite exceed the MCLs in any sample, a confirmation sample is required in accordance with paragraph (6)(B) of this section, and compliance shall be based on the average of the initial and confirmation samples. (D) If a public water system has a distribution system separable from other parts of the distribution system with no interconnections, the commission may allow the system to give public notice to only the area served by that portion of the system which is out of compliance. (10) Each public water system shall monitor at the time designated by the commission during each compliance period. sec.290.109. Organic Chemical (Other Than Trihalomethanes) Monitoring, Analytical Requirements and Treatment Techniques. (a) Monitoring and analysis of the SOC contaminants listed in sec.290.103(3)(A) of this title (relating to Standards of Chemical Quality) for the purposes of determining compliance with the maximum contaminant level shall be conducted as follows. (1) Groundwater systems shall take a minimum of one sample at every entry point to the distribution system which is representative of each well after treatment (hereafter called a sampling point). Each subsequent sample must be taken at the same sampling point unless conditions make another sampling point more representative of each source or treatment plant. (2) Surface water systems shall take a minimum of one sample at points in the distribution system that are representative of each source or at each entry point to the distribution system after treatment (hereafter called a sampling point). Each subsequent sample must be taken at the same sampling point unless conditions make another sampling point more representative of each source or treatment plant. (3) If the system draws water from more than one source and the sources are combined before distribution, the system must sample at an entry point to the distribution system during periods of normal operating conditions (i.e., when water representative of all sources is being used). (4) Synthetic Organic Chemical (SOC) Monitoring Frequency. (A) Each community and non-transient non-community water system shall take four consecutive quarterly samples for each contaminant listed in sec.290. 103(3)(A) of this title during each compliance period beginning with the initial compliance period. (B) Systems serving more than 3,300 persons which do not detect a contaminant in the initial compliance period, may reduce the sampling frequency to a minimum of two consecutive quarterly samples in one year during each repeat compliance period. (C) Systems serving less than or equal to 3,300 persons which do not detect a contaminant in the initial compliance period may reduce the sampling frequency to a minimum of one sample during each repeat compliance period. (5) The commission may grant a waiver from the requirement of paragraph (4) of this subsection. after evaluating the following factors: Knowledge of previous use (including transport, storage, or disposal) of the contaminant within the watershed or zone of influence of the water source(s). If a determination by the commission reveals no previous use of the contaminant within the watershed or zone of influence, a waiver may be granted. If previous use of the contaminant is unknown or it has been used previously, then the following factors shall be used to determine whether a waiver is granted: (A) previous analytical results; (B) the proximity of the system to a potential point or non-point source of contamination. Point sources include spills and leaks of chemicals at or near a water treatment facility or at drinking water sources, manufacturing, distribution, or storage facilities, or from hazardous and municipal waste landfills and other waste handling or treatment facilities. Non-point sources include the use of pesticides to control insects, weeds, or pests on agricultural areas, forest lands, home and garden property, or other land application uses; (C) the environmental persistence and transport of the pesticide herbicide or contaminant; (D) how well the water source is protected against contamination due to such factors as depth of the well, type of soil, and the integrity of well construction. Surface water systems must consider watershed vulnerability and protection; (E) elevated nitrate levels at the water supply source; and (F) use of PCBs in equipment used in the production, storage, or distribution of water (i.e., PCBs used in pumps, transformers, etc.). (6) The commission will consider the waiver for each compliance period. (7) If an organic SOC contaminant listed in sec.290.103(3)(A) of this title is detected, as defined in 40 CFR sec.141.24(h) (18), in any sample, then: (A) The system must monitor quarterly at each sampling point at which a detection occurs. (B) The commission may decrease the quarterly monitoring requirement specified in subparagraph (A) of this paragraph provided it has determined that the system is reliably and consistently below the MCL. In no case shall the commission make this determination unless a groundwater system takes a minimum of two consecutive quarterly samples and a surface water system takes a minimum of four consecutive quarterly samples. (C) After the commission determines that a system is reliably and consistently below the MCL, it may allow the system to monitor annually. Systems which monitor annually must monitor during the quarter that previously yielded the highest analytical result. (D) Systems which have three consecutive annual samples with no detection of a contaminant may apply to the commission for a waiver as specified in paragraph (6) of this subsection. (E) If monitoring results in detection of one or more of certain related contaminants (aldicarb, aldicarb sulfone, aldicarb sulfoxide and heptachlor, heptachlor epoxide), then subsequent monitoring shall analyze for all related contaminants. (8) Systems which violate the MCL's of sec.290.103(3)(A) of this title as determined by paragraph (11) of this subsection must monitor quarterly. After a minimum of four quarterly samples show the system is in compliance and the commission determines the system is reliably and consistently below the MCL, as specified in paragraph (11) of this subsection, the system shall monitor at the frequency specified in paragraph (7)(C) of this subsection. (9) The commission may require a confirmation sample for positive or negative results. If a confirmation sample is required by the commission, the result must be averaged with the first sampling result and the average used for the compliance determination as specified by paragraph (15) of this subsection. The commission has discretion to delete results of obvious sampling errors from this calculation. (10) The commission may reduce the total number of samples required from a system for analysis by allowing the use of compositing. Composite samples from a maximum of five sampling points are allowed. Compositing of samples must be done in the laboratory and analyzed within 14 days of sample collection. (A) If, in the composite sample, a detection of one or more SOC contaminants listed in sec.290.103(3)(A) of this title occurs, then a follow-up sample must be taken from each sampling point included in the composite and analyzed within 14 days of collection. (B) If duplicates of the original sample taken from each sampling point used in the composite are available, the commission may use these duplicates instead of resampling. The duplicate must be analyzed within 14 days of collection and the results reported to the commission. (C) Compositing may only be permitted at sampling points within a single system. (11) Compliance with the MCL's of sec.290.103(3)(A) of this title shall be determined based on the analytical results obtained at each sampling point. (A) For systems which are conducting monitoring at a frequency greater than annual, compliance is determined by a running annual average of all samples taken at each sampling point. If the annual average of any sampling point is greater than the MCL, then the system is out of compliance. If the initial sample or a subsequent sample would cause the annual average to be exceeded, then the system is out of compliance immediately. Any samples below the detection limit shall be calculated as zero for purposes of determining the annual average. (B) If monitoring is conducted annually, or less frequently, the system is out of compliance if the level of a contaminant at any sampling point is greater than the MCL. If a confirmation sample is required by the commission, the determination of compliance will be based on the average of the two samples. (C) If a public water system has a distribution system separable from other parts of the distribution system with no interconnections, the commission may allow the system to give public notice to only that portion of the system which is out of compliance. (12) If monitoring data collected after January 1, 1990, are generally consistent with the requirements of subsection (a) of this section, then the commission may allow systems to use that data to satisfy the monitoring requirement for the initial compliance period. (13) The commission may increase the required monitoring frequency, where necessary, to detect variations within the system (e.g., fluctuations in concentration due to seasonal use, changes in water source, etc.). (14) The commission has the authority to determine compliance or initiate enforcement action based upon analytical results and other information compiled by their sanctioned representatives and agencies. (15) Each public water system shall monitor at the time designated by the commission within each compliance period. (b) Beginning with the initial compliance period: sampling and analysis of the VOC contaminants listed in sec.290.103(3)(B) of this title, for the purpose of determining compliance with the MCLs shall be conducted as follows. (1) Groundwater systems shall take a minimum of one sample at every entry point to the distribution system which is representative of each well after treatment (hereafter called a sampling point). Each subsequent sample must be taken at the same sampling point unless conditions make another sampling point more representative of each source or treatment plant. (2) Surface water systems (and combined surface/ground water systems) shall take a minimum of one sample at points in the distribution system that are representative of each source or at each entry point to the distribution system after treatment (hereafter called a sampling point). Each subsequent sample must be taken at the same sampling point unless conditions make another sampling point more representative of each source or treatment plant. (3) If the system draws water from more than one source and the sources are combined before distribution, the system must sample at an entry point to the distribution system during periods of normal operating conditions (i.e., when water representative of all sources is being used). (4) Each community and non-transient non-community water system shall take four consecutive quarterly samples for each contaminant listed in sec.290.103(3)(B) of this title during each compliance period, beginning with the initial compliance period. (5) If the initial monitoring for VOC contaminants listed in sec.290.103(3)(B) of this title as allowed in paragraph (16) of this subsection has been completed by December 31, 1992, and the system did not detect any contaminant listed in sec.290.103(3)(B) of this title then each ground and surface water system shall take one sample annually beginning with the initial compliance period. (6) After a minimum of three years of annual sampling, the commission may allow groundwater systems with no previous detection of any contaminant listed for VOCs in sec.290.103(3)(B) of this title to take one sample during each compliance period. (7) Each community and non-transient groundwater system which does not detect a contaminant listed in sec.290.103(3)(B) of this title may be granted a waiver from the requirements of paragraphs (5) and (6) of this subsection after completing the initial monitoring. (For the purposes of this section, detection is defined as 524> 0.0005 mg/1.) A waiver shall be effective for no more than six years (two compliance periods). (8) The commission may grant a waiver after evaluating the following factor(s): the knowledge of previous use (including transport, storage, or disposal) of the contaminant within the watershed or zone of influence of the water sources. If a determination by the commission reveals no previous use of the contaminant within the watershed or zone of influence, a waiver may be granted. If previous use of the contaminant is unknown or it has been used previously, then the following factors shall be used to determine whether a waiver is granted: (A) previous analytical results; (B) the proximity of the system to a potential point or non-point source of contamination. Point sources include spills and leaks of chemicals at or near a water treatment facility or at drinking water sources manufacturing, distribution, or storage facilities, or from hazardous and municipal waste landfills and other waste handling or treatment facilities; (C) the environmental persistence and transport of the contaminants; (D) the number of persons served by the public water system and the proximity of a smaller system to a larger system; (E) how well the water source is protected against contamination (i.e., is it a surface or groundwater system). Groundwater systems must consider factors such as depth of the well, the type of soil, and well construction. Surface water systems must consider watershed protection. (9) As a condition of the waiver a groundwater system must take one sample at each sampling point during the time the waiver is effective (i.e., one sample during two compliance periods or six years) and update its vulnerability assessment considering the factors listed in paragraph (8) of this subsection. Based on this updated vulnerability assessment the commission must reconfirm that the system is not vulnerable. If the commission does not make this reconfirmation within three years of the initial determination, then the waiver is invalid and the system is required to sample annually as specified in paragraph (5) of this subsection. (10) Each community and non-transient surface water system which does not detect a contaminant listed for VOCs in sec.290.103(3)(B) of this title may be considered by the commission for a waiver from the requirements of paragraph (5) of this subsection after completing the initial monitoring. Systems meeting this criteria must be determined by the commission to be non-vulnerable based on a vulnerability assessment during each compliance period. Each system receiving a waiver shall sample at the frequency specified by the commission (if any). (11) If a VOC contaminant listed in sec.290.103(3)(B) of this title is detected at a level exceeding 0.0005 mg/1 in any sample, then: (A) the system must monitor quarterly at each sampling point which resulted in a detection; (B) the commission may decrease the quarterly monitoring requirement specified in subparagraph (A) of this paragraph provided it has determined that the system is reliably and consistently below the maximum contaminant level. In no case shall the commission make this determination unless a groundwater system takes a minimum of two quarterly samples and a surface water system takes a minimum of four quarterly samples; (C) if the commission determines that the system is reliably and consistently below the MCL, the commission may allow the system to monitor annually. Systems which monitor annually must monitor during the quarter which previously yielded the highest analytical result; (D) systems which have three consecutive annual samples with no detection of a contaminant may apply to the commission for a waiver as specified in paragraph (7) of this subsection; (E) groundwater systems which have detected one or more of the following two- carbon organic compounds: trichloroethylene, tetrachloroethylene, 1, 2- dichloroethane, 1,1,1-trichloroethane, cis-1,2-dichloroethylene, trans-1, 2- dichloroethylene, or 1,1-dichloroethylene shall monitor quarterly for vinyl chloride. A vinyl chloride sample shall be taken at each sampling point at which one or more of the two-carbon organic compounds was detected. If the result of the first analysis does not detect vinyl chloride, the commission may reduce the quarterly monitoring frequency for vinyl chloride to one sample during each compliance period. Surface water systems are required to monitor for vinyl chloride as specified by the commission. (12) Systems which violate the VOC MCL's of sec.290.103(3)(B) of this title, as determined by paragraph (15) of this subsection, must monitor quarterly. After a minimum of four consecutive quarterly samples which show the system is in compliance as specified in paragraph (15) of this subsection and the commission determines that the system is reliably and consistently below the maximum contaminant level, the system may monitor at the frequency and time specified in paragraph (11)(C) of this subsection. (13) The commission may require a confirmation sample for positive or negative results. If a confirmation sample is required by the commission, the result must be averaged with the first sampling result and the average is used for the compliance determination as specified by paragraph (15) of this subsection. The commission has discretion to delete results of obvious sampling errors from this calculation. (14) The commission may reduce the total number of samples a system must analyze by allowing the use of compositing. Composite samples from a maximum of five sampling points are allowed. Compositing of samples must be done in the laboratory and analyzed within 14 days of sample collection. (A) If the VOC concentration in the composite sample is 524> 0.0005 mg/1 for any contaminant listed in sec.290.103(3)(B) of this title, then a follow-up sample must be taken and analyzed within 14 days from each sampling point included in the composite. (B) If duplicates of the original sample taken from each sampling point used in the composite are available, the system may use these instead of resampling. The duplicate must be analyzed and the results reported to the commission within 14 days of collection. (C) Compositing may only be permitted by the commission at sampling points within a single system. (D) Procedures for compositing VOC samples are as stated in 40 Code of Federal Regulations, sec.141.24(f)(14)(iv). (15) Compliance with sec.290.103(3)(B) of this title shall be determined based on the analytical results obtained at each sampling point. (A) For systems which are conducting monitoring at a frequency greater than annual, compliance is determined by a running annual average of all samples taken at each sampling point. If the annual average of any sampling point is greater than the MCL, then the system is out of compliance. If the initial sample or a subsequent sample would cause the annual average to be exceeded, then the system is out of compliance immediately. (B) If monitoring is conducted annually, or less frequently, the system is out of compliance if the level of a contaminant at any sampling point is greater than the MCL. If a confirmation sample is required by the commission, the determination of compliance will be based on the average of the two samples. (C) If a public water system has a distribution system separable from other parts of the distribution system with no interconnections, the commission may allow the system to give public notice to only that area served by that portion of the system which is out of compliance. (16) The commission may allow the use of monitoring data collected after January 1, 1988 for purposes of initial monitoring compliance. If the data are generally consistent with the other requirements in this section, the commission may use these data (i.e., a single sample rather than four quarterly samples) to satisfy the initial monitoring requirement of paragraph (4) of this subsection. Systems which use these samples and do not detect any contaminant listed in sec.290.103(3)(B) of this title shall begin monitoring annually in accordance with paragraph (5) of this subsection beginning January 1, 1993. (17) The commission may increase required monitoring where necessary to detect variations within the system. (18) Each public water system shall monitor at the time designated by the commission within each compliance period. (19) Analysis of unregulated contaminants shall be as specified in 40 Code of Federal Regulations (CFR), sec.141.40. The commission adopts by reference Federal Regulations referred to in this subsection. Copies are available for review in the Water Utilities Division, Texas Natural Resource Conservation Commission, P.O. Box 13087, Austin, Texas 78711-3087. (c) Acrylamide and Epichlorohydrin Treatment Techniques. Each public water system must certify annually to the commission (using third party or manufacturer's certification) that when acrylamide or epichlorohydrin are used in drinking water systems, the combination (or product) of dose and monomer level does not exceed 0.05% dosed at 1 ppm (or equivalent) for acrylamide and 0.01% dosed at 20 ppm (or equivalent) for epichlorohydrin. sec.290.112. Recordkeeping and Reporting Required of Water Systems. Any owner or operator of a public water system subject to the provisions of this chapter shall retain on the water system premises or at a convenient location near the premises the following records. (1) Records of bacteriological analyses must be retained for no less than five years, and records of chemical analyses must be retained for no less than ten years. (2) Records of action taken by the system to correct violations of primary drinking water regulations must be retained for at least three years after the last action taken with respect to the particular violation involved. (3) Copies of written reports, summaries or communications relating to sanitary surveys of the system conducted by the system itself, by a private consultant, or by the commission shall be kept for a period not less than ten years after completion of the survey involved. (4) Records concerning a variance or exemption granted to the system shall be kept for a period ending not less than five years following the expiration of such variance or exemption. (5) Any owner or operator of a public water system subject to the provisions of this chapter is required to report to the State the results of any test, measurement or analysis required to be made by these standards within ten days following such test, measurement or analysis. sec.290.113. Secondary Constituent Levels. (a) The following secondary constituent levels are limits, applicable to all public water systems. No drinking water supply which does not meet the Secondary Constituent Levels may be used without written approval from the commission. [graphic] (b) For all instances in which drinking water does not meet the recommended limits and is accepted for use by the commission, such acceptance is valid only until such time as water of acceptable chemical quality can be made available at reasonable cost to the area(s) in question. (c) Community water systems that exceed the secondary maximum constituent level for fluoride but are below the level listed in sec.290.103 of this title (relating to Standards of Chemical Quality) must notify the public. The notice must be made annually by including it with the water bill or by separate mailing to all customers. The form and content of the notice shall be as prescribed by the commission. sec.290.117. Disinfection. (a) A system that uses a surface water source must provide the disinfection treatment specified in subsection (b) of this section beginning July 1, 1993. A system that uses a groundwater source under the influence of surface water and provides filtration treatment must provide disinfection treatment as specified in subsection (b) of this section by July 1, 1993, or beginning when filtration is installed, whichever is later. Failure to meet any requirement of this section after the applicable date specified in this subsection is a treatment technique violation. Violation of any treatment technique of this section must be reported to the commission by the end of the next business day after the measurement was taken. (b) Each public water system that utilizes surface water or groundwater under the influence of surface water must provide disinfection treatment as follows. (1) The disinfection treatment must be sufficient to ensure that the total treatment processes of that system achieve at least 99.9% (3-log) inactivation and/or removal of Giardia lamblia cysts and at least 99.99% (4-log) inactivation and/or removal of viruses, as determined by the commission. (A) The disinfectant concentrations(s) within the treatment process shall not be allowed to fall below acceptable levels for more than four hours. (B) Disinfection contact time will be based on tracer study data submitted by the system and approved by the commission. Acceptable tracer study data must be submitted to the commission no later than January 1, 1993. (2) The residual disinfectant concentration in the water entering the distribution system measured as specified in sec.290.119 of this title (relating to Turbidity and Disinfection) shall not be less than 0.2 mg/1 free chlorine or 0.5 mg/1 chloramine for more than four hours. (3) The residual disinfectant concentration in the distribution system, as specified in sec.290.119 of this title (relating to Monitoring Requirements for Systems Using Surface Water Treatment) shall not be less than 0.2 mg/1 free chlorine or less than 0.5 mg/1 chloramine in more than 5.0% of the samples each month, for any two consecutive months that the system serves water to the public. [graphic] This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on March 24, 1994. TRD-9438177 Mary Ruth Holder Director, Legal Division Texas Natural Resource Conservation Commission Effective date: April 15, 1994 Proposal publication date: January 25, 1994 For further information, please call: (512) 463-8069 Chapter 291. Water Rates Subchapter D. Records and Reports 30 TAC sec.291.76 The Texas Natural Resource Conservation Commission (Commission) adopts new sec.291.76, concerning a regulatory assessment, without changes to the proposed text as published in the January 28, 1994, issue of the Texas Register (19 TexReg 572). The section incorporates into rule the existing procedural requirements related to the collection of a regulatory assessment, establishes a mechanism for enforcement of the collection and remittance provisions and establishes interest penalties for late payment. A public hearing was held on February 22, 1994, and no persons wishing to give testimony appeared. The Commission received one comment letter from an individual during the comment period. The individual suggested that a flat rate assessment be imposed rather than the percentage proposed. He was concerned that a percentage unduly influences commission decisions to grant rate increases given that the assessment is based on the retail purchase price. The commission does not agree with this comment, because the measure of the assessment is established by statute and cannot be varied by rule. The new section is adopted under the Texas Water Code, sec.5.235(n), which authorizes the Texas Natural Resource Conservation Commission to collect a regulatory assessment; and sec.5.103 and sec.5.105, which provide the Commission with the authority to adopt any rules necessary to carry out its powers and duties under the Code and other laws of the State of Texas, and to establish and approve all general policy of the Commission. The adopted new section implements no other statutes. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on March 24, 1994. TRD-9438133 Mary Ruth Holder Director, Legal Division Texas Natural Resource Conservation Commission Effective date: April 15, 1994 Proposal publication date: January 28, 1994 For further information, please call: (512) 463-8069 Chapter 293. Water Districts The Texas Natural Resource Conservation Commission (Commission) adopts amendments to Chapter 293 concerning appointment of directors, issuance of bonds, purchases of facilities, other actions requiring commission consideration for approval, and definitions of terms. The amendment to sec.293. 171 is adopted with changes to the proposed text as published in the December 14, 1993, issue of the Texas Register (18 TexReg 9259). The amendments to sec.sec.293.34, 293.44, 293.45, 293.50, 293.51, 293.56, 293.59, 293.69, 293.82, 293.83, and 293.85 are adopted without changes and will not be republished. The Commission received one comment letter during the comment period from an individual. The individual asserted that the proposed definition of impact fee was no sufficiently specific. The commission agrees and modified the section accordingly. Appointment of Directors 30 TAC sec.293.34 The amendment is adopted under the Texas Water Code, (Vernon 1992), sec.sec.5. 103, 5.105, and 5.235, which provides the Texas Natural Resource Conservation Commission with the authority to adopt any rules necessary to carry out the powers and duties under the provisions of the Texas Water Code and other laws of this state, to establish and approve all general policy of the commission, and to collect statutory fees from persons filing various applications with the commission. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on March 24, 1994. TRD-9438129 Mary Ruth Holder Director, Legal Division Texas Natural Resource Conservation Commission Effective date: April 15, 1994 Proposal publication date: December 14, 1993 For further information, please call: (512) 463-8069 Issuance of Bonds 30 TAC sec.sec.293.44, 293.45, 293.50, 293.51, 293.56, 293.59 The amendments are adopted under the Texas Water Code, (Vernon 1992), sec.sec.5.103, 5.105, and 5.235, which provides the Texas Natural Resource Conservation Commission with the authority to adopt any rules necessary to carry out the powers and duties under the provisions of the Texas Water Code and other laws of this state, to establish and approve all general policy of the commission, and to collect statutory fees from persons filing various applications with the commission. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on March 24, 1994. TRD-9438130 Mary Ruth Holder Director, Legal Division Texas Natural Resource Conservation Commission Effective date: April 15, 1994 Proposal publication date: December 14, 1993 For further information, please call: (512) 463-8069 District Actions if the Commission Approves the Engineering Project and Issuance of Bonds 30 TAC sec.293.69 The amendment is adopted under the Texas Water Code, (Vernon 1992), sec.sec.5. 103, 5.105, and 5.235, which provides the Texas Natural Resource Conservation Commission with the authority to adopt any rules necessary to carry out the powers and duties under the provisions of the Texas Water Code and other laws of this state, to establish and approve all general policy of the commission, and to collect statutory fees from persons filing various applications with the commission. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on March 24, 1994. TRD-9438132 Mary Ruth Holder Director, Legal Division Texas Natural Resource Conservation Commission Effective date: April 15, 1994 Proposal publication date: December 14, 1993 For further information, please call: (512) 463-8069 Other Actions Requiring Commission Consideration for Approval 30 TAC sec.sec.293.82, 293.83, 293.85 The amendments are adopted under the Texas Water Code, (Vernon 1992), sec.sec.5.103, 5.105, and 5.235, which provides the Texas Natural Resource Conservation Commission with the authority to adopt any rules necessary to carry out the powers and duties under the provisions of the Texas Water Code and other laws of this state, to establish and approve all general policy of the commission, and to collect statutory fees from persons filing various applications with the commission. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on March 24, 1994. TRD-9438131 Mary Ruth Holder Director, Legal Division Texas Natural Resource Conservation Commission Effective date: April 15, 1994 Proposal publication date: December 14, 1993 For further information, please call: (512) 463-8069 Petition for Approval of Impact Fees 30 TAC sec.293.171 The amendment is adopted under the Texas Water Code, (Vernon 1992), sec.sec.5. 103, 5.105, and 5.235, which provides the Texas Natural Resource Conservation Commission with the authority to adopt any rules necessary to carry out the powers and duties under the provisions of the Texas Water Code and other laws of this state, to establish and approve all general policy of the commission, and to collect statutory fees from persons filing various applications with the commission. sec.293.171. Definitions of Terms. The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. Impact fee-Impact fee means a charge or assessment imposed by a district against new development in order to generate revenue for funding or recouping the costs of capital improvements or facility expansions necessitated by and attributable to such new development. A tap fee is not considered an impact fee provided the tap fee is based on the reasonable cost of providing the tap- related service. Capital improvement plan-Capital improvement plan means a plan which identifies capital improvements or facility expansions pursuant to which impact fees may be assessed. Capital improvements -Capital improvements means water supply, treatment, and distribution facilities, wastewater collection and treatment facilities, stormwater, and drainage, and flood control facilities, including facility expansions, whether or not located within the service area, with a life expectancy of three or more years, owned and operated by or on behalf of a district with authorization to finance and construct such facilities, but such term does not include materials and devices for making connections to or measuring services provided by such facilities to district customers. Connection-Connection means a standardized measure of consumption, use, generation, or discharge attributable to an individual unit of development calculated in accordance with generally accepted engineering or planning standards. Connections shall be described in terms of single family equivalent connections, living unit equivalents, or other generally accepted unit typically attributable to a single family household. The assumed population equivalent per service unit shall be indicated. Service area-Service area means an area within or without the boundaries of a district to be served by the capital improvements specified in the capital improvements plan. The service area may include all or part of the land within a district or land outside a district served by the facilities identified in the capital improvements plan. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on March 24, 1994. TRD-9438128 Mary Ruth Holder Director, Legal Division Texas Natural Resource Conservation Commission Effective date: April 15, 1994 Proposal publication date: December 14, 1993 For further information, please call: (512) 463-8069 TITLE 43. TRANSPORTATION Part I. Texas Department of Transportation Chapter 9. Contract Management 43 TAC sec.9.21 The Texas Department of Transportation adopts an amendment to sec.9.21, without changes to the proposed text as published in the December 14, 1993, issue of the Texas Register (18 TexReg 9247). At the time the current rules were adopted the position of deputy executive director was the only second-tier management position in the department. Due to the reorganization of the department which established six second-tier management positions, with all six on an equivalent level of authority, it is necessary to amend sec.9.21 to include all six second-tier management positions. The amendment will assure that the emergency contracting procedures continue without interruption, thereby protecting the vital interests, safety, and welfare of the taxpayers and the traveling public. Section 9.21 is amended to revise the definition of deputy executive director. The department presently has rules for emergency contracting procedures, codified at 43 TAC sec.sec.9.20-9.22, which provide that the executive director or his designee not below the level of deputy executive director must certify the fact and nature of the emergency giving rise to the award of a contract under these sections, and that the executive director or his designee not below the level of deputy executive director may authorize the waiving of bonds or insurance requirements. The amendment is adopted under Texas Civil Statutes, Article 6666, which provide the Texas Transportation Commission with the authority to establish rules for the conduct of the work of the Texas Department of Transportation, and more specifically by Texas Civil Statutes, Article 6674h-2, which authorize the department to establish rules for the expedited award of highway improvement contracts to meet emergency conditions in which essential corrective or preventive action would be unreasonably hampered or delayed by compliance with other laws. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on March 24, 1994. TRD-9438094 Diane L. Northam Legal Executive Assistant Texas Department of Transportation Effective date: April 14, 1994 Proposal publication date: December 14, 1993 For further information, please call: (512) 463-8630 Texas Department of Insurance Exempt Filing Notification Pursuant to the Insurance Code, Chapter 5, Subchapter L (Editor's Note: As required by the Insurance Code, Article 5.96 and 5. 97, the Texas Register publishes notices of actions taken by the Department of Insurance pursuant to Chapter 5, Subchapter L, of the Code. Board action taken under these articles is not subject to the Administrative Procedure Act. These actions become effective 15 days after the date of publication or on a later specified date. The text of the material being adopted will not be published, but may be examined in the offices of the Department of Insurance, 333 Guadalupe, Austin.) The Commissioner of Insurance at a public hearing under Docket Number 2087 on March 21, 1994 at 8:30 a.m. and continued on March 23, 1994 at 9:00 a.m. in Room 100 of the Texas Department of Insurance Building, 333 Guadalupe Street in Austin, Texas adopted amendments to the Texas Basic Manual of Rules, Classifications and Experience Rating Plan for Workers' Compensation and Employers' Liability Insurance (Manual) pertaining to the calculation of experience modifiers and the making of ownership rulings by the insurance companies. The following is a summary of the adopted amendments to the rules in the Manual: 1. The rules require that at least 60 days prior to the anniversary rating date, the company insuring all or part of a risk shall furnish one copy of the experience modifier calculation, free of charge, to the insured. A plain language transmittal letter shall be sent to the insured explaining the modifier calculation, the insured's right of appeal and advising that one copy of the unit statistical data used in the calculation will be furnished to the insured upon request, at no charge. Each insurance company shall file a copy of its standard transmittal letter and experience rating form, if other than ERM 1.2, with the Department prior to use. Such form and letter may be disallowed by the Commissioner. 2. Any insurance company requesting either unit statistical data or a copy of an insured's experience modifier calculation from another insurance company must send a copy of the current policy information page if it is the current insurer or furnish a letter of authority from the insured. A request for data shall be responded to in a timely manner, but in all instances within 30 days of receipt of the request. No charge may be made for this information. 3. The anniversary rating data is the effective month and day of the policy in effect and each annual anniversary thereafter. A material change of ownership accompanied by a substantial change in operations may cause a new anniversary rating date to be established. 4. The rules contain an appeal provision that requires that any issue that arises as a result of a rule set forth in the plan that cannot be resolved to the satisfaction of all affected parties shall be resolved by first making a good faith effort to resolve the dispute between the parties. Either party may then file a written request for a ruling by the Deputy Commissioner of Workers' Compensation that fully explains that party's position. The Deputy Commissioner will allow the parties to informally provide arguments, either in person or by telephone. The Deputy Commissioner shall issue a ruling in writing and shall inform the parties of their right to appeal, the deadlines to appeal and the right to waive a hearing. Either party may appeal the decision of the Deputy Commissioner to the Commissioner of Insurance by filing a written appeal with the Chief Clerk's office within 30 days of receipt of the ruling. The appeal shall be de novo and the hearing will be conducted by the State Office of Administrative Hearings. If all parties file a waiver of hearing, no hearing will be held and the Commissioner will issue a decision based on the written arguments of the parties. 5. A substantial change of operations is defined as a change in the type of business enterprises in which an entity is engaged. Such a change may include, but is not limited to, a change in the entity's workers' compensation governing classification or a change in products or services produced by the entity. 6. Experience used to determine the modifier is calculated by the insuring company for the insured on form ERM 1.2 or any other experience rating form that includes at least the same information as contained in ERM 1. 2. 7. Another reason has been added to the list of permissible reasons to revise the value of losses. The additional reason is where an investigation reveals that unreasonably high reserves have been set for a particular claim. The current rating and the two immediately preceding ratings shall be recalculated by the affected insuring company upon receipt of the corrected or revised unit statistical data showing the change in value of a loss. 8. Throughout the rules, the words "experience modification" have been changed to "experience modifier," where applicable, and "carrier" has been amended to either "insurance company" or "insuring company." 9. The insuring company is responsible for making ownership rulings once the required information is received. 10. The Supplement to the Experience Rating Plan provides that a separate Texas modifier may be calculated for a risk subject to interstate rating upon written request of the insured to the insuring company or Bureau having jurisdiction. If a separate modifier is calculated in accordance with the rules, the Texas modifier shall apply for the full rating period for which such modifier was calculated. 11. In addition to the adopted changes in the rules, one endorsement and four forms are adopted to reflect the changes in the rules. The Commissioner of Insurance adopted this matter pursuant to the Insurance Code, Articles 5.96 and 5.60. The Commissioner of Insurance adopted the amendments to the Texas Basic Manual of Rules, Classifications and Experience Rating Plan for Workers' Compensation and Employers' Liability Insurance as summarized previously and attached hereto and incorporated by reference, by Commissioner's Order Number 94-0297. A copy of the amendments containing the full text of the adopted amendments is available for review in the office of the Chief Clerk of the Texas Department of Insurance, 333, Guadalupe Street, Austin, Texas 78714-9104. For further information or to request copies of the amendments, please contact Angie Arizpe (512) 322-4147 (refer to Reference Number W-0294-04). This notification is made pursuant to the Insurance Code, Article 5.96, which exempts it from the requirements of the Administrative Procedure Act. It is therefore the ORDER of the Commissioner of Insurance that the Texas Basic Manual of Rules, Classifications and Experience Rating Plan for Workers' Compensation and Employers' Liability Insurance pertaining to the calculating of experience modifiers and the making of ownership rulings by the insurance companies is amended to be effective May 1, 1994. The Commissioner instructed the staff to propose an amendment to the rules adopted under this Order to reflect a transition period for implementation of these changes by amending Rule V, E. & G. of the Texas Experience Rating Plan to include a 120-day transition period for increasing premium due to the application of a debit modifier. A separate hearing will be held on this proposed amendment on May 2, 1994 at 8:30, a.m. in Room 100 of the Texas Department of Insurance Building, 333 Guadalupe Street in Austin, Texas. 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 March 28, 1994. TRD-9438208 Linda K. von Quintus-Dorn Chief Clerk Texas Department of Insurance Effective date: May 1, 1994 For further information, please call: (512) 463-6328