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 II. Texas Animal Health Commission Chapter 36. Exotic Livestock and Exotic Fowl 4 TAC sec.36.2 The Texas Animal Health Commission adopts an amendment to sec.36.2, concerning general requirements, with changes to the proposed text as published in the March 8, 1994, issue of the Texas Register (19 TexReg 1615). It was necessary to amend the regulations to clarify that exotic livestock and ratites entering Texas from USDA Quarantine facilities would meet the same requirements as those entering from other locations and to assure that the ratites are negative to disease and are permanently and properly identified. Ratites entering the state are required to be individually identified with an implanted electronic device with pertinent implant information entered on the health certificate accompanying the shipment. Ratites and eggs must come from flocks where no evidence of disease is known and that they were tested negative for Avian Influenza and Pullorum/Typhoid with certain exceptions. Ratites offered for sale within the state must be identified with an implanted electronic device and accompanied with a certificate of veterinary inspection with pertinent information pertaining to the implant shown on the certificate. Records of the sale will be maintained by all parties to the sale for a period of three years. Ratites entering to slaughter must be accompanied by a waybill but are exempt from these additional requirements. Four hundred twenty individual written comments received were in favor of the entire proposed regulation. Five hundred thirty-five individual written comments received supported microchip identification. Five hundred thirty-seven individual written comments received were in favor of testing ratites entering Texas. Two hundred eighty-two individual written comments received supported testing ratites for auction and private treaty within the State of Texas. Eighty-three individual written comments received were in favor of having a veterinary certificate accompanied with every bird being offered at public sale or private treaty sale. Eighty-three individual written comments received recognized the importance of regulations for all birds crossing state lines and believes it is imperative that all birds be permanently identified with a microchip. Eighty-three individual written comments received state the requirement of a veterinary health certificate should be decided between the buyer and the seller. The Commission agrees with these comments that the rules are needed to provide protection to the ratite industry in this state. Eight hundred ninety-two individual written comments were received in opposition to the proposed regulation. The Commission disagrees with the comments because the regulation is deemed necessary to prevent introduction of diseases into the state and to assure necessary identity and traceability in the event serious disease outbreak is encountered. Four commenters said identification should not be restricted to micro-chip identification. The Commission disagrees with the comments because a microchip is believed to be the most practical, unique, permanent identification technique. Six comments were received in opposition to private treaty testing. (The Commission stated that private treaty testing is not required.) One comment received was in opposition to mandatory testing. The Commission disagrees with the comments because the testing is designed to assist in preventing introduction of diseased birds into the state. Two comments were in opposition to veterinary inspection for birds entering the state. The Commission disagrees with the comments because veterinary inspection if believed to be necessary procedure to preclude entry of birds that are showing clinical (signs) of illness. One commenter believed that AI and Typhoid testing should be required at public sales and auctions. The Commission disagrees with the comments because these two diseases have not been shown to present a high risk in Texas birds. One commenter asked the following questions: Who supplies the money for enforcement of the regulations? Commission response-The State of Texas. Is the state of Texas providing the microchips, readers, inspections, record keeping and record storage required under the proposed sections? Commission response-No. Where are the accredited ratite veterinarians for the inspections? Commission response-They are the veterinarians accredited by USDA. Is the state going to require vets to acquire the skills necessary to perform these statutory inspections in a timely and professional manner? Commission response-The veterinarians will be informed of the regulations. Whose electronic equipment will be used to read the microchips during the inspections? Commission response-The veterinarian's/owner's. Will there be a charge for the veterinary inspections? Commission response-This is up to the veterinarian. Who sets the fees the vets charge? Commission response-The veterinarians set the fees. Where are the forms the vets will use in rendering this service? Commission response-Current forms will be used. Will the state provide the forms to the vets, or the merchants, for free? Commission response-The veterinarians purchase the forms. Which state approves the testing lab, Texas or the state of origin? Commission response-The state of origin. What happens when the local buyer or public sale facility does not have quarantine facilities? Commission response-The facility becomes quarantined. Where is the state quarantine facility for serologically positive ratites imported into the State of Texas waiting for virus isolation retest? Commission response-Not applicable. What is the procedure for determining the need for these tests or inspections? Commission response-It is the same as for other species. Who pays for these tests or inspections? Commission response-The owner pays this fee. What are the penalties for violations of these provisions? Commission response-It is a Criminal Class "C" misdemeanor for entry violation. The Texas Veterinary Medical Diagnostic Laboratory suggested the proposal be amended in the following manner: add the word "clinical" to subsection (c) (4)(B) because the way the paragraph now reads it is too broad and should make reference to "clinical evidence rather than just evidence;" additionally, the words "within the past days" which is found in the same paragraph, should be changed to "and the inspecting accredited veterinarian has no personal knowledge of exposure thereto at the time of veterinary inspection". TVMDL believes it would be impossible for a veterinarian to make the proposed statement unless the veterinarian had examined the animal/fowl every day for the past 30 days; that such statement would be factually unfounded, unethical, and probably in violation of the rules of professional conduct and a violation of the Veterinary Practice Act. TVMDL suggests that these changes would more accurately reflect the capabilities of an inspecting accredited veterinarian without misleading the public and placing the veterinarian in violation of the law. The Commission agrees with these nonsubstantive comments and the changes appear in the adoption. One additional comment received asking if the commission would consider including mandatory testing of ratites for Psittacosis. Commission response-This request will be taken under advisement. Fifteen people gave oral testimony on the amendments; seven were in support, seven in opposition, and one gave comments only. The amendment is adopted under the Texas Agriculture Code, sec.161.041, which authorizes the commission to adopt rules to eradicate or control any disease that affects exotic fowl, sec.161.046, which allows the commission to adopt rules necessary to control disease, and sec.161.081, which allows the commission to adopt rules regulating the inspection and testing of animals prior to entry into the state, and which allows the commission to adopt rules regarding health certificates and entry permits. sec.36.2. General. (a) All exotic livestock and ratites entering Texas from any state, territory, foreign country or from any USDA-licensed quarantine facility shall have an entry permit issued by the Commission. (b) All exotic livestock and ratites entering the state of Texas from any state, territory, foreign country or from any USDA-licensed quarantine facility shall be accompanied by a certificate of veterinary inspection stating that they have been inspected by an accredited veterinarian and are free of external parasites and evidence of contagious and communicable disease. (c) The following named species entering the State of Texas shall meet the specific requirements stated and this information recorded on the certificate. (1) Exotic Cervidae-negative to a brucellosis and cervical skin test for tuberculosis within 30 days prior to entry. (2) Water buffalo-negative to a brucellosis and tuberculosis test within 30 days prior to entry. (3) Exotic Swine-negative to a brucellosis and pseudorabies test within 30 days prior to entry. (4) Ratites- (A) each bird will be individually identified with an implanted electronic device (microchip). The identification will be shown on the certificate of veterinary inspection along with the location and name brand of the implanted electronic device. If an animal has more than one implanted microchip, then the location, microchip number, and name brand of each will be documented on the certificate of veterinary inspection. Birds or hatching eggs must originate from flocks that show no evidence of infectious disease and have had no history of Avian Influenza in the past six months. In addition, each bird must be tested and found to be serologically negative for Avian Influenza and Salmonella pullorum-typhoid from a sample collected within 30 days of shipment. A bird serologically positive for Avian Influenza may be admitted if a virus isolation test via cloaceal swab conducted within 30 days of shipment is negative for Avian Influenza. The testing is to be performed in a state approved diagnostic laboratory in the state of origin. Serologically positive birds admitted under this section must be held under quarantine on the premise of destination in Texas for virus isolation retest; (B) all ratites offered for sale at a public sale or sold at private treaty within the state must be accompanied by a certificate of veterinary inspection stating that they have been inspected by an accredited veterinarian and are free of external parasites and clinical evidence of contagious and communicable disease and the inspecting accredited veterinarian has no personal knowledge of exposure thereto at the time of veterinary inspection, and individually identified with an implanted electronic device. That identification must be recorded on the certificate of veterinary inspection along with the location, microchip number, and microchip name brand; (C) the microchip number and required test results must be maintained in the sale records for consignments to a public sale or the files of the buyer and seller when the animal is sold at private treaty. These records must be maintained for a period of three years; (D) ratites destined for slaughter only may enter Texas accompanied by an entry permit and either a waybill or health certificate without meeting the requirements of subparagraphs (A)-(C) of this section. (d) The Executive Director of the Commission may require an inspection or test on any exotic livestock or exotic fowl for the detection of any disease or parasite prior to importation when the Executive Director has determined there is a risk of disease or parasite transmission. Entry may be denied based on the results of these tests or inspections. 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 April 20, 1994. TRD-9439929 Terry Beals, DVM Executive Director Texas Animal Health Commission Effective date: June 10, 1994 Proposal publication date: March 8, 1994 For further information, please call: (512) 719-0714 Chapter 49. Equine 4 TAC sec.49.1 The Texas Animal Health Commission adopts an amendment to sec.49.1, concerning Equine Infections Anemia, with changes to the proposed text as published in the December 21, 1993, issue of the Texas Register (18 TexReg 9810). The TAHC staff recommended and the Commission agreed to the need for adoption of sec.49.1(a) and (b) only to better serve the Equine Industry. At the February 25, 1994, meeting of the commission, an EIA Advisory Committee and review the equine regulations and this proposal. The Advisory Committee has met and recommends additional study. The amendment is necessary to provide that any USDA licensed tests for Equine infectious anemia can be utilized and a more determined effort made to eliminate EIA when infection is identified from blood samples submitted. In an effort to better serve the equine industry of this state, this agency has approved the use of new tests provided they are licensed by the USDA. Blood samples drawn by accredited veterinarians or other TAHC authorized personnel for EIA testing must be accompanied by a VS Form 10-11 before the samples can be accepted for official testing for horses, asses, mules, ponies, zebras and any other equine. The agar gel immunodiffusion (AGID) test, also known as the Coggins test, and the Competitive Linked Immunosorbent Assay test (CELISA) are approved by this agency for testing blood for EIA and are the official tests in Texas; however, USDA has approved other tests for testing for EIA and the Commission has, by this amendment, approved the use of other EIA tests provided they have been licensed and approved by USDA. No comments were received regarding adoption of the amendment. The amendment is adopted under the Agriculture Code, Texas Civil Statutes, which authorize the commission to promulgate rules regarding the testing of livestock. The amendment implements the Texas Agriculture Code, sec.161.041. sec.49.1. Equine Infectious Anemia (EIA): Identification and Handling of Infected Equine. (a) Official Test. The agar gel immunodiffusion (AGID) test, also known as the Coggins test, the Competitive Enzyme-Linked Immunosorbent Assay (CELISA) test and other USDA licensed tests approved by the commission are the official tests for equine infectious anemia (EIA) in horses, asses, mules, ponies, zebras, and any other equine in Texas. (b) Authorization to conduct test. Only United States Department of Agriculture (USDA) approved laboratories are allowed to run the AGID and CELISA tests and all tests will be official. Only test samples from accredited veterinarians or other TAHC authorized personnel accompanied by a completed VS Form 10-11 can be accepted for official testing. (c) Official test document. All official blood tests must be accompanied by VS Form 10-11 (Equine Infectious Anemia Laboratory Test) listing the description of the equidae to include age, breed, color, sex, animal's name and/or registration number (when applicable), and distinctive markings when present (brands, tattoos, scars, or blemishes). It must list owner's name, address, the animal's home premise and county, the name and address of the authorized individual collecting the test sample, and laboratory and individual conducting the test. The EIA test document shall list one horse only. (d) Reactor. A reactor is any equidae which discloses a positive reaction to the official test. The individual collecting the test sample must notify the animal's owner of the quarantine within 48 hours after receiving the results. (e) Retest of reactors. Equidae which have been disclosed as reactors may be retested prior to branding provided. (1) Owners or their agents initiate a request in writing to the TAHC Area Director of the area where the horse is located within 48 hours following notification of test results. A retest will not be granted unless the official results of the initial test have been received in the Texas Animal Health Commission office. (2) All retests shall be conducted by the Texas Veterinary Medical Diagnostic Laboratory (TVMDL) at College Station or Amarillo. Retests must be conducted within 30 days after date of the original test. (3) The individuals conducting the retest verify the retested equidae as being the same as shown on the original test document. This verification shall be in writing on the Form VS 10-11. The retest permit shall accompany the serum sample and Form VS 10-11 to the TVMDL. Laboratories conducting the EIA (Coggins) test are prohibited from conducting the retest if the verification and retest permit are not submitted with the serum sample. Upon completion of the test, the laboratory shall forward the results of the Texas Animal Health Commission. (f) Official identification of reactors. A reactor to the official test must be permanently identified using the National Uniform Tag Code number assigned by the USDA to the state in which the reactor was tested followed by the letter "A." (The code for Texas is 74A.) The reactor identification must be permanently applied by a representative of the Texas Animal Health Commission who must use for the purpose of identification, a hot iron brand or freeze-marking brand. The brand must be not less than two inches high and shall be applied to the left shoulder or left side of the neck of the reactor. Reactors must be branded within ten days of the date the laboratory completes the test unless the equidae is destroyed. Any equidae destroyed prior to branding must be described in a written statement by the accredited veterinarian or other authorized personnel certifying to the destruction. This certification must be submitted to the Texas Animal Health Commission promptly. (g) Quarantine of reactors. Any equine animal found to be a reactor to the official test will be quarantined by a representative of the Texas Animal Health Commission to the premises of its home, farm, ranch or stable until natural death, disposition by euthanasia, slaughter, or disposition to a Texas Animal Health Commission approved, diagnostic or research facility. The quarantine shall restrict the infected equine to isolation at least 200 yards away from other equine. (h) Movement of reactors. Following official identification, a reactor must be accompanied by a VS Form 1-27 permit issued by an accredited veterinarian or other authorized personnel when moved from its home premises either: (1) directly to a livestock market for sale directly to slaughter provided the reactor horse is quarantined at the market in isolation from other horses; or (2) directly to a slaughter plant; or (3) directly to an approved diagnostic or research facility. 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 April 20, 1994. TRD-9439928 Terry Beaks, DVM Executive Director Texas Animal Health Commission Effective date: June 10, 1994 Proposal publication date: December 21, 1993 For further information, please call: (512) 719-0714 TITLE 7. BANKING AND SECURITIES Part I. State Finance Commission Chapter 1. Consumer Credit Commissioner Subchapter B. Miscellaneous 7 TAC sec.1.305 The Finance Commission of Texas adopts new sec.1.305 concerning interpretations and advisory letters, without changes to proposed text as published in the January 28, 1994, issue of the Texas Register (19 TexReg 565). Pursuant to Texas Civil Statutes, Article 5069-2.02A(10), the consumer credit commissioner has the authority to issue interpretations of Title 79. Before the commissioner may issue an interpretation, the Finance Commission of Texas must approve the interpretation. The commission seeks by adoption of this section to define interpretation and to establish basic procedures relative to the request for, approval of, and issuance of an interpretation. The commission also seeks by the adoption of this section to establish and define the term "advisory letter" which shall be applied to written advice issued by the Office of Consumer Credit Commissioner which has not been expressly approved by the Commission and to provide that such advice contain a statement that it has not been approved. A person seeking written advice from the commissioner or his staff as to provisions of Title 79 will indicate in his or her request whether the person seeks an interpretation approved by the commission. A person who requests an interpretation will submit the information and fee required for an interpretation and the commissioner will follow the procedures established in the rule concerning publication of notice of the request and responding thereto. A person seeking written advice from the commissioner or his staff who does not seek approval of such advice by the commission will be put on notice in the answer of the commissioner or his staff that such advice is not an interpretation approved by the commission. Two persons submitted written comments on behalf of three associations. None of the groups or associations were in total opposition to the section. General Counsel of the Independent Bankers Association of Texas expressed general support for the rule but stated that "the last clause in subsection (c) which provides that such letters do not grant a safe harbor, we believe, is legally incorrect." The comment further pointed out the provisions of Article 8.01(f) applied to agencies other than the Consumer Credit Commissioner and the provision "...would seem to indicate that an interpretation from agencies other than the Consumer Credit Commissioner would also provide potential safe harbors. Certainly, then advisories from the Consumer Credit Commissioner should provide a safe harbor as well, without the procedures of Chapter 2." The commenter opined that the "...provisions found in Article 5069-2.02A(10), were uniquely intended to provide specific procedures for the Consumer Credit Commissioner in interpreting the usury laws, not in affecting the safe harbor provisions found in Chapter 8." A commenter speaking on behalf of the Texas Finance Association and the Texas Finance Institute renewed his continued opposition to a notation on an advisory letter to the effect that it "...does not grant a "safe harbor" as provided in Texas Civil Statutes, Article 5069-8. 01(f)." The commenter urges that the "safe harbor" provisions provide for what is "safe harbor" conduct, and that "Our Legislature has not attempted to determined what is not 'safe harbor' conduct." The commenter suggests that "... no administrator, administrative agency, or commission has the authority to attempt to determine by rule or regulation what is not a 'safe harbor'." The commission agrees with the commenters that the public interest is best served by clearly indicating whether a letter is an interpretation approved by the commission. All interpretations approved by the Finance Commission pursuant to statute are identified in the Texas Register. The Commission believes that if a letter has not been approved by the Finance Commission the letter should so indicate and, accordingly, has directed that all letters from the Office of Consumer Credit Commissioner which have not been presented for approval by the commission shall contain a notation that they are not interpretations approved by the Finance Commission pursuant to Texas Civil Statutes, Article 5069- 2.02A(10), and invite a request for an interpretation if desired. Adoption of this rule is not intended to inhibit either the normal queries to the commissioner and his staff or their freedom to respond. The rule in no way makes the commissioner or his staff unaccountable for the accuracy and quality of response whether delivered telephonically or in writing as an advisory letter nor does the rule attempt to change statutory language or restrict judicial remedies available to third parties. The Texas Open Records Act makes all advisory letters public records and the commission encourages dissemination of information contained in advisory letters with copies to be made available at fees established in accordance with appropriate statutory provisions. The commission finds that there is no need to publish the name of a person requesting an interpretation and suggests that the commissioner not do so in the future. Any request for an interpretation is subject to the Texas Open Records Act and is generally not a private matter. Any requester who believes that any part of an interpretation request should not be public should communicate with the commissioner on that matter. Without adoption of additional language in the adopted rule the commission herein declares that the adoption of the rule is done with the intent that its effect is prospective only and it shall not affect any interpretation issued previously. The new section is adopted under Texas Civil Statutes, Article 342-114A, which provide the Finance Commission of Texas with the authority to promulgate rules necessary for supervising the consumer credit commissioner and for ensuring compliance with Title 79, Revised Statutes, (Texas Civil Statutes, Article 5069- 1.01 et seq). 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 April 22, 1994. TRD-9439944 Al Endsley Consumer Credit Commissioner State Finance Commission Effective date: May 19, 1994 Proposal publication date: January 28, 1994 For further information, please call: (512) 479-1280 Part IV. Texas Savings and Loan Department Chapter 63. Fees and Charges 7 TAC sec.63.14 The Texas Savings and Loan Department adopts an amendment to sec.63.14, without changes to the proposed text as published in the March 4, 1994, issue of the Texas Register (19 TexReg 1511). The language has been changed to apply to conversion into a state or national bank, or a federal savings association. This section refers specifically to applications filed pursuant to this title, Chapter 69, which was recently amended to reflect statutory amendments allowing conversion to a bank charter in addition to a federal thrift charter. This amendment is designed to accurately reflect these statutory conversion provisions. A state chartered savings and loan association that applies to convert to a state or national bank, a federal savings bank, or a federal savings association will be charged the fee as indicated in this section. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 342-114, which provides the Finance Commission of Texas with the authority to promulgate general rules and regulations not inconsistent with the constitution and statutes of the state and, from time to time, to amend same. 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 April 22, 1994. TRD-9439911 James L. Pledger Commissioner Texas Savings and Loan Department Effective date: May 19, 1994 Proposal publication date: January 25, 1994 For further information, please call: (512) 475-1350 Chapter 67. Savings and Deposit Accounts 7 TAC sec.67.5 The Texas Savings and Loan Department adopts the repeal of sec.67.5, without changes to the proposed text as published in the January 25, 1994, issue of the Texas Register (19 TexReg 390). Because of a resurgence in the practice of paying premiums on savings deposits by federally chartered savings associations and banks, the prohibition on such practice by state savings associations placed these institutions at a competitive disadvantage. This prohibition is being deleted to maintain competitive parity, since the prohibition does not affect safety and soundness concerns. The Department believes that such practices should be business decisions within the purview of the institution's management. State chartered savings associations may voluntarily offer gifts or inducements to attract customers to open or add to deposit accounts with the institution. No comments were received regarding adoption of the repeal. The repeal is adopted under Texas Civil Statutes, Article 342-114, which provides the Finance Commission of Texas with the authority to promulgate general rules and regulations not inconsistent with the constitution and statutes of the state and, from time to time, to amend same. 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 April 22, 1994. TRD-9439909 James L. Pledger Commissioner Texas Savings and Loan Department Effective date: May 19, 1994 Proposal publication date: January 25, 1994 For further information, please call: (512) 475-1350 Chapter 77. Loans, Investments, Savings, and Deposits Savings and Deposits 7 TAC sec.77.105 The Texas Savings and Loan Department adopts the repeal of sec.77.105, without changes to the proposed text as published in the January 25, 1994, issue of the Texas Register (19 TexReg 392). Because of a resurgence in the practice of paying premiums on savings deposits by federally chartered savings associations and banks, the prohibition on such practice by state savings banks placed these institutions at a competitive disadvantage. This prohibition is being deleted to maintain competitive parity, since the prohibition does not affect safety and soundness concerns. The Department believes that such practices should be business decisions within the purview of the institution's management. State chartered savings banks may voluntarily offer gifts or inducements to attract customers to open or add to deposit accounts with the institution. No comments were received regarding adoption of the repeal. The repeal is adopted under Texas Civil Statutes, Article 342-114, which provides the Finance Commission of Texas with the authority to promulgate general rules and regulations not inconsistent with the constitution and statutes of the state and, from time to time, to amend same. 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 April 22, 1994. TRD-9439910 James L. Pledger Commissioner Texas Savings and Loan Department Effective date: May 19, 1994 Proposal publication date: January 25, 1994 For further information, please call: (512) 475-1350 TITLE 16. ECONOMIC REGULATIONS Part I. Railroad Commission of Texas Chapter 9. Liquefied Petroleum Gas Division Subchapter B. Basic Rules 16 TAC sec.sec.9.183-9.185, 9.187, 9.188 The Railroad Commission of Texas adopts new sec.sec.9.183-9.185, 9.187, and 9. 188, relating to uniform protection standards; uniform safety requirements; LP- gas storage and installation distance requirements; LP-gas storage bulkhead protection; and gauging devices and pressure gauges, with changes to the proposed text as published in the November 19, 1993, issue of the Texas Register (18 TexReg 8490). The commission adopts the new sections to implement rules regarding public refueling of LP-gas fueled vehicles using automatic dispensers, to clarify other requirements relating to LP-gas installations, and to renumber existing safety rules to allow for future expansion. New language in sec.9.183 (previously sec.9.63, relating to uniform protection standards) clarifies the applicability of various requirements and adds a chart relating to sign and lettering requirements. The new language also clarifies that: all LP-gas transfer systems and storage containers, except automatic dispensers, are subject to the requirements of the section. Protection requirements for automatic dispensers are contained in proposed new sec.9.1571, relating to protection of dispensers (previously sec.9.385, relating to protection of manual dispensers). A distinction is made between American Society of Mechanical Engineers (ASME) containers and portable Department of Transportation (DOT) containers to further clarify the applicability; ASME containers or manual dispensers originally manufactured as self-contained units are exempt from fencing requirements; vertical supports for guardrails must be anchored a minimum of 18 inches in concrete; the top of horizontal guardrailing must be a minimum of 30 inches above the ground, and secured with welding or bolts sufficient to prevent displacement of the guardrailing; no opening in the guardrailing may exceed 36 inches. A means of temporarily removing the guardrailing for handling of heavy equipment may be incorporated in the guardrailing; the operating end of a container, including all material handling equipment and the entire dispensing system and any other part of the transfer system or container exposed to vehicular traffic must be protected from collision; DOT portable containers may be stored in storage racks constructed to minimum specifications outlined in the section (e.g., must be constructed by welding, 18 gauge rolled perimeter members with 13 gauge expanded metal steel panel and 18 gauge steel roof); guardposts may be used in place of guardrails if they meet certain minimum requirements (e.g., 3 inch Schedule 40 steel pipe, capped on top, and anchored 30 inches below ground in concrete); DOT portable containers in storage, except those in storage racks or at private residences must be enclosed by fencing. This does not apply to containers that have been used in LP-gas service but are not awaiting use or resale; DOT portable containers may be used but not stored inside buildings when they are required as a fuel supply container for torches being used in construction, repair or renovation. They may not have an aggregate or individual water capacity of more than 250 pounds. New sec.9.185 (previously sec.9.65, relating to LP-gas storage distance requirements) includes requirements from several rules in other subchapters which have been moved to this section in order to provide all relevant information in one rule. The new language includes: reference to distance requirements from open flames, source of ignition and combustible materials that are contained in a table in proposed new sec.9.185 relating to LP-gas storage and installation distance requirements (previously sec.9.65, relating to LP-gas storage distance requirements); a requirement for fire extinguishers, which was previously contained in old sec.9.271, relating to extinguishers required; consolidation of requirements relating to contamination of LP-gas. The person responsible for contamination must have the test(s) specified in the rule performed by a testing laboratory or individual qualified to do testing; clarification that transfer hoses on LP-gas transports cannot be routed through or into any building during servicing of a container; a requirement that a pull-away device must be provided on all refueling installations; requirements for installation and support of containers, which were previously contained in old sec.sec.9.101, 9.112, 9.122, and 9.265, relating to containers installed aboveground; mounting of containers; installation of containers; installation of LP-gas service station and cylinder filling storage containers; and supports-120 degree arc required, are contained in the new section. The rule requires that containers in excess of 1,200 water gallon capacity shall be supported through an arc of 120 degrees; containers shall not be stacked unless designed for stacking by the manufacturer; the outside bottom of the container must not be more than five feet above the ground unless designed for a greater height by the manufacturer, and if containers are designed to be installed vertically, they must be installed according to the manufacturer's instructions or specifications approved by a Registered Professional Engineer; requirements for painting of containers which have been moved from sec.sec.9. 106, 9.124, 9.294, and 9.512, relating to painting; referral to proposed new sec.9.183 for requirements for lettering, marking, or numbering of containers; a requirement that LP-gas containers may not be covered by canopies or other coverings, moved from old sec.9.133, relating to loading area; requirements that, after completing an installation of an LP-gas container, the licensee must attach a tag to the container indicating the name of the licensee, license number, and the year installed; additional requirements for hydrostatic relief valves that discharge from a valve shall be directed so as not to impinge upon another container, part of a vehicle, adjacent persons or vehicles, or the inside of the passenger or luggage compartment of a vehicle. New sec.9.185 (previously sec.9.65, relating to LP-gas storage distance requirements) combines all distance requirements into three tables. The tables show distance requirements for storage of DOT portable containers, installation of ASME containers or DOT portable containers, and for automatic or manual dispensers. Requirements relating to forklifts are clarified to indicate that only those containers actually in use on the forklift may be left overnight in a building. New sec.9.187 (previously sec.9.67, relating to LP-gas storage protection) adds requirements that any LP-gas stationary installation of 4001 gallons or more aggregate water capacity installed after November 1, 1994, have liquid and vapor return piping and vertical bulkheads. Pneumatic or cable activated emergency shutoff valves (ESVs) must also be used. New language also clarifies other requirements relating to bulkheads and related equipment. New sec.9.188 (previously sec.9.68, relating to approved gauging devices) contains minor wording changes which clarify its intent. The commission requested that interested parties comment specifically on language in proposed new sec.9.185, relating to LP-gas storage and installation distance requirements, which requires a minimum distance of three feet between LP-gas automatic dispensers and storage containers and dispensers for other flammable fuels, particularly as those comments might offer justification for a minimum distance greater than the three foot requirement, such as 25 feet. The Texas Propane Gas Association was the only group or association to file comments on the proposed sections. Two comments suggested making sec.9.183(d)-(i) a new section to be entitled "Storage Racks," and relettering the subsections accordingly. The commission disagrees with the comment, because the rules cannot be reorganized as suggested within the current numbering scheme. Two comments offered new wording for sec.9.183(a), as follows: "Stationary ASME container(s) and DOT portable container(s) that contain LP-gas or have been used in LP-gas service where required to be in storage racks shall be stored or installed in accordance with the distance requirements specified in Tables 1 and 2 of sec.9.185 of this title (relating to LP-gas storage and installation distance requirements)." The commission disagrees with the suggested change in wording because new sec.9.183(a) is consistent with current industry standards and practices, and because the change is outside the scope of the notice; however, the issue of the distance requirements for storage of ASME containers will be considered in more detail in a future rulemaking proceeding. The commission changed the text in sec.9.183(a)(1)(C) to clarify the requirements for uprights, braces, and cornerposts for fencing. 9.183(a)(1)(D) and (E) were mispublished and do not duplicate language from current sec.9.63(a)(1)(D) and (E), and that (E) should be revised to read, "A minimum distance of two feet shall be maintained between the fencing and container(s) or system(s) so protected." The commission agrees that sec.9.183(a)(1)(D) and (E) should contain the language from current sec.9.63(a)(1)(D) and (E), but the commission disagrees that sec.9.183(a)(1)(E) should be revised as suggested. Four comments suggested that the first sentence in new sec.9.183(a)(2)(C) should be revised to read: "The horizontal guard railing shall be a minimum of 30 inches above the ground." The commission disagrees with this comment, because the language in the rule as adopted is more specific and therefore easier for licensees or other affected persons to comply with and for the commission to enforce. Another comment about sec.9.183(a)(2)(C) stated that the third sentence should be revised to read: "The horizontal guardrailing shall be welded or bolted to the vertical supports so as to prevent displacement under normal conditions." The comment pointed out that, as proposed, if under any circumstances the guardrail might be displaced, the installation is in violation. Using the standard of "normal circumstances" would take into consideration the nature of the traffic to which the protected items are exposed. The commission agrees that a change in the language would clarify the intent of rule, but disagrees that the wording suggested in the comment is adequate. To clarify the intent of the rule, the commission adds "under normal conditions, taking into account the nature of the traffic to which the protected items are exposed" to the end of the third sentence. One comment correctly pointed out that the requirements in sec.9.183, Table 1, items A, B, or C, which do not prohibit combining all lettering for the signs into one sign, are inconsistent with the requirements set forth in the text of sec.9.183(c). The commission agrees, and has changed the language in the rule to match the chart. One comment suggested changing the wording in sec.9.183(d) to read "ASME container(s) and DOT portable container(s) in storage racks that contain LP-gas or have been used in LP-gas service shall be stored or installed in accordance with the distance requirements specified in Tables 1 and 2 of sec.9. 185 of this title (relating to LP-gas storage and installation distance requirements)," to clarify that the rule is intended to apply to containers in storage racks. The commission agrees that this rule needs clarification and has made some changes to that end, but the issue of the distance requirements for storage of ASME containers will be considered in more detail in a future rulemaking proceeding. Another comment questioned whether sec.9.183(d) pertains to the storage of DOT 20 pounds cylinder in storage racks for resale, that is, a 20 pounds cylinder exchange, because if this section pertains to storage of any and all ASME and DOT containers, then it is a new requirement. The comment stated that the commission's concern should be the installation of these containers, not the location of the containers when they are out of service. The commission's response is that this comment addresses the earlier publication of the incorrect chart on October 19, 1993; the correct chart was published on November 19, 1993. The correct chart shows that the requirements do apply to stationary ASME or DOT containers. The commission has reworded sec.9.183(d) to clarify that Table 1 sets forth the distance requirements for installation of stationary ASME containers and DOT portable containers, and Table 2 sets forth the distance requirements for storage of DOT portable containers awaiting use or resale. Another comment concerning sec.9.183(d) stated that it does not belong under uniform protection standards; because subsection (d) is related to distances, it should be moved to sec.9.185 and should be reworded to clarify its meaning. The commenter understands that this provision is intended to apply to containers that are awaiting use or that have been returned after use and are stored in storage racks, as in convenience store cylinder exchange dealerships. The comment observes that if this understanding is correct, then the language may be deleted entirely (as opposed to being sandwiched into sec.9.185), because it will be covered by relabeling sec.9.185, Table 2; but if not, then the section should be withdrawn, rethought, clarified, and then re-proposed at a later date. The commenter believes that, as published, this provision adds the potential for complications which do not have workable solutions. The commission disagrees with the comment because this section is intended to apply to storage racks and other types of container storage. Because the commenter did not identify the "complications" claimed to be caused by the new rule, the commission cannot respond further. One comment relating to sec.9.183(e) stated that it should be reorganized and that the minimum construction requirements for storage racks be changed to include the following: 18 gauge perimeter support members with 13 gauge expanded metal or side members providing for ventilation and protection from tampering; 18 gauge metal roof; and padlock loop (welded on). The standards should further provide that storage rack which meets Occupational and Health Administration (OSHA) standards should be considered in compliance with these minimums. The commission disagrees with the suggested reorganization, but agrees that the rule needs clarification, although not as suggested in the comment. Specifically, the commission disagrees with the proposal that meeting OSHA standards should be considered compliance with commission minimum standards, because OSHA standards could be less stringent than commission minimum standards. To clarify the rule, however, the commission has reworded sec.9. 183(e)(1) to require 18 gauge steel perimeter members with 13 gauge expanded steel panels providing for ventilation and protection from tampering. Another comment suggested reorganizing sec.9.183(e), (f), (g), (h), and (i) into one paragraph labeled "(d) Storage Racks," and proposed paragraphs (e)-(i) would be numbered, (1), (2), (3), (4), and (5), so that each paragraph under sec.9.183 deals with a form of protection. The commission disagrees with this comment, because the rule cannot be reorganized as suggested within the current numbering scheme. A comment suggested moving the text in sec.9.183(j) to sec.9.185 where it could be added as subsection (e) with paragraphs (1), (2), and (3). The commenter agreed that the language, from old sec.9.80, should be retained. The commission disagrees with the proposed reorganization, because sec.9.183(j) relates to use of containers in buildings, not distances. Three comments relating to sec.9.183, Table 1, footnote 1, suggested rewording the footnote to delete the words "and Bulkheads" so that it reads: "Applies to installation of 4,001 gallons or more aggregate water capacity protected by guardrailing required by 9.183 at commercial, bulk storage, cylinder filling or forklift installations." The commission disagrees with these comments, because sec.9.187 requires protection by vertical bulkheads. However, to add clarity, the commission has changed the wording in footnote 1 to read as follows: "1. Applies to installation of 4,001 gallons or more aggregate water capacity protected by guardrailing, as required by sec.9.183, and by bulkheads, as required by sec.9.187, at commercial, bulk storage, cylinder filling or forklift installations." A comment concerning sec.9.183, Table 1, item E stated that the wording should be changed such that on commercially available emergency shutoff valves, the lettering may be one inch high and that the colors should not be limited to white letters on a red background as long as the lettering stands out. The commission agrees that the height requirement for the letters on the sign should be changed to one inch, but disagrees that the color requirement should be changed, due to the difficulty of enforcing the subjective standard that the lettering should stand out. An additional three comments concerning sec.9.183, Table 1, item E, suggested changing the wording from "PROPANE EEMERGENCY VALVE; PUSH" to "PROPANE EEMERGENCY SHUTOFF." The commission agrees that the wording should be changed to make the requirement clearer, since not all valve can be activated by pushing. Item E has been reworded to require the sign to have the words "PROPANE EEMERGENCY SHUTOFF VALVE" and to specify that the sign must also indicate the means of activating the shutoff valve. A comment on sec.9.183, Table 1, item I, suggested replacing the abbreviation "no." for number with the symbol "#." The commission disagrees because the symbol could be misconstrued as meaning weight. Three comments correctly pointed out that in the last sentence of sec.9. 184(a)(3), the reference to Table 4 should be to Table 3. The commission has made the change. Seven comments suggested deleting the words "excluding dispensing from an automatic dispenser" from sec.9.184(a)(5), based on the commenters' opinion that at least one person should be in the immediate vicinity when dispensing from an automatic dispenser. The commission agrees and has changed the wording of the section, although not as suggested in the comments, to include this requirement. A comment regarding sec.9.184(a)(7) suggested deleting the words, "transport, stationary, portable, mobile fuel, or motor fuel" from the first sentence so that it reads, "Any container that may have contained . . . ." The commission agrees that the suggested change makes the meaning of the rule clearer, because the requirement is not restricted to particular types of containers but by contents other than LP-gas. The change is made in the adopted section. Two comments concerned the new provision in the third sentence of sec.9. 184(a)(12)(A)(i) that structural metal supports may be employed when protected against fire. The comments stated that structural metal supports are fire resistant by nature; that horizontal container installations using structural metal supports with steel cradles as well as skid tanks have been made commonly throughout the state; and that if additional fire protection is required, it will create additional expense to provide foam or other type of fire protection. The comments requested that, unless the commission has fire or accident information on this subject, this requirement be deleted as unnecessary. The commission's response is that this comment warrants further consideration; therefore, this requirement has been deleted and will be considered in a future rulemaking. Regarding vertical containers, three comments recommended changing sec.9. 184(a)(12)(B) to read: ". . . container is mounted in accordance with the manufacturer's instructions or sound engineering practices approved by a Registered Professional Engineer." According to the comment, this change would allow industry to use the manufacturer's instructions on smaller type standard vertical containers instead of hiring a Registered Professional Engineer. The commission agrees, because if there are manufacturer's instructions, they will have been written in accord with sound engineering practices; if there are no manufacturer's instructions, then the installation can be made using sound engineering practices approved by a Register Professional Engineer. The change also clarifies the commission's intent to allow vertical installations of containers originally manufactured to be so installed. One comment stated that there is no logical reason for the prohibition in sec.9.184(a)(15) against having a canopy or covering over any LP-gas container or over loading and unloading areas where LP-gas transport transfer operations are performed, as long as any relief valve is extended through the canopy or cover, and that the industry needs to be consumer friendly without sacrificing safety. The commission disagrees with the comment; a canopy or covering could deflect flame back onto the container or could prevent access by fire extinguishing materials. The commission makes no change. Two comments regarding sec.9.184(a)(17) would add the word "valve" between "container" and "a," so that the paragraph would read: "Identification of installations. Upon completing the installation of an LP-gas container, except those used for bulk storage or retail DOT container filling/service station installations, the licensee making the installation shall attach to the container valve a tag of metal or other permanent material indicating the name of the LP-gas licensee, current LP-gas license number, and the year installed. For requirements regarding identification of conversions of motor vehicles, see sec.9.771 of this title (relating to identification labels)." The commission disagrees with this proposed change, because the purpose of the requirement is to identify the installer of the container, and the rule as adopted allows labels to be easily affixed. One comment proposed adding the words "Excluding DOT containers," to the beginning of sec.9.184(b)(4), so that it would read, "Excluding DOT containers, container discharge outlets shall be provided with an excess flow valve or internal valve(s) with excess flow capabilities." The commission agrees with a portion of this comment, and the necessary revision has been made to the rule to clarify that all ASME or DOT containers, excluding portable DOT containers, shall be provided with an excess flow valve or internal valve with excess flow capabilities. A comment suggested adding the following sentence to sec.9.185(a) to clarify the intent and scope of the distance requirements: "Distance requirements specified for stored containers refer to containers stored at consumer locations and do not apply to new or used containers stored at Category E licensees' places of operation or tank storage yards." The commission agrees, and has changed the wording to clarify that the rule applies to installation of ASME or DOT containers only. A comment suggested clarifying the reference to Tables 1, 2, and 3 in sec.9. 185(a) by changing the wording to read: "Containers used for LP-gas storage or installations shall be located in accordance with the distance requirements specified in Tables 1, 2, or 3 of this section." The commission agrees that the language in sec.9.185(a) should be clarified to indicate that Table 1 applies to installation of ASME or DOT containers only. The issue of distance requirements for storage of ASME or DOT containers at places of operation or tank storage yards of all categories of licensees will be considered in a future rulemaking. Four comments asked that the commission add a footnote 9 to sec.9.185, Table 1, item II: Manufactured Housing. The footnote would retain the requirements of sec.9.65(d)(1) and would provide that DOT container(s) may be located within ten feet of manufactured housing when the aggregate LP-gas capacity does not exceed 300 pounds and no single container exceeds 105 pounds LP-gas capacity. The commission agrees that Table 1 should be clarified regarding distance requirements for DOT containers installed at manufactured housing, and has added footnote 9 consistent with the comments and with current requirements. A comment on sec.9.185, Table 1 proposed changing the distance requirements in the first column (relating to containers up to 2.5 pounds capacity) to 0 feet. The commission response is that this comment relates to the incorrect table published on October 19, 1993; the correct table was published on November 19, 1993. Another comment on sec.9.185, Table 1, suggested changing the heading to read: "Minimum Distance Requirements for DOT or Stationary ASME Container Installations." Again, this comment relates to the incorrect table published on October 19, 1993; the correct table was published on November 19, 1993. Still another comment concerning sec.9.185, Table 1, item I General, Line A, Source of Ignition/Combustible Materials recommended that the distance in each column of Line A be changed to read: "10 feet." The commission disagrees and declines to make the change, because this distance requirement is consistent with that specified in former sec.9.64 of this title (relating to uniform safety requirements). Three comments suggested adding to the heading of sec.9.185, Table 2, the words "In Storage Racks," so that it would read: "MINIMUM DISTANCE REQUIREMENTS FOR STORAGE OF PORTABLE DOT CONTAINERS IN STORAGE RACKS." Adding these words would make the requirements in Table 2 not apply to a Category E Licensee's place of operation. The commission disagrees with the comment in regard to containers in storage racks because the rule is intended to address distance requirements for DOT containers in storage not only in racks but also in other locations or stored by other means. The commission agrees, however, that the title of the chart should clearly state that these requirements apply only to DOT portable containers awaiting use or resale is necessary, and has made the change. Another comment on sec.9.185, Table 2 proposed changing the heading of the second column (related to storage capacities of containers) to read: 2.5 to 720.99 pounds. The commission disagrees with the comment, because making the change would change the intended scope of application of the rule. One comment on sec.9.185, Table 2 recommended changing the subheading to read: "Containers with Individual (I) or Aggregate (A) LP-Gas Capacity." The commission agrees and has made the change. A comment on sec.9.185, Table 3, opposed the requirement of a 15-foot separation of manual dispensers from other fuel dispensers. The commission disagrees because automatic dispensers have safety equipment that reduces the potential for LP-gas liquid or vapor to escape, thereby reducing the likelihood of an incident that could cause property damage or bodily injury. Manual dispensers do not have similar safety features. A 15-foot separation has been proven adequate. Two comments on sec.9.185, Table 3, suggested two changes. The first would add footnote 1 to "A. Automatic Dispenser," to read, "Automatic dispensers at private fueling installations not available to the general public may use Section B distances." As an alternative, this footnote could be placed on "A. Automatic Dispenser" in the first and second columns only. By adding this footnote, allowance would be made for automatic dispensers in private yards which have commonly been used successfully throughout the industry and would be unaffected by the "general public use" type of installation. The second change would add footnote 1 to line A, with distances related to each of the first three columns so that they read: 3 feet 1, 5 feet 1, and 10 feet 1, respectively. The footnote would then read: "Automatic dispensers at private filling installations (not available to the general public) may use Section B distances." The commission agrees that the table should be modified to show that the requirements apply to automatic dispensers at public refueling facilities only, and not to automatic dispensers at private refueling installations, and has made the change. Another comment on sec.9.185, Table 3, suggested that the rule exempt (for clarification purposes) private motor fuel installations from the automatic dispenser rules in Division XII. The commission points out that automatic dispensers at private motor fuel installations are already exempt from Division XII by the definition of "automatic dispenser" in sec.9.2 of this title (relating to definitions), which is that automatic dispensers are LP-gas dispensers which are operated by the general public and which require transaction authorization. Two comments on sec.9.185, Table 3, suggested adding footnote 2 in the last column labeled "Other Flammable Fuel Dispensers" to read: "Excludes LP-gas dispenser," for clarification. The commission disagrees that this column requires a footnote for clarification, because the term "other flammable fuel dispensers" clearly means dispensers of fuels other than LP-gas. The commission asked specifically for comments concerning the requirement of a minimum distance between LP-gas dispensers and other flammable fuel dispensers in sec.9.185, Table 3. As proposed, the rule required that an LP-gas dispenser must be at least three feet from other flammable fuel dispensers. The commission received four comments opposing the proposed requirement and seven comments supporting it. Among those comments opposing the three foot minimum distance requirement, one stated that the NFPA 58 rule of 20 feet is a good minimum distance. Other comments stated that the minimum distance requirement should be rethought with more clarification offered on automatic dispensers. Other opposing comments stated that the three foot separation would precipitate accidents resulting in bodily harm and property damage, which would have a disastrous effect on propane's image; that current propane refueling technology is not ready for a minimum three foot separation between propane and gasoline dispensers. Another comment pointed out that there is no similar concern about CNG dispensers because of the minimum 12 foot distance requirements between dispensers for CNG. Comments supporting the proposed three foot minimum distance observed that a 25 foot minimum would eliminate many potential LP-gas motor fuel dispensers, because most convenience stores and service stations do not have the space to allow for 25 feet. Another stated that it is in the best interest of the public and dealers to have the freedom of choice to set the dispenser further if desired. Comments supporting found no exceptional hazard related to this distance in comparison with current requirements for liquid fuel dispensers co- located on fuel islands. The commission agrees with the comments supporting the rule as proposed, and has made no change because, with the other safety requirements already in the rules, the three foot minimum distance is the best choice. Dealers have the option of locating an LP-gas dispenser more than three feet from fuel dispensers. The rules require use of a fueling nozzle with a seat which cannot be activated unless it is connected to a filler valve. Motor/mobile fuel tanks filled by an automatic dispenser must have an 80% stop/fill device in order to prevent overfilling. Finally, dispensers in Texas are safer because they are required to have safety features not currently required in the NFPA standards. Another comment regarding sec.9.185, Table 3, suggested that the first three columns of the table should be reversed, so that a manual dispenser would be "three feet" and an automatic dispenser "N/A," with the same changes in columns three and four. The commission disagrees; the rules currently do not prescribe any minimum distances between dispensers at private refueling stations, which may be configured with self-contained units, self-contained cabinets, and/or tanks with refueling hoses connected directly to them. Refueling at a private installation is less hazardous than at a public refueling facility: fewer people use each private installation, and those who use private refueling installations are more experienced because they perform LP-gas refueling on a regular basis. One comment opposed the requirement in sec.9.187(a) that there be only one transfer hose attached to each pipe riser. This commenter has had a vertical bulkhead with dual liquid and vapor transfer hoses for ten years, and never had a problem. The commission has previously stated that two bulkheads could be installed side by side or end to end, and this type of configuration would be acceptable for loading two trucks at the same time. Because this type of configuration could be accomplished with a minimum of 18 inch separations, the commenter fails to see any improvement in safety over the dual hoses on one pipe riser through a bulkhead. The commission disagrees with the comment; the reason for the requirement is to ensure a clean break in the event of a pullaway. However, for convenience, bulkhead piping and risers can be configured to allow for multiple transfer hoses to be installed. For example, instead of a T-fitting being installed on top of a riser, the T-fitting could be installed below the bulkhead kickplate and two risers installed off that T-fitting. The commission has made no change in the section. The commission has made additional changes for greater clarity in the rules. Table 1 of sec.9.183 has been amended to indicate that the requirements in item E apply to licensee or non-licensee ASME containers of 4,001 gallons or more, aggregate water capacity (last column). Item H of that table has been amended to include the words "or work. press." as an acceptable abbreviation for "working pressure" because it is commonly used and understood in the LP-gas industry. The commission has made a change to sec.9.187; because the section is being adopted after the February 1, 1994, date for compliance specified in the proposed rule, the new date for compliance has been changed to November 1, 1994. Additional wording changes have been made for clarity. The new sections are adopted under the Texas Natural Resources Code, sec.113. 051, which authorizes the commission to promulgate rules and standards related to the LP-gas industry and its operations, which will protect or tend to protect the health, safety, and welfare of the general public. The new sections implement the Texas Natural Resources Code, sec.113.051, which requires the commission to promulgate rules and standards related to the LP-gas industry and its operations, which will protect or tend to protect the health, safety, and welfare of the general public. sec.9.183. Uniform Protection Standards. (a) All LP-gas transfer systems and storage containers, excluding automatic dispensers, shall be protected from tampering and damage and the protection shall be maintained in good condition at all times and in accordance with one of the three standards set forth in this subsection. Portable DOT containers in storage other than storage racks described in subsection (e) of this section, referred to in subsection (d) of this section, however, shall be protected in accordance with paragraph (1) of this subsection. Automatic dispensers for general public use shall be protected against collision damage in accordance with sec.9.1571(a) of this title (relating to protection of dispensers). (1) Fencing. (A) Fencing material shall be chain link type with wire no smaller than 12 1/2 American wire gauge in size. (B) Fencing shall be no less than six feet in height at all points. Fencing may be five feet in height when topped with at least three strands of barbed wire, with the strands no more than four inches apart. (C) All uprights, braces, and/or cornerposts of the fence shall be composed of noncombustible material if located within the minimum distances specified for sources of ignition or combustible materials set forth in Tables 1 and 2 of sec.9.185 of this title (relating to LP-gas storage and installation distance requirements) for the enclosed LP-gas transfer system or LP-gas container(s). (D) All fenced enclosures shall have at least one gate suitable for entrance and egress. All gates shall be locked whenever the area enclosed is unattended. (E) A minimum clearance of two feet shall be maintained between the fencing and the container, material handling equipment, and the entire dispensing system. (F) Fencing which is located more than 25 feet from any point of an LP-gas transfer system or container is designated as perimeter fencing. If an LP-gas transfer system or container is located inside perimeter fencing and is subject to vehicular traffic, it shall be protected against damage according to the specifications set forth in paragraph (2) of this subsection. (G) The operating end of the container (including all material handling equipment and the entire dispensing system) shall be completely enclosed by fencing. (H) Any ASME container or manual dispenser originally manufactured as a completely self-contained unit is exempt from complying with the fencing requirements of this section. However, such a self-contained unit shall still comply with paragraph (2) of this subsection. (I) Any container or manual dispenser not originally manufactured as a completely self-contained unit shall comply with the fencing requirements unless approval is received from the commission prior to installation. The request for approval shall be in writing and shall specify the manner in which the valves, fittings and other appurtenances will be protected against tampering by unauthorized persons, including specifications for materials to be used. If approval is granted, the self-contained unit shall still comply with the requirements of paragraph (2) of this subsection. (J) The gate in the fence where a bulkhead is installed must be located directly in front of the bulkhead. The width of the gate shall be sufficient to prevent binding of the transfer hose(s) on the gate posts and to insure breaking of the bulkhead pipe risers(s) (nipple(s)) in the event of a pull-away. (2) Guardrails. (A) Where fencing is not used to protect the installation as provided in paragraph (1) of this subsection, then valve locks, a means of locking the electric control for the pump(s) or compressor(s), or other suitable means shall be provided to prevent unauthorized withdrawal of LP-gas. (B) Vertical supports for guardrails shall be a minimum of three-inch schedule 40 steel pipe, or material with equal or greater strength. The vertical supports shall be capped on the top and anchored below grade a minimum of 18 inches in concrete, with a minimum height of 30 inches above the ground. Vertical supports shall be spaced no more than four feet apart. (C) The top of the horizontal guardrailing shall be secured to the vertical supports a minimum of 30 inches above the ground. The horizontal guardrailing shall be no less than three-inch schedule 40 steel pipe, or material with equal or greater strength. The horizontal guardrailing shall be welded or bolted to the vertical supports with bolts of sufficient size and strength to prevent displacement of the horizontal guardrailing under normal conditions, taking into account the nature of the traffic to which the protected items are exposed. (D) No opening in the horizontal guardrailing, except the opening directly in front of a bulkhead, may exceed 36 inches. A means of temporarily removing the horizontal guardrailing and/or vertical supports to facilitate the handling of heavy equipment may be incorporated into the horizontal guardrailing and vertical supports. In no case shall the protection provided by the horizontal guardrailing and vertical supports be decreased. Transfer hoses from the bulkhead shall only be routed through the 45 degree opening in front of the bulkhead, or over the horizontal guardrailing. (E) A minimum clearance of 24 inches shall be maintained between the railing and any part of an LP-gas transfer system or container. The two posts at the ends of any railing which protects a bulkhead shall be located at 45 degree angles to the corner of the bulkhead. (F) The operating end of the container (including all material handling equipment and the entire dispensing system) and any part of the LP-gas transfer system or container which is exposed to vehicular traffic must be protected from damage by the vehicular traffic. The protection shall extend at least 24 inches beyond any part of the LP-gas transfer system or container which is exposed to vehicular traffic. (3) Fencing and Guardrails. A combination of the protection standards authorized by paragraphs (1) and (2) of this subsection shall not result in less protection than either standard. (4) Exemptions. This subsection does not apply to the following: (A) LP-gas systems and containers located at a private residence; (B) LP-gas systems and containers which service vapor systems, where the aggregate storage capacity of the installation is less than 4,001 gallons, and where the transfer system is not subject to vehicular traffic; (C) LP-gas piping which contains no valves and which complies with the provisions of sec.9.959 of this title (relating to exterior piping); and (D) LP-gas storage containers located on a rural consumer's property from which engine or motor fuel containers are filled. (b) The provisions of this section notwithstanding, the commission may require an installation to be protected in accordance with subsection (a) of this section when evidence exists that because of exceptional circumstances, added safeguards are needed to adequately protect the health, safety, and welfare of the general public. If a person owning or operating such an installation disagrees with the determination made under this subsection, then that person may request a public hearing on the matter. However, until a decision is issued subsequent to a hearing on the matter, the installation shall either be protected in the manner prescribed by the commission, or closed with all product withdrawn from it. (c) Table 1 of this section specifies requirements for signs at certain LP-gas installations or storage areas and lettering of certain LP-gas containers. The requirements in Table 1, items A, B, or C, do not prohibit combining all lettering for the signs onto one sign. [graphic] (d) Stationary ASME container(s) and DOT portable container(s) shall be installed in accordance with the distance requirements in Table 1 of sec.9.185 of this title (relating to LP-gas storage and installation distance requirements), and DOT portable containers awaiting use or resale shall be stored in accordance with the distance requirements specified in Table 2 of sec.9.185 of this title (relating to LP-gas storage and installation distance requirements). (e) A storage rack may be used to store 20 pound DOT portable or forklift containers. Welding shall be used to construct the storage rack, and it shall be constructed of a minimum: (1) 18 gauge perimeter members with 13 gauge expanded steel panels providing for ventilation and protection from tampering; (2) 18 gauge steel roof; and (3) padlock loop (welded on). The storage rack shall also meet the Occupational Safety and Health Administration (OSHA) standards. (f) A storage rack with a solid steel back constructed of a minimum 18 gauge steel may be located against a combustible wall. (g) A storage rack used to store 20 pound DOT portable containers that is not installed against the wall of a building shall be protected against vehicular damage by: (1) meeting the guardrail requirements of subsection (a)2) of this section, or; (2) substituting guardposts in lieu of guardrails if: (A) the guardposts are a minimum 3 inch Schedule 40 steel pipe, capped on top and anchored in concrete a minimum of 30 inches below ground with a minimum height of 30 inches above the ground; or (B) in the event the guardposts cannot be anchored in concrete a minimum of 30 inches below ground, they are constructed of a minimum of 4 inch Schedule 40 steel pipe attached by welding to an 8 inch by 8 inch steel plate a minimum of 1/2 inch thick. The guardpost and steel plate shall be installed so that they cannot be displaced. (h) All service valves on DOT portable containers that are in storage shall be in the closed position at all times. (i) Any DOT portable container in storage, except those in storage racks or at single family dwellings used as private residences or DOT forklift containers, shall be enclosed by fencing meeting the requirements of paragraph (2) of subsection (a) of this section. This does not apply to DOT portable container(s) that have been used in LP-gas service but are not awaiting use or resale. (j) DOT portable containers may be used but not stored inside a building when the container is required as a fuel supply container for approved torches being used in the construction, repair, or improvement of the building or structure and its fixtures and equipment, or for other industrial uses. Such installation shall comply with the following additional requirements. (1) The regulator shall be connected directly to the container valve(s). (2) Containers shall not have an aggregate or individual water capacity in excess of 250 pounds. (3) Such containers, while being used in a building, shall not be placed so that they are subject to excessive rises in temperature, mechanical injury, or to tampering by unauthorized persons. sec.9.184. Uniform Safety Requirements. (a) General. (1) Open flames and other sources of ignition. No source of ignition may be located within the vicinity of an LP-gas container or an LP-gas transfer system except in accordance with the distances set forth in Table 1, 2, or 3 of sec.9.185 of this title (relating to LP-gas storage and installation distance requirements). (2) Combustible materials. The vicinity of a stationary LP-gas container and transfer or dispensing equipment shall be kept clear of all types of combustible materials as specified in Table 1, 2, or 3 of sec.9.185 of this title (relating to LP-gas storage and installation distance requirements). (3) Storage of LP-gas next to flammable liquids. Suitable means shall be taken by provision of a dike, diversion curbs, and grading to prevent the accumulation of flammable liquids such as gasoline, diesel, etc., under LP-gas storage containers. LP-gas containers shall not be located within a dike area. The minimum separation between LP-gas containers, automatic dispensers or manual dispensers and flammable liquid containers shall be as specified in Table 3 of sec.9.185 of this title (relating to LP-gas storage and installation distance requirements). (4) Extinguishers required. Each LP-gas service station or portable DOT container filling installation shall be provided with at least two hand fire extinguishers, one of a type and size not less than five pounds capacity, and one of 15 or 20 pounds capacity, suitable for extinguishing LP-gas fires. Extinguishers shall be fully charged at all times and shall be kept in good working condition. (5) Transfer or dispensing of LP-gas. During the transfer or dispensing of LP- gas, which includes the time period from connection to disconnection, at least one person shall remain in the immediate vicinity of the transfer or dispensing equipment in a position to monitor the flow of fuel and to control the transfer or dispensing equipment. Automatic dispensers shall be manually operated by the user at all times during the transfer operation. (6) Lifting lugs. Lifting lugs in good repair on an ASME container filled to no more than 5.0% of its maximum water capacity may be used for lifting or lowering. Additional means of lifting or lowering shall be utilized when lifting or lowering an ASME container containing more than 5.0% of its maximum water capacity. (7) Contamination. Any container that may have contained product other than LP-gas shall be thoroughly cleaned and purged prior to introducing LP-gas into such container. Only grades of LP-gas determined to be "non-corrosive" may be introduced into any container. "Non-corrosive" means the corrosiveness of the gas does not exceed the limitation for classification 1 of the American Society of Testing Material (ASTM) Copper Strip Classifications when tested in accordance with ASTM D 1834-64, "Copper Strip Corrosion of Liquefied Petroleum (LP) Gases." LP-gas may not contain anhydrous ammonia, hydrogen sulfide, or any other contaminant. (A) If it is known or suspected that the LP-gas has been or may be contaminated, the person responsible for the contamination shall have one or more of the test(s) contained in "Liquefied Petroleum Gas Specifications for Test Methods, Gas Processors Association (GPA) 2140" performed by a testing laboratory or individual qualified to perform the test(s). The commission may request information necessary to determine the qualification of any testing laboratory or individual. (B) The results of the test(s) shall certify whether the LP-gas is contaminated or corrosive, whether the use of the LP-gas in the container(s) will damage either the stationary or non-stationary container(s) or the container valves, fittings or appurtenances, or whether the contaminated product or container or container valves, fittings, or appurtenance will endanger the health, safety, and welfare of the general public. (C) Based on the results of the test(s), the commission may require that the LP-gas be removed immediately from the container or that the container be removed immediately from LP-gas service. (8) Transfer hoses. LP-gas transfer hoses on LP-gas transports shall not be routed in or through any building for the purpose of servicing an LP-gas container. (9) Lighting. If LP-gas transfer operations are routinely conducted during other than daylight hours at any LP-gas installation having an aggregate water capacity of 8,000 water gallons or greater, sufficient light shall be provided to ensure a safe transfer operation. (10) Length of flexible connectors. Flexible connectors, other than LP-gas transfer hoses in excess of 3/4 inch in diameter shall not exceed 42 inches in length and shall not be used in lieu of pipe fittings to change direction in liquid or vapor piping. (11) Pull-away device. Each LP-gas private or public motor/mobile or forklift refueling installation which includes a liquid dispensing system shall incorporate into that dispensing system a pull-away device. This requirement is not applicable to the LP-gas transport transfer operation at a bulk storage installation. (12) Support of aboveground containers. All LP-gas storage containers, except skid containers, shall be provided with substantial masonry or noncombustible structural supports on a firm masonry foundation so that the bottom of the container is not in contact with the ground. The use of tile or hollow brick is not permitted. (A) Except as modified by the note set forth in clause (ii) of this paragraph, aboveground containers shall be supported as follows. (i) All horizontal stationary LP-gas containers in excess of 1,200 water gallon capacity shall be supported through an arc of 120 degrees (which is 60 degrees either side of vertical based on the center line at the bottom of the container) so as to prevent the concentration of excessive loads on the supporting portion of the shell. The mounting shall be in such a manner as to permit expansion and contraction of the container and mounting due to fluctuations in temperature. That portion of the container in contact with the foundation or saddles shall be protected against corrosion. (ii) When installed for use, containers shall not be stacked one upon another except when designed by the manufacturer for stacking. The outside bottom of a container shall not be more than five feet above the ground unless a greater distance is recommended by the manufacturer. If the container is installed more than five feet above the ground, it shall be supported to avoid displacement of the container. (B) Containers originally manufactured to be installed in a vertical position may be installed vertically, provided that such a container is mounted in accordance with the manufacturer's instructions or sound engineering practices approved by a Registered Professional Engineer. (13) Painting of containers. All ASME containers, except vaporizer and motor/mobile fuel containers installed in accordance with Subchapter G of this chapter (relating to Division V), shall be painted white or aluminum. LP-gas transports shall be painted in accordance with sec.9.512 of this title (relating to painting). (14) Lettering, marking, and numbering of containers. All containers shall be lettered, marked, or numbered in accordance with the requirements set forth in Table 1 of sec.9.183 of this title (relating to uniform protection standards). (15) Covering LP-Gas Containers. No canopies or coverings are allowed over any LP-gas container or over loading and unloading areas where LP-gas transport transfer operations are performed. Non-combustible wind breaks and other weather protection may be installed to provide employees and customers protection against the elements of weather, but shall not be installed over any portion of an LP-gas container. (16) Underground containers. A container designed for underground installation only shall not contain liquid fuel at any time the container is aboveground or uncovered. (17) Identification of installations. Upon completing the installation of an LP-gas container, except those used for bulk storage or retail DOT container filling/service station installations, the licensee making the installation shall attach to the container a tag of metal or other permanent material indicating the name of the LP-gas licensee, current LP-gas license number, and the year installed. For requirements regarding identification of conversions of motor vehicles, see sec.9.771 of this title (relating to identification labels). (b) Valves. (1) Valves in closed position. Except in vaporizers and vapor systems, all vapor and liquid container shutoff valves shall be kept in the fully closed position when the LP-gas installation is unattended. (2) Hydrostatic relief valve. Any closed portion of liquid piping or hose designed to operate up to 350 psig shall be equipped with a hydrostatic relief valve having a pressure setting of not less than 400 psig or more than 500 psig, or a bypass valve installed according to the manufacturer's instructions. Liquid piping or hose designed to operate above 350 psig shall be equipped with a hydrostatic relief valve having a pressure setting of not less than 110% or more than 125% of the system design pressure, or a bypass valve installed according to the manufacturer's instructions. Hydrostatic relief valve discharge shall be directed or vented so that any gas released will not directly impinge upon containers, any part of a vehicle, adjacent persons or vehicles, or the inside of the passenger or luggage compartment of a vehicle. (3) Container filling and vapor return outlet requirements. Any filling and vapor return outlets provided on a container shall be provided with valves to prevent back flow. (4) Container discharge outlet requirements. The discharge outlet of all ASME or DOT containers, excluding portable DOT containers, shall be provided with an excess flow valve or an internal valve(s)with excess flow capabilities. (5) Other container outlet requirements. All other outlets in containers, except relief valves, filling connections, and liquid level gauging devices shall be equipped with excess flow valves. (6) Excess flow valve design requirements. Excess flow valves, where required by these standards, shall be designed to close automatically and shut off the gas or liquid flow in case: (A) the flow through the valve exceeds a predetermined rate, which must be less than the pipe line capacity to and from such excess flow valve; or (B) the pressure on the inlet side of the excess flow valve exceeds by a certain designated number of pounds per square inch the pressure in pounds of the outlet of such valve. (7) Excess flow valve bypass requirements. Excess flow valves may be designed with a bypass, not to exceed a Number 60 drill size opening, to allow equalization of pressure. (8) Location of excess flow and back-pressure check valve. An excess flow and back-pressure check valve, where required by these standards, shall be located inside the container or at a point outside where the piping enters the container; in the latter case, installation shall be made such that any undue strain beyond the excess flow or back-pressure check valve will not cause breakage between the container and such valve. An excess flow valve must be installed immediately upstream from the point at which the manual dispenser is connected to the supply piping. Gauging devices which do not involve the flow of liquid or which are constructed so that outward flow of container contents shall not exceed that passed by a Number 54 drill size need not be equipped with an excess flow valve. (9) Location of shutoff valves. All connections to containers except pressure relief connections, gauging devices, filler valves and vapor return valves shall have shutoff valves located as close to the container as practicable. (c) Pumps. (1) Pump and Pump Accessories. Only positive displacement pumps, equipped with a proper operating pressure activated bypass valve installed in accordance with the manufacturer's instructions shall be used in LP-gas service. (2) Pump and manual dispenser mounting. Pumps and manual dispensers shall be secured against displacement and shall be mounted on a noncombustible support or base. (3) A retail operated DOT portable container filling installation and/or service station installation shall be equipped with a pump. A remote control shall be provided outside the dispensing device so that the source of power to the pump may be readily shut off in the event of an accident. sec.9.185. LP-Gas Storage and Installation Distance Requirements. (a) LP-gas containers shall be stored or installed in accordance with the distance requirements specified in Table 1, 2 or 3 of this section. Containers used on operating industrial lift trucks may be stored inside buildings, but are limited to those containers actually in use on the industrial lift truck. The operating industrial lift truck shall be stored in an area that will reduce the likelihood of an accident. (b) No stationary LP-gas storage container shall be placed in any area directly beneath an electric transmission or distribution line (does not include a customer service line) and that area which is six feet to either side of the line. If this distance is not adequate to prevent the broken ends of the electric transmission line(s) and voltage from contacting the LP-gas container in the event of breakage of any conductor, then other suitable means of protection designed and constructed so as to prevent such contact with the container may be used if approval is received from the commission. The request for approval must be in writing and specify the manner in which the container will be protected from contact, including specifications for the materials to be used. If approval is not received from the commission, the container must be located a sufficient distance from the transmission line to prevent such contact. (c) An LP-gas liquid dispensing installation other than a retail operated DOT portable container filling/service station installation need not have a pump, provided that the storage container(s) are located one and one half times the required distances as shown in Table 1, 2, or 3 of subsection (a) of this section. (d) Any LP-gas container constructed prior to 1970 which has an odd-numbered water gallon capacity (e.g., 517 water gallons instead of 500 water gallons) that is not more than 10% greater than the standard water gallon capacity may be installed utilizing the minimum distance requirement based on the standard water gallon capacity. sec.9.187. LP-Gas Storage Bulkhead Protection. (a) Each LP-gas stationary installation of 4,001 gallons or more aggregate water capacity installed on or after November 1, 1994, shall incorporate in its design vertical bulkheads installed not less than ten feet from the container for liquid and vapor return piping. Additionally, pneumatic or cable activated emergency shutoff valves (ESVs) shall be used for liquid piping and vapor return piping. See Figure 1 of this section for design requirements. A horizontal bulkhead shall not be made into a vertical bulkhead. The top of the crossmember of a vertical bulkhead shall not be more than 28 inches above ground level. Each bulkhead at a licensee location shall include liquid and vapor transfer hose, and only one transfer hose may be attached to each pipe riser. Non-licensee installations are not required to provide liquid and vapor transfer hoses if the liquid and vapor pipe risers are equipped with a filler valve on the liquid pipe riser and a vapor return valve on the vapor pipe riser threaded directly into the elbow or other similar fitting described in subsection (b)(1) of this section. NOTE: This section shall not apply where the liquid and vapor return transfer hoses are connected directly to a 1 3/4 inch or less acme-threaded filler and vapor return valve when the valve(s) are installed directly into the container. [graphic] (b) Bulkheads shall be anchored in reinforced concrete to prevent displacement of the bulkhead, piping, and fittings in the event of a transport pull-away while the transfer hose is connected. Bulkheads shall be constructed by welding and the following materials or their equivalent or greater shall be used: (1) six inch steel channel iron; (2) legs of four inch Schedule 80 piping; (3) top crossmember of six inch standard weight steel channel iron. If channel iron is used for the crossmember it shall be installed so the channel portion of the channel iron is pointing downward, to prevent the accumulation of water; (4) kick plate of 1/4 inch steel plate installed a minimum of ten inches from the top of the bulkhead crossmember. A kick plate is not required if the crossmember is constructed so as to prevent torsional stress from being placed on the piping to the pipe riser(s); (5) a Schedule 40 pipe sleeve or 3,000 pound coupling installed between the top crossmember and the kick plate by means of welding to the crossmember and kick plate. If a sleeve is used it shall have a clearance of no more than 1/4 inch for the piping to the pipe riser, and the piping shall terminate through the bulkhead with a Schedule 80 pipe collar, a 12 inch length of Schedule 80 threaded (not welded) pipe riser (nipple), and an elbow or other fitting between the bulkhead and hose coupling. If a 3,000 pound coupling is used, no collar is required; however, the requirement for a 12 inch length of Schedule 80 threaded (not welded) pipe riser (nipple) and an elbow or other fitting between the bulkhead and hose coupling is required. The purpose of the elbow or other similar fitting is to direct the transfer hose from vertical to prevent binding or kinking of the hose. The elbow or other fitting(s) shall meet the requirements set forth in Subchapter I of this chapter (relating to high pressure pipe fittings). (c) Emergency shutoff valves (ESVs) shall be installed in fixed piping of the transfer system upstream of the bulkhead and within four feet of the bulkhead with a flexible wire braided hose not more than 24 inches long installed between the ESVs and the bulkhead. (1) ESVs shall be installed according to the manufacturer's instructions. (2) ESVs shall incorporate all of the following means of closing: (A) automatic shutoff through thermal (fire) actuation using fusible elements with a melting point not to exceed 250 degrees Fahrenheit; (B) manual shutoff at the installed locations; and (C) manual shutoff from a remote location. Remote controls shall be connected to each ESV. Emergency remote controls shall be conspicuously marked according to the requirements of Table 1 of sec.9.183 of this title (relating to uniform protection standards) and shall be located and maintained to be readily accessible in emergencies. (3) ESVs or back-flow check valves shall be installed in the piping system in such a manner that any break resulting from a pull-away will occur on the transfer hose side of the bulkhead and the valve and piping on the container side of the bulkhead will remain intact. (d) Where the flow of liquid LP-gas is from a transport to a container in one direction only, a back-flow check valve may be used in lieu of an ESV in the fixed liquid piping, provided the back-flow check valve has a metal-to-metal seat or a primary resilient seat with a secondary metal seat not hinged with combustible material. Use of a back-flow check valve in liquid piping does not eliminate the need for an ESV in the vapor piping. (e) The bulkhead(s) and ESVs shall be kept in proper working order at all times in accordance with the manufacturer's instructions and the LP-Gas Safety Rules. If the bulkhead(s) and ESVs are not in proper working order in accordance with the manufacturer's instructions and the LP-Gas Safety Rules, the installation shall be immediately removed from LP-gas service and shall not be operated until the necessary repairs have been made. sec.9.188. Gauging Devices and Pressure Gauges. (a) All American Society of Mechanical Engineers (ASME) LP-gas containers shall be equipped with a fixed or rotary tube liquid level gauging device. Refer to sec.9.184(c)(5) of this title (relating to uniform safety requirements) regarding container openings in which liquid level gauging devices are installed. Such devices shall be readily accessible and shall be used at the time of the filling operation to ensure the container is not filled in excess of the maximum permitted filling density as required in sec.9.167 of this title (relating to filling density). Refer to sec.9.923 of this title (relating to Appendix C) for the method of calculating the length of fixed tube. If applicable, see Figure 1 of this section for quick reference to determine the maximum permitted filling density for aboveground and truck containers over 1, 200 gallons. Gauging devices of the fixed or rotary tube type may be used without the installation of an excess flow valve, provided the bleed valve opening is not larger than a Number 54 drill size. This subsection does not apply to ASME direct-gas fired vaporizer containers as noted in sec.9.203(a) of this title (relating to direct gas-fired vaporizers). [graphic] (b) All stationary ASME constructed LP-gas containers having a water capacity of 2,000 gallons or more shall be equipped with a pressure gauge which is readable and in proper operating condition. A container opening to which a pressure gauge is attached need not be equipped with a shutoff valve or excess flow valve if the opening is no larger than a Number 54 drill size opening and is piped to the vapor space of the container. 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 April 25, 1994. TRD-9439765 Mary Ross McDonald Assistant Director, Legal Division-Gas Utilities/LP Gas Railroad Commission of Texas Effective date: June 1, 1994 Proposal publication date: November 19, 1994 For further information, please call: (512) 463-6949 Part IV. Texas Department of Licensing and Regulation Chapter 68. Elimination of Architectural Barriers 16 TAC sec.sec.68.1, 68.10, 68.62, 68.80, 68.101-68.103, 68. 105-68.112 The Texas Department of Licensing and Regulation adopts the repeal of sec.sec.68.1, 68.10, 68.62, 68.80, 68.101-68.103, and 68.105-68.112, concerning standards for the elimination of architectural barriers encountered by persons with disabilities in buildings and facilities subject to the Architectural Barriers Act, Texas Civil Statutes, Article 9102, without changes to the proposed text as published in the January 14, 1994, issue of the Texas Register (19 TexReg 250). The sections are being repealed to allow for the adoption of new accessibility standards intended to be consistent with those adopted under federal law in accordance with the Act, sec.5(c). The repeal will provide for improved accessibility for persons with disabilities and increased compliance with state and federal laws. No comments were received regarding adoption of the repeals. The repeals are adopted under Texas Civil Statutes, Article 9102, which provide the Texas Department of Licensing and Regulation with the authority to adopt standards that are consistent with federal 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 April 29, 1994. TRD-9440013 Jack W. Garison Executive Director Texas Department of Licensing and Regulation Effective date: June 1, 1994 Proposal publication date: January 14, 1994 For further information, please call: (512) 463-3127 16 TAC sec.sec.68.1, 68.10, 68.20, 68.21, 68.30-68.33, 68.60-68. 66, 68.70- 68.72, 68.80, 68.90-68.93 The Texas Department of Licensing and Regulation adopts new sec.sec.68.1, 68. 10, 68.20, 68.21, 68.30-68.33, 68.60-68.66, 68.70-68.72, 68.80, 68.90-68.93 concerning the Architectural Barriers Act, Article 9102. Sections 68.10, 68.80, and 68.93 are adopted with changes to the proposed text as published in the January 14, 1994, issue of the Texas Register (19 TexReg 250). Sections 68.1, 68.20, 68.21, 68.30-68.33, 68.60-68.66, 68.70-68.72, 68.90-68.92 are adopted without changes and will not be republished. The sections clarify, edit, renumber, and reorganize existing rules which have been proposed for repeal. Enforcement of the rules will improve accessibility for persons with disabilities and increase compliance with state and federal laws. The department held a public hearing on January 24, 1994, regarding adoption of the rules. One comment was received from the General Services Commission (GSC) regarding sec.68.80. The GSC expressed concern that the standard state lease contract does not provide legal standing for the withholding of the required fee from the monthly lease payment and the word lessee in sec.68.80(f) should be replaced with "occupying agency." The department appreciates the comment and has clarified paragraph (e) and added a definition of "lessee." The new sections are adopted under Texas Civil Statutes, Article 9102, which provide the Texas Department of Licensing and Regulation with the authority to adopt standards that are consistent with federal law. sec.68.10. Definitions. The following words and terms, when used in this chapter shall have the following meanings, unless the context clearly indicates otherwise. Act-Texas Civil Statutes, Article 9102. Building-Any structure used and intended for supporting or sheltering any use or occupancy. Completion of Construction-That phase of a construction project which results in occupancy or the issuance of a certificate of occupancy. Construction Documents -Working drawings and specifications used for construction of a building or facility. Contract Provider -The individual, company, or authority under contract with the department to perform plan reviews, inspections, or both. Determination of Impracticability-The formal process by which the governmental department, agency or unit concerned petitions the department to rule on the impracticability of applying one or more of the standards or specifications to a building or facility referred to in the Act. Barriers Chapter 68 Facility-All or any portion of buildings, structures, site improvements, complexes, equipment, roads, walks, passageways, parking lots, or other real or personal property located on a site. Facility-All or any portion of buildings, structures, site improvements, complexes, equipment, roads, walks, passageways, parking lots, or other real or personal property located on a site. Lessee-with respect to state leased or occupied space, the state agency which enters into a contract with a building owner. In instances of free space or where a written contract is non-existent, reference to the lessee shall mean the occupying state agency. Limited Application -Any modification or alteration that would permit the inclusion of any one or more accessibility standards set forth in department rules but which would not constitute substantial renovations. Owner-The person or persons, company, corporation, authority, commission, board, governmental entity, institution, or any other unit that holds title to subject building or facility. State Agency-A board, commission, department, office, or other agency of State government. Substantially Renovated, Modified or Altered-Any construction activity, including demolition, involving any part or all of a building or facility. When the scope of a project is limited to cosmetic work and normal maintenance, it shall not constitute substantial renovation, modification or alteration. sec.68.80. Fees. (a) Plan review and inspection fees collected by the department shall be determined by the estimated project cost, not including site acquisition, furnishings, or equipment, and assessed according to the fee schedule. In instances involving multiple facilities with identical drawings, but site- adapted, and designed by the same individual or firm and bid as one package, the plan review fee shall be based on the total construction cost. However, separate inspection fees shall be required. The plan review fee must accompany the registration form and be submitted with the construction documents. The inspection fee must be paid and the department notified of point of contact within 30 days of completion of construction. (b) Fee Schedule: [graphic] (c) When the estimated construction cost is less than $50, 000 and a review, inspection or both are requested, a $50 plan review fee and a $50 inspection fee shall be paid. (d) All fees must be paid prior to service being performed. If payment is not received within 30 days of receipt of construction documents they will be destroyed. Texas Department of Licensing and Regulation Page 21 of 23 Architectural Barriers Chapter 68 (e) When inspection fees are not received for purposes of inspecting state lease facilities covered by sec.68.21 of this title (relating to Subject Buildings and Facilities), notification will be given to the lessee with the request that the required fee be paid to the department. (f) In instances of state occupied space and facilities provided at no cost and covered by sec.68.21 of this title, the obligation for payment of the inspection fee lies with the lessee. sec.68.93. Complaints and Investigations. Any person who suspects that any building or facility is not in compliance may submit a complaint in accordance with Texas Civil Statutes, Article 9100. 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 April 29, 1994. TRD-9440014 Jack W. Garison Executive Director Texas Department of Licensing and Regulation Effective date: June 1, 1994 Proposal publication date: January 14, 1994 For further information, please call: (512) 463-3127 TITLE 25. HEALTH SERVICES Part I. Texas Department of Health Chapter 29. Purchased Health Services Subchapter L. General Administration 25 TAC sec.29.1112 On behalf of the State Medicaid Director, the Texas Department of Health submits an adopted amendment to sec.29.1112, concerning exclusions and limitations on mental health services provided outside of hospitals. This section is adopted without changes to the proposed text as published in the February 15, 1994, issue of the Texas Register (19 TexReg 1083) and will not be republished. This amendment removes program limitations which will allow Medicaid clients to receive outpatient mental health services in a less restrictive environment. This amendment removes the 62.5% reimbursement rate limitation and the $312. 50 annual cap on outpatient mental health services and provides a 30-visit per year cap on outpatient mental health services, which may be exceeded through prior authorization. No comments were received regarding adoption of the rule. The amendment is adopted under the Human Resources Code, sec.32.021 and Texas Civil Statutes, Article 4413 (502), sec.16, which provide the Health and Human Services Commission with the authority to adopt rules to administer the state's medical assistance program and are submitted to the Texas Department of Health under its agreement with the Health and Human Services Commission to operate the Early and Periodic Screening, Diagnosis and Treatment (EPSDT) and purchased health services programs and as authorized under Chapter 15, sec.1.07, Acts of the 72nd Legislature, First Called Session (1991). 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 April 28, 1994. TRD-9439939 Susan K. Steeg General Counsel Texas Department of Health Effective date: May 19, 1994 Proposal publication date: February 15, 1994 For further information, please call: (512) 338-6509 Chapter 33. Early and Periodic Screning, Diagnosis and Treatment Subchapter J. Medical Phase 25 TAC sec.33.140 On behalf of the State Medicaid Director, the Health Care Delivery Associateship of the Texas Department of Health submits an adopted amendment to sec.33.140, without changes to the proposed text as published in the February 15, 1994, issue of the Texas Register (19 TexReg 1084). The amendments concern the Early, Periodic Screening, Diagnosis, and Treatment- Comprehensive Care Program (EPSDT-CCP). Specifically, the section concerns approved providers and reimbursement methodology. The Omnibus Reconciliation Act of 1989 mandated the States to provide all federally allowable, medically necessary treatment that Medicaid eligible clients under 21 years of age needed for conditions discovered in the course of an Early and Periodic Screening, Diagnosis, and Treatment (EPSDT) screen, whether or not such treatment was a benefit of the state's Medicaid plan. This was broadened to include conditions uncovered in health care encounters other than just the EPSDT screen. This became the basis for the EPSDT-CCP in Texas. In 1991, under the EPSDT-CCP, inpatient mental health care was covered for Texas Medicaid clients under 21 years of age in freestanding psychiatric hospitals for the first time. Usage of this benefit skyrocketed over the next two years, in a period when mental health care for children and adolescents in the private sector was moving towards treatment in a less restrictive environment. In early 1993, an interdisciplinary, interagency workgroup was convened to study mental health issues for children and adolescents under Medicaid. This workgroup grew to include representatives from the Texas Health and Human Services Commission, the Texas Department of Health (department) (including Texas Department of Human Services personnel who became part of TDH on September 1, 1993 under House Bill 7), the Texas Department of Mental Health and Mental Retardation (MHMR), the Texas Legislative Budget Office, the Mental Health Association in Texas, the Children's Mental Health Plan, private psychiatry (an individual who is also a member of the Committee on Child and Adolescent Psychiatry of the Texas Society of Psychiatric Physicians), and the Texas Department of Protective and Regulatory Services. The workgroup looked at children's mental health needs and resources in Texas, at experiences in other states, and at the usage of mental health services under CCP. The group found that some children and adolescents admitted for inpatient psychiatric care under EPSDT-CCP might have been treated in a less-restrictive environment if resources had been available. Another important finding was that outpatient mental health services are very limited for children and adolescents with Medicaid. For many, inpatient care may have been the only viable option. Criteria for prior authorization of inpatient psychiatric admissions for children and adolescents were developed with input from the Committee on Child and Adolescent Psychiatry of the Texas Society of Psychiatric Physicians, the Texas Medical Association, and members of the workgroup and were approved by the Texas Department of Health. These criteria have been implemented and are expected to result in shorter lengths of stay and fewer admissions. Resources for treatment of children and adolescents who do not meet the criteria for inpatient treatment and yet need treatment in a less restrictive environment must be increased. Two important barriers were identified to access to mental health services in a less-restrictive environment. They are limitations placed by Medicare (and then adopted by Medicaid) many years ago on outpatient mental health services: a cap of $312.50 on the annual total allowed to be paid for those services, and a limitation of 62.5% on fees paid for mental health services outside of the hospital setting. The $312.50 cap can be removed through prior authorization by Medicaid, but the paperwork can be burdensome. A mental health provider is paid only 62.5% of the usual Medicaid fees in the office for procedures for which 100% of the same fees for the same procedures are paid in the hospital. Many providers indicated that these limitations were important factors in their choosing not to treat many Medicaid patients in their offices as it was not cost effective for the provider. Thus many private mental health providers are inaccessible and unavailable to those children and adolescents with Medicaid who need mental health care, except for expensive and restrictive hospital care. There frequently is little or no aftercare available for these clients after an admission, and aftercare is vital to success in mental health care. The adopted amendment removes the 62.5% limitation from the mental health reimbursement so that providers may be paid the same in less restrictive environments (for example, the office) as they would be paid in the hospital environment. The adopted amendment to sec.33.140 removes the 62.5% limitation on payment to Licensed Professional Counsellors and Licensed Social Workers - Advanced Clinical Practitioners, who are providers only under the EPSDT-CCP program, and reflects the licensure requirements in current statutory law. In addition the amendment adds private duty nursing through home health agencies as an approved provider type with specified reimbursement methodology. Private duty nursing is a service that enables a client to receive medically necessary nursing care in the home environment rather than in the more expensive hospital setting. The Texas Department of Health held a public hearing on March 7, 1994. No commenters were present. Two written comments were received concerning the proposed rules as follows. Comment: A representative of the Mental Health Association in Texas stated full support for the rules as proposed. Comment: A representative of the Texas Association for Home Care had three comments on the private-duty nursing amendment, as follows. The first comment stated that the reimbursement methodology should be specified in the rules and that providers be given adequate notice when the fee schedule is changed. The second comment stated that the review of the fee schedule should be every year, as opposed to every two years. The third comment requested clarification on whether the home health agency must provide services through a Class A (Medicare) or through a Class B license. Response: In response to the first comment, fee schedule development and review is performed in accordance with standard department policy. It is the department's responsibility to develop sampling criteria. Providers are informed according to department administrative procedures, which address notification and formal publication to providers. In response to the second comment on review of the fee schedule, the two year period comports with the biennial budget process. Although the proposed rule requires updates at least every two years, review on a more frequent basis is not precluded, should the need arise. In response to the third comment on licensure, the home health agency must be enrolled and participating in Medicare (Class A license). The commenters represented the Mental Health Association in Texas and the Texas Association for Home Care. The amendments are adopted under the Human Resources Code, sec.32.021 and Texas Civil Statutes, Article 4413 (502), sec.16, which provide the Health and Human Services Commission with the authority to adopt rules to administer the state's medical assistance program and are submitted to the Texas Department of Health under its agreement with the Health and Human Services Commission to operate the Early and Periodic Screening, Diagnosis and Treatment (EPSDT) and as authorized under Chapter 15, sec.1.07, Acts of the 72nd Legislature, First Called Session (1991). 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 April 28, 1994. TRD-9439938 Susan K. Steeg General Counsel Texas Department of Health Effective date: May 19, 1994 Proposal publication date: February 15, 1994 For further information, please call: (512) 458-7111, X-3019 Chapter 229. Food and Drug Permitting Retail Food Establishments 25 TAC sec.sec.229.370-229.374 The Texas Department of Health (department) adopts sec.229.370-229.374, concerning permitting retail food establishments. Sections 229.371-229.373 are adopted with changes to the proposed text as published in the February 8, 1994, issue of the Texas Register (19 TexReg 881). Section 229.370 and sec.229.374 are adopted without changes and will not be republished. The sections establish a permitting system for inspecting retail food service establishments for the public health by establishing uniform requirements for retail food operations. The sections establish an inventory of food service establishments; implement an inspection program; monitor the violative facilities; take corrective action; and assure the consumer that food safety principles are being applied within the permitted operations, which will ultimately help to reduce the potential for foodborne illness. The rules will provide funds for the department to expand its retail inspection activities in areas that have been minimally regulated. The sections will ensure that retail food establishments pay only their fair share for the services provided by the department. The costs of monitoring food safety procedures will be distributed through a fee structure based on the gross annual volume of food sales. A summary of comments received and the department's responses are as follows: COMMENT: Concerning the proposed rules in general, a total of nine commenters requested to varying degrees that the department refrain from permitting, collecting fees, and/or inspecting churches and nonprofit organizations involved in serving or selling food. One commenter suggested language that would exclude these entities from the definition of "temporary food service establishment." One of the nine commenters also suggested that the department exempt civic and fraternal organizations. This comment suggested that these entities "...do not sell at the volume or regularity which would pose a threat to the general public." Five of the same commenters suggested that the department exempt "bake sales" operated by churches and other nonprofit organizations. RESPONSE: The department agrees in that Health and Safety Code, sec.437.007, specifically exempts nonprofit organizations from obtaining a permit. The department has redefined "nonprofit organization" to include churches as defined in the Internal Revenue Code, sec.170(b)(1)(A)(I). Consequently, all nonprofit organizations, including churches will be exempt from obtaining a permit and paying a fee. However, it is the department's opinion that "for-profit" food establishments operated by churches, such as barbecue stands, which operate in competition with other food establishments, are not covered by this exemption. Therefore, similar food establishments operated by nonprofit organizations would be required to obtain a permit and pay a fee. The exemption for nonprofit organizations is meant to cover bake sales, covered dish and potluck suppers, and foods donated directly to the needy. No permit would be required for these types of operations. COMMENT: Concerning the rules in general, one commenter suggested that the department "...give consideration to a jurisdiction that may want to develop a permitting and inspection system at a later date..." before determining to permit and inspect facilities in that jurisdiction. RESPONSE: The department disagrees. Health and Safety Code, Chapter 437, is specific as to which food establishments shall be permitted by the State. Consequently, the department does not have the prerogative to grant a local jurisdiction a waiver from the requirement for the permitting and inspection of those establishments, pending some future action by a commissioner's court or city council to establish a permitting and inspection system. The department believes that the intent of the statute is to ensure that retail food establishments are permitted and inspected by competent authorities. Therefore, the department has written these regulations so as to focus our activities on those establishments not currently being permitted or inspected. COMMENT: Concerning the rules in general, one commenter suggested that the department require all individuals charged with the inspection of retail food establishments be "registered sanitarians." A second comment suggested that such individuals be trained by education and experience to the same level as a "registered sanitarian." RESPONSE: The department disagrees with the comment. The department's Office of General Counsel has advised that the scope of Health and Safety Code, Chapter 437, is limited to permitting and inspection authority only, and therefore the department cannot exceed the scope of the statute. The department believes that there is merit to the suggestion that all personnel engaged in the inspection of food facilities should meet certain educational and/or knowledge requirements. COMMENT: Concerning the rules in general, several commenters suggested a need to clarify that a permit issued by the State is good only where no other jurisdiction permits and inspects, and that local jurisdictions can prohibit certain types of operations (temporary food service establishments and mobile food units). RESPONSE: The department disagrees with both comments, but for different reasons. First, temporary food service establishments cannot move to new locations without another permit; therefore, they could not move from a state- regulated area to an area regulated by a local health department without first obtaining a permit from the local health authority. On the other hand, "mobile food units" could move from State jurisdiction into an area of local jurisdiction. The department's Office of General Counsel has determined that local ordinances may not conflict with State regulations. Such a prohibition of a State-permitted mobile food unit would be inconsistent with State rules, in violation of Texas Local Government Code, sec.51.012. In effect, stricter requirements for food establishments may be established by local health authorities, but are only enforceable within the confines of that authority. The department does see a need to maintain consistency between State and local requirements. Consequently, we are revising the proposed rules to require a pre- licensing inspection of all mobile food units to determine if the units are in compliance before issuing a permit to operate. In addition, we shall work with public health organizations and interested local health authorities in the development of construction and design standards for mobile food units to promote uniformity. COMMENT: Concerning the rules in general, a commenter suggested the department should clarify that the State will not permit and inspect a certain category of food establishment, which a local health department does not permit and inspect, within the boundaries of that jurisdiction. Suggested language for amending the proposed rule was offered. RESPONSE: The department disagrees with this comment. The department's Office of General Counsel has determined that the scope of Health and Safety Code, Chapter 437, is to permit and inspect certain defined food establishments which are not permitted and inspected by local health authorities. Consequently, if a local authority were to forego permitting and inspection of a particular defined type of food establishment, such as roadside food vendors, then the State would be required by statute to permit and inspect these facilities. COMMENT: Concerning sec.229.371, one commenter suggested that the department refrain from permitting "Bed and Breakfast" facilities. RESPONSE: The department disagrees. The department is charged with protecting the public from the threat of foodborne illness. If "bed and breakfast" facilities choose to serve potentially hazardous foods to guests, they become "food service establishments" which pose no less risk to public health as any other regulated food service establishment. Consequently, we believe that "bed and breakfast" facilities, as defined in the proposed rules, should be permitted and inspected. COMMENT:Concerning sec.229.371, a commenter suggested that food service facilities operated by the Department of Mental Health and Mental Retardation, under inspection of registered sanitarians utilizing the department's Rules on Food Service Sanitation, should receive an exemption from permitting and fees. RESPONSE: The department agrees with the comment and has revised the proposed rules to reflect that food service facilities operated by the Department of Mental Health-Mental Retardation are not defined as food service establishments for the purposes of obtaining a permit and paying a fee. COMMENT:Concerning sec.229.371, one commenter suggested that the department develop a new definition for "food establishment", thereby excluding the seven listed exemptions from the definition. RESPONSE: The department agrees that revisions to the proposed rules are needed to ensure that Type A General-Law Municipalities and Home-Rule Municipalities are able to continue their current permitting and inspection activities. However, the department disagrees that the best method of accomplishing this under Health and Safety Code, Chapter 437 is to add a definition for "food establishment". "Food establishment" is already defined in 25 TAC sec.229.161, the Rules on Food Service Sanitation. Consequently, giving the term a conflicting definition would create confusion. COMMENT: Concerning sec.229.371, a commenter suggested that, with respect to "roadside food vendors," the department permit the operation, rather than the person. RESPONSE: The department disagrees with the comment, since "person" is already defined by statute in Health and Safety Code, Chapter 431, as an "individual, corporation, partnership, or association." COMMENT:Concerning sec.229.371, several commenters suggested that the department should be very restrictive in defining "mobile food vendors", including stricter standards on construction and design. Similar comments were received from the same individuals or organizations, suggesting stricter standards on construction and design for "roadside food vendors" and "pushcarts." RESPONSE: The department agrees that separate construction and design standards may need to be developed for mobile food vendors, roadside food vendors, and pushcarts. However, such standards should not be established in Health and Safety Code, Chapter 437, which deals only with permitting and authority to inspect. These standards should be included in 25 TAC sec.229.161 (Rules on Food Service Sanitation) and sec.229.231 (Rules on Retail Food Store Sanitation). The department will work directly with the local health entities in Texas in developing such standards through rule amendments, at a later date. COMMENT: Concerning sec.229.371, several commenters requested that the department modify the definition of "potentially hazardous food" as found in 25 TAC sec.229.162, to eliminate the exclusion for shell eggs from the definition of "potentially hazardous food". RESPONSE: The department agrees with the comments that the definition for "potentially hazardous food" (PHF) should be updated to include shell eggs. However, since the definition for "PHF" is included in 25 TAC sec.229.161 and sec.229.231, the revision must be proposed to those rules prior to revising sec.229.371. COMMENT:Concerning sec.229.371, a commenter suggested that the department develop a better definition for "Bed and Breakfast". The comment suggested that the proposed definition is contradictory since bed and breakfast facilities are private residences. This comment appears to be in reference to the exclusion of regulating "private homes" as found in 25 TAC sec.229.162, under the definition of "Food Service Establishment". RESPONSE: The department disagrees with the comment, since "private residence" has been defined in the rules as a "food service establishment" if potentially hazardous food is served. This therefore differentiates "private residence" from "private home." COMMENT: Concerning sec.229.371, sec.229.372 and the rules in general, five commenters suggested that the department needs to modify the language in the proposed rules to ensure that "Type A General-Law Municipalities" and/or "Home- Rule Municipalities" which permit, charge a fee, and inspect retail establishments are exempted from permitting and inspection by the State under Health and Safety Code, Chapter 437. Several commenters also questioned whether or not subcontracted food service facilities on state campuses, or nursing homes, hospitals, or state college/university food service facilities, currently permitted and inspected by local health departments, would be excluded in the future from regulating these entities. One of these commenters suggested that the department change the definition of "municipal health authority" to "Type A Home-Rule Municipality" to track Health and Safety Code, Chapter 122. RESPONSE: The department agrees that, while the statute (Chapter 437) requires the department to permit establishments not permitted by county or local health districts, it is the department's intent to initially concentrate permitting and inspection activities in those areas where no regulatory oversight currently exists. Consequently, the department has changed the proposed rules to reflect that facilities permitted and inspected by other local health authorities will not be subject to permitting requirements under this Chapter. Regarding the comment concerning "municipal health authorities," the department disagrees. Since "municipal health authority" is defined by law in Health and Safety Code, sec.121.021, Chapter 437 does not permit the department to amend the definition. COMMENT:Concerning sec.229.371 and sec.229.372(b), one commenter suggested that the department should not exempt any type of food facility from permitting, fees, or inspection; while another comment suggested that the department not exempt nonprofit facilities from the same. RESPONSE: The department disagrees with the comment, since Health and Safety Code, sec.437.007, specifically exempts nonprofit organizations. However, the department agrees that "for-profit" food establishments, such as a barbecue stand operated by a nonprofit organization, should be permitted. COMMENT: Concerning sec.229.372(a)(2) and (3), one commenter suggested that the proposed permitting fees are too low, and that this would "...create an issue between the State's low fee and the higher local fees." RESPONSE: The department disagrees. The maximum fee which may be charged by counties and public health districts under Health and Safety Code, Chapter 437 is $150. In setting the proposed fee schedule, the department attempted to arrive at a corresponding average fee ($150). In addition, sec.437.0125(c) and (d) state that the fees shall be set in amounts that will allow the department to recover at least 50% of the annual expenditures for enforcement and related permitting activities. Consequently, the fees were also established based upon the department's estimate of the costs to implement the permitting and inspection system. COMMENT: Concerning sec.229.372(a)(7), one commenter suggested that rather than giving a discount to an establishment under the supervision of a manager certified in proper food safety and handling, the department require all establishments be under the supervision of such a person. RESPONSE: The department disagrees with the comment. The department's Office of General Counsel has determined that the scope of Health and Safety Code, Chapter 437, is limited to permitting only, and therefore the department cannot exceed the scope of the law. However, the department sees merit in requiring mandatory manager certification to increase food protection in Texas. Therefore, we would encourage public health-related organizations and local health units to continue to pursue legislatively mandatory manager certification. Minor editorial changes were made for clarification purposes. The following provided comments on the proposed rules: State Senator Jane Nelson; State Representative John R. Cook; Lisa Snyder, representing Senator Jane Nelson; Palo Pinto Baptist Association; Texas Environmental Health Association; San Antonio Metropolitan Health District; City of Richardson Health Department; City of Grand Prairie Environmental Services Department; Galveston County Health District; Smith County Public Health District; and City of Dallas Health Department. Several other individuals also provided written and/or oral comments, and while none of the commenters were against the rules in their entirety, they expressed concerns, questions, and made recommendations. The rules are adopted under the Health and Safety Code, Chapter 437.0056, which provides the department with the authority to adopt necessary regulations pursuant to the enforcement of this Chapter; and sec.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, Texas Department of Health, and the Commissioner of Health. sec.229.370. Purpose. The purpose of these sections is to implement Health and Safety Code, Chapter 437 which required the Texas Department of Health to establish a permitting system for inspecting retail food service establishments for the public health by establishing uniform requirements for retail food operations. sec.229.371. Definitions. The following words and terms, when used in these sections, shall have the following meanings, unless the context clearly indicates otherwise. Bed and breakfast -A private residence where temporary lodging is provided and potentially hazardous food is prepared for overnight customers only. A bed and breakfast is classified as a food service establishment. Day care center -Any facility licensed to receive 13 or more children for day care. A day care center is classified as a food service establishment. Food-Any raw, cooked, or processed edible substance, ice, beverage or ingredient used or intended for use or for sale in whole or in part for human consumption. Food service establishment-Any place where food is prepared and intended for individual portion service, and includes the site at which individual portions are provided. The term includes any such place regardless of whether the consumption is on or off the premises and regardless of whether there is a charge for the food. The term also includes delicatessen-type operations that prepare sandwiches intended for individual portion service. The term does not include private homes where food is prepared or served for individual family consumption, retail food stores, the location of food vending machines, and supply vehicles. All definitions found in sec.229.162 of this title (relating to Definitions) under the rules on food service sanitation; and all definitions found in sec.229.231 of this title (relating to General Provisions) under the rules on retail food store sanitation are applicable to these sections except that, for purposes of obtaining a permit and payment of fees only, the term "food service establishment" does not include: (A) establishments permitted and inspected under authority granted to Home- Rule or Type A General-Law Municipalities; (B) federally-inspected establishments on federal property; (C) correction facilities under the inspection of the Texas Department of Criminal Justice; (D) nursing homes under the inspection of Long-Term Care Regulatory in the Texas Department of Human Services; (E) hospitals under the inspection of the Division of Health Facility Licensure and Certification in the department and which do not serve food to the general public; (F) food service facilities on state campuses inspected by state college or university personnel in accordance with the requirements of sec.229.373 of this title (relating to Minimum Standards for Permitting and Operation); (G) establishments licensed under the Health and Safety Code, Chapter 431, as manufacturers of food, provided the fee for licensure exceeds the permit fee required under sec.229.372 of this title (relating to Permitting Fees and Procedures); (H) food service facilities under inspection by personnel employed by the Department of Mental Health and Mental Retardation; and (I) food service facilities, operated on a part-time basis by nonprofit organizations, which do not directly compete on a continuous basis with the food service industry. Nonprofit organizations which meet the definition of "manufacturers of food" under Health and Safety Code, Chapter 431, or the definition of "food salvage establishments" under Health and Safety Code, Chapter 432, are not exempt from licensure in these categories. This exemption includes "bake sales" and donation of wholesome food to the needy, if the donating facilities are in substantial compliance with applicable state and federal laws. Mobile food unit-A vehicle-mounted food service establishment designed to be readily moveable. For the purpose of obtaining a permit and payment of fees only, the term "mobile food unit" does not include establishments permitted and inspected under the authority granted to Home-Rule or Type A General-Law Municipalities and which operate only within their respective boundaries. Nonprofit organization -A civic or fraternal organization, charity, lodge, association, proprietorship or corporation possessing an Internal Revenue Code, sec.501(C)(3), exemption or religious organizations meeting the definition of "church" under the Internal Revenue Code, sec.170(b) (1)(A)(I). Potentially hazardous food-Any food that consists in whole or in part of milk or milk products, eggs, meat, poultry, fish, shellfish, edible crustacea, or other ingredients including synthetic ingredients, in a form capable of supporting rapid and progressive growth of infectious or toxigenic microorganisms. The term does not include clean, whole, uncracked, odor-free shell eggs or foods which have a pH level of 4.5 or below or a water activity (Aw) value of 0.85 or less. Pushcart-A non self-propelled mobile food unit limited to serving nonpotentially hazardous foods or prepackaged foods maintained at proper temperatures, or limited to the preparation and serving of frankfurters. A pushcart is classified as a mobile food unit. Retail food store-Any establishment or section of an establishment where food and food products are offered to the consumer and intended for off-premise consumption. The term includes delicatessens that offer prepared food in bulk quantities only. The term does not include establishments which handle only prepackaged, nonpotentially hazardous foods; roadside markets that offer only fresh fruits and fresh vegetables for sale; food service establishments; farmers markets; or food and beverage vending machines as defined in the Vending of Food and Beverages, 1978, Department of Health, Education and Welfare Publication Number (FDA) 78-2091; except that, for the purposes of obtaining a permit and payment of fees only, the term "retail food store" does not include establishments permitted and inspected under authority granted to Home-Rule and Type A General-Law Municipalities. Roadside food vendor-A person who operates a mobile retail food store from a temporary location adjacent to a public roadway or highway. Potentially hazardous foods shall not be prepared or processed by roadside food vendors. A roadside food vendor is classified as a retail food store. School food service facility-A food service establishment where food is prepared and intended for service primarily to students in institutions of learning including, but not limited to, public and private kindergarten, preschool and elementary schools, junior high schools, high schools, colleges, and universities. A school food service facility is classified as a food service establishment. sec.229.372. Permitting Fees and Procedures. (a) Permitting fees. (1) A person who operates a food service establishment, mobile food unit, day care center, bed and breakfast establishment, school food service facility, retail food store, or a mobile retail food store shall obtain a permit annually from the Texas Department of Health (department) and pay a permit fee for each establishment unless specifically exempted under subsection (b) of this section. An organizer of an event at which a temporary food service establishment is operated shall obtain a permit from the department for each temporary food service establishment. The temporary permit application must be submitted to the department ten days prior to the event. Mobile food units are subject to inspection for compliance with applicable rules prior to the issuance of a permit. (2) The permit fee for a food service establishment, retail food store, or bed and breakfast establishment shall be based on the gross annual volume of food sales as follows: (A) $75 per establishment having a gross annual volume of $0 to $49,999.99; (B) $150 per establishment having a gross annual volume of $50,000 to $149,999.99; and (C) $250 per establishment having a gross annual volume of $150,000 or more. (3) The permit fee for a school food service facility, day care center, mobile food unit, or roadside food vendor, shall be $75 annually for each location. (4) The permit fee for a temporary food service establishment is $25. The permit shall be valid for the duration of a single event not to exceed 14 consecutive days from the initial effective date specified in the permit application. (5) An establishment required to be licensed as a food manufacturer under the Health and Safety Code, Chapter 431, and also required to be permitted under this Chapter, will be issued only one license or permit. The license or permit fee to be paid will be the higher fee of the two applicable fees. (6) Gross annual volume of food sales may be verified by data from the State Comptroller of Public Accounts. (7) Food manager certification credit shall meet the following criteria. (A) With the exception of temporary food service establishments, the permit fee may be reduced by 10% for each establishment under the full-time supervision of an on-site manager who has successfully completed a food manager's certification course accredited by the department. A list of accredited courses may be obtained from the Texas Department of Health, Division of Food and Drugs, 1100 West 49th Street, Austin, Texas 78756-3182. (B) A photocopy of the food manager's certificate of completion must be submitted with the permit application or renewal. Manager certification will be verified through department records. (b) Exemptions from permit and fees. Establishments permitted and inspected by a county or public health district under the Health and Safety Code, Chapter 437, provided the inspections are based on the requirements of sec.229.373 of this title (relating to Minimum Standards of Permitting and Operation) are exempted from obtaining a permit and from paying a fee. (c) Nonprofit fee exemption. Nonprofit organizations shall comply with the requirements of sec.229.373 of this title. The department shall provide guidelines for the safe handling of foods prepared by non-profit organizations. Nonprofit organizations are exempt from the permit and fee as described in sec.229.371 of this title (relating to Definitions). Any civic or fraternal organization, charity, lodge, association, proprietorship, corporation or church not meeting the definition of "non-profit organization" must obtain a permit, pay the required fee, and comply with the requirements. (d) Application for permit. The permit application shall be signed and verified, be made on a form furnished by the department, and contain the following information: (1) the name under which the business is operated; (2) the mailing address and street address of each place of business; (3) if a sole proprietorship, the name of the proprietor; if a partnership, the names of all partners; if a corporation, the date and place of incorporation and the name and address of its registered agent in the State; or if any other type of association, the names of the principals of such association; and (4) the names of those individuals in an actual administrative capacity which, in the case of a sole proprietorship, shall be the managing proprietor; in a partnership, the managing partner; in a corporation, the officers and directors; in any other association, those in a managerial capacity. (e) Nonprofit organizations. A nonprofit organization shall submit documentation from the Internal Revenue Service to qualify the establishment for the exemption from the permit fee. Churches need only supply documentation upon request by the department. (f) Temporary food service establishments. A permit application for a temporary food service establishment shall specify the name and physical location of the event for which the permit is requested, the initial effective date of the permit, and the foods to be prepared. (g) Two or more establishments. If a person owns or operates two or more establishments, each establishment shall be permitted separately by listing the name and address of each establishment on separate application forms. (h) Pre-permit inspection. The applicant shall cooperate with any pre-permit inspection which may be conducted by the department. (i) Issuance of a permit. The department may issue a permit for an establishment based on compliance specified in sec.sec.229.161-229.173 of this title (relating to Food Service Sanitation); or sec.sec.229.231-229.239 of this title (relating to Retail Food Store Sanitation). Copies may be obtained from the Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756-3182. (1) The permit shall be valid for one year from the date of issue, which becomes the anniversary date, with the exception of temporary permits. (2) The renewal permit shall be valid for one year from the anniversary date, with the exception of temporary permits as stated under paragraph (1) of this subsection. (3) Permit application forms may be obtained from the Texas Department of Health, Division of Food and Drugs, 1100 West 49th Street, Austin, Texas 78756- 3182. (4) The permit shall be posted conspicuously in the establishment. (5) Permits for mobile food units, including pushcarts and roadside food vendors shall be displayed on the unit at all times. (j) Renewal of a permit. (1) Each year the permit holder shall renew their permit based on compliance specified in sec.sec.229.161-229.173 of this title, or sec.sec.229.231-229.239 of this title. Copies may be obtained from the Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756- 3182. (2) A person holding a permit issued by the department, and whose operation is in compliance with paragraph (1) of this subsection, shall be billed by the department and shall have their permit renewed by the department upon payment of the appropriate fee. (3) The holder of the permit must submit the annual permit fee for renewal prior to the expiration date of the current permit. A person who files a renewal application after the expiration date must pay an additional $75 as a delinquency fee. (4) Failure to submit the renewal fee annually may subject the permit holder to the offense provisions under the Health and Safety Code, Chapter 437, and also to the provisions of sec.229.374 of this title (relating to Refusal, Revocation, or Suspension of a Permit; Administrative Penalties). (k) Amendment of permit. (1) Fee. A permit that is amended, including a change of name, ownership, or a notification of a change in location of a permitted place of business required under Health and Safety Code, sec.437.0125, will require submission of fees as outlined in subsection (a) of this section. (2) Change of location. A permit is not transferrable upon change of location with the exception of a permit issued to an operator of a mobile food unit or roadside food vendor. sec.229.373. Minimum Standards for Permitting and Operation. All food service establishments, mobile food units, retail food stores, and mobile retail food stores shall be operated in accordance with the requirements specified in sec.sec.229.161-229.173 of this title (relating to Food Service Sanitation), or sec.sec.229.231-229.239 of this title (relating to Retail Food Store Sanitation. Copies may be obtained from the Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756-3182. sec.229.374. Refusal, Revocation, or Suspension of a Permit; Administrative Penalties. (a) Basis. The Texas Department of Health (department) may, after providing opportunity for a hearing, refuse an application for a permit or may revoke or suspend a permit for violations of the requirements of sec.229.372 of this title (relating to Permitting Fees and Procedures) and sec.229.373 of this title (relating to Minimum Standards for Permitting and Operation), or for interference with department personnel in the performance of their duties under these sections. (b) Hearings. Any hearings for the refusal, revocation, or suspension of a permit shall be governed by the department's formal hearing procedures under Chapter 1 of this title (relating to Board of Health). (c) Reinstatement. A former permit holder may apply for reinstatement of a suspended permit by demonstrating that corrections and controls have been implemented to prevent recurrence of objectionable conditions. The department may, after a formal hearing as provided in subsection (b) of this section, require employees of an establishment to successfully complete a department accredited training course on food safety principles prior to the reinstatement of the permit. (d) Administrative penalties. Administrative penalties, as provided in the Health and Safety Code, sec.431.054 and sec.431.056, and in sec.229.261 of this title (relating to Administrative or Civil Penalties), may be assessed for violation of these sections. 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 April 29, 1994. TRD-9440093 Susan K. Steeg General Counsel Texas Department of Health Effective date: May 20, 1994 Proposal publication date: February 8, 1994 For further information, please call: (512) 719-0200 TITLE 30. ENVIRONMENTAL QUALITY Part I. Texas Natural Resource Conservation Commission Chapter 114. Control of Air Pollution From Motor Vehicles 30 TAC sec.114.25 The Texas Natural Resource Conservation Commission (TNRCC) adopts new sec.114.25, concerning a Memorandum of Understanding (MOU) with the Texas Department of Transportation (TxDOT), without changes to the proposed text as published in the December 24, 1993, issue of the Texas Register (18 TexReg 9891). The purpose of the adopted new section is to enable the TNRCC to review TxDOT projects which may affect air quality in order to assist TxDOT in making environmentally sound decisions, and the development of a system by which information developed by TxDOT and the TNRCC may be exchanged to the mutual benefit of both agencies. Texas Civil Statutes, Article 6673g, enacted by Senate Bill 352, 72nd Legislature, 1991, required TxDOT to adopt a MOU with teach state agency that has responsibilities for the protection of the natural environment or for the preservation of historical or archaeological resources. Article 6673g also requires TxDOT and each of the resource agencies to adopt the memoranda and all revisions by rule. In order to meet this legislative intent and to ensure that natural resources are given full consideration in accomplishing TxDOT's activities, this new section is adopted. The comment period closed on January 24, 1994, 1993, and no testimony was received. The new rule is adopted under the Texas Health and Safety Code (Vernon 1990) , the Texas Clean Air Act (TCAA), sec.382.017, which provides the TNRCC with the authority to adopt rules consistent with the policy and purposes of the TCAA. 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 April 26, 1994. TRD-9440006 Mary Ruth Holder Director, Legal Services Texas Natural Resource Conservation Commission Effective date: May 20, 1994 Proposal publication date: December 20, 1994 For further information, please call: (512) 239-0615 TITLE 31. NATURAL RESOURCES AND CONSERVATION Part II. Parks and Wildlife Department Chapter 57. Fisheries Marking of Vehicles 31 TAC sec.57.500 The Texas parks and Wildlife Commission adopts an amendment to sec.57.500, concerning the marking of vehicles that transport fish for commercial purposes, without change to the proposed text as published in the February 11, 1994, issue of the Texas Register (19 TexReg 1022). Parks and Wildlife Code, sec.66.014, directs the Parks and Wildlife Commission to establish, by proclamation, the identification requirements for a motor vehicle, trailer or semitrailer transporting aquatic products. The rule allows flexibility in identification of motor vehicles, trailers or semitrailers transporting aquatic products. Vehicle operators have the option of using written identification or use of a symbol. Law Enforcement personnel will maintain the ability to identify vehicles transporting aquatic products while operators may use the identifier of their choice. There were no public comments concerning adoption of the rule. The amendment is adopted under Texas Parks and Wildlife Code, sec.66.014, which provides the Texas Parks and Wildlife Commission with the authority to regulate the identification of vehicles transporting aquatic products. 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 April 28, 1994. TRD-9440016 Paul M. Shinkawa Director, Legal Services Texas Parks and Wildlife Department Effective date: May 20, 1994 Proposal publication date: February 11, 1994 For further information, please call: (800) 792-1112, Ext. 4433 or (512) 389- 4433 Shrimp 31 TAC sec.57.661, sec.57.662 The Texas Parks and Wildlife Commission adopts amendments to sec.57.661, and sec.57.662, concerning management of shrimp in Texas. Section 57.661 is adopted with changes to the proposed text as published in the February 18, 1994, Texas Register (19 TexReg 1169). Section 57.662 is adopted without change and will not be republished. Changes to proposed text in sec.57. 661 are itemized as follows: These rules contain measures which will reduce overfishing while assisting in achieving, on a continuing basis, the optimum yield for the fishery, manage shrimp throughout their range, promote efficiency in utilizing shrimp resources, minimize costs, avoid unnecessary duplications in administration, and enhance enforcement. The foregoing constitute findings by the commission which support the need for the proposed proclamation. The rules also are consistent with the guidelines established in the Parks and Wildlife Department's Shrimp Fishery Management Plan and the Gulf of Mexico Fishery Management Council's Fishery Management Plan for the Shrimp Fishery in the Gulf of Mexico. The Texas Shrimp Fishery Management Plan and the Texas Shrimp Fishery Management Plan Economic Impact Statement were approved and adopted by the Texas Parks and Wildlife Commission in November 1989. These rules serve to decrease waste and prevent depletion by reducing growth overfishing of the shrimp resource. Economic efficiency in the industry will be enhanced by allowing the harvest of more valuable shrimp. Distribution of the available resource among simpers will become more equitable. Standardization and simplification of the rules will increase the ability of law enforcement to assure compliance. Environmental impacts on the marine habitat and non-target species by the shrimping industry will be further minimized. There will be costs associated with these rules. The impacts will largely be determined by the abundance of shrimp available to the bay and gulf fisheries, which varies from year to year. Small businesses that must comply will incur costs with as a result of compliance. Those businesses currently using mesh sizes smaller than the proposed minimum will incur increased production costs resulting from escapement of smaller juvenile shrimp. In addition, those individuals required to comply with the 2:00 p.m. closure will experience reduced fishing opportunities which may result in a reduction of landings. Those individuals required to comply with the off-loading restrictions may incur losses associated with the limitation on opportunities to sell shrimp on public waters and with potential decrease between water sale value and dock-side value. Economic benefits associated with the proposed amendments include: increased efficiency in the enforcement of the proposed regulations and added clarity of regulations to the public which will reduce confusion to those who must comply with the regulations. Insofar as these amendments are based on sound management and enforcement tenets, it is anticipated the value of the amendments will be positive to the state. Comments made by the public concerning the proposed rules were presented to the Texas Parks and Wildlife Commission. During February 22-March 3, 1994, 68 public hearings were held throughout the state, including one hearing in each of 12 coastal counties. Approximately 1,954 people attended the public hearings with 511 people offering comments. Notice of the hearings was published in local newspapers in each county. In addition, a news release concerning the hearings and proposed changes was distributed to the city-state editors and the outdoor writers in 156 newspapers through a special mail-out from the Department and the weekly news release packet. Individuals contacting the Department were also sent copies of the proposals and meeting schedule as requested. In addition to public hearings, staff conducted a series of commercial outreach meetings and met with representatives of several commercial shrimping organizations. On March 24, 1994, the Commission held a public hearing in Austin to receive additional public comments on the proposed regulations. During the period of public comment, approximately 1,142 form letters, 36 letters and telephone calls, and 3 petitions were received by the Department Staff for review by the Commission. At the March 24 public hearing, approximately 18 people made public comments. Comments ranged from support for all the proposals to total objection to the proposals. Specific comments in opposition to the proposals included: there is no problem with the shrimp fishery; the industry was given no advance warning and no opportunity for input; the Shrimp Advisory Committee is not representative of the industry; the 2:00 p.m. closure is discriminatory toward the Vietnamese; there are no data supporting the proposed regulations; these regulations will put the bay and bait shrimpers out of business; (there will not be any bait available); Department staff should not be studying limited entry; there should not be a 75-day closure because shrimp migrate south and will be lost to harvest; nature, pollution and other man-made changes in the environment are the major factors impacting the shrimp resources; larger mesh sizes will kill more shrimp; and the lower Laguna Madre should have separate regulations from the rest of the coast. Commenting in favor of the proposed rules were Lone Star Chapter of the Sierra Club; Lower Laguna Madre Foundation; Texas Shrimp Association. Commenting in opposition to the proposed rules were the Commissioner's Courts of Galveston County, Matagorda County; Chambers County and Calhoun County; Palacios Shrimpers Association, Bay Shrimpers Conservation Association, and Coastal Bend Guides Association. The agency disagrees with the comments as follows, in order. Serious problems in the shrimp fishery are real and continue to worsen. The historical balance in the shrimp fishery has shifted dramatically with the previous emphasis of the bay fleet on white shrimp being redirected to brown shrimp. The continuing increase in the harvest of small shrimp (greater than 67-count, heads off) is an ecologically unsustainable trend. Shrimp stocks will collapse if this trend is not reversed. Numerous examples exist in fisheries literature which document this phenomenon. The overall economic value of the shrimp industry continues to decline, even though shrimp landings are stable. This is because more and more of these landings consist of smaller, less-valuable shrimp. Maximum economic benefits are not being achieved. There is a high level of non-compliance and abuse of current regulations as acknowledged by the industry in numerous outreach meetings. Marketing shrimp for food that were caught under the bait license is virtually uncontrollable and is a major reason for the need for more restrictive regulations. Increasing shrimp trawl effort is negatively affecting bycatch species such as Atlantic croaker and sand seatrout, as illustrated by a 20mm decrease in mean length of Atlantic croaker caught in trawls. Impacts on bottom habitat and estuarine food chains are also a concern. In August 1993, Department staff began commercial outreach meetings to develop lines of communication with the industry. Fifteen outreach meetings were held prior to development of the current regulatory proposals. Over 450 commercial fishermen were in attendance at these meetings. Their comments were in turn presented to the Shrimp Advisory Committee. At its November, 1993, meeting, the Shrimp Advisory Committee recommended that Coastal Fisheries "develop regulatory recommendations directed towards legitimizing bait shrimping and management of growth overfishing in the shrimping industry." On January 5, 1994, Department staff presented regulatory proposals to the Shrimp Advisory Committee. These proposals are designed to address the concerns of the industry. The Committee voted in favor of sending the original regulatory proposals to public hearings. These regulations were presented to the industry at seven pre-regulatory hearing workshops held between January 27 and February 14. Fliers were mailed out to previous workshop attendees identifying the issues that would be discussed at the workshop. In attendance at these meetings were in excess of 500 people. The Shrimp Advisory Committee consists of ten members representing a wide range of interests. In general the representation is broken down as follows: Gulf-4 members, Bay-3 members, Bait -2 members, Recreational-1 member. In 1990, at the adoption of the Shrimp Management Plan, this same complaint was heard. In response to complaints received at that time, two additional members were added to the committee. The 2:00 p.m. closure would be applied on a coastwide basis across both bait and bay fisheries. Indochinese fishermen and fishermen from other ethnic backgrounds are present in all three components of the shrimp fishery (bay, bait and gulf). This proposal should help all components of the fishery by allowing opportunity for small shrimp to grow and/or escape to the spawning stock for production of future populations; Extensive data sets and analyses relating to shrimp management in Texas have been compiled by the Department, the National Marine Fisheries Service, and university researchers. For the Department alone, analyses were compiled using over 3.4 million observations. Numerous scientific research articles worldwide document the need for conservation measures when excessive fishing effort is applied to shrimp stocks. The Texas Shrimp Management Plan, adopted by the Commission in 1989, calls for measures based on the best scientific information available to prevent overfishing. By protecting smaller shrimp to allow for greater escapement and survival in the Gulf, where spawning occurs, numbers and size of shrimp available to the industry will be greater and stocks will be more stable, thus providing more economic benefits. Fishing effort on shrimp stocks since 1961 has been steadily increasing, with a 400% increase in the Bay and a 95% increase in the Gulf. Pounds of shrimp landed have increased 135% in the bays and decreased 18% in the Gulf since 1972. Shrimp in bays are generally small juveniles whereas shrimp in the Gulf are larger juveniles and adults. Numbers of bay shrimp landed have increased significantly compared to Gulf shrimp, documenting a growth overfishing problem. Growth overfishing occurs when there is a decrease in the number of large shrimp landed and at the same time an increase in the number of small shrimp landed. This reduction in average size is a direct result of more fishing effort. This is a danger signal that requires attention because growth overfishing contributes to recruitment overfishing by reducing the number of shrimp escaping to spawn as adults. Concerns for a recruitment overfishing problem are substantiated by the decreasing catch per effort on adult shrimp stocks in the Gulf, which has fallen by 15% since 1972. Recruitment overfishing occurs when there are too few adults to produce the maximum number of individuals for the next generation. This is dangerous because unchecked recruitment overfishing can lead to so few adult spawners that the stock collapses. Dr. Edward Klima, former Director of the National Marine Fisheries Service Galveston Laboratory and well-known shrimp expert, has noted "the unprecedented high levels of fishing effort and overcapitalization of both the inshore and offshore fisheries." He points out the need to manage for growth overfishing and suggests that "some form of controlled access may be a solution." If conservation measures are not implemented, shrimp fishery-related businesses will be adversely impacted in the future due to increased catch of small shrimp (called growth overfishing) and concerns for decreased natural production due to recruitment overfishing. Growth overfishing contributes to recruitment overfishing by reducing the number of shrimp that escape to spawn. Generally, when effort is reduced in a fishery that is operating with an ability to catch more shrimp than exists in the natural population, such as is the case in the current Texas shrimp fishery, the catch per unit of effort will increase, thus creating more value and landings for the amount of time shrimped. The proposed regulations will, in general, serve to delay the harvest of shrimp until they reach a larger size. At the size shrimp first became available to the bay fishery, they can double their weight in two weeks. Because shrimp will stay in the bays for up to several months, they remain available to be caught. As the weight, and thus count size, of shrimp increases, the price per pound also increases, providing greater value to the shrimper and shrimp-related businesses. Bait shrimp are sometimes not available now in the fishery because of natural cycles in availability and because of high fishing mortality on the shrimp stocks. The proposed regulations will serve to reduce the fishing mortality on shrimp stocks, thus increasing their availability for bait over longer periods. In addition, few shrimp of the size sought by many bait shrimpers (3-4 inches) are excluded by the proposed larger mesh size. The very smallest shrimp would be allowed to escape and grow to a size more preferred for bait and food. The Texas Shrimp Fishery Management Plan directs the Department "to assess the feasibility of implementing a limited entry program into the Texas shrimp fishery to achieve optimum yield." Unlimited entry into the Texas shrimp fishery has lead to overcapitalization and excess harvest effort which means too many boats are putting too much pressure on available shrimp stocks. A limited entry program could reduce harvest effort without greatly restricting the ability of individuals in the fishery to capture shrimp. Most other state natural resources such as oil, gas, and timber, are managed with some form of limited entry or limited harvest quota assigned to individuals or single corporations. License limitation and catch rights are two of the most common types of limited entry systems. Both have the advantage that they can be made transferable, thus allowing fishermen to buy and sell fishery rights for added profit. Limited entry in Texas will require cooperation of the affected industry and action by the State Legislature. Statutory action by the Texas Legislature is required to establish a moratorium on additional license sales and to provide the Commission with the authority to implement limited entry systems to better manage state natural resources. Shrimp-tagging studies in the Gulf have indicated short-term movement of shrimp in all directions. While some shrimp do move to the south, many shrimp also move to the north, so the overall result for shrimp off Texas is relatively neutral. While natural events and pollution may well have major impacts on the health of the shrimp population, the Department must manage shrimp stocks based on current environmental conditions. Shrimp studies have indicated that during average environmental years, the size of the shrimp spawning stock is the critical factor in determining the number of new shrimp recruits; Studies have shown that a larger mesh net results in fewer numbers of small shrimp being retained. While it is not well-known what proportion of the small shrimp which escape the net will be killed, it is clear that their survival rate is greater than the survival rate of those shrimp retained in the net; The lower Laguna Madre has been historically separated as a bait-only bay due to its predominance of shallow water. Changes to proposed sec.57.661(f) were made as a result of public comment. The original proposal for 2:00 p.m. closure in the bay and bait fishery from April 1-December 15 was amended to run from April 1-August 14. This rule will go into affect September 1, 1994. The Commission also changed sec.57.661(k), making the effective date of this subsection September 1, 1994. Proposed sec.57.661(l) was not adopted and proposed sec.57.661(m)-(n) were redesignated accordingly. The requirement of 50 heads-on shrimp per pound from August 15 to October 31 remains in effect. The Commission changed sec.57.661(m). The original proposal for requiring a 1- 3/4 inch mesh for shrimp trawls used in bay and bait fishing was changed to a 1- 1/2 inch mesh requirement for all bay, bait, and Gulf seabob trawls, except during August 15-October 31, when the 1-3/4 inch mesh is required by bay shrimpers. This rule will go into affect September 1, 1995. Proposed sec.57.661(n)(1)(2) was amended to include an effective date of May 1, 1994 for this subsection. The amendments are adopted under Parks and Wildlife Code, Chapter 77, Subchapter A, sec.77.004 and sec.77.007, which provides the Texas Parks and Wildlife Commission with authority to regulate the catching, possession, purchase, and sale of shrimp after approval and adoption of a shrimp management plan and an economic impact analysis prepared by the department. In those areas under which the Commission was not granted authority to promulgate regulations such as licenses and penalties and in those sections of the Parks and Wildlife Code over which the Commission is granted authority to promulgate regulations but chose not to do so within this proclamation, the applicable provisions of Parks and Wildlife Code, Chapter 77 will apply. Under Parks and Wildlife Code, sec.77.007(d) proclamations issued under authority granted to the Commission in sec.77.007 supercede any conflicting provision of Chapter 77 of the Parks and Wildlife Code and any proclamation of the Commission issued under the Wildlife Conservation Act of 1983 (Chapter 61, Parks and Wildlife Code) to the extent of the conflict. sec.57.661. General Rules. (a) Notwithstanding Parks and Wildlife Code, sec. sec.77.061(a)(1), 77.065, and 77.067, it is unlawful for any person to take or attempt to take shrimp in the outside water during the period from 30 minutes after sunset on May 15 to 30 minutes after sunset on July 15 or during the period as altered under the authority of Parks and Wildlife Code, sec.77.062. (b) Notwithstanding any other provisions of the Parks and Wildlife Code, sec.77.061(e) applies to commercial shrimp boats operating in the outside or inside water at all times of the year. (c) Notwithstanding Parks and Wildlife Code, sec.77.068(a)(1) and (3), it is unlawful for any person to take or attempt to take shrimp for noncommercial use in outside water by any means except an individual bait shrimp trawl, cast net, or minnow seine not larger than 20 feet in length that is manually operated without the use of any mechanical means or devices. (d) Notwithstanding Parks and Wildlife Code, sec.77.089(a) and sec.77.090, it is unlawful for any person to take or attempt to take non-commercial shrimp in inside water by any means except an individual bait shrimp trawl, cast net, or minnow seine not larger than 20 feet in length that is manually operated without the use of any mechanical means or devices. (e) Notwithstanding Parks and Wildlife Code, sec. sec.77.081, 77.088 and 77.091, a licensed commercial bay shrimp boat operator may catch an unlimited amount of shrimp with a legal trawl as described in Parks and Wildlife Code, sec.77.093, in the major bays south of the Colorado River at any time during the period 30 minutes after sunset to 30 minutes before sunrise from February 1- April 15. (f) From and after September 1, 1994 and notwithstanding the Parks and Wildlife Code, sec.sec.77.088, 77.089, 77.090, 77.091, 77.094, and 77.097, during the period April 1-August 14, it is unlawful for any person to take or attempt to take shrimp from the inside water except between the hours of 30 minutes before sunrise to 2:00 p.m. or fail to have the otter trawl doors or other spreading device on the deck of the vessel and the trawl bag untied from 2:00 p.m. one day until 30 minutes before sunrise on the next day. (g) Notwithstanding any provision of the Parks and Wildlife Code, Chapter 77, Subchapter E, it is unlawful to take or attempt to take shrimp from inside water from 30 minutes after sunset to 30 minutes before sunrise except as provided in subsections (e), (f) and (h) of this section. (h) Notwithstanding subsections (f) and (g) of this section. (1) Boats licensed as commercial bait shrimp boats may take shrimp only with a beam trawl and only between the hours of 1:00 a.m. and 30 minutes before sunrise in that portion of the Gulf Intracoastal Waterway, exclusive of its tributaries, between the locations of the current Channel Marker 17 and Channel Marker 57 (as indicated on the most current United States Coastal Survey Charts on the effective date of these rules) in the Laguna Madre in Nueces County; and (2) It is unlawful for any person to take or attempt to take shrimp with a trawl at any other time or in any other place in the Laguna Madre north of a line starting on the mainland at the most northeasterly point on the north side of the entrance to Whiteley Channel then proceeding in a straight line to the north end of Pita Island; then continuing on a line to the southern most point on the westerly most spoil island bordering the north side of the New Humble Channel (commonly referred to as Hap's Channel); then continuing on a line along the north edge of the New Humble Channel (commonly referred to as Hap's Channel) to its junction with the Gulf Intracoastal Waterway; then continuing on a straight line to the Nueces/Kleberg county-line marker on Padre Island. (i) Notwithstanding Parks and Wildlife Code, sec. sec.77.092(a), 77.094, and 77.095(a), during the period May 15-July 15, the operator of a boat licensed as a commercial bay shrimp boat or as both a commercial bay shrimp boat and a commercial bait shrimp boat may catch not more than 600 pounds of shrimp per boat per calendar day in major bays and may possess or have on board a boat in the inside water or unload or attempt to unload at any point in this state not more than 600 pounds of shrimp. During the period May 15 through July 15, it is unlawful for any boat licensed as both a commercial bay shrimp boat and a commercial bait shrimp boat to take or attempt to take shrimp in both a major bay and any other water within the same calendar day or take more than 600 pounds of shrimp in a calendar day. (j) Notwithstanding Parks and Wildlife Code, Chapter 77, a person who displays or has on board a boat a bait-shrimp boat license-plate commits an offense if the person: (1) possesses, on board, shrimp exceeding the daily limit of 200 pounds; (2) fails to maintain at least one-half of the shrimp on board in a live condition except as authorized in Parks and Wildlife Code, sec.77.095(b); (3) uses any trawl other than a bait shrimp trawl as defined in Parks and Wildlife Code, sec.77.096; (4) operates a trawl or fails to have the spreading devices on deck and the trawl bag untied at a time other than authorized by these rules; or (5) unloads at a place other than authorized in Parks and Wildlife Code, sec.77. 098. (k) From and after September 1, 1994, and notwithstanding Parks and Wildlife Code sec.77.062, the commission may change the opening and closing dates of the May 15 to July 15 closed season to provide an earlier, later, or longer season not to exceed 75 days. (l) From and after September 1, 1995, and notwithstanding Parks and Wildlife Code, Chapter 77, it is a violation for any person to take or attempt to take shrimp with a trawl having meshes, including meshes of the bag or liner, less than 8-3/4 inches in length between the two most widely separated knots in any consecutive series of five stretched meshes; except that a trawl having meshes, including meshes of the bag or liner, not less than 7-1/2 inches in length between the two most widely separated knots in any consecutive series of five stretched meshes may be used to take shrimp: (1) on licensed commercial bait-shrimp boats on inside waters: (2) on licensed commercial bay shrimp boats on inside waters, during the annual periods; (A) 1 February-15 April; (B) 15 May-15 July; and (C) 1 November-15 December. (3) on licensed commercial gulf shrimp boats on outside waters when taking seabobs under provisions of Parks and Wildlife Code, sec.77.066. (m) From and after May 1, 1994, and notwithstanding Parks and Wildlife Code, Chapter 77, it is unlawful for any person: (1) aboard a vessel licensed as a commercial bay shrimp boat to off-load, transfer, sell, or barter any amount of live or dead shrimp to a person aboard another vessel; (2) aboard a vessel to off-load, transfer, purchase, or barter from a person aboard a vessel licensed as a commercial bay shrimp boat any amount of live or dead shrimp; (3) aboard a vessel licensed as a commercial bait shrimp boat to off-load, transfer, sell, or barter an amount of live or dead shrimp, except an amount of live or dead shrimp not to exceed two quarts per sport fisherman or one gallon (by volume) for two or more sportfishermen may be off-loaded, transferred, sold or bartered to a person aboard a sport fishing vessel; (4) aboard a vessel to off-load, transfer, purchase, or barter from a person aboard a vessel licensed as a commercial bait-shrimp boat any amount of live or dead shrimp, except a person aboard a sport fishing vessel may off-load, transfer, purchase, or barter an amount of live or dead shrimp not to exceed two quarts per sport fisherman or one gallon (by volume) for two or more sportfishermen. 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 April 28, 1994. TRD-9440015 Paul M. Shinkawa Director, Legal Services Texas Parks and Wildlife Department Effective date: May 20, 1994 Proposal publication date: February 18, 1994 For further information, please call: 1 (800) 792-1112, Extension 4433 or (512) 389-4433 Part XVII. Texas Soil and Water Conservation Board Chapter 523. Agricultural and Silvicultural Water Quality 31 TAC sec.523.6 The Texas State Soil and Water Conservation Board adopts new sec.523.6 with changes to the proposed text as published in the March 15, 1994, issue of the Texas Register (19 TexReg 1768). The purpose of this new section is to provide specific details and requirements for implementation of provisions in Senate Bill 503, Acts of the 73rd Legislature regarding a cost-share assistance program to provide incentive for the installation of soil and water conservation land improvement measures consistent with the purposes of controlling erosion, conserving water and/or protecting water quality. Reasons for changes to the text as proposed are covered under discussion of comments received. The section describes the responsibilities of involved entities; the process for administering funds; program eligibility requirements; grant processing procedures; and maintenance requirements for cost-shared practices. A general change was made, use of the term "cost-share grant" was changed to "cost-share assistance." In subsection (b)(17), the definition of resource management plan was revised to clarify. In subsection (b)(20), changed "Tracts of land" to "Operating Unit" as ASCS uses the term "tracts" in a different sense. Subsection (b)(21), definition of "Site" was questioned. In revised rules no reference is made to site. This definition was deleted. Subsection (b)(2)(M), this item requiring maintenance of a list of approved contractors was deleted. In subsection (d)(2), it was felt districts that could submit allocation requests should be made more clear. Section rewritten. Subsection (e)(2), commentor wanted eligible land to include leased land. A new section (e)(2)(B) was added and old section (e)(2)(B) renumbered to (e)(2) (C). In subsection (f)(10)(C), 30 days was deemed too short a time for the SWCD to respond to an appeal as they meet only monthly. Thirty days was increased to 60 days. In subsection (e)(3)(C), limitation of ten acres minimum was questioned. SWCD is to determine eligibility, therefore, this paragraph was deleted. Subsection (g)(5), requirement for a refund if property title transferred and new owners did not agree to maintain. Refund is necessary, State Board has waiver authority. Section was rewritten for clarity. One commentor asked that serious consideration be given to the issue of Chinese Tallow control in our cost-share program. One commentor, in reference to (f)(3)(C), and (f)(6)(A), suggested adding "or postpone completion of a treatment measure(s) until additional funds are available" and "or if funds use needed to complete the installation of the treatment measure(s), that portion that has been completed shall be determined eligible for payment" respectively. One commentor listed eight concerns. On (c)(1)(C) questioned the establishment of a cost-share rate on a state-wide basis due to varying costs involved. On (c)(2)(B) concerned about the heavy workload created by SWCDs administering the cost-share program. On (c)(2)(E), they asked about sign-up-is it a designated period or year round? On (c)(2)(H) questioned establishment of case files for each application. On (c)(2)(J) questioned "provide or arrange for technical assistance" in view current of SCS workload. Subsection (d)(1), concerned with responsibility for any administration funds received and spent in administering the cost-share program if all of the cost-share money is not obligated. Subsection (f)(1)(B) asked if applicant did not have a plan would the plan have to be on the entire operating unit or just the field in which it is located. One commentor offered general comment that program "should not be restricted to just those areas of the state, such as HUA areas, where heavy concentrations of funds are already being spent." The Rules Task Force expressed concerns for which no changes were recommended: Requiring a resource management plan in lieu of field by field application will limit cost-share program. Cost-share is to provide an incentive for resource protection. Without a total plan the credibility of resource protection achieving the desired level is questionable. SCS and SWCD Staff not capable of carrying out the program. Resources to implement the program are an operational concern but not an item to be covered in the rules. Need for applicant to certify that without cost-share the practice would not have been installed. This would make the rules more restrictive than the law. No one opposed the rules as published but the following entities submitted suggestions for changes: Texas Department of Agriculture, Texas Farm Bureau, Lamar Soil and Water Conservation District, and the Rules Task Force. The new section is proposed under the Agriculture Code, Title 7, Chapter 201, sec.201.020 which authorizes the Soil and Water Conservation Board to adopt rules as necessary for the performance of its function and sec.201.026 which provides authorization for the Board to establish nonpoint source pollution abatement programs. sec.523.6. Cost-Share Assistance for Soil and Water Conservation Land Improvement Measures. (a) Purpose-The purpose of this program is to provide the needed incentive to landowners or operators for the installation of soil and water conservation land improvement measures consistent with the purpose of controlling erosion, conserving water, and/or protecting water quality. (b) Definitions-For the purposes of these rules the following definitions shall apply. (1) Allocated funds-Funds budgeted through the State Board to a SWCD for cost- share assistance. (2) Applicant-A person(s) who applies for a cost-share assistance from the SWCD. (3) Available funds-Monies budgeted, unobligated and approved by the State Board for cost-share assistance. (4) Conservation land treatment measure(s)-The measure(s) approved by the State Board and applied to the land to control soil erosion or improve the quality and/or quantity of water. (5) Cost-share assistance-An award of money made to an eligible person for conservation land improvement measures pursuant to the terms of Senate Bill 503, 73rd Texas Legislature. (6) District director-A member of the governing board of a SWCD. (7) Eligible land-Those lands that are eligible for application of conservation land improvement measures using cost-share assistance. (8) Eligible person-Any of the land holders eligible to apply for cost-share assistance. (9) Eligible practices-Those conservation land improvement measures that have been approved by the State Board. (10) Landowner-Any person, firm, or corporation holding title to land lying within a SWCD. (11) Maintenance agreement-A written agreement between the eligible person and the SWCD wherein the eligible person agrees to maintain the applied conservation land improvement measure(s) for a period of time as established by the State Board and outlined in the applicable resource management plan. (12) Obligated funds-Monies from a SWCD's allocated funds which have been committed to an applicant after final approval of the application. (13) Performance agreement-A written agreement between the eligible person and the SWCD wherein the eligible person agrees to perform conservation land improvement measures for which allocated funds are being paid. (14) Priority system-The system devised by the SWCD, under guidelines of the State Board, for ranking approved conservation land treatment measures and for facilitating the disbursement of allocated funds in line with the SWCD's priorities. (15) Program year-The period from September 1 to August 31. (16) Resource management plan-A blueprint for implementation of soil and water conservation land improvement measures. It also includes a record of decisions made during planning and the resource information needed for implementation and maintenance of the plan that has been reviewed and approved by the SWCD. (17) Soil and water conservation district, herein referred to as SWCD-A government subdivision of this state and a public body corporate and politic, organized pursuant to Chapter 201 of the Agriculture Code of Texas. (18) State Board-The Texas State Soil and Water Conservation Board organized pursuant to the provisions of Chapter 201 of the Agriculture Code of Texas. (19) Operating Unit-All the lands owned and/or operated by the applicant as an independent unit within a SWCD. (c) Responsibilities. (1) The State Board shall: (A) establish a procedure to allocate funds to designated SWCDs for their use in cost-share assistance; (B) establish conservation land treatment measures eligible for cost-share and their standards, specifications, maintenance and expected life; (C) establish maximum cost-share rate for each conservation land treatment measure approved for cost-share; (D) establish the minimum cost-share assistance prior to September 1 each year that may be made under the program and the maximum cost-share assistance that an eligible person may receive under the program in any one year; (E) perform clerical, administrative and record-keeping responsibilities required for carrying out the cost-share program; (F) receive and maintain monthly reports from SWCDs showing the unobligated balance of allocated funds as shown on each ledger at the close of the last day of each month; (G) receive requests for reallocated funds and funds reverted from participating SWCDs; (H) act on appeals filed by applicants; (I) process vouchers and issue warrants for cost-share to eligible recipients. (2) The SWCDs shall: (A) designate, from State Board approved list, those conservation land treatment measures that will be eligible for cost-share in their SWCD; (B) administer the cost-share program within the funds allocated by the State Board; (C) establish, under guidelines of the State Board, the priority system to be used for evaluation of applications; (D) establish the period(s) of time for accepting applications and announce the cost-share program locally; (E) accept and process cost-share applications; (F) determine eligibility of lands and persons for cost-share assistance under guidelines established by the State Board; (G) notify applicants of the district's decisions on approval of applications; (H) approved applications will be filed in the Districts copy of the applicant's Resource Management Plan; (I) obligate allocated funds for applications receiving final approval; (J) provide or arrange for technical assistance to applicants, or approve applicant and provide for an alternate source of technical assistance; (K) certify completed conservation land treatment measures to the State Board prior to payment; (L) submit required reports on the unobligated balance of allocated funds and on accomplishments to the State Board. (d) Administration of Funds. (1) Allocation of Funds. The State Board may allocate funds appropriated from general revenue fund and other sources for cost-share assistance among particular soil and water conservation land improvement measures or among areas of the state and may adjust such allocations throughout the year as available funds and SWCD needs and priorities change in order to achieve the most efficient use of state funds. The State Board may designate a portion of the funds allocated to a SWCD to reimburse the SWCD for obligations incurred in administering the cost-share program. (2) Requests for Allocations. SWCDs within areas designated for cost-share program must submit requests for a cost-share fund allocation to the State Board on forms provided by the State Board, and shall include all information required by such forms. (3) Approval of Allocations. The State Board shall consider and approve, reject or adjust SWCD requests for allocations giving consideration to relative need for funding, SWCD workload and fund balances, as well as other information deemed necessary by the State Board. Only districts for which the State Board has established an allocation are eligible to claim cost-share funds. (e) Eligibility for Cost-Share Assistance. (1) Eligible person. Any individual, partnership, administrator for a trust or estate, family-owned corporation, or other legal entity who as an owner, lessee, tenant, or sharecropper, participates in an agricultural or silvicultural operation within a SWCD shall be eligible for cost-share assistance. (2) Eligible land. Any of the following categories of land shall be eligible for cost-share assistance: (A) land within the State that is privately owned by an eligible person; (B) land leased by an eligible person over which he has adequate control and which land is utilized as a part of his operating unit; (C) land owned by the state, a political subdivision of the state, or a nonprofit organization that holds land in trust for the state. (3) Ineligible lands. Allocated funds shall not be used: (A) to reimburse other units of government for implementing conservation land treatment measures; (B) on privately owned land not used for agricultural or silvicultural production. (4) Eligible purposes. Cost-share assistance shall be available only for those conservation land treatment measures included in an approved resource management plan and determined to be needed by the SWCD to: (A) reduce erosion; and/or (B) improve water quality and/or quantity. (5) Eligible practices. Conservation land treatment measures which the State Board has approved and which are included in the applicant's approved resource management plan shall be eligible for cost-share assistance. The list of eligible practices will be approved by the State Board at the beginning of each fiscal year. The SWCDs shall designate their list of eligible practices from those practices approved by the State Board. SWCDs may request the State Board's approval to offer conservation land treatment measures not included in the State Board's list of approved practices. The use of special conservation land treatment measures is limited to those measures that can solve unique problems in a SWCD and which conforms with one or more of the purposes of the cost-share program. Requests for special conservation land treatment measures will be filed in writing with the State Board in time to obtain action and notification in writing from the State Board of its decision(s) prior to announcing the cost- share program locally for the program year. Conservation land treatment measures may be included in a SWCD's list of eligible practices offered for cost-share assistance only as approved by the State Board. (6) Requirement to file an application. In order to qualify for cost-share assistance, an eligible person shall file an application with the local soil and water conservation district. (7) Persons authorized to sign applications and agreements. All applications and agreements shall be signed by: (A) the eligible person; (B) any person designated to represent the eligible person, provided an appropriate notarized durable power of attorney has been filed with the SWCD office; or (C) the responsible person or administrator, in cases of trusts or estates, provided that letters of administration or letters of testamentary have been submitted to the SWCD in lieu of a power of attorney. (f) Cost-Share Assistance Processing Procedures. (1) Responsibility of applicants. Applicants for cost-share assistance for conservation land treatment measures shall: (A) complete and submit an application to the SWCD; (B) where an applicant does not have an approved resource management plan and has not determined the anticipated total cost of the requested measure(s), he/she, as part of the application, may request assistance from the SWCD in developing such plan and determining costs; (C) after being notified of approval and obligation of funds by the district, request technical assistance through the district to design and layout the approved practices or request approval of alternate sources of technical assistance; (D) secure any approved contractor(s) needed and all contractual or other agreements necessary to construct or perform the approved practice(s). Cost- share will not be allowed for work begun before the application is approved; (E) complete and sign performance and maintenance agreements and any amendments to those agreements; (F) supply the documents necessary to verify completion of the approved practice(s) along with a completed and signed certification of cost. (2) Responsibilities of SWCDs. SWCDs shall: (A) establish the period(s) of time for accepting applications and announce the cost-share program locally; (B) accept cost-share applications at the SWCD's office; (C) determine eligibility of lands and persons for cost-share assistance. If an applicant's land is in more than one SWCD, the respective SWCD boards of directors will review the application and agree to oversee all works, administrate all contracts and obligate all funds from one SWCD or prorate the funding between SWCDs; (D) give initial approval to those applications that meet the eligibility requirements; (E) evaluate the initially approved applications under the SWCD's priority system and give final approval to the high priority applications that can be funded by the SWCD's allocated funds; (F) obligate funds for the approved conservation land treatment measures that can be funded and notify the applicants that his/her conservation land treatment measure(s) has/have been approved for cost-share and to proceed with installation; (G) determine compliance with standards and specifications and certify completed conservation land treatment measure(s) that meet standards. (3) Amended Applications for Allocated Funds. (A) In the event that an adjustment to the estimated cost of conservation land treatment measure(s) is necessitated by the final design, the applicant shall either agree to assume the additional cost or complete and submit an amendment to his/her application for allocated funds to the SWCD for approval or denial by the SWCD. (B) The SWCD may elect to adjust the amount of funds obligated for the conservation land treatment measures, provided funds are available, or to request additional funds from the State Board. (C) In the event additional funds are not available, the conservation land treatment measure(s) may be redesigned, if possible, to a level commensurate with available funds, provided the redesign still meets standards established by the State Board; or the applicant can agree to assume full financial responsibility for the portion of the cost of conservation land treatment measure(s) in excess of the amount authorized. (4) Performance agreement. As a condition for receipt of cost-share assistance for conservation land treatment measures, the eligible person receiving the benefit of such assistance shall agree to perform those measures in accordance with standards established by Texas State Soil and Water Conservation Board. Completion of the performance agreement and the signature of the eligible person is required prior to payment. (5) Maintenance Agreement. As a condition for receipt of cost-share assistance, the person receiving the assistance shall agree to maintain approved measures for the expected life of each measure as established by the State Board and outlined in the applicable resource management plan. Completion of the maintenance agreement and signature of the eligible person is required prior to payment. (6) Payment to Recipients. (A) The SWCD shall determine eligibility of the applicant to receive payment of cost-share assistance, and provide certification to the State Board that measure(s) have been installed consistent with established standards. (B) The State Board shall issue warrants for payment of cost share assistance. (7) Applications Held in Abeyance Because of Lack of Funds. In those cases where funds are not available, the applications will be held by the SWCD until allocated funds become available or until the end of the program year. When additional funds are received, the SWCD will obligate those funds. The SWCD may shift all unfunded applications held in abeyance because of lack of funds that are on hand at the end of a program to the new program year or require all new applications as it deems appropriate. (8) Applications Denied for Reasons Other Than Lack of Funds. Applications for funds which are denied by the SWCD directors for other than lack of funds shall be retained in the records of the SWCD in accordance with the SWCD's established record retention policy. Written notification of the denial shall be provided to the applicant along with the reason(s) that the application was denied. (9) Applications Withdrawn. An application may be withdrawn by the applicant at any time prior to receipt of cost-share assistance by notifying the SWCD in writing that withdrawal is desired. Applications withdrawn by the applicant shall be retained in the records of the district in accordance with the SWCD's established record retention policy. (10) Appeals. (A) An applicant may appeal the SWCD decisions relative to his/her application for allocated funds. (B) The applicant shall make any appeal in writing to the SWCD which received his/her application for allocated funds and shall set forth the basis for the appeal. (C) The SWCD shall have 60 days in which to make a decision and notify the applicant in writing. (D) The decision of the SWCD may be appealed by the applicant to the State Board. (E) All appeals made to the State Board shall be made in writing and shall set forth the basis for the appeal. (F) All State Board decisions shall be final. (g) Maintenance of Practices. (1) Requirements for maintenance of practices applied using cost-share funds will be outlined in the eligible persons resource management plan and reviewed with the eligible person at the time of application for cost-share. (2) A properly executed maintenance agreement shall be signed by the successful applicant prior to receipt of payment of cost-share assistance from the SWCD for a conservation land treatment measure(s) installed. (3) The SWCD may require refund of any or all of the cost-share paid to an eligible person when the applied conservation land treatment measure(s) has not been maintained in compliance with applicable design standards and specifications for the practice during its expected life as agreed to by the eligible person. (4) Conservation land treatment measures that have been successfully completed and which later fail as the result of floods, drought, or other natural disasters, and not the fault of the applicant, may apply for additional cost- share funds to restore them to their original design standards and specifications. (5) In cases of hardship, death of the participant, or at the time of transfer of ownership of land where a conservation land treatment measure(s) has been applied using cost-share assistance and the expected life assigned the practice has not expired, the participant, heir(s), or buyer(s) respectively, must agree to maintain the practice(s) or the participant, heir(s) or the buyer by agreement with seller must refund all or a portion of the cost-share funds received for the practice as determined by the SWCD. The State Board on a case by case basis may grant a waiver to this requirement. (h) Determining Status of Practices During Transfer of Land Ownership. (1) A seller of agricultural land with respect to which a maintenance agreement is in effect may request the SWCD to inspect the practices. If the practices have not been removed, altered, or modified, the SWCD shall issue a written statement that the seller has satisfactorily maintained the permanent practice as of the date of the statement. (2) The buyer of lands covered by a maintenance agreement may also request that the SWCD inspect the lands to determine whether any practice has been removed, altered, or modified as of the date of the inspection. If so, the SWCD will provide the buyer with a statement specifying the extent of noncompliance as of the date of the statement. (3) The seller and the buyer, if known, shall be given notice of the time of inspection so that they may be present during the inspection to express their views as to compliance. (i) Reporting and Accounting. The State Board shall receive and maintain required reports from SWCDs showing the unobligated balance of allocated funds as shown on each ledger at the close of the last day of each month. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Temple, Texas, on May 1, 1994. TRD-9440118 Robert G. Buckley Executive Director Texas State Soil and Water Conservation Board Effective date: May 23, 1994 Proposal publication date: March 15, 1994 For further information, please call: (817) 773-2250 TITLE 37. PUBLIC SAFETY AND CORRECTIONS Part V. Texas Board of Pardons and Paroles Chapter 141. General Provisions Parole Commissioners 37 TAC sec.sec.141.21-141.26, 141.29 The Texas Board of Pardons and Paroles adopts the repeal of sec.sec.141. 21- 141.26 and 141.29, concerning Parole Commissioners, without changes to the proposed text as published in the January 4, 1994, issue of the Texas Register (19 TexReg 57). These sections are being repealed because legislative action has abolished the office of parole commissioner. No comments were received regarding adoption of the repeals. The repeals are adopted under Code of Criminal Procedure, Article 42.18, sec.8(g), which provides the Texas Board of Pardons and Paroles with the authority to adopt such reasonable rules not inconsistent with law as it may deem necessary. 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 April 29, 1994. TRD-9440067 Michael F. Miller General Counsel Texas Board of Pardons and Paroles Effective date: May 20, 1994 Proposal publication date: January 4, 1994 For further information, please call: (512) 406-5613 Chapter 150. Board Policy Statements; Memoranda of Understanding Memoranda of Understanding 37 TAC sec.sec.150.1-150.9 The Texas Board of Pardons and Paroles adopts the repeal of sec.sec.150.1-150. 9, concerning Board Policy Statements; Memoranda of Understanding, without changes to the proposed text as published in the January 4, 1994, issue of the Texas Register (19 TexReg 60). These sections are being repealed because they are based upon obsolete statutory law. No comments were received regarding adoption of the repeals. The repeals are adopted under Code of Criminal Procedure, Article 42.18, sec.8(g), which provides the Texas Board of Pardons and Paroles with the authority to adopt such reasonable rules not inconsistent with law as it may deem necessary. 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 April 29, 1994. TRD-9440082 Michael F. Miller General Counsel Texas Board of Pardons and Paroles Effective date: May 20, 1994 Proposal publication date: January 4, 1994 For further information, please call: (512) 406-5613 37 TAC sec.150.53, sec.150.57 The Texas Board of Pardons and Paroles adopts the repeal of sec.150.53 and sec.150.57, concerning Mace Policy (sec.150.53) and Stun Gun Policy (sec.150.57), without changes to the proposed text as published in the January 4, 1994, issue of the Texas Register (19 TexReg 61). These sections are being repealed because these policies related to obsolete statutory law and parole officers are no longer employees of the Board of Pardons and Paroles. No comments were received regarding adoption of the repeals. The repeals are adopted under Code of Criminal Procedure, Article 42.18, sec.8(g), which provides the Board of Pardons and Paroles with the authority to adopt such reasonable rules not inconsistent with law as it may deem necessary. 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 April 29, 1994. TRD-9440083 Michael F. Miller General Counsel Texas Board of Pardons and Paroles Effective date: May 20, 1994 Proposal publication date: January 4, 1994 For further information, please call: (512) 406-5613